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TAMIL NADU NATIONAL LAW SCHOOL

A CRITICAL APPRAISAL OF ROLE OF GOVERNOR IN UNION-STATE


RELATIONS

SUBMITTED IN THE PARTIAL FULFILLMENT OF B.A. L.L.B (Hons.), FOURTH SEMESTER

Submitted to: PROF. Nikkitha Pattajoshi Submitted by: Abhijeet Singh Rathore

Course Faculty: Constitutional Law II Registration no: BA0150006

Course: B.A.LLB (Hons.)

Year: Second, IV Semester

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DECLARATION

I, N.Ajith Ram hereby declare that the project work entitled A CRITICAL APPRAISAL OF
ROLE OF GOVERNOR IN UNION-STATE RELATIONS submitted to Tamil Nadu
National Law School; Tiruchirappalli, is the record of a bonafide work done by me under the
supervision and guidance of Prof. Nikkitha Pattajoshi, Faculty of Law, Tamil Nadu National
Law School; Tiruchirappalli. All information furnished in the project is true to the best of my
knowledge and belief devoid of plagiarism. If under the circumstances plagiarism is truly
established, then the Law School may be pleased to proceed with any action against me
according to the Universitys rules and regulations.

______________________

AJITH RAM N

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ACKNOWLEDGEMENTS

On the successful completion of this project, I would like to thank our respected mentor, our
Constitutional Law II Lecturer, Prof. Nikkitha Pattajoshi who despite all of his pre-
occupations, provided me all the assistance I needed for the accomplishment of this project
and guided me while I tread on the tenebrous boulevard of ignorance. Had it not been his
support I would not be able to grasp the cognizance of something as enthralling as this.

No work is complete with solo endeavour and neither is mine. I thank each and every staff of
TNNLS for their unconditional support and infinitum. I would like to convey special thanks
to the Library Staff of TNNLS.

I would like to convey gratitude towards my friends and batch mates who have rendered me
their valuable time and without their help, this project would not have been in its present
shape and form.

I am grateful to The Almighty, who has given me enough strength and blessings to work hard
and make it to the best of my ability.

Last but not the least; I thank my parents who have given me a chance to study in this
esteemed University, a heaven for legal edification.

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Contents
CHAPTER-I

INTRODUCTION .......................................................................................................................... 6
CHAPTER-II

MISUSE OF POWER OF GOVERNOR ......................................................................................... 12


CHAPTER-III

IMPORTANCE OF OFFICE OF GOVERNOR ................................................................................ 16


NOT A SUPERFLUOUS OFFICE: ............................................................................................. 17
A FEDERAL LINK:................................................................................................................... 17
CHAPTER-IV

Discretionary Power of Governor ............................................................................................ 19


CHAPTER-V

Recommendations on the Office of Governor......................................................................... 22


CHAPTER-VI

CONCLUSION............................................................................................................................ 26

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TABLE OF CASES

1. Pratap Singh Raojirao Rane V Governor Of Goa, [ AIR 1999 BOM 53]
2. Hoechst Pharmaceuticals v State of Bihar, [AIR 1983 SC 1019]
3. Purshothaman v State of Kerala, [AIR 1962 SC 694]
4. Rameshwar Prasad (VI) v. Union of India, [(2006) 2 SCC 1]
5. IUML V.UNION OF INDIA, [AIR 1998 PAT. 156]
6. S.R. Bommai Case, [1994 SCC (3)]

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CHAPTER I

INTRODUCTION

After independence when the union of India was formed after 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 one1. The
office of Governor was one of the main reasons why the constitution drafters added 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 Presidents rule and
take care of the state machinery. 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.

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 emperors2. 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

1
See Durga Das Basu, Introduction to Constitution of India, p. 245, (21st Edition 2014), Lexis Nexis
2
See, Ancient History, Cultural History, visited on 16th March, 5:00 PM(IST),
http://www.culturalindia.net/indian-history/ancient-india/

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maintained with the help of efficient Governors. At those times Governors were seldom
from outside the province3. 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 Governor4. 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 them5.

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 Governors 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, 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 transferred or, to be more specific, certain subjects
were declared as transferred subjects while the rest of them were treated as reserved
subjects6. 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 transferred. 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.

