office of the governor constitutional scheme and practice

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Office of the Governor: Constitutional Scheme and Practice

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Constitutional Law II

ProjectON

Office of The Governor: Constituional Scheme

And Practices

Submitted To: Prof. (Dr.) Faizan Mustafa

Asst. Prof. Yogesh Pratap Singh

BY : Kanishka 10/B.A.L.L.B./025

SRIJAN MEHROTRA 10/B.A.L.L.B./051

Semester III, 2010-11

NATIONAL LAW UNIVERSITY, ORISSA




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Table of Contents

List of Cases ...................................................................................................................................... 3

I. Introduction ............................................................................................................................... 4

1. Statement of problem ................................................................................................................. 5

2. Provisions In The Constitution:- ............................................................................................... 6

3. Research Methodology:-............................................................................................................. 8

A. CONCEPTUAL FRAMEWORK AND METHODOLOGY ................................................. 8

B. OBJECTIVES OF THE STUDY ............................................................................................. 8

4. OBJECT:-.................................................................................................................................. 9

5. SCOPE AND LIMITATION:- ..................................................................................................... 9

6. RESEARCH QUESTIONS:- ....................................................................................................... 9

II. History of Governor .................................................................................................................... 10

III. Office of Governor ..................................................................................................................... 13

IV. Powers and Functions OF Governor .......................................................................................... 18

V. Recommendations on the Office of governor .............................................................................. 29

1. Recommendation On The Appointment of Governor:- .............................................................. 29

2. Recommendation On The Tenure of The Governor:- ................................................................ 30

3. Recommendation on The Removal of Governor:- .................................................................... 31

4 Miscellaneous Recommendations:-].......................................................................................... 32

VI. Conclusion ........................................................................................................... 34

Bibliography ................................................................................................................................... 36

Statutes........................................................................................................................................ 36

Books .......................................................................................................................................... 36

Dictionaries................................................................................................................................. 36

Websites ...................................................................................................................................... 36Government documents................................................................................................................ 37

Journals and Magazines .............................................................................................................. 37

Constituent assembly debates....................................................................................................... 38

Articles referred .......................................................................................................................... 38




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List of Cases

1. (1955)2 SCR 225 ..................................................................................................... 17

2. 1982 (1) SCC 417 .................................................................................................... 26

3. 69 L. ED. 527 ........................................................................................................... 26

4. 75 L. ED. 354. .......................................................................................................... 25

5. A.I.R. 1998 SC 998 .................................................................................................. 23

6. AIR 1974 SC 1533: (1974) 4 SCC 827; P. 832 .......................................................... 24

7. AIR 1988 JL 49 ........................................................................................................ 25

8.

AIR 1998 SC 2026 ................................................................................................... 26

9. AIR 1999 BOM 53 .................................................................................................... 20

10. BIJU PATNAIK A ND OTHERS V. PRESIDENT OF I NDIA A ND OTHERS, AIR 1974

ORISSA 52 ................................................................................................................ 23

11. EPURU SUDHAKAR & A NR . V. GOVT. OF A.P. & ORS. AIR 2006 SC 3385 ................. 26

12. HARGOVIND V. R AGHUKUL TILAK , AIR 1979 SC 1109, AT 1113. ........................... 22

13. IUML V.U NION OF I NDIA, AIR 1998 PAT. 156. ........................................................ 31

14. PRATAP SINGH R AOJIRAO R ANE V GOVERNOR OF GOA, AIR 1999 BOM 53 ............... 16

15. R AMESHWAR PRASSSAD V U NION OF I NDIA, AIR 2006 SC 980 ................................. 18

16.

S. R. BOMMAI V. UNION OF INDIA ([1994] 2 SCR 644 ....................................................... 23

17. SAT PAL & CO. V. LT. GOVERNOR OF DELHI AIR 1979 SC 1550; P. 1551 ................. 24

18. STATE OF U.P. V BABU R AM UPADHYA, AIR 196 SC 751................................... 17, 19

19. SURYA NARAIN V.U NION OF I NDIA, AIR 1982 R AJ 1 ................................................ 31




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I. IntroductionLord Acton once said

1 „Power corrupts and absolute power corrupts absolutely‟. The institute

of Governor is no exception to this. After independence when the union of India was formedafter integrating the entire province, it was felt that there should be a link between the

functioning state legislature and union executive. It was thought that there would be a post

who would serve as the representative of Union. As decided that post would be that of a

constitutional head, who would assist and regulate the legislation in functioning. His job was

to ensure the proper functioning of state machinery and act as a guardian in case of crisis.

Keeping in mind his role it was decide by the constituent assembly that the post would be

nominated one rather than elected one. The office of governor was one of the main reasons

why the constitution drafters added disputed article 356 in the constitution. Hence the office

of Governor is also responsible for one of the most important duty in the state i.e. to head the

state during the imposition of President‟s rule and take care of the state machinery2.

Furthermore in order to be able to full fill all his duties, he was granted with wide range of

powers. These powers were not only authoritative in nature but were also in consonance with

the idea of constitutionalism. Extending but not limited to the Governor had three main

powers i.e. executive, pardoning and ordinance making power. While our constitution

provided many technical details on the powers of constitution, it left the process of election

on the discretion of President and Union government. The reason behind this was that, it was

thought that whatever would be the decision of them, it would always be done to strengthen

the state machinery and largely for the welfare of people of India. And it was the this juncture

that the problem started.

With passage of time, there was no longer the rule of same party in centre as well as state.

Thus there were always differences and slowly the post of Governor was manipulated to

benefit the Union. The very process of appointment of Governor became a controversial one.

Political parties stated appointing loyal party activists as the Governor of a state so as to gain

improper advantage. And the appointed Governors instead of acting independently and

responsibly started turning into an agent of centre. Often under influence by the party who

had appointed them, they used their power to benefit the union. The Indian union saw many

examples where the state government was removed wrongfully suspended by the governor

1 EMILY MORISON BECK , BARTLETT'S FAMILIAR QUOTATIONS, 750 (14TH ED.1968),

2 S EE , 2 R UMA PAL A ND SAMARADITYA PAL, M.P.JAIN CONSTITUTION OF I NDIA, (6TH

ED.2010)




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allegedly due to mala fide intentions. Examples of this can be the suspension of Kalyan singh

government in U.P. by then Governor Romesh Bhandari in 19973 and the suspension of

Arjun Munda government of Jharkhand by Syed Sibte Razi in 2005.

From the very beginning Union had more power than states. And when this power got

combined with the powers of Governor the result was a state of complete anarchy. The net

result was so grave that the hon‟ble Supreme Court had to itself intervene4. All these

combined have raised a doubt about the federal nature of the India. Furthermore many other

issues have arisen with time like the appointment of person of military background as

Governor in states of Kashmir and other North-eastern states. This project specifically aims

to uncover the various aspects of the office of Governor and find suitable remedies to this

grave situation.

1. Statement of problem The Black‟s law dictionary defines the governor as “The chief executive official of a U.S. state 5.

The Indian constitution has clearly mentioned the powers and function of the office of governor.

But it has remained silent on many vital issues such as the removal of governor, will of president

and many other issues. This in turn leads to the creation of loopholes which have led to mainly

two kinds of defects namely one the appointment of governor and the functioning of governor.

Regarding the appointment, the constitution has allowed the discretion of president and prime

minister prevails but has not provided any parameters for the discretion of governor except some

technical details. But this has created quite a problem as political parties use the post of governor

as a reward for appeasing loyal members or activists. And when such person becomes governor,

naturally they try to favour their parent party. Moreover since the governor has got the say in all

the vital functions like invitation for becoming chief minister, recommendation for imposition of

presidents rule by invoking article 356. With such powers there is always a possibility of misuse.

Further more the condition has been more complex by the coming of Supreme Court

decisions. On one hand the Supreme Court has refused to interfere in matters relating to

appointment of Governor or the working of Governor citing the division of power as the reason.

3 S HARAT P RADHAN ; BSP WITHDRAWS SUPPORT TO UP GOVT; http://www.rediff.com/news/oct/19up.htm,

accessed on 13th November, 2011

4

SC disposes of Munda’s petition To examine Goa Governor’s role; http://www.tribuneindia.com/2005/20050315/nation.htm#1, accessed on 13th November, 20115 BLACK ‟S LAW DICTIONARY, 9TH

ED.2009




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But on the other hand it has at times restricted, barred and checked the exercise of some powers

by the governor like the appointment of chief minister 6

2. Provisions I n The Constitution:- The appointment of Governor in states is dealt within Chapter II of Part VI of the Indian

constitution ranging from article 153 to 162 i.e „The Executive‟.

