Chapter-1

INTRODUCTION

The federal polity of India visualizes two levels of Government at

the centre and the states respectively. Our Constitution is more solicitous

about the union than the states. The apparent unitary biased tendency was

the need of the day due to the facts that at the time when the Constitution

was being drafted, our country was facing war in Kashmir and disturbances

in various parts of the country. More so, India was and is a conglomeration

of various religions, castes, sects, creeds and credentials. All of them seem

to have threatened the very survival of infant Republic. Cobbling of these

dimensions was the ardent urge of the day. Keeping all these factors in mind

our founding fathers favored a strong centre for the unity and welfare of the

country. Indian Constitution sets up what, in the words of Dr. Ambedkar,

one of the prime architect of the Constitution, is a dual polity, by the

expression he meant, a Republic both unitary as well as federal according to

the needs of the time and circumstances. This dual polity of ours is a product

of historical incidents, or at any rate of circumstances other than those which

results in a genuine federation in which the desire for separate identity and

governmental independence of the federating unit is so strong that nothing

more than as union with a strict demarcated field of Central Government’s

power is possible.1

1 State of Karnataka v/s Union of India, SCC 1977 (4), P- 608.

In pursuance of above observations though our politico-legal

infrastructure both antecedently and politically is a federal one, yet all that

glitters is not gold. The implied hideouts of constitutional provisions bring

forth the unitary infrastructure conferring autonomy to states in certain

fields. It stands characterized as a unitary State with subsidiary federal

features rather than federal State with subsidiary unitary features.2 Similarly

it has been characterized as a federation with strong central tendencies.3 The

above narrated structure is the need of day. Hence India’s federal system

originated in terms of its constitutional provisions in the British Government

of India Act 1935, and in terms of its political thrust in the demand of Indian

national movement for a pan Indian Central Government capable of

reconciling regional pulls and pressures. The urgent need for national unity

was further underlined by trauma of the partition of the Country. Therefore,

deliberately the Constitution of India has an in built bias in favor of greater

centralization of power and for allocation of largest jurisdiction to Central

Government. Despite the fact the Article 1 of the Constitution speaks of dual

polity, but due to provisions of single citizenship, single integrated judiciary,

uniform civil and criminal law for all the federating states and unified all

India services(Article 5,11,14,131,141,312), India remains a unified polity.4

Our constitutional entities are devised and framed by the framers of

the Constitution in pursuance of unitary spirit. The entity of Governor is also

devised and framed at the same tone and temper. Members of Constituent

Assembly were wise enough to anticipate the politico- social transformation

2 Pandey, J.N : Constitutional law of India, Central law Agency, Allahabad, 2003, P-18 3 Ibid, Note-2. 4 Rasheeduddin Khan: Federal India - A Design for Change, Vikas Publication, New Delhi, 1992,

P.21-22.

in the coming future and accordingly they try to justify with their task which

was assigned to them by inducing a unitary spirit in the legal document i.e.

‘The Constitution of India’. The Governor which is a nominee of the center

has been given a constitutional status deliberately and consciously by the

framers of Indian Constitution, that is why, he steps into shoes of an active

administrator when there is a failure of constitutional machinery of the State.

1.1 Historical Perspective of Institution of Governor

The institution of Governor was in vogue in the system of

administration in the Indian polity for a considerable period of time, though

the nomenclature varied. It was a feature of strong centralized Government

for effective and better administration of vast kingdoms. The kingdom used

to be divided into several territories and persons of trust and confidence

were appointed as the head of a defined territory. Even 2500 years ago the

Maura empire was divided into five provinces each under an Amatykula.

Emperor Akbar divided his kingdom in to sixteen Subahs, each under the

charge of a Subedar. Some times newly acquired territories were placed

under a Subedar. A good administrator was always prone to appoint a trusted

and able person as head of the territory, by whatever name called, for better

and effective governance of the subjects. The office of Governor gradually

developed as a very important limb of the administration in this Country

more so with the advent of the British East India Company.5

The office of Governor in the Indian political system should not be

regarded as a new institution because this post is a relic of the erstwhile

colonial era of the British rule. The evolution of this institution could be

5 Kashap, Anirban : Governor’s Role in Indian Constitution, Lancer Books, New Delhi, 1993, P-1.

traced out in the famous Charter of December, 1600 when Queen Elizabeth

(1558-1603) granted trading powers to the East India Company6. The Office

as such was created to safeguard the commercial interest of the Company of

Merchants of London operating in India.7

Gradually, after the 17th Century, the office of Governor acquired a

significant position when more powers were vested in him in order to

consolidate the interest of the British rule in India. It would be not out of

place to mention that right from the Regulating Act of 1773 to 1935, the

office of the Governor tended towards the centralizing trends rather than

towards the parliamentary form of institutions which has been introduced at

the initial stage under the Charter Act of 1861, and thereafter the steps were

taken to introduce the self-governing institutions especially under the

Government of India Act, 1919.8

It should, however, be noted that strict checks were put on

parliamentary form of institutions through the office of Governor which

never allow the spirit of democratic form of Government in India to develop

freely on the lines of the British political system. The British rulers modified

the powers and position of the Governor from time to time but the status of

the office as an institution was never effected; i.e. the spirit of the centralized

nature of the office of Governor remained intact. In other words, the office

of the Governor was the key agency of the whole British Empire in India

which successfully safeguarded the vested interests of British India.