3
See http://www.kushan.org/essays/chronology/kanishka.htm, (Last Visited 15th March, 5:30 PM(IST))
4
Ibid
5
SC disposes of Mundas petition To examine Goa Governors role;
http://www.tribuneindia.com/2005/20050315/nation.htm#1, (Last visited on 18th March, 9:20PM (IST))
6
See Gwyer and Appadorai, For the list of transferred subjects, p. 15

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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 Governors powers as a whole presented a formidable list seldom
found in the case of an executive head functioning under a responsible system of
government7.

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 statue 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 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 election whereby people chose him in exercise of their universal adult
franchise. On the other hand France has 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.

7
See M.V. Pylee, Constitutional Government In India, p. 90, S. Chand

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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 Office of Governor.

2) To access the current misuse of post of Governor.

3) To understand the importance of office of Governor.

4) To analyse the recommendation of committees on office of Governor.

HYPOTHESIS:

Governor not merely a figure head.

RESEARCH QUESTIONS:

Whether the discretionary powers of the Governor are being misused by the Central
Government?
Whether the Governor is an agent of the Union?

RESEARCH METHODOLOGY:

The researcher will mostly be relying upon the primary as well as secondary sources and the
research is doctrinal in nature. Basically research means investigation of the new things and
new things means first-hand experience. Doctrinal research in law field indicates arranging,
ordering, and analysis of the legal structure, legal framework and case laws to search out the
new things by extensive surveying of legal literature but without any field work.

REVIEW OF LITERATURE:

M.P. Jain observes that, The Governor of a State plays a multifaceted role. He is a vital link
between the Centre and the State. The Governor is the Constitutional head of the State. He
appoints the Chief Minister and other ministers and discharge several important functions in
relation to the State Legislature. The Governor assures continuity in the State administrator,
as having a fixed tenure, he stays in office while other may come and go from time to time. In
a parliamentary system the head should be impartial, but a Governor elected by the direct

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votes of the people would have be a party man. On keeping this point in view the post of
Governor is nominated one rather than elected one. Since the Governor holds office during
the pleasure of Governor he can be removed on any ground such as bribery, corruption,
violation of constitution. The Governors office has also become controversial, as whatever
decision the Governor takes, whether as the representative of the Centre or constitutional
head of the State, he become a centre of controversy, for one or the other political party feels
dissatisfied and thus criticises him and thus also bring Central government under
controversy. The Constitutional provisions regarding the Governors appointment, tenure,
functions etc shows that the Governor holds a dual capacity. On the one hand he is the
Constitutional head of the State and, a part of the State apparatus. On the other hand, he is the
representative of the Central government in the State and, thus provides a link with the
Centre. From this angle the Governors position differ from that of the President who
functions merely as the Constitutional head at the Centre.8

According to V.N. Shukla, Every state has a Governor in whom vests the executive power of
the State which is exercised by him directly or through officers subordinate to him. This
exercise of power is regulated by law. Since the appointment is made by the President he
thus, is an appointee of the Central government of the State, and, in so far as he acts in his
discretion, he shall be answerable to the government of the union. The Constitutional position
of the Governor in relation to the legislature and administration is the same as that of the
Union president. The Minister hold office during the pleasure of the Governor. It does not
mean that the Governor can dismiss his ministers at his will. The real import of the fact that
the ministers holds office during the pleasure of the Governor indirectly strengths the position
of the Chief Minister, for it places their offices at all times at the Chief Ministers disposal. If
the Governor is advised by the Chief Minister that a ministry shoul be dismissed, he should
exercise his pleasure and dismiss the Minister. If the Governor refuse to exercise such
pleasure the Chief Minister may resign and cause a constitutional crisis.9

J.N. Pandey observes that, the discretionary powers of the Governor is no where defined
under the Constitution, the power to act on his discretion or in his individual capacity has
been taken away and the Governor, therefore, must act on the advice of Council of Ministers.
Normally, he will act only as Constitutional head in accordance with the advice of the
Council of Ministers. But in times of crisis the Governor can efficiently and constitutionally

8
M.P. JAIN, Indian Constitutional Law, p. 337 (7th Edition, 2014) Lexis Nexis.
9
V.N. Shukla, Constitution Of India, p. 586 (12th Edition)

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act in his discretion such as in appointment of the Chief Minister, the dismissing of the
ministry, the dissolution of legislative assembly. In view of the responsibility of thre
Governor to the 10
President and of the fact that the Governors decision as to whether he
should act without ministerial advice in certain other matters according to the circumstances,
even though they are not specifically mentioned in the Constitution as discretionary
functions.