Article 153 Governors of States. — There shall be a Governor for each State: Provided that

nothing in this article shall prevent the appointment of the same person as Governor for two

or more States.

It talks about the provision of a governor in each state.

Article 154 Executive power of State. — (1) The executive power of the State shall

be vested in the Governor and shall be exercised by him either directly or

through officers subordinate to him in accordance with this Constitution.

(2) Nothing in this article shall —

(a) be deemed to transfer to the Governor any functions conferred by any existing

law on any other authority; or

(b) prevent Parliament or the Legislature of the State from conferring by

law functions on any authority subordinate to the Governor.

it talks about the vesting of the executive power in post ofgovernor.

Article 155 Appointment of Governor. — The Governor of a State shall be appointed by the

President by warrant under his hand and seal.

It talks about the appointment of governor in a state.

Article 156 Term of office of Governor. — (1) The Governor shall hold office during the pleasure

of the President.

(2) The Governor may, by writing under his hand addressed to the President, resign his

office.

6SC disposes of Munda’s petition To examine Goa Governor’s role;

http://www.tribuneindia.com/2005/20050315/nation.htm#1, assessed on 13th November, 2011




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(3) Subject to the foregoing provisions of this article, a Governor shall hold office for a term

of five years from the date on which he enters upon his office:

Provided that a Governor shall, notwithstanding the expiration of his term, continue to hold

office until his successor enters upon his office.

It talks about the term of the office of the governor.

Article 157 Qualifications for appointment as Governor. — No person shall be eligible for

appointment as Governor unless he is a citizen of India and has completed the age of thirty-five

years.

it talks about what qualification a man must possess to become a governor

Article 158 Conditions of Governor’s office. — (1) The Governor shall not be a member of

either House of Parliament or of a House of the Legislature of any State specified in the First

Schedule, and if a member of either House of Parliament or of a House of the Legislature of any

such State be appointed Governor, he shall be deemed to have vacated his seat in that House on

the date on which he enters upon his office as Governor.

(2) The Governor shall not hold any other office of profit.

(3) The Governor shall be entitled without payment of rent to the use of his official

residences and shall be also entitled to such emoluments, allowances and privileges as may be

determined by Parliament by law and, until provision in that behalf is so made, such

emoluments, allowances and privileges as are specified in the Second Schedule.

(3A) Where the same person is appointed as Governor of two or more States, the

emoluments and allowances payable to the Governor shall be allocated among the States in such

proportion as the President may by order determine.

(4) The emoluments and allowances of the Governor shall not be diminished during his term

of office it talks about the conditions of governor‟s office.

Furthermore some articles that talk about the power of governor are:-

Article 356 (1) If the President, on receipt of a report from the Governor of a State or

otherwise, is satisfied that a situation has arisen in which the Government of the State




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cannot be carried on in accordance with the provisions of this Constitution, the President

may by Proclamation —

(a) assume to himself all or any of the functions of the Government of the State and all or

any of the powers vested in or exercisable by the Governor to or anybody or authority in the

State other than the Legislature of the State;

b) declare that the powers of the Legislature of the State shall be exercisable by or

under the authority of Parliament;

(c) make such incidental and consequential provisions as appear to the President to be

necessary or desirable for giving effect to the objects of the Proclamation,

including provisions for suspending in whole or in part the operation of any

provisions of this Constitution relating to anybody or authority in the State:…

3.Research Methodology:-

A. CONCEPTUAL FRAMEWORK AND METHODOLOGY

The paper undertakes an analytical and investigative research methodology, which is a

method of inquiry appropriated in many different academic disciplines. Qualitative research

aims to gather an in-depth understanding of the subject, it investigates the why and how of

decision making, not just what, where, when.

Comparative approach has been taken since there has been comparison between posts of

Governor in foreign countries like USA and UK and also commonwealth countries.

They authors have taken a neutral stand. They have tried to research, look into history and then

build up an argument, rather than being biased and taking sides. Researchers have also suggested

some guidelines for resolving the issue in the end.

B. OBJECTIVES OF THE STUDY

While undertaking the research the researchers have aligned the following objectives to the

study. They are:-

1) To understand the nature of the office of Governor.

2) To understand the method of election of Governor and what are the loopholes in it.

3) To assess the current misuse of the post of Governor.




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4) To make the process of Governor Recommendation for President‟s rule more

transparent.

5) To find solutions for the problem of misuse of power by Governor.

4. OBJECT: - The aim and object of the paper is to understand the nature of the office of Governor under

article 156 and further supported by other articles i.e. 153-167, Part VI Chapter II „THE

EXECUTIVE‟ and then examine the misuse of the office of governor. Furthermore the

researchers would also like to find the loopholes in the system which allow for the misuse of

the post of governor.

5. SCOPE AND L IM ITATION:- The entire research has emphasised on the post independence history of Indian federation.

Thus history and historical documents from the pre historical era have been taken into

consideration. The work is primarily grounded on secondary sources with certain references

to primary sources. There has been reference to books and Articles with some references

made to cases and their judgements. The research is confined within the scope of provisions

as written in the Constitution under Article 156 to 167 and some other statutory provisions

applicable within the territory of India. There have been mild references to provisions in USA

and UK.

6 . RESEARCH QUESTIONS:-

From where the concept of governor has been taken?

What role does the discretion of president play in the appointment of governor?

Has the discretion being misused by the centre?

Is the governor an agent of the union?

What are the recommendations by various commissions on the office of governor?




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II. History of Governor The history of governor can be traced to a very old time. Whenever a ruler used to have a large

empire, there was always a worry that the far off areas would revolt. To negate this threat,emperors used to appoint trusted men as their representatives in the respected states. These men

had all the necessary powers to govern the province and they used to collect taxes on behalf of

the emperors7. Thus the men who used to govern on behalf of the central authority were called

governor. In India the history of governor can be traced back to ancient times. The huge empires

of Chandragupta Maurya, Ashoka and Kanishka were maintained with the help of efficient

governors. At those times governors were seldom from outside the province 8. Usually if a king

accepted the rule of emperor, he was allowed to rule in his kingdom as a „governor‟ of the

emperor.

However the situation changed under Moughal times. Mougals changed the earlier policy of

leaving the province under the rule of native king; instead they adopted the policy of appointing

the governor 9. Usually a man very trusted and loyal to the emperor was appointed as governor.

However marriage relations and alliances also determined who was going to be a governor in a

certain province. Often it was seen that it were governors who after becoming powerful, broke

their allegiance to the central authority and decided to govern the province by them10

.

When British came, this system continued. Various provinces were either ruled directly or

indirectly under the umbrella of East India Company. But this system completely changed when

India directly came under the British crown. The most drastic change was coming of The

Government of India Act; 1919.it was during this very time that the idea of modern day governor

was born. In tune with the idea of provincial autonomy the Presidencies of Bengal, Bombay and

Madras and the provinces of Assam, Bihar and Orissa, the Punjab and U.P. were declared as the

“Governor‟s Province” while the rest of the territory was put under a Lt. Governor as in case of

Burma or under a Chief Commissioner as in the case of Delhi, Coorg, etc. Showing a clear shift,

the office of governor was divided into two posts, with each post having different governance.

This concept was called The Diarchy. Diarchy or dual government was introduced in the

provinces. The legislative subjects assigned to the provinces were divided into reserved and

7 http://www.culturalindia.net/indian-history/ancient-india/, accessed on 16

th November, 2011

8 http://www.kushan.org/essays/chronology/kanishka.htm, accessed on 15

th November, 2011

9

http://library.thinkquest.org/C006203/cgi- bin/stories.cgi?article=government&section=history/mughals&frame=story, accessed on 15th November, 201110

http://www.rajasthan-tour-package.net/Sawaijaisingh-%20Jaipur.htm, accessed on 15th November,2011




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transferred or, to be more specific, certain subjects were declared as transferred subjects while

the rest of them were treated as reserved subjects11. Subjects of vital importance such as revenue,

administration of justice, mineral resources, police etc., were kept reserved while subjects like

local self-government public health, education etc. were transferred12

. The provinces were to be

governed, in relation to transferred subjects by the governor acting with ministers. The governor

and his Councillors were appointed by His Majesty the King of England.

