Chapter-3

COMPARATIVE STUDY OF INSTITUTION OF GOVERNOR

With the emergence of sovereign states on the world’s political

portrait, the institutions synonymous to the functioning of institutions of

Governor also emerged in one form or the other. Thus the office of

Governor or the Governor’s like offices can be found in different parts of the

world.

In fact, the office of Governor is the feature of a strong and

centralized Government for effective and better administration of a vast

kingdom. The kingdoms used to be divided into several territories in the

earlier times and persons of trust and confidence were appointed as heads of

administration of defined territories. Even 2500 years ago the Maurya

Empire was divided into five provinces, each under an Amatyakula.

Emperor Akbar divided his kingdom into sixteen subahs, each under a

subedar.1 Thus the institution of Governor can be discovered in the past as

well can be found in the present and probably will be found in the future

also and that too world wide in one form or the other, though the

nomenclature of this office may be different in different parts of the world.

The comparative deliberations of any concept or entity make the

concept or entity more authentic, analytical as well as exhaustive. Prior to

the framing of the Constitution of India, the framers of the Indian

Constitution analyzed the political systems and functioning of Governments

1 Kashayap, Anirbhan: Governor’s Role in India Constitution, Lancer Books, New Delhi, 1993, P-1.

of different countries of the world which were in their view, working

successfully. They made a comparative study of world’s political systems as

well as institutions in order to compose and enact the highest law of the

sovereign India. They composed and enacted an organic document after

borrowing each and every ideal concept from different governments of the

world. Thus the comparative consideration brings to the concept a more

dynamic phase.

The office of Governor in India needs to be comparatively analyzed.

The comparatively analyzed experience will help in reexamining and

reevaluating the office of Governor in Indian politico-legal context.

Experience gained from the working of offices of governors of foreign

countries will help in reenergizing the office of Governor in India. As India

has entered in the first decade of the twenty first century, the experience and

working of Governor’s office in the different parts of the world will help in

meeting the genuine requisites of office of Governor in India

In order to make the comparative study of the institution of Governor

whereas his appointment and removal is concerned, the following key

federal states are comparatively discussed. In order to analyze the affairs

regarding the institution of the Governor, it is the compelling requirement

that the political structure of each of the key federal state should also be

discussed scantly. Hence, following are the important federal states which

have been comparatively discussed:-

3.1 United States of America

Presently, the United States of America is the oldest federal union in

the world. In fact, this type of polity originated from the successful working

of federal structure. So successful it has been that many other countries have

followed the American model. Today, the federal system of United States of

America is in a position to organize a big number of American people on

federal basis. In fact the founding fathers of American Constitution have

devised a unity in diversity, a legal frame work which is based on

metaphysics of federalism.

The United States of America is a federal Republic with a democratic

system. The fifty states which comprised the United States enjoy substantial

legal powers in domestic matters, although in some areas, their practical

independence of the federal government is more limited. A written

Constitution attempts to delineate the powers and responsibilities of the

different levels and branches of government.2

The framers of the American Constitution knew that overwhelming

majority of the people were to much deeply attached to their State

governments and they would not permit a scheme of Government aiming at

there complete subordination to the Central Government. The framers of the

Constitution were, therefore, confronted with a difficult task that how to

preserve the integrity of the states without weakening the Central

Government. By heroic efforts they devised a plan of Government which

now carries out the nomenclature of federation.

2 World Encyclopedia of Political Systems, V. II, Longman, United Kingdom,1983, P-1119.

The fathers of the Constitution thus established a dual system of

Government within the states of the United States of America. There is a

national Government with a complete set of its own agencies- legislative,

executive and judicial, exercising powers delegated to it by the Constitution

which are of common national interest. Paralleling this system in each state

is another complete set of legislative, executive and judicial organs.3

State governors and legislatures are elected by the direct popular vote

in each State after nominating processes and campaigns that resemble their

federal counter part. The fifty states can retain and enforced any law without

permission of the federal authority provided only that the law does not

breach the federal Constitution or attempt to legislate already covered by the

federal laws.4

In the United States of America, the title Governor also 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.

United States Governor serves four years term except those of New

Hampshire and Vermont who serves two years term and is directly elected

by the people of all states.5 Governor can be removed from the office before

the end of his term by impeachment.6

As a Chief Executive the Governor’s position in slightly weaker than

that of the President. His power of appointment is limited by the fact that

3 Kapur, A.C: Select Constitutions, S.Chand & Co. New Delhi, 1995, P-139. 4 Ibid, Note-2, P-1124. 5 w.w.w. wikipedia. org., Site Visited on 20.8.08 6 Bombwall, K.R: Major Contemporary Constitutional systems, Modern Publication, Ambala Cantt, 1883,

P-296.

some of the highest administrative officers of the State are elected by the

people or by the State legislature. All appointments made by the Governor

are subject to approval of the upper House of the State legislature. His power

to remove state official is also limited than that of the President.