10
Dr. J.N. Pandey, Constitutional Law of India, p. 580-581, (51st Edition)

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CHAPTER II

MISUSE OF POWER OF GOVERNOR

Lord Acton once said11 Power corrupts and absolute power corrupts absolutely. The
institute of Governor is no exception to this. 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 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 199712 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 honble Supreme Court had to itself
intervene13. 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. A
major change has occurred since then and especially from 1967 when majority parties were
different from those having government at the union. Since then the office of Governor is
being misused by the centre and thats why it has been in controversy. Even eminent Jurist
Soli J. Sorabjee puts it as14:

11
See Lord Acton Quotes; www.brainquote.com/quotes/quotes/l/lordacton109401.html visited on 13th March,
4:20PM (IST)
12
See Sharat Pradhan, BSP Withdraws Support To UP Govt; http://www.rediff.com/news/oct/19up.html visited
on 13th March, 5:45 PM(IST)
13
Supra, Note 2
14
See A.S. Narang, Edt. R.C. Sobti and Ashutosh Kumar, FEDERALISM: NATURE AND WORKING,
Rethinking of Centre-State Relations in India.

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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.

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 Law15. 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 ministers16. 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 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 percent of the Governors had taken active part in
politics, many of them immediately prior to their appointment17. 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 said18: 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 to follow the

15
See, H.M. Seervai, Constitutional Law Of India, p. 3101 (4 th Edition, 1996)
16
R.S. Sarkaria, National Commission to review the Working of the Constitution, A Consultation Paper on, The
Institution of Governor under the Constitution, p. 902
17
R.S. Sarkaria, Commission on Centre-State Relations, Notification No.IV/12013/9/2004-CSR, p. 122
18
Supra note-13,p. 3103

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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. The other is the frequent
removals of the Governor has also lowered the prestige of this office19. Since the Governor
holds the office during the pleasure of the President, any mala fide action may be taken
cognizance by the President20. 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 Governor21. 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 22. 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.

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 thats 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 states23. 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 minister24. After the Supreme

19
Supra, note at 15. para 4.1.0
20
Pratap Singh Raojirao Rane V Governor Of Goa, AIR 1999 BOM 53
21
Supra, note at 15, para, 4.1.01.
22
Supra, note at 15, para, 4.7.01.
23
See www.nios.ac.in/srse317newe/317EL8 visited on 15th March, 5:45 PM(IST)
24
Supra Note-13, p. 2062

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Courts judgment in the S. R. Bommai case25, 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 collapsed26.

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 bribery27. 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,
Presidents rule was recommended in the state. Based on the Governors report, the Centre
imposed presidents rule in Bihar28 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. 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 constituents29.

25
1994 SCC (3)
26
See Soli Sorabjee, Constitutional Morality Violated in Gujarat, Indian Express, Pune, India, Sept.
21, 1996
27
PURNIMA S. TRIPATHI; A Dissolution At Midnight, Volume 22 - Issue 12, Jun 04 - 17, 2005.
28
See SOLI J. SORABJEE; Its In The Numbers; Friday 11 May 2011
29
Biju Patnaik and Others V. President of India and Others, AIR 1974 ORISSA 52

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CHAPTER-III

IMPORTANCE OF OFFICE OF GOVERNOR

The Governor of a State plays a multifaceted role. He is a vital link between the centre and
the state. It is his duty to keep the centre informed of the affairs of the state. It is his duty to
keep the Centre informed of the affairs of the State. This helps the Centre to discharge its
constitutional function and responsibilities towards the state. The State Governor is thus a
key functionary in the system envisaged by the constitution30.

Governor is not elected directly if we see its election and working is totally concerned
under President and it all about presidents discretionary power to appoint and dismiss
through a procedure the Governor from its office which shows that Governor acts as an
agent.