This was the kind of dual executive devised by the Act of 1919, in which certain matters were

administered by the Governor-in-Council, the Councillors being answerable to the King and

certain others were administered by the Governor on the advice of Ministers answerable to him.

Prima facie and as stated by the Muddiman Committee, inherently this division of the

Government into two halves was unsound and in fact this was the reason that in „Government of

India Act’ 1935, this system was again altered. There was now a single governor of a province.

His powers on the province level where same as the governor-general. Like the Governor-

General he could make an Ordinance or an act on the subjects falling in his special

responsibility. Further the special power that was given to him was that in case of constitutional

breakdown in the province, he could, by proclamation assume all powers vested in or exercisable

by any provincial body or authority, except the High Court. For the first time “The Governor‟s

powers as a whole presented a formidable list seldom found in the case of an executive head

functioning under a responsible system of government13

.”

After the independence, this same Government of India Act, 1935 became the major source of

inspiration for the post of Governor. Having known the powers it was decided that the power and

stature of the governor would more or less be the same. The members of Constituent Assembly

had a lot of discussions and deliberations about it. Some members were really apprehensive of

the power to suspend the provincial government. They argued that this was only needed if there

was an Alien rule. In self governance, the stance of distrust between governor and head of

elected government should not arise in the first place. But then it was agreed that the federation

of India was at a nascent stage, there may be cases where representatives of a province may

11 FOR THE LIST OF TRANSFERRED SUBJECTS, SEE GWYER A ND APPADORAI, OP. CIT.,P.15

12 K EITH SAYS THAT “THE CHOICE OF TOPICS WAS DICTATED BY THE CONSIDERATION OF MATTERS WHIH

MOST EASILY COULD BE E NTRUSTED TO MINISTERS A ND WHICH MOST EASILY COULD BE E NTGRUSTED TO

MINISTERS A ND WHICH OFFERD THEN THE GREATEST SCOPE FOR SOCIAL A ND ECONOMIC DEVELOPMENT THE NATION-BUILDING ACTIVITIES, A ND THE SPHERE OF SOCIAL R EFORM “. K EITH, OP. CIT.,P.25413

PYLEE, OP. CIT., P. 90.




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indulge in activities that would be detrimental for the people of the province, so it was necessary

to have a check to this threat.

On comparison with other countries, we find that our system of election was not borrowed but

evolved out of need. In America the governor of a province is directly elected by people. He has

to contest a election whereby people chose him in exercise of their universal adult franchise. On

the other hand France has a other system. For the election of Governor they have the system of

provincial nomination. It means for the post of Governor only a native of that province can be

nominated. If compared with commonwealth countries, our scheme of the post of governor

comes closely to two countries South Africa and Canada.




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I I I . Off ice of Governor

Before going on to the issue of what are the powers and functions of the governor, the

researchers would like to see that what were the plans of the framers of the constitutionregarding the Office of the governor, what was to be his role and whether he would be

working for the state or is it a tool by which union wanted to extend its power to the state. So

for this the researcher would like to focus on the constitution assembly debates in regard to

the office of governor and will look whether the role is being carried out by the governor as it

was required or not.

Governor is the linchpin of the constitutional apparatus of the state14.One of the places

where he plays a major role is in Union-State relations. It is to be noted that the government

of India Act 1935 provided for a strong centre. That is one of the reasons why in the

constitution assembly debate, people were of the view that to have a strong centre they need

to have a governor which will maintain a check on the state. Even Karanudhi once said that

"Pandit Nehru described in The Discovery of India that the Governors were acting on

instructions from New Delhi or Shimla. The same position continues even now. The

Governors act as the agents and spies of the Centre and their executioners of democracy in

the States.”15

But it is to be noted that those times were different. In those days there were

many controversies about whether the state would be loyal or not. Or whether they keep the

unity of the nation alive and the economical condition was weak so it was very much possible

that the state could go against the union even Biswanath Das (Congress, Orissa) commented

that "If I were to have my leaders in office continuously, if I were to have men like Pandit

Jawaharlal Nehru and Sardar Vallabhbhai Patel, I have absolutely no complaint... there is no

knowing which party will be in power (in the future). It may be that a party absolutely

different from that in the Centre may be functioning in office in a province. What would then be the position? The Governor, who is the constitutional head under the Act, has to be

appointed on the advice of the Prime Minister of India, leader of another party. I would have

cited how the Governor, who was the agent of the British Imperialism, had all along been

14 R.S. SARKARIA, COMMISSION O N CENTRE-STATE R ELATIONS, NOTIFICATION NO.IV/12013/9/2004-CSR,P.

12215 ERA SEZHIYAN, THE GOVERNOR AND HER ROLE, FRONTLINE, VOLUME 18 - ISSUE 13, JUN. 23 - JUL.

06, 2001.




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attempting to smash my Party. What was being done by the British Imperialism may also be

repeated by the Party (at the Centre)"16

So, at that time the situation were different and they wanted the strong centre and this

according to the researcher was the very reason that most of the congress party members

were in the favour that president should appoint governor and not by direct election. A major

change has occurred since then and especially from 1967 when majority parties were

different from those having government at the union.17

Since then the office of governor is

being misused by the centre and that‟s why it has been in controversy. Even eminent Jurist

Soli J. Sorabjee puts it as18

:

“It will not be exaggeration to say that no institution or constitutional office has suffered

greater erosion or degradation than the office of Governor. The public today generally regard

the Governor as an employee of the Central Government and in some cases as a spy of the

Centre. The unfortunate fact is that few incumbents of this high office have any clear

conception of their role in our constitutional scheme and in fact regard themselves as the

lackeys or employees of the Central government and readily act according to its behest.”

It is to be understood that the governor is vested with great responsibility by our

Indian constitution and its office cannot be misused like this he has the duty to keep the

centre informed of the affairs of the state, to help the centre to discharge its constitutional

functions and responsibilities towards the state.19 He has to help the centre in discharging its

duties towards state but not work as an agent for them. There was a response by the BJP on

the role of governor which the governor would like to quote "He (Governor) is the

constitutional head of the State government which in turn is responsible only to the State

legislature. On the other hand, he is appointed by the President, which in fact means the

Central government. It is no doubt true that the Governor is appointed by the President but

that does not make him an employee or servant of the government.” So, it is to be understood

that the office of governor was intended to ensure protection and sustenance of the

constitutional process of the working of the constitution by the elected executive and give

him an umpire‟s role. There would be mechanism through which he has to work when a crisis

16 CONSTITUENT ASSEMBLY DEBATES, MAY 31, 1948

17 Supra note at 14 , para 4.1.01.

18 ARTICLE O N “FEDERALISM: NATURE A ND WORKING” BY A.S. Narang, I N THE BOOK TITLED “R ETHINKING OF

CENTRE-STATE R ELATIONS I N I NDIA”, EDITED BY R.C. SOBTI A ND ASHUTOSH K UMAR 19See ,4 C.K. THAKKER, S.S. SUBRAMANI, T.S. DOABIA, B.P. BANERJEE;DUGA DAS BASU

COMMENTARY ON THE CONSTITUION OF I NDIA;( 8TH

ed. 2009)




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occur in the state. He has to maintain a vital linkage between union and state20. So, it is

important that the office of governor shouldn‟t be misused like it has been recently. 21 The

Administrative Reforms Commission on Centre-State Relationship observed that in the centre

state relationship governor is not meant to be a ornamental sinecure. It was said that this is a

post which requires caliber, skill and experience so that the Governor can perform the dual

responsibility towards the Union and the State of which he is the constitutional head.22 It is to

be noted that many times the governor has to perform many discretionary functions like

choosing Chief Minister, in testing majority, in dismissal of Chief Minister, in dissolving the

legislative assembly, in recommending President‟s rule, in reserving bills for President's

consideration and many other important functions where he has to apply his discretion and

his reasoning and not the reasoning of the centre

23

. The Committee of Governors appointed by President V.V. Giri affirmed in its report (1971): " Under the Constitution, just as a State

is a unit of the Federation and exercises its executive powers and functions through a Council

of Ministers responsible to the Legislature and none else, the Governor, as the Head of the

State, has his functions laid down in the Constitution itself, and is in no sense an agent of the

President"24

The other issue which has always been raised up is on the appointment of governor.