6 Mukherjee, Panchanand: Indian Constitutional Documents V.2., Spink and Co., Calcutta, 1918, P-13. 7 Keith, A.B: A Constitutional History of India, Central Book Depot, New Delhi, 1961, P-29. 8 Gehlot, N.S : The State Governors in India , Geetanjali, New Delhi, 1985. P-1.

The British Government principally agreed to introduce the

responsible Government in India under Morley - Munro reforms; but under

the Government of India Act 1919, did not give a legal shape to the

recommendations of the report of the Morley- Minto reforms.9

The Government of India Act, 1935 of course established some sort of

provincial autonomy but the devolution of the authority in the provincial

matters on the Provincial Government and freeing them from the control of

the Central Government. A new device popularly known as ‘Dyarchy’ was

introduced in the province. The Act seemingly laid down the foundation of a

responsible Government partially; but administratively, the whole

mechanism was a big hoax because of the centralized position of the

governors of the provinces.

The Governors, in fact had been vested with all kinds of the powers

without the Provincial Legislative Council. The Governors were no more

the constitutional heads in any sphere of the provincial affairs. The range

and scope of his ‘discretionary powers’ was so vast that he could do any

thing without caring for the ministerial advice or of the elected

representative in the Legislation Councils. The British political mechanism

was an example of an unprecedented combination of opposite principles.

The Governor as such was to act under the superintendence, direction and

control of the Governor-General of India, the real agent of the British Crown

in India.

9 Anand, C.L: The Constitution of India, University Book Agency, New Delhi, 1950, P-3.

The passage of the ‘Government of India Act 1935’ which formed the

last phase in the evolution of Governor’s office and devolution of the central

authority in pre-independence India, also virtually did not altered any more

the position of the governors at the provincial levels; although the above Act

created an All India Federation comprising the British provinces and the

native states. The Governor remained the head of the Province and he was to

be appointed by his Majesty by a commission under the Royal Sign Manual.

Under the Act of 1919, he was to be appointed by His Majesty after

consultation with Governor-General. This change was made in view of the

introduction of the Provincial autonomy under the Act of 1935.

This was the first experimental Act so as to introduce some sort of

parliamentary features of this Act that the dyarchial system of the Act of

1919 was completely abolished and it set in to motion the provincial

autonomy at the provincial level, i.e. the entire field of the administration of

a province was placed under the popular Ministry responsible to the

Legislative Council of the Province. Another feature of the Act was that the

British Provinces considerably made independent of the Centre and they

were given constitutional autonomy under the Government of India Act,

1935.

According to this Act, the executive authority of a province was

vested in the Governor, who was to exercise all his powers on behalf of the

Crown in his name on the aid and advice of the Council, except in the matter

of the British interest where he was required to ‘act in his discretion’.

Moreover, he had the power to act in his individual judgment. Besides, in

the exercise of functions, he had some ‘special responsibilities’ to protect the

legitimate rights and interests of the British rule, minorities, civil servants

and the rulers of the princely states. In view of this position, the provincial

autonomy granted under the Act of 1935 was ‘buried in a pile of

reservations, safeguards and discretions’.10

The Governor thus contained a triple personality; i.e. (a) in some case

he was to perform certain functions in his discretion and there was no need

to consult his Ministers; (b) in some cases, he was to act in his ‘individual

judgment’ where he might consult his Ministers but he was not bound by

their advice; and (c) he was to act on the advice of his Council of Ministers.

In other words the Governor has to fold functions to perform, i.e. as a

constitutional head and secondly, as an agent of Central Government,

especially where he was to act either in his discretion or in his individual

judgment11.

Besides all these specific powers conferred on the Governor, he was

clothed with some extraordinary powers of law making; where he was to be

satisfied himself i.e. subjectively, which had same affect and force as passed

by the legislature. He could enact the Governor’s Act in order to discharge

his duties and special responsibilities given under the Act, but he was to

communicate about it to the Secretary of State for India through the

Governor-General of India, which was to be placed by him before each of

the House of British Parliament12.