Earlier the constituent assembly planed that the post of Governor should be elected one, but
it was later replaced by the method of appointment by the President, upon the following
arguments:

1) If the Governor is elected by direct votes, then he might consider himself superior to
Chief Minister, this might lead to frequent friction between the Governor and Chief
Minister which might hinder the progress of particular state.
2) The Governor is merely a constitutional head of state so it will be inappropriate to
spend so much of money for the election of the President. The whole process would be
too expensive.
3) If a Governor is elected by adult franchise than he will soon prefer to be the Chief
Minister with effective powers. The party in power during the election would naturally
put up for Governorship a person who was not as good as to be the future Chief
Minister of the state as a result the state would not be able to get the best man of the
party. The main aim of election that is to get the best man of the party would vanish. All
the process of election would have to be gone through only to get a second rate man of
the party elected as Governor.
4) Through the procedure of appointment by the President, the union would be able to
maintain control over the state.

30
Supra Note-8, p. 336-337

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5) The method of election would encourage separatist tendencies. The Governor would
then be the nominee of the government of that particular province to stand for the
Governorship. The stability and unity of governmental machinery can only be achieved
by adopting the method of nomination.
6) Most of the election runs on personal issue so by method of nomination it would save
the country from the evil consequences on personal issues.31

NOT A SUPERFLUOUS OFFICE:


It is incorrect to accept that the office of the Governor is the superfluous and mischievous
one. It is true that his functions are largely formal and are expected to act according to the
advice of council of ministers. Theoretically all executive power is vested in the Governor.
He is not always expected to act on the advice of council of ministers. According to K.M.
Munshi, a member of the drafting committee of the constituent assembly, the Governor is
the watch-dog of constitutional propriety and the link which binds centre and the state, thus
securing the constitutional unity of India. In constitutional crisis he is expected to act
wisely32.

Yuvraj Karan Singh rightly observes, The Governor even in normal times, has an important
role to play. Because of his non-party position, it is possible for him to take more detached
and impartial view of affairs in the State. As such, his advice can be a considerable value to
the Ministry. Not being saddled with detailed day to day administration, he can take a long
range view of problems. The Governor as the non-partisan adviser to the Council of
Ministers of the State, has the right to be consulted, right to encourage and right to warn.
He is a detached observer of State politics and not an active politician. He is only expected
to act in case of constitutional crisis. Like the President of India he will be a safety valve
of the Constitution and his function is to lubricate the machine of the Government and to
see that its wheels are going well by reason not of his interference but of friendly action33.

A FEDERAL LINK:
The Governor serves as a federal link between the Centre and the States. He is thus an
essential part in the federal structure of our country. Mr. D. Basu writes, The Governor is
not going to be a mere figure head. If the Governor is an active and good Governor he could

31
Supra Note-1, p. 246
32
See B. C. Rout, The Gubernatorial office in IndiaA Devalued one, p. 4, Indian Political Science
Association, http://www.jstor.org/stable/41854246 visited on 11th March, 6:00 PM (IST)
33
Ibid, p. 5

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by means of getting in touch with the opponents of the party in power, reconcile them to a
good number of measures and generally make the administration run smoothly.34

34
Ibid, p. 6

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CHAPTER-IV

Discretionary Power of Governor

The area of discretionary power of Governor has not been expressly identified by the
Constitution, but some of the Discretionary functions could be inferred from the Constitution
such as

1) Reserving Bill passed by the State Legislature for the assent of the President.

According to Article 200 of the Constitution When a bill has been passed by the Legislature
Assembly of the State or, in the case of a state having a Legislative Council, has been passed
by both the houses of the Legislature of the State, it shall be presented to the Governor and
the Governor shall declare either that he assents to the Bill or that he withholds assent there
from or that he reserves the Bill for the consideration of the President. In Hoechst
Pharmaceuticals v State of Bihar35 it was held that the Governors power to reserve bill for
the consideration of the President cannot be questioned in court.

In Purshothaman v State of Kerala36 it was held that there is no time limit on part of
Governor for granting the assent on the bill.

2) Dismissal of the Ministry.

When there occur a split in the party in power and a group of its members join the opposition
benches. Then the ministry is not left with the requisite majority though it is keen to retain
the power. Hence the Governor is advised to prorogue the assembly from the censure
motion. In the meantime, the opposition may approach the Governor, with a request to
dismiss a ministry as it does not enjoy the confidence of the majority. In such a case the
Governor is expected to exercise his discretion. Though normally, he will not dismiss a
ministry, if it enjoys the confidence of the majority but in certain cases in the interest of
purity of administration or to eradicate corruption caused by the ministry he may dismiss the
ministry.