The Governor of United States of America, like the President has

some legislative powers. He can send messages to the State legislature

recommending legislative measures and can call special session in which the

legislature can deal with the proposals sent by him.

The Governor of every State except the State of North Carolina

exercise, a veto over State legislation which, however, can be overridden by

the State legislature majorities ranging from a simple majority to those

voting in the each chamber to two third majority of the total membership in

each. In some states the Governor exercises what is known as item veto: in

other words, he can veto any section of the bill while approving the rest. In

this way, he may influence the legislation in the middle stages through his

patronage; his personal contacts with legislators of the party and the public.7

From the narrative structure elucidated above, it can be ensured that

the United States of America, metaphysically, is a federal republic with a

very strong electoral system dominated by the concept of direct democracy

in the states of which the Governor is the highest executive. Direct

democracy dominates the affairs of the states to this extent that not only the

Governor is an elected entity but most of the highest officials are also

elected by the people.

7 Ibid, Note-6.

It is submitted that every political system has in its bosom the in built

political values, aspirations, and commitments to the people which are

exclusively of their own. These values, aspirations and commitments are

enshrined in the legal system under the mechanism of which they are

governed. Same were the affairs of the people of United States, who were

deeply attached to their states, before resolving themselves in the form of a

strict Federalism which is based on centrifugal tendency. In pursuance of it,

they secured the maximum possible autonomy for the states under the

executiveship of State Governor with the modus operandi of direct elections

not only of Governor but also the key officials of the state.

The people of Indian polity are also deeply attached to their states, but

this polity has an inbuilt bias towards the centrepetal spirit of Government.

The tendency towards centripetal form of Government is due to the hard

facts that the India was a conglomeration of different states coupled with

insurgent activities on their parts. The framers of the Constitution then

cobbled the different racial and casteus states together so that they might not

flee.

In is submitted that in the above state of affairs, having an elected

Governor for each State was a politico-legal ‘Hara-kiri’ in the view of the

framers of the Indian Constitution. Though there was a wide spread debate

for having an elected Governor in the Constituent Assembly at the

penultimate stage, but at the ultimate stage this option was turned down by

the framers of the Constitution.

The founding fathers of the Indian Constitution, because of the

compelling reasons, resolved and enacted the provisions relating to

Governor that he will be appointed, rather nominated by the President and

will remain in office during pleasure of the President. Where as in United

States of America, the Governor of a State is directly elected by the people

of the State; the Federal Government has nothing to do in this matter.8

The Governor of United States of America is a political as well as

ceremonial head of the State. The Governor of Indian state is also a

ceremonial head but he is not a political Governor in any way unlike his

American counterpart. Election process has made the Governor of American

state, a political entity, whereas this process has not been opted in India.

However, in papers the Indian Governor is not a political one but his under

carpet activities have made him a political one. (Emphasis Supplied)

3. 2 Australia

In Australia, the federal system coexists with parliamentary

institutions originally developed under the British unitary system. The

British West Minster model was followed in the nineteenth century colonies.

The Act of the British Parliament which authorized federation also provides

Australia with a written Constitution.

The Constitution specifies the allocations of powers between the

commonwealth and the states. The Commonwealth powers are mainly the

oblivious ‘national’ ones-currency, defense, foreign affairs and immigration,

international trade, postal services. Few of these powers are exclusive, most

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

being concurrent with continuing state powers- though common wealth law

prevails in any case of inconsistent concurrent legislation. The states retain

all powers not exclusively transferred to the commonwealth, leaving them

with immediate authority over most personal and property matters.9

The Australian head of State is technically the British Monarch.

Except when this Monarch is actually visiting Australia, however the role is

actually carried by the Governor-General appointed by the Monarch on the

advice of the Australian Government. It is the firm convention of the

parliament system that the head of the state acts only on the advice of his

ministers and, in particular, of the Prime Minister.