10 Ibid, Note-8, Page. 2-3.

11 Banerjee, A.C: Indian Constitutional Documents, Mukherjee Pvt Ltd, Calcutta ,1948, P.282.

12 Ibid, P. 288-289.

1. 2 British Scenario of Institution of Governor in India

Hence, the Governor of pre independent era was an autocrat in the

real sense of the term. He was given a free hand in administration of the

province to safeguard the interest of the British regime. His executive,

legislative as well as financial powers were so extensive that the scope of

responsible Government in the Province was considerably restricted. No

sphere of administration was immune from his influence. The Governor was

not a titular but the real captain of the provincial machinery. He was just like

an autocrat presiding over the provincial despotism. It was so because he

could appoint or dismiss a C.M. or other Ministers under his discretionary

powers. In October 1942, for example, the Governor of sind dismissed the

Premier Allah Bux and Governor of West Bengal forced Premier A.K.fazlul

Haq to tender his resignation in March, 1943. Similarly there are cases

where the Governors out rightly rejected the advise of their premiers. In the

provinces of Bihar, U.P and Orissa, the constitutional deadlocks developed

manifestly owing to the rejection of the ministerial advice, especially when

the Congress refused to accept the office, the Governor however appointed

certain individuals as Ministers belonging to minority parties in the

legislation. These illustrations are enough to justify that the British

governors basically acts negatively to the spirit of parliamentary democracy

as intended to introduce under the Government of India Act, 1935.13

13 Ghelot,N.S: State Governors in India, Gitanjaly, New Delhi, 1985, P.4-5.

1.3 Post Independent Perspective of Institution of Governor

It is submitted that whatever may be the form of Government vis-à-vis

monarchy, oligarchy, republic or democracy, this institution remained a

trustee of each and every form of Government at the centre. India was and is

a conglomeration of religions, cultures, linguistic sects and casteus diversity.

Political activities have further sharpened the edges of these forces to

achieve the political goals. These political gains in turn have given birth to

an era of political alliances. During the march of political alliances in

various states of India, the genes of political instability have been creped in.

The latest instance is the Karnataka episode of November 2007, during the

political alliance of Bhartiya Janta Party and Janta dal (S) which have further

lengthen the shadow of governors in India. These adverse political

developments have provided enough opportunities for governors in India to

use and misuse their discretionary powers which remained dormant before

1970 due to single party rule in India both at the centre as well as in the

states.

Under the domain of the Government of India Act 1935, the Governor

was appointment by His Majesty on the advice of Secretary of States for

India usually for a period of five years. As a general practice senior officers

of the Indian civil services were appointed as governors although there was

no bar for others.14 Thus under the British regime the office of Governor

was a royal stamp. Desperately it is an irony of Indian constitutional history

that the Government of India Act of 1935 (which was passed by the British

Parliament) which the leaders of Indian National Congress want to destroy,

14 Pylee, M.V: Constitutional History of India, Asia Publishing House, Bombay, 1972, P-85.

became the foundation of many of Articles of Indian Constitution.15 On the

same tone and tempter Governor is the royal stamp of the party or alliance

ruling at the center. Like wise under the domain of the Constitution of India

Act 1950, and within the ambit of its Article 155, The Governor of the State

shall be appointed by the President of India by warrant under his hand and

seal. Literally within the domain of Article 156(1) ‘Governor shall hold

office during the pleasure of the President’ though clause 3 of this Article

enunciates that subject to the forgoing provisions of this Article, Governor

shall hold office for a term of five years. Consequently the so called term of

five years has been eclipsed by the constitutional framers deliberately and

consciously.

Due to provisional hideouts of Article 156 of the Constitution,

sacking of governors by the highest constitutional functionary is not a new

phenomenon in this Country. Glaring example of this pedigree is the recent

sacking of NDA appointed governors, 4 in numbers vis-à-vis Kedar Nath

Sahni (Goa), Kailash Patti Misra (Gujarat), Bhai Parmaanant (Haryana) and

Vishnu Kant Shasti (Uttar Pradesh). President Abdul Kalama Ajad ordered

the four Governors be dismissed with immediate effect.16 This sort of

immediate sackings of governors have become almost a natural corollary

with the coronation of new Government at the governors in the arrangement

that Mohd Fazal will look after Goa, Madhya Pradesh Governor Balram

Jakhar will handle Gujrat, Punjab Governor O.P.Verma will take over

15 Tope, T.K: Ambedkar and Article 356 of the Constitution, SCC Online 1993 (4), 2006, Eastern Book

Co, Lucknow.