In September, 1996 Governor of Gujarat dismissed Suresh Mehtas ministry as S.S. Vaghela
and some of his colleagues has created disorderly scenes in the House and indulged in

35
AIR 1983 SC 1019
36
AIR 1962 SC 694

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violence. Describing it a Constitutional breakdown in the state, Governors rule was clamped
and ministry got dismissed.37

3) Dissolution of the Legislative Assembly:

In normal circumstances, the Legislative Assembly is not dissolved by the Governor, till it
has completed its prescribed tenure. Yet in a parliamentary form of government such
dissolution is possible in situation of Political instability. Such a power of dissolution is
vested with the Governor. In this case the Governor is fully entitled to act according to his
discretion. The Governor of Punjab dissolved the State Assembly on the advice of the Chief
Minister, Parkash singh badal who had lost majority in the state Vidhan Sabhaa due to
defection from his party. The Governor acted in his discretion and did not consult the Centre
at all.38

4) Selection of a Chief Minister:

Though it is an established practice in India, that immediately after the election a party
holding majority elects its leader, who is summoned by the Governor to assume the post of
Chief Minister. But the situation is not similar in all cases. In West Bengal after the election
none of the parties could get the majority in the Assembly. So these circumstances the
parties are apt to unite so as to get the majority and form the government. In such a situation
the Governor act in his discretion to acknowledge the leader of the coalition ministry. 39

5) Seeking information from Chief Minister

The Constitution empowers the Governor to seek information from the Chief Minister
regarding Legislative and Administrative matter. He exercises this power in his discretion.

In the words of Dr. Ambedkar, The Governor is the representative not of a party, he is the
representative of the people as a whole, of the state. He must see that the administration is
carried on at a level which is regarded as good, efficient and honest administration.40

37
Dheeraj, Yourarticlelibrary, 7 Discretionary powers of the Governor in India, www.yourarticlelibrary.com,
visited on 2:54 PM (IST)
38
Ibid
39
Supra Note-34
40
Supra Note-34

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6) Advising the President for the proclamation of Emergency

According to Article 356 in case of failure of Constitutional machinery in the states which
means a situation has arisen in which the Government of the state cannot be carried on in
accordance with the provisions of the Constitution. Then a Governor has to made the report
for the same and give to President. If the President satisfied that such a situation has arisen
then he may, by proclamation, can take any of the three steps as mentioned in sub-clauses
(a), (b), (c) of Article 356(1)

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 or any body or any
authority in state other than the Legislature of the State.
Declare that the powers of the Legislature of the State shall be exercisable by or
under the authority of Parliament
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.

In S.R. Bommai case41 the principle of article 356 has been set out in the following words:

The crucial expression in Article 356(1) is that the President,s satisfaction has to be based on
objective material. That material may be available in the report sent to him by the Governor
or otherwise or both from the report and other sources. Further the objective material so
available must indicate that the government of the State cannot be carried on in accordance
with the provisions of the Constitution. So it is not every situation arising in the State but a
situation which shows that the Constitutional government has become an impossibility.42

So by looking all these occasions we may conclude that Governor is not a mere figure head.

41
Supra Note-25
42
National Commission to Review the working of the Constitution, A Consultation paper on Article 356 of the
Constitution, May 11, 2001, Vigyan Bhawan Annexe, New Delhi, lawmin.nic.in

Page | 21
CHAPTER-V

Recommendations on the Office of Governor

1. Recommendations on the appointment of governor

In Rameshwar Prasad (VI) v. Union of India43, 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 Article 15544.
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.45

It is to be noted that a consultation with the chief minister doesnt make 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 a
Governor and the process should be transparent and unambiguous.46 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 Comission47 :

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.