Australia has bi-cameral structure at the federal level. The lower

House i.e. the House of Representatives is the forum from which the

Government emerges. Under the Constitution, it must be as nearly as

practicable double the size of the senate, and each of the six states must have

five members. The house is elected for a maximum term of three years. An

earlier election is held if the Government loses its parliamentary majority

and no alternative party or coalition can build a majority.10

The upper House i.e. the Senate acts generally as reviewing Chamber

on legislation originating in the House of Representatives. The Constitution

states that the tow houses shall have equal power except in few specific

9 World Encyclopedia of Political Systems, V.I, Longman, United Kingdom, 1983, P-34. 10 Ibid, P-35.

instances; the senate for example cannot originate money bills, for a bill to

become law, it must be passed in by identical language by both houses. 11

The present State governments of Australia are the historical

successors to the colonial governments whose federation created the nation.

The Australian states thus have historical roots and traditions which predate

nationhood. State identification remains fairly strong among Australians.

State governments operate under their own constitutions. Each State

operated like the commonwealth, under a parliamentary system. In five of

the states the parliament is bicameral with the composition of the

Government being determined to the lower House. The sixth State has

abolished its upper House. The premier and his cabinet are the visible focus

of Government; the Governor sits as the formal representative of the

Monarch.12

Above observation elucidates that in Australia, each State has a

Governor as the formal representative of Queen, as head of the State

Government. Each State Governor is appointed by the Sovereign on the

advice of the Premier (politically responsible head of the government) and

play largely a ceremonial role.13 The Governor of Australian State is

appointed by the Crown on the advice of the British Cabinet who however in

practice consults the Prime Minister of the State concerned. Governor

General of Australia do not have any control over State Governor who acts

on the advice of Council of Ministers and exercise the prerogative of the

11 Ibid, P-36.

12 World Encyclopedia of Political Systems, V.I, Longman, United Kingdom, 1983, P 39-40.

13 w.w.w.wikipedia . Org, Site Visited on 25.8.08.

Crown in relations to the State in the same manner as does the Governor

General in relation to the affairs of the dominion.14

During the time when the office of Governor General is vacant, or the

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

overseas), frequently the most Senior State Governor act in his position. If

this is not practicable, a Judge of the High Court acts as an administrator of

the commonwealth and exercises the powers of the Governor General in his

absence.15

Thus there is an alternative arrangement in Australian political system

that in case of vacancy in the office of Governor-General of Australia, senior

Governor of the state will officiate whereas in India the Governor has no

such right to be elevated. Apart from this in Australia the institution of

Lieutenant-Governor also exists. In the event of death, incapacity or removal

of the Governor or on his departure from the State or on his assuming the

administration, the lieutenant Governor may be appointed on the post of

Governor.16

When the six colonies federated to form the commonwealth of

Australia in 1901, there were some suggestions that the position of State

Governor should be abolished, but the state insisted on retaining their

independent links to the crown. The State Governor continued to be

appointed by the Crown on the advice of colonial Secretary in London.

The post of Governor was again called into question during

depression of 1930 when the cost of maintaining six vice-regal

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

15 Ibid, Note-13.

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

establishments drew criticism from the labor movements and others. During

this period some states left the position unfilled as an economy measure for

some years and vice-regal functions were filled by the state Chief Justice

with the title of administrator. But no state attempted to abolish the post of

Governor and this could not have been done at time without the consent of

Crown i.e. the British Government.

In the lead up to the 1999 republican referendum, state governments

were required to consider state links with the crown and thus validity of

appointing the Governor by the Queen. At a constitutional convention the

states indicated that if the referendum was successful the Governor should

be appointed by the Parliament although agreement on the exact method of

appointment was not reached as the referendum failed. No state altered the

appointment method of Governor.17

Australia polity primarily is a federal union and is based on

parliamentary form of Government both at commonwealth as well at the

State level. The nomenclature of Common Wealth, in other words is the

Centre Government of Australia. This system is maintaining a bicameral

legislation both at central as well as at the State level coupled with a dual

system of Government both at central as well as at the State level.

It is submitted that like Indian polity, the powers have also been

delineated between the Centre and the states by the constitutional framers in

Australia. But unlike the quasi federal system like that of India, the

Australian federal system provides more autonomy to the states. In fact the

17 w.w.w. wikipedia. Org. Site visited on 28.8.08.

Australians like that of Americans, have much more attachment with their

states which were colonies prior to resolving themselves in the federal set

up.

Like Indian political system, Governor in Australia is the direct

appointee of the Monarch which in effect and substance is the British

Cabinet. There is a sticking dissimilarity between both the political systems.