Governor is the constitutional head of the state and it has always been said that like there is

president for the union so, there is a governor for the state. But the controversy comes in the

appointment of the governor. President is elected by the Electoral College consisting of the

elected members of both the Houses of parliament and the elected members of the legislative

assemblies and governor is just appointed by the president under Art 155 of The Indian

Constitution Law25. Though the Governor is the executive head of the State and a part of the

State Legislature and the administration of the State is carried on in his name, the people of

the State or their representatives have no say in the matter of his appointment so what it really

means is that he is appointed by union of council of ministers.26 So the issue which arise is

that if he holds the office at the pleasure of the president, how he can act unbiased. And the

other contention which has always been put forth is that the office of governor has now

20 Ibid .

21 Supra, note at 14.

22 Ibid.

23 Supra, note at 2. p 368

24 Supra, note at 15.

25

See, H.M. SEERVAI., CONSTITUTIONAL LAW OF I NDIA (4TH

ed. 1996)26 R.S. Sarkaria NATIONAL COMMISSION TO R EVIEW THE WORKING OF THE CONSTITUTION, A CONSULTATION

PAPER O N, THE INSTITUTION OF GOVERNOR UNDER THE CONSTITUTION.




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become an old age house of the retired politician of the centre i.e. the governor are now not

been appointed on the basis of skill, but on their political connection and their faithfulness

towards the centre. There was a survey done by the Sarkaria Commission which showed that

since independence till October 1984, over 60 per cent of the Governors had taken active part

in politics, many of them immediately prior to their appointment.27

Therefore when there is

so much political confusion you need a governor who can act impartial and should posses

such skill which are required to run the administration in efficient manner. And for that it is

the duty of the centre to see that the governor is not forced to act as an agent. Even the

renowned jurist H.M. Seervai said28: "As the President acts on the advice of his Ministry, it

may be contended that if the Governor takes action contrary to the policy of the Union

Ministry, he would risk being removed from his post as Governor and therefore he is likely tofollow the advice of the Union Ministry. It is submitted that a responsible Union Ministry

would not advise, and would not be justified in advising, the removal of a Governor because

in the honest discharge of his duty, the Governor takes action which does not fall in line with

the policy of the Union Ministry. The removal of the Governor under such circumstances

would otherwise mean that the Union executive would effectively control the State executive,

which is opposed to the basic scheme of our federal Constitution". Hence if the union uses its

function discretionally for their advantage and interferes in the working of the state then it

would be a negation of constitutionalism and negation of constitutionalism is nothing but

corruption. The other is the frequent removals of the governor has also lowered the prestige

of this office29

. In the Indian Constitution there is a proper process of impeachment for the

removal of president but in the case of governor it is nothing like that and he can be removed

by the president unlike the constitution of U.S.A. where there is a proper process of

impeachment for the removal of governor so this is another departure from the strict federal

principle as obtains from there.30 Governor holds office at the pleasure of the president and

can be removed by him. It was held:-“President of India is the best judge for the exercise of

his pleasure to decide as to when and in what circumstances the term of a sitting Governor of

a state should be reduced, or instead of reducing the term, he may be transferred from one

state to another, or he may be asked to vacate the office. No reason needs to be given for

27 Supra, note at 14, para 4.6.06

28 H.M. SEERVAI: CONSTITUTIONAL LAW OF I NDIA 3103 (4

TH ed., 1996)

29 Supra, note at 14, para 4.1.02

30Supra, note at 19




17| P a g e

exercising the pleasure and he need not be heard. Since the governor holds the office during

the pleasure of the president, any mala fide action may be taken cognizance by the

president.”31

So this gives a paramount power to the president in the removal of governor and

this in turn gives a large scope to the union for the misuse of it. Only due to these reasons

there have been frequent removals of the governor which in turn have lowered the status of

the office of governor.32 A Survey of the tenures of Governors from 1947 up to October,

1986 shows that, out of the 154 tenures that ended during this period, 104, i.e. two-thirds of

them, were each of duration of less than 5 years.33

Further many of them are transferred,

which creates insecurity in the mind of the governor that he cannot act on his own discretion.

So he has to act on the discretion of the president and therefore the misuse of it lowers the

position of the office of governor.

31

PRATAP SINGH R AOJIRAO R ANE V GOVERNOR OF GOA, AIR 1999 BOM 53. 32 Supra, note at 14, para, 4.1.01.

33 Supra, note at 14,para, 4.7.01.




18| P a g e

IV. Powers and Functions OF GovernorTo understand the power and function of governor we first need to understand what is

actually power and function and what is the difference between them? There are certain powers which governor has and no one can interfere in them. But there are certain functions

with which parliament may intervene.34

Power according to the black‟s law dictionary means

dominance, control, or influence over another; control over one's subordinates.35 Whereas

function means The occupation of an office, by the performance of its duties, the officer

is said to fill his function.36

Owing to the gravity of work done by the governor, he has been entrusted with many powers.

These powers are on small scale similar to that president in centre. Some of the main powers

possessed by Governor are executive power, discretionary power, pardoning power and

ordinance making power.

The first power upon which the researchers would like to shed some light is the executive

power. Executive power is in itself a power that that has very wide ambit and the entrusting

of such power to the governor shows the importance of the office of Governor. Vested within

his executive power, the constitution of India has assigned the role of the constitution

protector to the Governor. He plays an important role in making linkage between union and

the state. If any directions are issued by the Union in the exercise of its executive power to

the State Government under any provision of the Constitution, such as, Articles 256 and/or

257. It is the duty of the Governor to keep the Union informed as to how such directions are

being implemented by the State Government and what the measure of progress is.37

Moving into detail, the researchers would first like to define what is the executive

power and its scope. According to Black‟s law dictionary, Executive power is “The Power to see that laws are duly enforced.” Moreover in the case of Ram Jawaya v St. Of Punjab

38, it

was commented by the hon‟ble court that executive power is “the carrying on or supervision

34 SUBODH S. PATIL, STATUS OF PRESIDENT U NDER CONSTITUTION: PROBLEMS A ND PERSPECTIVES,

HTTP://WWW.I NDIALAWS.I NFO/DISPLAY.ASPX?4514, ACCESSED O N 11TH NOVEMBER , 2011.

35 9TH

ED. BLACK ‟S LAW DICTIONARY 36

I bid. 37

R.S. SARKARIA, COMMISSION O N CENTRE-STATE R ELATIONS, NOTIFICATION NO.IV/12013/9/2004-CSR, P119, para 4.3.1438

(1955)2 SCR 225




19| P a g e

of the general administration of the State”. In the words of Justice P. B. Mukharji 39,

„„executive power can never be constitutionally defined and all constitutional efforts to define

it must necessarily fail‟‟. Executive power is an indefinable multi-dimensional constitutional

concept varying from time to time, from situation to situation along with the changing

concepts of State in political philosophy and political science. Executive power is nothing

short of “the whole state in action” in its manifold activities. In one sense, the legislative

power and the judicial power, in order to graduate from phrase to facts, have finally to

culminate in executive power to become effective‟.

Even in the Halsbury law of England,40 it was stated that the “Executive function are

incapable of comprehensive definition, for they are merely the residue of the function of the

government after the legislative and judicial functions have been taken away”. All these show

the importance of the power which has been given to him by the constitution of India. And

what is even more striking that the nature of power Governor poses is ultimate in this regard.

It is often been thought that the exercise of power by Governor is not independent as it has to

work on the aid and advise of the council of ministers. Even the constitution of India itself

provides the difference between the power and function when under Art 154(2)41

:-

“Nothing in this article shall—

(a) be deemed to transfer to the Governor any functions conferred by any existing law on

the Government of any State or other authority; or

(b)

b) prevent Parliament or the state legislature of the state from conferring by law

functions on authority subordinate to the Governor”

Therefore, it is quite evident that the parliament or the state legislature can only has

power to bestow only the functions of the Governor on any other authorities and has no say

on the exercise of powers vested on the Governor. Even Art 163 which talks about Council of

minister to aid and advice Governor is also while doing its function but the power here is

absolute.