16 Times of India, Delhi, June, 2004.

Haryana and Uttaranchal Governor Sudarshan Aggarwal will also look after

Uttar Pradesh.17

However this arbitrary action can be successfully challenged if we

peep into the spirit of the memorable words of Justice Bhagwati that no one

however highly placed, and no authority however lofty, can claim that it

shall be sole judge of the extent of its powers under the Constitution or

whether the action is within the confines of such powers laid down by the

Constitution. It is for the court to uphold the constitutional values and to

enforce the constitutional limitations. However the legal battle pertaining to

this institution is always avoided as a matter practice.18

1.4 Comparative Perspective of Institution of Governor

In United States, the title Governor refers to the Chief Executive of

each State, not directly subordinate to the federal authorities, but the political

and ceremonial head of the ‘Sovereign’ State. U.S. Governors serve four

years terms except those in New Hampshire and Vermont, who serve two-

year terms and is directly elected by the people of all states.19 Governor can

be removed from his office before the end of his term by impeachment.20

Being the political head of the State in Unites States, The Governor enjoys

the practical powers. In a strictly federal system like that of United States

of America, the states being the autonomous units within the powers

assigned to them by the Constitution, there is no room for State Governor

holding office as an agent of the union and accountable to the later.

17 Ibid.

18 State of Rajasthan v/s Union of India,1978 SCR ( 1), P.31.

19 W.W.W. Wikipedia. Org , site visited on 31.5.2007.

20 Bombwall, K.R : Majore Contemporary Constitutional Systems, Modern, Ambala, 1983, P.296.

Comparatively in all the states of India the gubernatorial status is not

political, but a ceremonial one apart from his discretionary powers which he

exercises only in certain special circumstances. Comparative aspect

emphasizes that there is no room for Governor in India to act as an

autonomous entity. The rationale behind this is the unitary biased political

as wall as legal structure of India in which the Governor is an agent of the

Centre and is accountable to it.

In Australia, each State has a Governor as the formal representative of

the Queen and head of the State Government. Each State Governor is

appointed by the Sovereign on the advice of the Premier (politically

responsible head of State Government) and play largely a ceremonial role.21

So the Governor of Australian State is appointed by the Crown on the advice

of British Cabinet who however, in practice, consults the Prime Minister of

the State concerned. Governor General of Australia do not have any control

over the State Governor who acts on the advice of the Ministers of State, and

exercises the prerogative of the Crown in relation to the State in the same

manner as does the Governor General in relations of the affairs of the

Dominion.22 When the office of the Governor-General is vacant or the

occupant is unable to discharge his duties (on holidays, or traveling overseas

for example), frequently the most senior state Governor acts in his position.

If this is not practicable, a justice of the High Court is appointed as

administrator for the Commonwealth, and exercises those powers of the

Governor-General in his absence.23 Thus, there is a unique provision in

Australian political and legal set up that in case of vacancy of office of

21 W.W. W. Wikipedia. Org , Site Visited on 12.6.07

22 Basu, D.D: Comparative Federalism, Prentice Hall , New Delhi, 1987, P- 60.

23 W.W.W. Wikipedia. Org, Site Visited on 13.6.07.

Governor-General of Australia, senior Governor of the State will officiate,

where as in India, Governor has no such right to be elevated. Apart from

this, in Australia, the institution of Lieutenant- Governor also exists. In the

event of the death, incapacity or removal of Governor or on his departure

from the State, or of his assuming the administration of Government, the

Lieutenant-Governor may be appointed on the post of Governor.24 The

above account reveals that the Governor of Australia can be removed from

the office before the completion of his term in case of proven incapacity.

Switzerland is the key federal State in the world. Every Swiss State

which is called ‘Canton’ has its separate Constitution, without any

interference by the Federal Executive. The Collegiate Executive is variously

called in the different Cantons- the Administrative Council, the Government

Council or the Council of States. The Council has, of course, a head or

President but he has no special powers apart from those of any of the other

members of the Council, except that of presiding over the meetings. The

president or chairman of the Council, called ‘landamman’ is elected in two

different ways, because some of Swiss Cantons have got direct democracy

or legislation by the entire body of citizens through a Primary Assembly for

legislation. In Cantons having Primary Assembly, the Landamman is elected

directly by the Primary Assembly of the entire body of citizens of the

Canton, while in Cantons having representative assemblies the Landamman

is elected by the Assembly or by the people.25

24 Hanks, Peter: Australian Constitutional Law, Butterworth, Sydney, 1980, P- 342.

25 Basu, D.D: Comparative federalism, Prentice Hall, New Delhi, 1987, P- 60.

The above narrated structure reveals that there is a striking difference

in political terminology of Switzerland and political terminology of India

where as the nomenclature is concerned. In India the provinces are called

‘States’ whereas in switzerland the provinces are called ‘Cantons’. In

Switzerland, the entity of Governor is termed as ‘Landamman’ which is

elected directly as well as indirectly by the people.