British Cabinet before appointing the Governors in the Australian states

consults the Premier of the State concerned who is the politically elected

head of the State, whereas this process has not been followed in India. At the

crucial time of framing the Constitution, makers of the Constitution

emphasized the requisite need of consulting the State Chief Minister, prior to

the appointment of Governor, so that he may not feel that the Governor has

been superimposed on him by the centre. But this healthy tradition has not

received a warm response in India so far, because of its week federal system.

In researcher’s opinion, another similarity regarding the institution of

Governor in Australia and the institution of Governor in India is the instinct

of abolishment of Institution of Governor. In Indian political scenario the cry

has often been raised that institution of Governor in India is redundant and

there is no use of maintaining this lavish institution at the cost of state

exchequer. But this Political idea has so far not been transformed into a

strong resentment.

There is a striking dissimilarity between the Indian and Australian

political system in regards to gubernatorial affairs. In Australia, senior most

Governor of the State officiates at the time when the Governor-General of

the federal commonwealth because of the stipulated reasons, not in office. In

India on the other hand, in this sort of situations the Vice President officiates

when the President because of stipulated reasons, is not in office. It is

through the electoral process only; the Governor in India can be elected as

Vice-President or President of Indian democratic republic. (Emphasis

Added)

It is submitted that in Australia though the Governor of State is the

constitutional head like his Indian counterpart, but he is directly answerable

to the Monarch but not through Governor-General. Both Governor and

Governor-General of Australia are at par whereas their answerability is

concerned. However, the Australian Governor is appointed as well removed

by the British Monarch. In India on the other hand the Governor is appointed

as well as removed by the President.

3. 3 Canada

Canada is a federal State established in 1867 at the request of separate

colonies. The British Parliament passed the British America Act (now the

Constitution Act 1867) which federally united the colonies.

The fathers of the Canadian federation were not wedded to the narrow

ideas of federalism and they did not follow the path carved out by the

framers of the American Constitution. The United States have been engaged

from the days of Jefferson in the long and bitter controversy over rights and

powers of the states which culminated into the civil war. The Canadian

leaders had the opportunity to become wiser from the experience of their

neighbors, hence resolved to strong centre. American Republic was the

necessity of strengthening the centripetal forces in a federation which they

proposed to set up. The framers of Canadian Constitution decided to give the

few enumerated subjects of jurisdiction to the constituent units and leave the

residue to the Central Government.

The distribution of powers in the Canadian Constitution was, thus, in

vast contrast to that of the Constitution of United States. Enumerated

subjects which were assigned to constituent units were just 16 and they were

essentially of a local nature.18

Canadian federal polity is based on the visible intention of then

colonies who resolved themselves in to the constituent part of it. In contrast

to the American federal system, the federal structure of Canada is unitary

biased like that of India. Taking lesson from the American federalism they

choose to have strong centre instead of a weak Centre.

The head of the State is the Monarch of the United Kingdom

represented in Canada by a Governor-General and in each of the provinces

by Lieutenant Governor. As in the Great Britain the role of monarch is

formal involving no real political power, the primary functions of the

monarch’s representatives are ceremonial in nature. The appointment of

Governor-General and Lieutenant Governor are technically made from

London; but in practice the appointment is made in close consultations with

the political leaders of Canada. The legislature of Canada is divided into

two branches, an elected lower house, the commons and an appointed upper

house, the Senate.19

18 Kapoor, A.C: Select Constitutions, S.Chand, New Delhi, 1995, P-270

19 World Encyclopedia of Political Systems ,V.I, Longman, 1983, P-144.

Thus, the Lieutenant Governor is appointed by the Governor-General

on the advice of Federal Prime Minster usually in consultation with the

relevant Premiers. Though the Lieutenant Governor ‘serves at the pleasure

of her majesty’ and at same time five years term has become the traditional

amount of time, an individual will serve as the provincial viceroy.20

From the description given above, it can be apprehended that in

Canada, The Lieutenant Governor of the province is appointed and removed

by the Governor General of the Dominion, acting on the advice of his

ministers. The oblivious result is that the Governor is intended to be an agent

or the dominion who exercise the power of federal control over the

provinces though his power of veto, and reservation of a Provincial Bill for

the assent of the Governor-General. The Governor may even be instructed

by the Governor-General to reserve a bill for his assent.21

In Canada, however, the provision for the appointment and removal of

the provincial Governor by the Governor-General was adopted with the

object of making him an agent of the dominion because the aim of the

Canadian Federation was to make a strong central government.