The gravity of power that the Governor enjoys can be understood by the fact that he

enjoys complete immunity and is not answerable to any court for the exercise and

39

P. B. MUKARJI, CRITICAL STUDY OF THE INDIAN CONSTITUTION 9-1040 HALSBURY LAW OF E NGLAND, 192 (3

RD ed. 2010)

41 CONSTITUTION OF I NDIA, 1950




20| P a g e

performance of the powers and duties of his office, or for any act done, or purporting to be

done by him in the exercise and performance of those powers and duties.42

However that doesn‟t mean that he is free to violate the executive function i.e. the executive

power should be used in accordance with provisions of the Indian constitutions and if he

violates his limits, the rule of ultra vires will be invoked.43

After going through all these facts, it seems quite pleasurable that our constitutional

fore-fathers succeeded in creating a post that was true in the nature and essence of Indian

federal structure and basic components of constitution such as rule of law and division of

power. But there is also the darker side of this arrangement. From the very beginning there

has been misuse of the power of Governor. Whether it may be the report sending for

declaration of emergency, or calling upon the majority strength holder for the post of Chief-

Minister, it has been obvious that there is something more in play than the sole discretion of

Governor. And it is this discrepancy, along with its nature and cause that the researchers want

to research upon and ascertain.

From the very time of functioning of constitution, it was quite clear that central government

was able to affect and manipulate the power and decisions of governor. In the constitution

assembly debates, it was a huge issue that the appointment of the governor should not alone

be done by the President of India, because there was always a chance of misuse in the future.

History bears the witness that always it has been the party at centre who has decided the

Governor of any state. In fact the post of Governor has been used as a reward for aging and

retired loyal party members or for shunting away dissidents. And that‟s why in actions of him

sometimes there has been a reflection of biasness with his duties and standards so as to please

his appointer. In other words, Governor is the agent of the Centre in the states.44

What is

more binding is that the Governor holds the office on the pleasure of president and has to

serve as per the will of president. So even once appointed, there is always a chain that binds

the hands of the Governor. And seldom if he tries to break the chain, the punishment comes

in form of transfer and even in extreme cases as demands of resignation. All these combined

have led to quite a downfall in the prestige of the office of Governor.

42

R AMESHWAR PRASSSAD V U NION OF I NDIA, AIR 2006 SC 98043 STATE OF U.P. V BABU R AM UPADHYA, AIR 196 SC 751

44 WWW.NIOS.AC.I N/SRSEC317 NEWE/317EL8 accessed on 14

th November, 2011




21| P a g e

Moving over to 2nd significant power of the Governor which has always been in the

question is the discretionary powers of the governor. The discretionary power of a Governor

includes calling the majority party leader to become the chief minister, sending report of the

breakdown of constitutional machinery in state and sitting over the bill passed by the state

legislature. There are certain provisions of the Indian Constitution which grant him

discretionary power. For the sake of convenience, this topic has been divided into two smaller

sub-topics. The first sub topic will be dealing with the general issues of the discretionary

power of the governor . The researchers have decided to discuss one specific topic i.e. „report

sending by Governor‟ in the later sub-topic.

According to Art 16345

the council of minister has to aid and advice the Governor but it is to

be noted that it is not necessary for him to accept it, as he can work on his own discretion.

Even the judiciary has held in the case of Shri Pratapsing Raojirao Rane & ... vs The

Governor Of Goa & Others 46 that:-

"Certain powers are available to the Governor under Art. 163 which he could

exercise in his sole discretion. With regard to the action pertaining to his sole discretion, the

immunity of the Governor is absolute and beyond even the writ jurisdiction of the High

Court. The power of the Governor with regard to the appointment of the Chief Minister is a

power which falls in his sole discretion and therefore the Court cannot call in question the

same."

So, it is quite evident that a governor while exercising his discretionary power cannot

be questioned in the court of law. This is one of the main reasons why there is misuse of his

powers. With its deep control and influence, central has always tried to get its work done in

the state through Governor. These powers have been given to the governor for some specified

purpose and not for the purpose of misuse by union. The most widespread misuse of powerhappened after the Fourth General Elections in 1967. In a number of States, the party in

power was different from that in the centre. And the Union government wanted to suspend

the state government. As a consequence, the Governors were called upon to exercise their

discretionary so as to benefit the party in centre. The whole group of legal experts were

frightened by the degree of this act, as it shook almost all the pilla rs of India‟s governance.

Moreover the manner in which they were exercised, it had a direct impact on Union-State

45 CONSTITUTION OF I NDIA,1950

46 AIR 1999 BOM 53




22| P a g e

relations for a long time. After that incident points of friction between the Union and the

States began to multiply47. So what was seen in this case was that the role of the governor

which was that to ensure smooth functioning of the state had been replaced by his working as

the agent of the union. Many experts are of the view that Governor should exercise his

discretionary power only as the last resort.48

But this has not been the case always. This

power has also been misused in the case of Art 164 where the minister holds the office at the

pleasure of the Governor and “the exercise of the discretion by the governor in withdrawing

the pleasure cannot be challenged”. He can also withhold his assent to a bill and send it to the

President for his approval. Constitutionally he is not bound to appoint a chief minister of the

majority party though it is a different thing that the person might lose the confidence of the

house in subsequent floor test. So what we see is that the power which has been vested in the post of Governor has a large scope of misuse. And history bears witness that it has been

resorted to misuse.

Coming over to the next sub-issue and which had the most number of misuses is that

of report sending by the governor in the matters related to imposition of state emergency to

the president. Art 356 reads as the governor can make a report about the failure of the

constitutional machinery in the State. Bearing in mind that this report is mentioned in an

Article of the constitution, it is submitted that the Governor would be justified in making such

a report contrary to the advice of the council of minister, because such a report might show

that the failure of the constitutional machinery was due to the conduct of council of

minister.49 This governor power has been greatly been misused by almost every party which

has been at the centre. But the most critical example would be the tenure of Indira Gandhi

spanning eleven years in which twenty seven times state emergency was imposed.

In this regard, it is important to know that when governor can dissolve the legislative

assembly and when he can ask for president‟s rule. After thorough research, the researchers

are of the conclusion that the Governors should not be allowed to dismiss the Ministry so

long as he enjoys the confidence of the House. Only where a Chief Minister of the Ministry

refuses to resign after his Ministry is defeated on a motion of no-confidence, should the

Governor dismiss the State Government. It is to be noted that when it is clear that no-longer

47 See, R.S. SARKARIA, COMMISSION O N CENTRE-STATE R ELATIONS, NOTIFICATION NO.IV/12013/9/2004-CSR

48

R.S. SARKARIA, COMMISSION O N CENTRE-STATE R ELATIONS, NOTIFICATION NO.IV/12013/9/2004-CSR, P136, para 4.16.2149

H.M. SEERVAI: CONSTITUTIONAL LAW OF I NDIA 2062 (4TH ed., 1996).




23| P a g e

the state machinery can work, then only president rule can be imposed. But firstly it is the

duty of the governor that the problem is solved by the state itself and not by the president

rule. In the words of Soli Sorabjee, eminent jurist and former Solicitor-General of India,

“After the Supreme Court's judgment in the S. R. Bommai case, it is well settled that

Article 356 is an extreme power and is to be used as a last resort in cases where it is

manifest that there is an impasse and the constitutional machinery in a State has

collapsed.”50

This is a great power which has been vested with the governor and with the great

powers comes great responsibility and so governor has to act with his own knowledge and

not as a mere agent of union or else it would be a great misuse of power. It has always been

speculated that when the president holds office at the pleasure of the president, then how can

he use his own discretion. In 1979 Raghukul Tilak case, the hon‟ble Supreme Court

observed that the “appointment of the Governor and his tenure at the pleasure of the

President does not make the Government of India an employer of the Governor. The

Governor is the head of the State and holds a high constitutional office which carries with

it important constitutional functions and duties and he cannot, therefore, even by

stretching the language to a breaking point, be regarded as an employee or servant of the

Government of India." The Court added: "It is impossible to hold that the Governor is under

the control of 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 the Government of India."51 So it is quite visible how judiciary has

recognized its role in preserving the office of governor and understanding that it shouldn‟t be

used by these political parties for their motives. Even after this there have been a number ofcases where the governor has send a report with mala fide intention for the imposition of

president‟s rule. One of the most famous case was of Buta singh acting as a Governor in the

state of Bihar 2005. In this case the then chief-minister aspirant Nitish Kumar was prevented

by governor Buta Singh from staking his claim to form the government in Bihar on the

allegation that a majority could be cobbled by distortion of the system due to allurement and

50

SOLI SORABJEE, CONSTITUTIONAL MORALITY VIOLATED I N GUJARAT, I NDIAN EXPRESS, PUNE, I NDIA, SEPT. 21, 199651

HARGOVIND V. R AGHUKUL TILAK , AIR 1979 SC 1109, AT 1113.