In Canada Lieutenant Governor is appointed and removed by the

Governor-General of Canada, acting on advice of his Ministers. His salary

is also fixed by the Parliament of Canada. The obvious result is that the

Governor is intended to be an agent of the dominion, who exercises the

power of veto, and reservation of a provincial bill for the assent of the

Governor General.26 The above account reveals that gubernatorial status in

Canada is in toto to gubernatorial status in India; the only difference is that

in Canada this office is known as ‘Lieutenant Governor’ where as in India

this office is known as ‘Governor’.

The Governor of a State, under the Nigerian Constitution is elected by

the people of the State, as in the United States of America. The Federal

Executive has no control over the appointment and removal of a State

Governor. Article 170 of the Nigerian Constitution makes a specific

provision for removal of Governor by a process of impeachment for

‘misconduct’ in the unicameral State legislation Assembly. The verdict of

the Assembly in those proceedings is not open to judicial review.27

26 Ibid, Note-25, P-61.

27 Ibid, Note- 26.

The forgoing account reveals that the states are fully autonomous in

the United States of America and Australia. State executives of these states

function independently of union control and are fully responsible to the

people of the State. But there are federal states like that of Canada and India,

where the Governor is under the control of the Union Government. The

Union Government in these countries is the appointing as well as removing

authority of the Governor. The latter model offers an exception to or

modification of the strict federal principles and this raised various problem

as to the role of the Governor where the cabinet system of Government has

been adopted, making the Governor ordinarily liable to act according to the

advice of Council of Ministers responsible to a popularly elected legislation.

1.5 Appointive Character vis-à-vis Role of Governor

Every State conceives within its bosom, the legal, political as well as

social genes which are very special and particular to her. This political as

well as legal genealogy determines the nature of political institutions of that

State. Thesis and antithesis, in Constituent Assembly resulted into synthesis

that the Governor in India should perform a dual role i.e. not only that of

constitutional head of the State, acting only on the advice of the Council of

Ministers of the State, but also as a link between the State and the Union and

acting as the representative of the latter, with respect to matter committed to

his discretion or individual judgment.

Governor in regard to his discretionary powers can be and is an

independent functionary. He is also appointed by the Union Government

like that of a Judge of the Supreme Court. But being an appointee of the

President and with removable as well transferable post to any state by the

later at any time where he may not be equally comfortable, can hardly be

expected to be an independent as a judge of the Supreme Court. The obvious

reason is his nature of appointment which is not allowing him to be

independent and decisive because of the fear of being axed at any time under

the umbrella of ‘pleasure of the President.’

Here it is pertinent to mention that the Indian Constitution makes a

difference from the traditional federal constitutions such a United States of

America, Australia or Switzerland. Even in normal scenario, apart from any

emergency, the Indian Constitution has castigated techniques of control over

the states by the union to ensure that the state Governments do not interfere

with the legislative as well as executive policies of the union and also ensure

the efficiency and strength of each individual unit which is essential for the

strength of the union.