The British North American Act, 1867, strikingly departed from the

American model in prescribing that the head of the Provincial Executive,

called the ‘Lieutenant-Governor’ shall be appointed and holds office during

the pleasure of the head of the federal executive, i.e., the Governor –General.

20 w.w.w. wikipedia. Org, site visited on 28.8.2008.

21 Basu, D.D: Comparative Fedralism, Prentice Hall, New Delhi, 1987, P-60.

Though the Lieutenant- Governor of a Canadian Province is appointed

by the Union Government, it has been held by the Court in Liquidators of

Maritime Bank v/s Receiver in General (1982) A.C. 437, that the Lieutenant

Governor is not the executive servant of the dominion or the passive

instrument of dominion cabinet. Once appointed he is the full representative

of the Crown, having complete authority for carrying on the government of

the Province. So, the mode of appointment of the Provincial Executive head

does not impair the federal principles on Canada.

But though the Lieutenant-Governor is required to act by and with

advice of the Executive Council of the Province, the consensus of opinion is

that the Lieutenant Governor was intended also to act as an “agent and a

spokesman’ for the dominion through the following special features of the

Canadian Constitution Act:

(a) Appointment and Removal of Governor by the Governor-

General acting on the advice of the Dominion Cabinet.

(b) Placing in the hands of the Governor the power of vetoing a

bill passed by the Provincial Legislature or of reserving it

for assent of the Governor-General. Obviously it means that

in exercising this power, the Governor acts independently of

the advice of the provincial ministers, and it is competent

for the Dominion Government to instruct the Governor to

withhold his assent to a bill passed by the Provincial

Legislature at the initiative of the provincial cabinet, relating

to subject assigned by the Constitution to the provincial

sphere.

Though these powers are sparingly used, these powers have, on

occasions, been used to nullify provincial legislation merely because

‘the Dominion executive did not approve’.

As regards dismissal, though a Lieutenant Governor is

removable by the Governor-General at any time prior to his normal

tenure of five years, there are certain safeguards against his arbitrary

removal which are as follows:-

(a) Within one month after the removal is made, the cause of

removal must be communicated in writing to the Lieutenant

Governor.

(b) It must be also communicated by message to both houses of

the Parliament.22

Political structure in Canada is technically the, centripetal one.

Whereas the political structure in America as well as in Australia is

centrifugal one. The states are fully autonomous in the United States

of America and Australia. The heads of the states in both the

federations function independently of union control. They are also

responsible to the peoples of the states.

22 Ibid, Note -21, P.482-483.

In Canada the Lieutenant Governors of the states are under the

control of the union government through its power of appointment and

dismissal. In India also the Governors of the states are under the

control of the union Government with one striking difference that

certain safeguards in the matter of removal are available to the

Lieutenant of Governor of Canada whereas the safeguards of this

nature are not available to the Governors in India.

Right from the inception of Constitution of India, the framers of

the Constitution have been constantly emphasizing on establishing a

tradition of consulting the State Chief Minister, prior to the

appointment of Governor in a particular state. This tradition has

received a very feeble response from the political fraternity in India.

In Canada on the other hand, though there is a unitary structure like

that of India, a close consultation is made with the political leaders of

the states in Canada prior to the appointment of Governor.

Foregoing account reveal that the antecedents of Indian and

Canadian political systems have striking similarities whereas the

foundation of unitary structure of the governments is concerned. Both

the polities due to the compelling reasons opted that the Governor

should be representative of the union government in all respects.

Process of appointment and removal of the Lieutenant Governor of

Canada and Governor in India is almost the same apart from the

dissimilarities that the safeguards against arbitrary removal are

available to the Lieutenant Governor of Canada and a close

consultation with political leaders of the state is made prior to his

appointment.

3. 4 Switzerland

Switzerland’s polity is a federal one, although article 1 of the

Constitution describes it as the Swiss confederation. The Swiss

Confederation came into being as the Preamble to the Constitution

asserts with intent of strengthening the alliance of the confederation

and for maintaining and furthering the unity, strength and honor of the

Swiss Nation. The preamble further adds that in order to achieve the

solidarity of the Swiss Nation a federal constitution has been adopted.

Being a federation the Centre Government has been assigned

functions which are of national importance and general concerns,

whereas the matters of local interests that differ in different parts and

sections of the country are left to the people of those areas for

solution. In this way the federal Government presents a happy

blending of centralization and decentralization. The Swiss

Constitution expressly declares that the Cantons are sovereign in so

far as their sovereignty is not limited by the Federal Constitution and

as such exercise all rights which are not interested to federal power.

That is the spirit of the federalism which aims to give prestige and

strength to the National Government.