24| P a g e

bribery52. In his report, Singh stated that a situation had emerged in which no political party

or group appeared to be able to form a government that could command a majority in the

House. According to Singh, this was a case of failure of constitutional machinery. Therefore,

president‟s rule was recommended in the state. Based on the governor‟s report, the Centre

imposed president‟s rule in Bihar 53

and it was found out that the governor report was having

mala fide intention. What is to be noted is that the power conferred by Article 356 upon the

President is a conditioned power. It is not an absolute power. The existence of material -

which may comprise of or include the report(s) of the Governor - is a pre-condition. The

satisfaction must be formed on relevant material.54 So what is happening is that the judiciary

is increasingly interfering in number of cases where the opposition feels that the central has

acted arbitrarily. A case came at the Allahabad high court where the court followed the stepof S.R. Bommai and restored the dismissed government to its office (W.P. 7151 of 1998

disposed of on 23 February, 1998) this decision was not been disturbed by the supreme court

but it brought out a peculiar kind of floor test where both the contenders for the office of

chief minister were asked to test their strength on the floor of the House. The Chief Minister

who was dismissed wrongly by the Governor established his majority and continued in

office.55 In 1973 the Chief Minister of the state of Orissa resigned, and the leader of the

opposition, Biju Patnaik, staked his claim to form the government. But the Governor,

without ascertaining the facts, simply recommended that President's rule be imposed.

When that decision was contested, the High Court declared that the Governor had acted

contrary to established constitutional norms, that he should have allowed the claims of the

opposition leader and let his strength be tested on the floor of the Assembly, and that he

should not have prejudged the case on the basis of antecedents or on the ideologies of the

constituents.56

So what the researchers find is that there have been number of cases where emergencyrule in the state has been proclaimed mala-fidely. Though this has been brought under the

ambit of judicial review, but there are still greater numbers of cases where president has

imposed emergency and the work of centre is being carried on. This shows that how the

52 PURNIMA S. TRIPATHI; A Dissolution At Midnight , , Volume 22 - Issue 12, Jun 04 - 17, 2005.

53 SOLI J. SORABJEE; It’s In The Numbers; Fri, May 20th 2011,

54 S. R. BOMMAI V. U NION OF I NDIA ([1994] 2 SCR 644

55 A.I.R. 1998 SC 998

56 BIJU PATNAIK A ND OTHERS V. PRESIDENT OF I NDIA A ND OTHERS, AIR 1974 ORISSA 52

http://www.indianexpress.com/columnist/solijsorabjee/








http://en.wikipedia.org/wiki/Case_citation












25| P a g e

constitutionalism has become the myth and the concept of denial of power has vanished in

the thick mist of arbitrariness.

The third major function which has been given to the governor and which has also

been misused a larger number of times are the ordinance making power of the governor. Art

213 of The Constitution of India reads that when both houses of Parliament are not in session

and circumstances exist so as to satisfy the Governor to take immediate action, the Governor

may promulgate an ordinance. In the case of S.K.G. Sugar Ltd. v. State of Bihar, it was held

that promulgating of an Ordinance is a matter purely for the subjective satisfaction of the

Governor, he is the sole Judge to consider the as to the existence of the circumstances which

makes it necessary to issue an Ordinance and “his satisfaction is not a justiciable matter”.57

This decision indicates the scope of this power and shows that why its misuse is rampant.

Although it has always been in the debates that whether the ordinance making power is an

legislative power or executive power. On this issue the court held in one of the cases 58 that

“An ordinance issued by the President or the Governor is as much law as an Act passed by

the Parliament and is, […] f ully of legislative character and are made in the exercise of

legislative power, within the contemplation of the Constitution.” Some more light has been

shed by Supreme Court in their judgement that “since the power to make an ordinance is a

legislative and not executive power, it cannot be questioned on grounds as improper motives

or non-application of mind”.59 Hence it is clear that the Governor is having a great power

when it comes to promulgation of ordinance and it can easily be misused and for that matter

of fact it has been misused many number of times. The researcher would like to focus one

such issue where Some Ordinances were kept alive for periods ranging from one to 14 years

by repromulgating them again and again. The Supreme Court considered such promulgation

as an abuse of the power and a fraud on the Constitution. 60 But it is to be noted the misuse

was been done at the behest of centre. When this provision was being brought up in theAssembly debates, it was said that this power would be exercised only in extraordinary

situations and not for political gains.61

But the case in Bihar shows a different story. The

court is now trying to stop the misuse of this power and for they have evolved Doctrine of

Colourable Legislation and this doctrine was applied in this case where the court said that:-

57 AIR 1974 SC 1533: (1974) 4 SCC 827; P. 832

58 SAT PAL & CO. V. LT. GOVERNOR OF DELHI AIR 1979 SC 1550; P. 1551

59 Supra note at 2

60 V P GUPTA, R OLE OF A STATE GOVERNOR, THE TIMES OF I NDIA, APR 7, 2003, 02.34AM .

61 CONSTITUENT ASSEMBLY DEBATES, VOL. VIII, P. 213-217




26| P a g e

“It is a settled law that a constitutional authority cannot do indirectly what it is not

permitted to do directly. If there is a constitutional provision inhibiting the constitutional

authority from doing an act, such provision cannot be allowed to be defeated by adoption of

any subterfuge. That would be clearly a fraud on the constitutional provision”62

It is to be noted that the duty imposed by our constitution in this regard is very

important because it extends to the legislative function so the governor should act with reason

while using its power in these functions.

The last power which the author would like to discuss here is the „Pardoning Power‟.

The very question which flashes across is that while vesting this power with the governor,

wasn‟t the rule of separation of power being drop. The power of pardon exists to prevent

injustice whether from harsh or unjust laws or from judgments which result in injustice;

hence the necessity of vesting that power in an authority other than the judiciary has always

been recognized.63

Secondly, it has been a method of implementing “Separation of Powers” so

that absolute power in the hands of the judiciary could be controlled. Since India also was

supposed to have division of powers therefore the Power of pardon was also vested in the

State executive i.e. Governor with lesser powers.64

It is to be noted that this power comes under the executive power and not under the

judicial power as it was said by Sutherland J. in United States v. Benzin65 that:-

“The judicial power and the executive power over sentences are readily

distinguishable. To render judgment is a judicial function. To carry the judgment into effect is

an executive function. To cut short a sentence by an act of clemency is an exercise of

executive power which abridges the enforcement of the judgment, but does not alter it qua a

judgment”.

The classic systematic interpretation or explanation of the law relating to pardon is to

be found in Ex parte Philip Grossman where Chief Justice Taft mentioned “Executive

clemency exists to afford relief from undue harshness or evident mistake in the operation or

the enforcement of the criminal law. The administration of justice by the courts is not

62 AIR 1988 JL 49

63 E X . P G ROSSMAN (1924)

64

SUBODH S. PATIL, STATUS OF PRESIDENT U NDER CONSTITUTION: PROBLEMS A ND PERSPECTIVES, HTTP://WWW.I NDIALAWS.I NFO/DISPLAY.ASPX?4514, ACCESSED O N 12TH

NOV, 2011.65

75 L. ED. 354.




27| P a g e

necessarily always wise or certainly considerate of circumstances which may properly

mitigate guilt. To afford a remedy, it has always been thought essential in popular

governments, as well as in monarchies, to vest in some other authority than the courts power

to ameliorate or avoid particular criminal judgments.”66

. The opinion has been approved in

Kuljit Singh v. Lt. Governor of Delhi67

So it is quite clear that this power given to the governor is justified and this working

as executive by Governor Exercises a constitutional and not a statutory power, his authority is

derived from Art. 161 and it enables him to pardon all offences against all laws relating to a

matter to which the legislative authority of the state extends. As the Penal Code and the

matters contained therein are a subject of concurrent legislation and as the Penal Code is the

general law of crimes in India and provides for sentences of death, it is clear that the

Governor‟s power of pardon under Art. 161 extend to pardoning a sentence of death.68