1.6 Conrtoversial Instances of Institution Governor

If we peep into Indian political and legal scenario, we can effortlessly

come to the conclusion that the institution of Governor in India is a subject

of perennial interest in our constitutional system. This office by virtue of its

nominated status is functioning in such a stereotype manner that problems of

far-reaching concerns have creped in. In U.P., the Governor in absence of

any floor test sweared in the new Chief Minister by removing the existing

one. The Apex Court held in this factual situation that a special session of

the U.P. Assembly be summoned and convened which will have only agenda

of having composite floor test.28

28 Jagdambika Pal v/s Union of India, 1999 ( 9) SCC, P-95.

A glaring example of misuse of discretionary powers on the part of

Governor of Tamil Nadu, Smt. Begum Fatima Bibee is that she appointed

Smt Jaylalita the Chief Minister of Tamil Nadu in spite of her

disqualification under ‘People’s Representative Act’ by the Election

Commission. The Apex Court’s indictment is worth quoting here that

Governor is a functionary under the Constitution of India and has been

sworn in under Article 159 to preserve, protect and defend the Constitution

and the law. The Governor cannot in the exercise of the discretionary

powers or otherwise do any thing that is contrary to the Constitution and the

law. It is another thing that by reason of protection, Governor enjoy under

Article 361, the exercise of Governor’s discretion cannot be questioned. If

the Governor is asked by the majority party in the legislation to appoint a

person as Chief Minister who is not qualified to be a member of legislation

or is disqualified to be such, the Governor must having due regards to the

Constitution and the law to which he is subject decline and the exercise of

discretion by him in this regard cannot be called in question.29

The part played by some Governors, particularly in recommending

President Rule has evoked strong resentment among citizenry as well as

legal luminaries of India. The recent instances of Bihar and Jharkhand

during Governorship of Mr.Buta Singh and Mr.Syed Sibete Rajvi

respectively projected on the national scene the controversial aspects of the

gubernatorial affairs in India. In this context, the Honorable Supreme Court

of India indicted Bihar Governor Buta Singh of misleading the centre in

recommending the dissolution of Bihar Assembly in May, 2005 and

pronounced that Union Council of Ministers should have verified his report

29 B.R.Kapoor v/s State of Tamil Nadu, 2001 (7) SCC, P- 231.

before accepting it as a gospel truth.30 In this context, the media has not

lagged behind in highlighting these controversies that “following the State

Assembly elections, Governor Syed Sibte Razvi used questionable tactics to

foist a short lived UPA Government headed by Shibu Soren”31

The Apex Court has to interfere in the political affairs of Jharkhand in

2005 while pronouncing that Governor of the State has appointed leader of

the political alliance, not commanding majority in the House, as Chief

Minister which is a fraud to the Constitution.32 Further, to streamline the

democratic conventions, the Apex Court issued the directions that present

order to be treated as notice to all MLAs for floor test and no separate notice

is required. Chief secretary and director general of police are directed to see

that all elected M.L.A,s attend the assembly freely, safely and securely

without any hindrance.

Off and on, offices of Governors have to face a spree of debate for

their actions when they exercise both discretionary as well as inherent

powers. The glaring example of this pedigree is the relation between Om

Parkash Chautala, the former Chief Minister of Haryana and the Governor

of Haryana at that time. The relations between these tow were tinged to

this extent that the Haryana Chief Minister raised the slogan of abolishing

the institution of Governor vis -a- vis amending the Constitution.

The project during its progress has discovered two schools of

thoughts. First school of thought is in favor of abolishing the institution of

30 Hindustan Times, January 25, 2006, P-1.

31 Hindustan Times, September, 2006, p-5.

32 Anil Kumar Jha v/s Union of India, 2005 (3) SCC, P-150.

Governor from the national scene as well as to rub the provisions relating

to Governor from the Constitution. This school outrightly is of the view

that political and legal set up can successfully work even in absence of this

institution. Second school of thought is of the view that the super sensitive

activities and responsibilities are shouldered by this institution of repute,

its removal will lead to socio-political as well as legal crisis. This school

of thought is inclined towards retention of this institution with the

emphasis that appointment of Governor should not be conditional i.e. ‘The

Governor shall hold office during pleasure of the President’ as per the

domain of Article 156(1) of the constitution. Under the umbrella of Article

156(1) of the Constitution the governors of states in India could be sacked

at any time. Both the schools have advanced argument in support of their

contentions.

1.7 Arguments of First School of Thought

1. Governor is a rubber stamp. He has to put his signature and seal on

the ordinances as well as on the bills recommended by the State

legislation. Ordinances and bills can well be enforced may it be

deprived of his seal and signature, to the reason that all the

democratic, constitutional, statutory as well as the legislative process

have been dealt with.

2. Governor is a protem of party in power. As a natural corollary, he is

to look after the vested interest and health of the party to which he is

directly or indirectly related. His judgment is bound to affect the

state’s decision making process by the idea which he already has on

his slate. In this state of mind, the Governor can adopt questionable

tactics to safeguard the health of his parent party, may it adversely

affect the democratic norms and traditions. In order to ensure the

smooth functioning of democratic institutions of the State, the cross

Governor ought to go, so that the states can be relived from this

superimposition.

3. The institution of Governor is tinged with imperialistic inclinations, as

this institution has been devised and imposed by the British colonial

regime. Imperialistic regime has been vanished so far; relevance of

maintaining this institution of Governor in free India remains no

more. Let the democratic institutions breath and flourish in free and

non polluted environment so that they can touch to their zenith.

4. This School of thought brings forth another argument that Governor is

neither directly elected nor indirectly elected like that of President of

India, the extinguishment of this institution will not lead to

constitutional crisis.

5. This school also is of the view that every Raj Bhawan is a palatial

building. Every Governor has military ADCs, hoards of liveried

servants and fleets of cars. Multiply the cost of a Governor by 35(The

number of States and Union territories) and then commute the

enormous total. Can we afford to provide the luxurious living of 35

people whose services we can well dispose off?

6. Abolishment of Governor’s office will lead to lessen the burden on

State exchequer. Ascertained money so saved can be utilized for the

uplifting of down trodden section of the Indian society, because it is

the money which makes the mare go.

1.8 Arguments of Second School of Thought

1. The Governor’s office is a bridge between the Centre and the State,

pertaining to all constitutional and other than constitutional matters.