In the course of time, however, the growth of federal power

became more and more pronounced. The need for national unity

increased as problems calling for governmental regulation or

assistance emerged, they overstepped cantonal boundaries and

assumed nationwide importance.23

Executive authority of the Swiss Confederation rests with a

seven member body, the Federal Council. The members are chosen

individually by a joint meeting of the two houses of parliament at the

commencement of the new legislative term.

With the exception of those powers reserved to the people and

the cantons, the Federal Constitution declares that the supreme

authority of the confederation is the bi-cameral legislation which is

composed of the Council of States and National Council. The two

chambers enjoy equality of status and can veto any piece of legislation

passed by the other chamber.

Contrary to the usual parliamentary system, Swiss legislature is

not characterized by a competitive relationship between government

and opposition. The executive for example does not face vote of

confidence. Every thing is geared towards cooperation on behalf of

the people. The executive functions in close accord with the National

Assembly in the preparation of reports and legislative proposals and in

the implementations of the decisions of the assembly. The two

chambers also aim at complementing each other’s efforts.24

23 Kapoor, A.C: Selected Constitutions, S.Chand & Co., New Delhi, 1995, P.304 - 05.

24 World Encyclopedia of Political Systems, V.II, Longman, United Kingdom, 1983, P-969.

Understanding self Government on the local level is the most

important key to a full comprehension of the peculiar character of the

Swiss political system. In Switzerland, individual citizenship is

determined by the membership in the local community, which is also

the source of other legal, political and social rights of the individual.

In turn, most individual feel a special attachment to their home

communities.

Federation has provided uniform political structure in all the

cantons, despite their extensive diversity in terms of their culture,

language and religion. Although they are sovereign according to the

constitution, they must all have constitutions in accordance with the

federal constitution and provide democratic governments on the basis

of general equality. In most cases, cantonal institutions reflect those of

the federal levels, except that all representative assemblies are

unicameral. The cantonal executives are not responsible to these

assemblies and conducted business in a collegial manner like the

federal council.25

The cantons of which correspond roughly to ‘states’ or

‘provinces’ in other countries are the constituent units of Swiss

Confederation. Though it is in the nature of a federal state that its

component units cannot possess full sovereignty, great stress is laid

down on Cantonal autonomy within a federation of states. Each of

them has complete governmental apparatus including a written

25 Ibid, Note 24, P-971.

constitution, legislative, executive and judicial organ and a civil

service.26

It has been noted earlier that the Governments of Swiss cantons

is carried on under the self drafted constitutions guaranteed by the

federal Government. A Canton can make and amend its own

Constitution subject only to the condition that it should have been

approved by the people of the Canton and that it should be based on

Republican form of Government and provide for the exercise of the

political rights and that it should contain no provisions contrary to the

federal Constitution.

Cantonal Legislature which is like the city states of ancient

Greece, practice direct democracy in a full measure becuase

legislative powers are vested directly in the people. These cantons

have been aptly described as ‘democracies of open air’

For passing laws and electing cantonal officials, the citizens

gather annually. The meeting is presided over by the head of the

cantonal government (the Landamman). The legislature with

nomenclature of ‘landsgemeinde’ passes legislative measures,

approve the account, vote the budget and elect the landamman and

elect other members of Cantonal executive, Cantonal representative of

the Council of States, Cantonal judges and other officials.

26 Bombwall, K.R.: Major Contemporary Constitutional Systems, Modern Publication, 1983, P-349.

Every Canton has a collegial executive called the Council of

States or the Small Council of States consisting of five to seven

members elected by the Cantonal legislature for a term ranging in

duration between one and five years. The practice of re-election is as

common as in the confederation. Like the Federal Council the

Cantonal Executive consists of equals and the Ladamman is only its

Chairman and not the leader. Each member of the executive is head of

a department of Government. The executive is fully responsible to the

Cantonal legislature. Like the Federal Council, again, it drafts and

introduces most of the legislations and follows as well as guides the

legislature.27

Since the Swiss Cantons have their separate Constitutions, their

executive (which is called collegiate executive) is elected according to

their respective Constitutions 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 has of course, a head or President, but he has no special

power apart from those of any of the other members of the Council

except that of presiding over its meetings. The President or Chairman

of the Council, called Landamman is elected in two different ways,

because some of the Swiss Cantons have got direct democracy or

legislation by the entire body of citizens through a primary assembly

while in others there is a representative assembly for legislation. In

Cantons having primary Assemblies, the Landamman is elected

directly by the primary assembly of the entire body or citizens of

27 Ibid, Note-26, P. 350 -351.

Canton, while in cantons having representative assemblies the

Landamman is elected by that assembly or by the people.