This power has also been misused a number of times by the Governor, but the court

put a check on it in the Epuru Sudhakar case69

, wherein the court said “Rule of Law is the

basis for evaluation of all decisions (by the court)... That rule cannot be compromised on the

grounds of political expediency. To go by such considerations would be subversive of the

fundamental principles of the Rule of Law and it would amount to setting a dangerous

precedent”70 and then it turned aside the decision of the then Andhra Governor, remitting the

sentence of a Congress activist who had faced ten years in prison for killing two persons. The

court said that a governor cannot pass a decision without application of mind, with mala fide

intention, wholly on irrelevant considerations, relevant material kept out of consideration or

based on arbitrariness71

. In the case Swaran Singh v. State of U.P.72

the court held that the

power which was exercise arbitrarily, mala fide or in absolute disregard of the finer canons of

the Constitutionalism, the by-product order cannot get the approval of law and in such cases,

the judicial hand must be stretched to it. So, what the researchers have found out is that thereare number of cases where the governor has misused its power, but the court has kept a check

on it. The very purpose that of it i.e. to keep checks and balances is complete and now it is

the duty of the governor to see that there is no misuse of these powers. Furthermore the

66 69 L. ED. 527

67 1982 (1) SCC 417

68 H.M. SEERVAI: CONSTITUTIONAL LAW OF I NDIA 2102 (4

TH ed., 1996)

69 EPURU SUDHAKAR & A NR . V. GOVT. OF A.P. & ORS. AIR 2006 SC 3385

70

id. para 1171 id. para 1672

AIR 1998 SC 2026




28| P a g e

researchers feel that there should be some guidelines that have to be recommended by court

or the commission that if somebody abuses this power there should be some action against

him.




29| P a g e

V. Recommendations on the Office of governorThere is wide ambit of power been given to the governor and these were actually

given so that he could see that there is smooth functioning in the state machinery though it isa different thing that it has greatly been misused by the union for its own purpose. One of the

main purpose why there is always been so much misuse of power is that all the power has

been vested to centre and there is centralization of power and union is having a control over

the governor because of the many reason which has been mentioned before in the previous

chapter one of the main reason is that governor holds office at the pleasure of president and

that‟s why there has been various recommendation regarding the office of governor

especially by Sarkaria commission especially in the cases of appointment of governor as it

was felt that it was too much is been given to the centre in that regard and also regarding the

tenure of governor and its removal.

1. Recommendation On The Appointment of Governor :- In Rameshwar Prasad (VI) v. Union of India73 , it was observed that there is a need to

create some national policy and common structure in the matter of appointment of governor,

which are applicable and acceptable to all political parties. So there is an urgent need in the

appointment of governor.

It was recommended by the Sarkaria commission that:

While appointing a governor there should be a consultation with the state chief

minister and for the same there should be an amendment is made in the constitution

itself in Art 15574

. Further it was said that prime minister can consult Vice-President

of India and the Speaker of the Lok Sabha in the appointment of governor but that

should be informal and not binding.75

It is to be noted that a consultation with the chief minister doesn‟t mak e it binding on

the union to follow what they have recommended. So there will still be a scope of misuse of

it. So there shall be a committee comprising the Prime Minister of India, the Home Minister

of India, the Speaker of the Lok Sabha and the Chief Minister of the State concerned to select

73 (2006) 2 SCC 1

74 R.S. SARKARIA, COMMISSION O N CENTRE-STATE R ELATIONS, NOTIFICATION NO.IV/12013/9/2004-CSR,; para

4.16.0375 R.S. SARKARIA, COMMISSION O N CENTRE-STATE R ELATIONS, NOTIFICATION NO.IV/12013/9/2004-CSR,; para

4.16.04




30| P a g e

a Governor and the process should be transparent and unambiguous.76 According to the

researcher the recommendation by the National Commission to Review the Working of the

Constitution seem to be more appropriate. The qualification of governor is also very

important according to the Sarkaria Comission77

:-

(i) The Governor should, in the opinion of the President, be an eminent person;

(ii) The Governor must be a person from outside the concerned State;

(iii) The Governor shouldn‟t be one who has been active in politics in recent past.

According to the researcher the first point is very vague on the one point it is said that

governor should not hold office at the pleasure of the president and on the other hand it is

been said that “in the opinion of president, be an eminent person” so now here opinion of a

President is very hard to judge and in most of the cases the president opinion will be actually

the opinion of the union so, this won‟t change much as said by the Administrative Reform

Commission on Centre-State Relationship that:- "The post came to be treated as a sinecure

for mediocrities or as a consolation prize for what are sometimes referred to as 'burnt out'

politicians. Instead of these being treated as sinecures, they should be given due recognition

as vital offices in the federal fabric of Indian Administration"78

Therefore according to the researcher if there has to be any change, only opinion of

the president should not be there. But instead the opinion of Prime Minister of India, the

Home Minister of India, the Speaker of the Lok Sabha and the Chief Minister of the

concerned state, all of them should be there in judging the qualification of him and there

should be certain pattern on the basis of which one can conclude he is an eminent person.

2. Recommendation On The Tenure of The Governor :- There has been a frequent removal of the governor or transfer from one state to another.

Governors should not be shifted or transferred from one State to another by the Union as if

76 Shri R.S. Sarkaria NATIONAL COMMISSION TO R EVIEW THE WORKING OF THE CONSTITUTION, A

CONSULTATION PAPER O N, THE INSTITUTION OF GOVERNOR UNDER THE CONSTITUTION, P. 90377

R.S. SARKARIA, COMMISSION O N CENTRE-STATE R ELATIONS, NOTIFICATION NO.IV/12013/9/2004-CSR,; 4.16.0178

PARA 18.3




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they were civil servants.79 There were certain recommendations given regarding the tenure of

governor by the Sarkaria Commission:-

The Governors tenure of office of five years in a State should not be disturbed except

for some extremely compelling reason. It is indeed very necessary to assure a measure

of security of tenure to the Governor's office. 80 This in turn will bring the security in

the mind of governor and they will be able to work according to their discretion and

not merely as an agent of state.

The governor shouldn‟t be removed at the will of the government at the centre and

there should be an amendment done in Art 156 and a proper procedure should be

replaced that if a governor is being removed he should be given his chance to defend

his position in a fair and dignified manner by applying a Constitutional office.81 It was

also recommended that if a governor resigns or appointed in another state before the

expiry of the normal term of five years the Union Government may place a statement

before both Houses of Parliament explaining the circumstances leading to the ending

of his tenure.82

The recommendations put forth to secure the tenure of the governor are good by the Sarkaria

commission. But how the political scenario works, can be inferred by the fact that there are

quite loopholes which can be used by them to make their work done. Like the language

which is being used by the commission is not binding and it is only like if they will do their

work as recommended will be good but that doesn‟t make them bound to do that work.

3. Recommendation on The Removal of Governor :-

It is quite an irony that Sarkaria commission says about a fixing tenure of the

governor but it doesn‟t lay down any point on the proper impeachment of the governor . So he

can be removed any time. Many procedures for impeachment were being put forth, and among

79 R.S. SARKARIA, COMMISSION O N CENTRE-STATE R ELATIONS, NOTIFICATION NO.IV/12013/9/2004-CSR,

4.7.0880

R.S. SARKARIA, COMMISSION O N CENTRE-STATE R ELATIONS, NOTIFICATION NO.IV/12013/9/2004-CSR, 4.7.08, 81

R.S. SARKARIA, COMMISSION O N CENTRE-STATE R ELATIONS, NOTIFICATION NO.IV/12013/9/2004-CSR,

4.4.0682R.S. SARKARIA, COMMISSION O N CENTRE-STATE R ELATIONS, NOTIFICATION NO.IV/12013/9/2004-CSR, 4.8.09




32| P a g e

them the most important was that the impeachment should be same as that of a judge. However it

was not considered and in the reasoning it was said that both had different functions.83

The Rajamannar Committee Report (1971) recommended: "He (the Governor) should

not be liable to be removed except under proved misbehavior or incapacity after inquiry by

the Supreme Court."84 Even BJP once said: - “The Governor should be appointed for a term

of five years by the President from a panel prepared by the Inter-State Council. The Governor

should be removed only by impeachment in Parliament by a procedure analogous to that

provided in the case of a Judge of the Supreme Court. He is not to be transferred from one

State to another"

Even the Courts have held that the Governor holds no security of tenure or fixed

term85. The Governor's tenure depends on the pleasure of the President and the exercise of the

Presidential discretion in this regard is not justifiable86

. This shows that there is a need of

proper impeachment of governor like there is of president otherwise there will loopholes

which will be misused by the political players.