He observes as a watch dog that the federal policies, framed by the

Centre Government, should be carried out by the State in toto.

However, if he is not in a position to act as the protem of the Centre

Government, how the ruling party will be in a position to observe the

affairs of the State.

2. The State Governor is a key functionary in the system envisaged by

the Constitution. When a particular State is unable to maintain law

and order, the Governor can dissolve the Assembly under the domain

of Article 356 of the Constitution. In this situation Governor step into

shoes of an active administrator and holds the reigns of the State.

3. Governor is a constitutional head at the State level like President of

India at the national level. His seal and signature are mandatory on a

bill in order to be an enactment and capable of being enforced. Thus

he is responsive to the requisites of the Constitution.

4. Article 200 of the Indian Constitution confers powers on Governor of

a State to reserve certain bills for the consideration of the President of

India. Thus he keeps a watch on the nature and object of legislation in

pursuance of national policies and perspectives.

5. Article 203 (3) enunciates that no demand for grant shall be made

except with the recommendations of the Governor. All budgetary

provisions are being authenticated by the recommendation of

Governor. Thus the Governor regulates the financial provisions of

State legislation under the umbrella of his seal and signature.

6. His post is indispensable to the Centre Government particularly where

the State is governed by the party or alliance other then the party or

alliance at the centre. Without a Governor the State Government

would be free to demand any amount of fund from the centre, hence is

a check on the misuse of State’s exchequer.

7. The Governor addresses the Legislative Assembly or in the case of a

State having a legislative Council, either House of State Legislation,

or both the houses assembled together and may for that purpose

require the attendance of members.

8. The Governor sends messages to the House or Houses of the

Provincial legislature whether with respect to a bill then pending in

the legislature or otherwise and a House to which any message is so

sent shall with all convenient dispatch consider any matter required by

the message to be taken into consideration.

Above account reveals that multidimensional tasks has been

assigned to governors in India vis-à-vis the executive, legislative,

administrative as well as financial. All these functions of states are

performed under their patronage.

So the institution of Governor is a subject of perennial interest in

our constitutional system and in its working. In the present scenario

controversies of far reaching concern relating to this office of repute have

creped in. Differences and controversies have taken birth especially after the

fourth general elections in 1967 when parties other than Congress came into

power in the states. Post fourth general election scenario marked a notable

difference in the political complexion of the ruling party at the centre and the

ruling parties in the number of states. The part played by some governors

particularly in recommending the President’s rule has been a cause of

controversies resulting into litigation in the High Courts as well as in the

Supreme Court.

The above scenario has quizzed up the phenomenon that the Union

Government utilizes the governors for its own political ends and the

governors in pursuance of their political aspirations opt themselves to be

recognized as the agent of the ruling party rather than guardian of

democracy.

The above criticism has made the scope and style of gubernatorial

affairs a controversial one, both at constitutional as well as at political fronts

to the matter of fact, his role quite predictably, is the key issue in the Centre

State relations. It is pertinent of mention here that it is the appointive

character of Governor which has made him a suspect in the eyes of the State

governments ruled by parties other than that at the centre.

It may be recalled here that during the deliberations of the Constituent

Assembly, some other modes of appointment of the Governor were also

taken into consideration. The Idea of election was ruled out because it was

felt that co-existence of Governor elected by the people and a Chief Minister

responsible to the Legislation might lead to the friction and consequent

weakness in the administration. On similar ground, the idea of the Governor

being appointed by the President on the advice of the Central Government,

out of penal off four persons chosen by the State legislature, was also ruled

out. It was as a result of mature deliberations that the present provisions

were accepted, and it was clearly stipulated that the Governor would be a

constitutional head of a State just like the President of India, and be

governed by the identical conventions of the parliamentary system.33

Our Constitution is not a child of accident; it is the product of

thorough study, deep and mature deliberations, extensive debate and

discussion. It is the result of a judicious draftsmanship. What lays beneath

in the present day’s controversies is that we have lost sight of the

fundamental principles, the real purpose and motivation behind the

provisions of the Constitution, a failure which has led us into grave errors of

judgment.

33 Narain, Govind : Constitutional Obligations, in book : The Governor : Sage or Saboteur, New Delhi,

Roli Books, 1985, P-59.

Present political scenario has shrouded this office of repute in

different controversies and different interpretations as regards its

constitutional provisions. The provisions in Article 155 of the Constitution,

that Governor of a State shall be appointed by the President by warrant

under his hand and seal and the provisions of Article 156(1) that the

Governor shall hold office during pleasure of the President have both

recently become subject to different interpretations. As the President acts on

the advice of Council of Ministers, it is said that the Governor of a State is

an appointee of the Central Government and therefore subordinate to it. This

view, finds support in the clause relating to the ‘pleasure of the President’

which, it alleged, makes the Government subservient to the President. These

views according to the spirit of the Constitution seems to be erroneous on

the ground that the Governor of a State is not the only office to which the

appointment is made by the President by warrant under his hand and seal.