With the passage of time the direct democracy is on the verge

of decline. The 26 cantons and half cantons of Swiss Confederation,

each having their own Constitution and their own method of choosing

the members of Cantonal Assembly and Cantonal Government and

the State councilors who represents them at the federal level. Only

five cantons retain the ‘Landsgeneinde’ as Assembly of all citizens of

the cantons held annually as their decision making authority,

elsewhere the democracy is less direct.28

From the account narrated above it can be comprehended that

that the Swiss citizenry like all other federal countries have

attachment to there states i.e. the Cantons. In pursuance of it they have

maintained their own identity while keeping intact the identity of the

Swiss federation also. It is a peculiar blend of confederation and

federation which have been resolved by the cantonal citizenry.

Whereas in India, a unitary biased political system is in existence and

is called a weak federation.

The system of direct elections in the form of direct democracy

is the peculiar feature of Swiss political system but with the passage

of time it is heading towards the indirect democratic system. Highest

officials of the State are directly as well as indirectly elected by the

28 The Europa World Year Book, Routledge, London, 2007, P.42-43.

Swiss cantons depending upon their method of election. In India on

the other hand there is indirect democracy.

The Chairman of the Swiss Legislation i.e. the Landamman

(Governor’s nomenclature) is directly elected by the people who have

no special powers as compared to all other members of legislature. He

is also an elected entity like all other members of the executive. The

Swiss Federal Government has nothing to do in the matter of election

of Chairman of the legislature. Cantons of their own elect the

chairman of the legislature Assembly. In India on the other hand the

head of the legislature is a nominated entity. The governors in India

are appointed by the President of India on the advice of the Central

Government. The appointment of Governor by the President in affect

and substance is appointment by the Central Government.

Due to features of confederation in Swiss political system,

presence of direct democracy and centrifugal spirit of states, the

chairman of the Legislature has no special powers apart from being

titled as the chairman. He is elected as well removed by the cantons.

In a sticking contrast to it, due to unitary features, presence of indirect

democracy and centripetal status of states in India, the Governor is

appointed as well as removed by the President of India.

Landamman of Swiss legislature has no special or discretionary

powers to subdue any political chaos in Cantonal legislature. The

Governor of a State in India, though he is a constitutional head, is

enshrined by the Constitution of India to have the special as well as

discretionary powers to deal with the special circumstances. He has

discretionary powers which he exercises particularly when there is a

hung legislature in the State where he is appointed. At the same time,

when no political party has come out with a clear majority in the

Assembly elections, Governor within the domain of his discretionary

powers invites the political leader who is in a position to prove the

majority in the House. Governor also takes into consideration that the

leader of the majority party to whom he is going to invite should be in

a position to form the Government in absence of any horse trading.

Further, the Governor also keeps in mind that the formed government

in the State should be stable one. The Governor also take into

considerations that he should exercise his discretionary powers in

such a way that the State exchequer may not face the burden of

reelection after the hung Assmbly came in to existence. There are so

many living instances when the hung assemblies came into existence,

but narration of those instances are not within the scope of this

chapter.

The position of Swiss Landamman is comparatively weak as

compared to the position of Governor in India, because of the fact no

special or discretionary powers have been granted to the Swiss

counterpart. In India, the Governor has been armed with discretionary

powers by the Constitution which he exercises at the occasions

mentioned in the Constitution of India. These discretionary powers

make him all powerful as compared to his Swiss counter part.

3. 5 Nigeria

The Constitution of the Federal Republic of Nigeria was

promulgated on 5th May 1999 and entered in to force on 31st May

1999. It is an indivisible sovereign State to be known as the Federal

Republic of Nigeria. It is a federation comprising of 36 states and a

federal capital territory. The legislative powers of the federation are

vested in the National Assembly comprising of Senate and House of

Representatives.

The executive powers of the federation are vested in the

President who is head of the Federal State, the Chief Executive of the

Federation and Commander-in-Chief of the armed forces of the

federation. The President is elected for a term of 4 years. The

President nominates a candidate as his associate from the same

political party to occupy the office of the Vice-President. The

ministers of Government of federation are nominated by the President,

subject to the confirmation of the Senate. Federal executive bodies

include the Council of States which advises the President in the

exercise of his powers.