4 M iscellaneous Recommendations:-]

Firstly the discretionary power of the governor were left untouched by the Sarkaria

commission which shows us the importance of the office of the governor , and why it shouldn‟t

be allowed to be misused by anyone be it centre or state.

One of the major misuse of the power by governor has been done in the cases where they have to

send reports to the president for the imposition of state emergency. According to Sarkaria

Commission when a Governor finds that it will be constitutionally improper for him to accept

the advice of his Council of Ministers, he should make every effort to persuade his Ministers

to adopt the correct course. He should exercise his discretionary power only in the last

resort.87 Even thought there has been such a misuse, the Sarkaria Commission only talks

83 R.S. SARKARIA, COMMISSION O N CENTRE-STATE R ELATIONS, NOTIFICATION NO.IV/12013/9/2004-CSR,;

4.8.0584

Supra, note at 15.

85 SURYA NARAIN V.U NION OF I NDIA, AIR 1982 R AJ 1.

86

IUML V.U NION OF I NDIA, AIR 1998 PAT. 156.87R.S. SARKARIA, COMMISSION O N CENTRE-STATE R ELATIONS, NOTIFICATION NO.IV/12013/9/2004-CSR, 4.16.22




33| P a g e

about taking advice with the Council of minister unless extremely necessary. But it is not

hidden to all that in today‟s political game governor is on whose side. So this can still be misused

as he is not bound by the advice of minister hence this process should totally be stopped.88

Recommendation by sarkaria comission regarding emergency proclamation

In a situation of political breakdown, the Governor should explore all possibilities of

having a government enjoying majority support in the Assembly. The Governor

should then dissolve the Legislative Assembly, leaving the resolution of the

constitutional crisis to the electorate. During the interim period, the caretaker

government should be allowed to function. As a matter of convention, the caretaker

government should merely carry on the day-to-day government and desist from takingany major policy decision.89

Normally, the President is moved to action under article 356 on the report of the

Governor. The report of the Governor is placed before each House of Parliament.

Such a report should be a "speaking document" containing a precise and clear

statement of all material facts and grounds on the basis of which the President may

satisfy himself as to the existence or otherwise of the situation contemplated in article

356.90

The Governor's report, on the basis of which a proclamation under article 356(1) is

issued, should be given wide publicity in all the media and in full.91

However the suggestions made are only suggestive in nature and not binding. Thus it is necessary

that there should be some legal framework so that these recommendations which have been put

forth must get into following and do not gather dust in the concerned law ministry.

88 Shri R.S. Sarkaria NATIONAL COMMISSION TO R EVIEW THE WORKING OF THE CONSTITUTION, A

CONSULTATION PAPER O N, THE INSTITUTION OF GOVERNOR UNDER THE CONSTITUTION, P. 90489

(PARAGRAPH 6.4.08)90 (PARAGRAPH 6.6.26)

91 (PARAGRAPH 6.6.28)




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VI. Conclusion

The post of governor has been of tremendous importance to the smooth functioning of

the government machinery in the states. However, today this post has become an instrumentfor imposition of its will by the union government. From the period of Kings and Britishers,

the post of governor was used for better administration of provinces. After independence, it

was thought that it would serve to increase the centripetal tendencies of the then newly

merged Indian states. But gradually it progressed into an agent for the Union government.

This change in nature of Governor produced many negative results notably loss of the faith of

masses in the office of governor, substantial loss in the Indian status as a federation, judicial

intervention in the working of state executive. The researchers feel that there is substantial

need to improve the status of governor. This researcher‟s feel should be done in following

ways:-

Implementing the various committee reports which had been constituted to look on the post

of governor or union-state relationship. These committees would include the famous

Administrative Reform commission and Sarkaria commission

Keeping the process of election of the governor out of the preview of politics. Rather than a

law being formed, the researchers would suggest that this idea be implemented by mutual

understanding amongst all political parties.

Before appointing a governor, the president should check the background of the candidate.

An impartial person should be chosen who owes no alliance to any political party and for that

matter no political ideology.

The government of the respective state should be taken into confidence before appointment

of the governor. This is because at last it is the people of the state for whom the government

has been appointed.

There should be a sort of veto in the hand of state government, which they should use if they

feel that the governor being appointed is improper or if a governor finds that working with

the current governor has become impossible. The discretion in this matter should however lie

in the hands of union.




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The researchers strongly feel that these measures need to be implemented as soon as possible

to save the post of governor from completely becoming a puppet in the hands of union.

Furthermore if these steps are implemented, it would not only strengthen the country‟s

federal structure. But that would also lead to improved relations between centre and state,

ensuring the prosperity and progress of citizens of India.




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Bibliography

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1. Constitution of India , 1950

2. Constituent assembly debates ,

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1. 2 R UMA PAL A ND SAMARADITYA PAL, M.P.JAIN CONSTITUTION OF I NDIA, (6TH

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2. 4 C.K. THAKKER , S.S. SUBRAMANI, T.S. DOABIA, B.P. BANERJEE;DUGA DAS

BASU COMMENTARY O N THE CONSTITUION OF I NDIA;( 8TH

ed. 2009)

3. EMILY MORISON BECK BARTLETT'S FAMILIAR QUOTATIONS, (14TH ed.1968);

4. M.P.SINGH;OUTLINES OF I NDIAN LEGAL & CONSTITUTION HISTORY, (8TH ed.

2006)

5.

2 R.C. SOBTI A ND ASHUTOSH K UMAR “R ETHINKING OF CENTRE- STATE

R ELATIONS I N I NDIA”,

6. HALSBURY LAW OF E NGLAND, 3RD

ed., VOL. VII, P.192

7. P. B. MUKHERJI, CRITICAL STUDY OF THE I NDIAN CONSTITUTION 9-10

8. H.M. SEERVAI., CONSTITUTIONAL LAW OF I NDIA (4TH ed. 2010)

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http://www.culturalindia.net/indian-history/ancient-india/,

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2. http://library.thinkquest.org/C006203/cgi-

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1.

R.S. SARKARIA, COMMISSION O N CENTRE-STATE R ELATIONS, NOTIFICATION

NO.IV/12013/9/2004-CSR.

2. Shri R.S. Sarkaria NATIONAL COMMISSION TO R EVIEW THE WORKING OF THE

CONSTITUTION, A CONSULTATION PAPER O N, THE INSTITUTION OF

GOVERNOR UNDER THE CONSTITUTION.

Journals and Magazines

1. SC disposes of Munda’s petition To examine Goa Governor’s role http://www

.tribuneindia.com/2005/20050315/nation.htm#1

2. S HARAT P RADHAN ; BSP WITHDRAWS SUPPORT TO UP GOVT, http ://www

.rediff.com /news /oct/ 19up.htm

3. ERA SEZHIYAN, THE GOVERNOR AND HER ROLE, FRONTLINE, VOLUME 18 -

ISSUE 13, JUN. 23 - JUL. 06, 2001.

4.

PURNIMA S. TRIPATHI; A Dissolution At Midnight , , Volume 22 - Issue 12, Jun

04 - 17, 2005.

5. SOLI J. SORABJEE; It’s In The Numbers; Fri, May 20th 2011,

6.

V P Gupta; the Times of India: Role of a state governor; Apr 7, 2003, 02.34am

IST.

http://library.thinkquest.org/C006203/cgi-bin/stories.cgi?article=government&section=history/mughals&frame=story




http://www.rajasthan-tour-package.net/Sawaijaisingh-%20Jaipur.htm









http://www.rajasthan-tour-package.net/Sawaijaisingh-%20Jaipur.htm






Consti tuent assembly debates

Ar ticles referred

1. Soli Sorabjee, Constitutional Morality Violated In Gujarat, Indian Express,

Pune, India, Sept. 21, 1996

2. AMARTYA BAG; Ordinance Making Power Of President: A Parallel Power Of

Legislation?

3. ABHIMANYU KUMAR ; Pardoning Power Under The Indian Constitution; 4TH

JULY 2009.

4. A.S. Narang; “ Federalism: Nature And Working ”; SEP, 1998

5.

K RISHNA K. TUMMALA; The Indian Union and Emergency Powers. OCT., 1996

6. SUBODH S. PATIL; STATUS OF PRESIDENT U NDER CONSTITUTION: PROBLEMS

A ND PERSPECTIVES;

office of the governor constitutional scheme and practice

Documents