Each and every judge of the Supreme Court and High Courts is appointed

under the President’s hand and seal, why they are not deemed to be

subordinate to the Central Government. Independence of judiciary is the

basic feature of Indian judicial system. So is in the case of appointment such

as the Comptroller and Auditor-General of India, Chairman and other

members of the Union Public Service Commission.

So it can safely be interpreted that if all the constitutional

functionaries appointed by the President under his hand and seal can enjoy

independence in their domain of functioning, why not the governors in India.

It is no doubt true that the Governor is appointed by the President which

means in effect and substance the Central Government of India, but that is

only a mode of appointment and it does not make the Governor an employee

or servant of the Government of India. Every person appointed by the

President is not necessarily an employee of the Government of India. So it is

not material that the Governor holds office during pleasure of the President.

It is a constitutional provision for determination of the term of office of

Governor and it does not make the Government of India an employer of the

Governor.

His office is not subordinate or subservient to the Government of

India. He is not amenable to the directions of the Government of India nor is

he accountable to them for the manner in which he carries out his functions

and duties. His is an independent constitutional office which is not subject to

the control of Government of India. He is constitutionally the head of the

State in whom is vested the executive powers of the State and without whose

assent there can be no legislations in exercise of the legislative power of the

State. It is only when under Article 356 of the Constitution, the President

assumes to himself the functions of the Government of a State and delegates

theses functions to the Governor of the State, that the Governor becomes his

representative and for the governance of the State becomes answerable to the

President and through him to the Central Government and the Parliament but

this an exceptional situation.34

Another phenomenon that affect the Governor’s position, prestige as

well as his image and functioning, is the manner of his removal. It seems

that the doctrine of ‘pleasure of President’ has not been properly

contemplated. It is true that in the cases of other presidential appointments,

procedures for removal, under specific circumstances, have been laid down

34 Ibid. Note-33, P-58.

in the Constitution, while no such separate procedure for the removal of the

Governor finds a place. This could lead to erroneous inference that the

Governor of a State can be removed at will by the President on the advice of

Union Council of Ministers. The spirit of the Constitution did not appear to

support this view. If Article 156 of the Constitution is read as a whole, it will

be found that it has been inserted more with a view to determine the tenure

of a Governor. Article 156(3) says: ‘subject to the forgoing provisions of this

Article, a Governor shall hold office for a term of five years from the date in

which he entered upon his office’. The Governor can of course, resign

prematurely or he may become incapacitated or subject to any disability; but

that part of the constitutional provisions does not make the Governor of a

State subject to removal by the President without proper justification.

Article 310 (1) of the Constitution makes a definite provision for all

the employees of the Union of India who all hold office during the pleasure

of the President but they cannot be dismissed or removed or reduced in rank

except by due process of law. If such important safeguards have been

provided against the arbitrary or whimsical dismissal or removal of all the

employees of the Union Government, it would be inconceivable that the

holder of such a high office would be left completely at the mercy or the

whim of the Central Government.

In the present scenario there have been instances of sacking of

governors by the Central Government. In order to check the arbitrary

sacking of Governors, it should be expressly stated that Governor will have a

full five year term and the provisions in Article 156(1) will not mean that the

Governor can be removed from office without adequate justification. The

procedure for removal should be laid down in the Constitution while

mentioning specific grounds of his removal after giving him a reasonable

opportunity to explain his position. Another alternative is that the Governor

can be removed on the lines of provisions prescribed for the removal of

Judges of the Supreme Court or the High Courts.

1.9 Hypothesis of the Study

Hypothesis of the study, thus, revolves around this carnal subject that

governors are removed prematurely, irrespective of their term of five years

and they need protection in this respect so that they may not opt for the acts

detrimental to the constitutional spirit in order to save their term of five

years. Hypothesis can be spelled out in the following points:-

1. Political scenario in India is changing fast.

2. Governor is the victim of changed political scenario in regards to

his appointment and removal.

3. The insecure position of the Governor in politico-legal order of

India.

4. Insecurity of term derives him to act on the dictates of Central

Government.

5. The security of tenure must be insured which requires the suitable

amendment in Constitution of India.

1.9 Conclusive Remarks

Hence, the above narrated structure brings forth the justification of

certain requisite amendments in the Constitution to uniformly regulate the

appointment and removal of Governors in India in the light of reports of

various Committees, Commissions and judicial pronouncements. The

constitutional provisions relating to institution of Governor require being

revigourated and redefined.