The executive powers of the states are vested in the governors

of the States which are elected for a four years term and must receive

not less than one quarter of votes caste in at least 2/3 of all local

government area in the State.29

The structure of the State Government is similar to that of the

Federal Government, with the exception that the legislature, the

29 The Europe World Year Book, V.II, Routledge, London, 2007, P-3412.

House of Assembly, is unicameral. Each State has a Governor and

Vice-Governor of the same party elected state wise for a four years

term. The Governor’s powers are similar to those of the President.

The division of powers between the National Assembly and

State assemblies is determined by the two extensive lists in the

Constitution which designate powers exclusively to the National

Assembly and those which are held concurrently with the states. The

Constitution appears to vest residual powers in the State assemblies

but many powers that in some federal systems are left to states are

granted solely to the federal Government of Nigeria.

The Constitution itself sets out the structure of the State

Government and grants federal authority’s jurisdiction over most

states and local electoral procedure. The National Assembly has

exclusive legislative rights in matters concerning police and prisons,

political parties, mines and minerals, labor and labor organizations,

inland water ways and any ports that may be designated federal ports.

State Assemblies may pass laws ‘in addition to but not inconsistent

with’ federal laws in such areas as state taxes and revenue

expenditure, post primary education and state economic

development.30

Thus, the Governor of a State under the Nigerian Constitution is

elected by the people of the State. The federal executive thus has no

control over his appointment or removal. Nigerian Constitution makes

30 World Encyclopedia of Political Systems, V.II, Longman, United States, 1983, P- 748.

specific provisions for removal of the Governor by a process of

impeachment for ‘misconduct’ in the unicameral State legislative

Assembly. The verdict of the Assembly in those proceedings is not

open to judicial review.31

The forgoing account reveals that the Federal Republic of

Nigeria is an indivisible country with the unitary spirit of the

Constitution. The unitary biased structure of the Nigerian Constitution

is vivid from the fact that the country has only two lists, one is federal

list and the other is concurrent list, no state list exclusively has been

enumerated for the states, though the residuary powers are vested in

the states. Whereas in India division of power between the Centre and

the states are enumerated in three lists, the central list, the state list

and concurrent list.

Governor of state like the President of Nigeria is also elected

for four years. There is also a provision that the Governor like the

President of Nigeria, appoints a Vice-Governor as his associate from

the same party to which he belongs. The Federal Government of

Nigeria has nothing to do in the matter of election of Governor.

Election of Governor is the exclusive domain of the states like the

United States of America. On the other hand Governor in India is

nominated by the President, though the President of India himself is

elected by an electoral college specifically meant for that purpose.

31 Basu, D.D: Compartive Federalism, Prentice Hall, New Delhi, 1987, P-61.

The Governor of Nigeria can be removed from his office by

impeachment process by the State legislature, the proceedings of

which are immune from the judicial review. There is also a striking

similarity between India and Nigeria that in India, though the

Governor is removed by the President of India without any kind of

interference by state legislature, but the removal of Governor in India

is also immune from any kind of judicial review.

Thus, the governors of Nigerian states sink and swim with the

will of the State legislature. The Constitution has granted sufficient

autonomy to the states in regards to appointment and removal of the

Governors. The Governor in Nigeria is not superimposed by the

federal President to know in advance the affairs of the State

Government in the wake of unitary spirit. Nigerian model of Governor

is the part of presidential form of Government and is the real head of

the State. He is also in liberty to choose his associate as the vice

Governor, to help him in the state affairs. Other ministers are also

appointed by the Governor from the elected members of the State

legislature. Whereas in the case of India, the governors are

constitutional heads and the real powers are exercised by the State

Chief Ministers.

3.6 Concluding observations

In the political system like United States of America and

Australia, states have their own heads as the state executives who

function independently of union control and are fully responsible to

the people of the State. The removal i.e. the impeachment process in

America is the domain of the states itself, whereas in Australia the

Governor is appointed by the British Crown with the consultation of

Prime Minster of the State as well as removed in the like manner. The

Nigerian Constitution has followed the American model of election

of Governor and has provided also the provisions of removal of

Governor by the State itself. In the political systems like Canada and

India, the Governor of a State is under the control of the union

Government through the power of appointment and dismissal. The

later model is the modification of the strict federal principles and this

has raised the various problems 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 advice of a Council of

Ministers responsible to the popularly elected legislature. In the light

of ways and means adopted by above depicted polities, in regards to

appointment, removal and accountability of governors, the suitable,

provisions, practices as well as tradition of the above said polities can

be followed in order to provide a safe and suitable term to the

governors in India.