43
(2006) 2 SCC 1
44
Supra Note-15, para 4.16.03
45
Supra Note-15, para 4.16.04
46
Supra Note-15, para 4.16.01
47
Supra Note-15, para 18.3

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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
they were civil servants.48 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 Governors office.49 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 shouldnt 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. 50 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.51

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 doesnt 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
doesnt 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 them

48
ibid, Para 4.7.08
49
Supra note-15
50
Supra Note-15, Para 4.4.06
51
Supra Note-15, Para 4.8.09

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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.52

The Rajamannar Committee Report (1971) recommended: The Governor should not be
liable to be removed except under proved Misbehaviour or Incapacity after inquiry by the
Supreme Court.53 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 term. The
Governor's tenure depends on the pleasure of the President and the exercise of the
Presidential discretion in this regard is not justifiable54. 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. Miscellaneous 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
shouldnt 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.55 Even thought there has been such a misuse, the Sarkaria Commission only talks
about taking advice with the Council of minister unless extremely necessary. But it is not
hidden to all that in todays political game governor is on whose side. So this can still be

52
Supra Note-35, Para 4.8.05
53
Era Sezhiyan, The Governor and her role, FRONTLINE, Volume 18 - Issue 13, JUN. 23 - JUL. 06, 2001.
54
IUML V.UNION OF INDIA, AIR 1998 PAT. 156.
55
Supra Note-15, Para 4

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misused as he is not bound by the advice of minister hence this process should totally be
stopped.56

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 taking
any major policy decision.57
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 356.58
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.59

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.

56
Supra Note-14, 904
57
Supra Note-14, 6.4.08
58
Supra Note-14, 6.6.26
59
Supra Note-14, 6.6.28

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CHAPTER-IV

CONCLUSION

The office of Governor plays an important role as it act as a link between the centre and the
state. But there is hardly any qualification prescribed for the appointment of Governor. So,
the centre finds the opportunity to send any person as the Governor of a province. So proper
qualifications should be there for the appointment of Governor so as to restore the glory
which the office has somewhat lost. Merit should be taken into consideration in appointment
of Governor. Once a person is appointed as a Governor his political career must come to an
end this will enhance the dignity of the office and make Governor free and impartial in
discharge of his functions. Reasonable retirement benefit should be provided to the Governor
to enable him to lead a life of reasonable comfort in keeping with the dignity of this high
office. A Governor should have a guaranteed tenure so that he can function impartially.

So we may conclude that it will be wrong to say that there is no need for the office of
Governor but the Governor should exercise his authority in just, honest and judicious way.
This, however, is possible if, instead of being a centre's man, he becomes the friend,
philosopher and guide of the cabinet and guardian of the local people. If the Constitution is
changed for this purpose, it would surely receive wide appreciation.

Page | 26
Bibliography

Primary Sources:

1. Constitution of India , 1950


2. Constituent assembly debates
3. Durga Das Basu, Introduction to Constitution of India, (21st Edition), Lexis Nexi
4. H.M. Seervai, Constitutional Law Of India, (4th Edition 1996)
5. M.P. Jain, Indian Constitutional Law, (7th Edition, 2014) Lexis Nexis
6. V.N. Shukla, Constitution Of India, (12th Edition)
7. Dr. J.N. Pandey, Constitutional Law of India, (51st Edition).

Secondary Sources

1. R.S. Sarkaria, Commission on Centre-State relations, Notification


No.IV/12013/9/2004-CSR.
2. Shri R.S. Sarkaria, National Commission to review the working of the
Constitution, A Consultation p a p e r on, The Institution Of Governor under the
Constitution
3. SC disposes of Mundas petition to examine Goa Governors role
http://www.tribuneindia.com/2005/20050315/nation.htm#1
4. Sharat Pradhan, BSP withdraw support to UP Govt, http://www.rediff.com /news
/oct/ 19up.htm
5. Era Sezhiyan, The Governor and her role, FRONTLINE, Volume 18-Issue 13,
Jun.23-Jul. 06, 2001
6. Purnima S. Tripathi, A Dissolution At Midnight, Volume 22-Issue 12, Jun 04-17,
2005
7. Soli J. Sorabjee, Its In The Numbers, Fri, May 20th 2011
8. VP Gupta, Role of a state Governor, The Times of India, Apr 7, 2003, 02.34am
IST
9. Soli Sorabjee, Constitutional Morality Violated In Gujarat, Indian Express,
Pune, India, Sept. 21, 1996
10. Amartya Bag, Ordinance Making Power of President: A Parallel Power Of
Legislation?
11. A.S. Narang, Federalism: Nature and Working, Sep, 1998

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12. Krishna K. Tummala, The Indian Union and Emergency Power, Oct, 1996

Webliography

1.http://www.culturalindia.net/indian-history/ancient-india/,
http://www.kushan.org/essays/chronology/kanishka.htm,

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

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

4. www.nios.ac.in/srsec317newe/317el8

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