One option is direct election of governor by the people with fixed tenure and clear separation of powers between the legislature and the executive 

The Supreme Court’s advisory opinion on the presidential reference under Article 143 on the role of governors makes for interesting reading. The Court definitively answered eleven of the fourteen questions. This reference was necessitated as a consequence of the Court’s verdict in the case of State of Tamil Nadu vs. Governor of Tamil Nadu in April 2025, when the Court held that the governor can exercise discretion only in respect of the reservation of a bill for the president’s consideration.

The Court asserted that the governor’s actions, under Article 200, are subject to judicial review. Most controversially, the Court invoked its power under Article 142 to render ‘complete justice’ and directed that the pending bills be deemed to have become the laws without the formal assent of the governor.

It is probably the extreme action of the Court of declaring that the pending bills are deemed to have been assented to by the governor that provoked the presidential reference under Article 143. In the constitutional scheme, a bill approved by the legislature becomes the law only after the assent of the governor as head of state, as he is an integral part of the state legislature. It is axiomatic that a law cannot be enacted without the assent of the Head of State; otherwise, we have a state of anarchy.

The Court, in its advice to the President, now confirmed that the governor has only three options of assenting, reserving for the consideration of the President, or returning the bill to the legislature with comments, and there is no pocket veto. The Court opined that the governor has discretion in acting under Article 200, and his discretion is not justiciable, except in glaring circumstances of inaction.

The Court also held that it would not be appropriate to judicially prescribe timelines. The Court emphatically held that there cannot be a ‘deemed assent’ of bills and there is no question of a law coming into force without the assent of the governor, and the governor’s legislative role cannot be supplanted by another constitutional authority.

The Court has done well to restore constitutionalism to lawmaking. Perhaps in its anxiety to correct the mistake of the ‘deemed consent’ decision in the earlier verdict, the Court has refrained from fixing definitive timelines for a decision of the governor under Article 200. However, the Court reserved its power to issue a limited mandamus for the governor to discharge his function under Article 200 within a reasonable time period in cases of glaring circumstances of inaction.

The Court’s restoration of balance between the three branches of the government is welcome. But it does not mean all is well with the institution of governors. Undoubtedly, a nominated governor, as head of the state in a federal, democratic polity, is an anachronism. In the Constituent Assembly debates, there were early forebodings of abuse of the governor’s institution. 

As feared, many governors became the partisan instruments of the party in power at the Union level. Article 356 was abused more often than used legitimately until the Bommai judgement (1994) made it practically a dead letter. As a general principle, the governor’s role is to be briefed on all important matters and to give wise, impartial counsel to the chief minister. A sensible chief minister should give enormous weight to such advice.

In the science of childbirth, there is a dictum: “A good obstetrician is one who observes watchful expectancy and masterly inactivity.” It also means that when the situation warrants it, the governor should act independently. Meddlesome governors and unwise, overly partisan chief ministers have often made the constitutional arrangement very dysfunctional.

As a result, even when the governor’s advice is warranted, it is ignored, as in the case of a minister who, despite being convicted of corruption and obtaining a court stay, was sworn in by the insistence of the chief minister and an unwise court direction. More often, governors are thwarting the will of the people expressed through the legislature.

The manner of appointment of a provincial governor in other federal democracies is instructive. Except in Canada, in other federal democracies the governor is appointed based on the recommendation of the state premier or elected by the state legislature. In Canada, the nominated head of state has very few powers, and even these are almost never exercised. The last time a lieutenant governor refused assent to a bill was in 1951 in Saskatchewan province.  

It is time we reviewed the appointment of governors. There are three potential models available. The first is the continuation of nominated governors with certain improvements. A governor can be appointed based on consultation with the chief minister and the leader of the opposition, and by consensus. Once appointed, the governor could be guaranteed a five-year tenure.

The second option is election of the governor for a term of five years in a manner similar to the president—by the state legislature and local government. A third option is to elect the governor as the head of state and government through a direct election by the people with a fixed tenure and clear separation of powers between the legislature and the executive.

Direct election has many advantages for improving the quality of governance by removing the day-to-day interference in administration by the legislators, attracting a better quality of legislators, strengthening local governments, imposing term limits on the executive, democratising political parties, and eliminating dynastic politics.

In my view, this is the best option, as it brings the best talent into the cabinet, eliminates the need for frequent elections, and improves the performance of the legislature in holding the government accountable.  States are where real governance and service delivery are. We need to reform governance in states. Reimagining the institution of governor is a good starting point.