Chapter 5 Constitutional Provisions vis-à-vis Governor’s Institution in India Our Constitution is the product of thorough study, deep and mature considerations as well as extensive debate and discussion. It is a result of analytic and deliberate considerations as well as judicious draftsmanship on the part of the framers of the Constitution. The framers of the Indian Constitution were not writing on a clean slate. They had before them the working of the Governments under the Government of India Acts of 1919 and 1935. While framing the Constitution they were also influenced by geographical considerations, historical necessities as well as cultural and social diversities. The very fact that the Constitution of the Indian Republic is the product not of a political revolution but of the research and political deliberations of a body of eminent representatives of the people who sought to improve upon the existing system of administration of the country. The Constituent Assembly addressed into immensely complex task of devising a union with a strong Centre. They had to bring into the Union not only the British provinces, but also the Princely states and remote inaccessible tribal areas. They were conscious that several areas and regions of this sub continent had from very long time been following their own such cultures, administrative systems, traditions customs and ways of life. It was, therefore, readily accepted that in this compelling catastrophe a bunch of states is needed through which
48
Embed
Constitutional Provisions vis - Shodhgangashodhganga.inflibnet.ac.in/bitstream/10603/10661/10/10_chapter 5.p… · Constitutional Provisions vis-à-vis Governor’s Institution in
This document is posted to help you gain knowledge. Please leave a comment to let me know what you think about it! Share it to your friends and learn new things together.
Transcript
Chapter 5
Constitutional Provisions vis-à-vis Governor’s Institution in India
Our Constitution is the product of thorough study, deep and
mature considerations as well as extensive debate and discussion. It is
a result of analytic and deliberate considerations as well as judicious
draftsmanship on the part of the framers of the Constitution. The
framers of the Indian Constitution were not writing on a clean slate.
They had before them the working of the Governments under the
Government of India Acts of 1919 and 1935. While framing the
Constitution they were also influenced by geographical
considerations, historical necessities as well as cultural and social
diversities. The very fact that the Constitution of the Indian Republic
is the product not of a political revolution but of the research and
political deliberations of a body of eminent representatives of the
people who sought to improve upon the existing system of
administration of the country.
The Constituent Assembly addressed into immensely complex
task of devising a union with a strong Centre. They had to bring into
the Union not only the British provinces, but also the Princely states
and remote inaccessible tribal areas. They were conscious that several
areas and regions of this sub continent had from very long time been
following their own such cultures, administrative systems, traditions
customs and ways of life. It was, therefore, readily accepted that in
this compelling catastrophe a bunch of states is needed through which
the spirit of national stream may run. Hence the authors of
Constitution of India were prospectively vigilant enough that all the
units must remain attached with the Centre. In their view, it would be
retrograde step both politically and administratively to frame a
Constitution without unitary state as a basis.
Article 1(1) of the Constitution of India declares that “India,
that is Bharat, shall be a Union of States”. In describing India as a
“Union of States” the drafting Committee of the Constituent
Assembly followed the language of Preamble from the British North
American Act, 1867. It was done deliberately to explain that the
Indian federation to be set up under the Constitution would be of the
Canadian type. Explaining the significance of use of impression
“Union” instead of the expression “federation”, Dr. B.R.Ambedkar,
the Chairman of the Drafting Committee, said that the word was
adopted to indicate two things, vis-à-vis: (a) that the Indian Federation
is not the result of agreement between the units it constituted of and
(b) that the component units had no freedom to secede from the Union
so created”
Referring to the United State’s federation, Dr. Ambedkar
explained that the Americans had to wage a civil war to establish the
States in America had no right of secession and their federation was
indestructible. The Drafting Committee, thus, thought it better to
make it clear at the outset rather than to left it at the speculation or to
dispute in future. The discussion in the Constituent Assembly, held on
this provision, contained in Article 1, made it further clear that the
term “Union” was used “as symbolic of the determination of the
Constituent Assembly to maintain the unity of the Country.1
Our politico-legal infrastructure both antecedently and
politically is a federal one. Yet all that glitters is not gold. The implied
hideouts of constitutional provisions bring forth the unitary
infrastructure conferring autonomy to states in certain fields. It stands
characterized as a Unitary State with subsidiary federal features rather
than Federal State with subsidiary unitary features.2 Similarly it has
been characterized as a federal with strong centralized tendencies. 3
The above narrated set up was the need of the day. Hence
India’s federal system originated in terms of its constitutional
provisions, in the British Government of India of 1935 and in terms of
its political thrust in the demand of Indian National movement for a
pan Indian Central Government capable of reconciling regional pulls
and pressures. The urgent need for national unity was further
underlined by trauma of the partition of the Country. Therefore,
deliberately the Constitution of India has inbuilt bias in favor of a
greater centralization of power and allocation of larger jurisdiction to
Central Government. Despite the facts that Article 1 of the
Constitution speaks of dual polity, but due to provisions of single
citizenship, single integrated judiciary, uniform civil and criminal law
1 Narender Kumar, Constitutional Law of India, Allahabad Law Agency, Faridabad, 2007, P-36. 2 Pandey, J.N :Constitutional Law of India, Central Law Agency, Allahabad, 2oo7, P-18. 3 Ibid, Note-2.
for all the federating states and unified All India services, (Article
5,11,14,131,141, 312) India remains a unified polity.4
In pursuance of this unitary spirit, our constitutional entities are
devised and framed by the framers of the Constitution and the entity
of Governor has been devised and framed on the same tone and
temper. There have been hectic discussions in regards to institution of
Governor in the Constituent Assembly. All the pros and cons
pertaining to its provisions as well as the nature of appointment were
elebroately discussed in the Constituent Assembly before giving it a
final touch. It is pertinent to deal with those deliberations of
Constituent Assembly here.
Far from it, the history of the constitutional provisions relating
to Governor in the Constituent Assembly is so enlightening. In the
beginning the constitutional advisor, B.N.Rau, proposed that the
Governor should be elected by the provincial legislation by secret
ballot according to system of proportional representation by the single
transferable vote.
After considerable discussion, Sardar Patel, the chairman of the
Provincial Constitutional Committee, stated in the report to the
Constituent Assembly that both the Union Constitution Committee
and the Provincial Constitution Committee were in favor of adopting
‘the Parliamentary system of the Constitution, the British type of
4 Khan, Rasheeduddin: Fedral India: A Design for Change, Vikas Publiction, New Delhi, P. 21-22.
Constitution with which we are familiar. The report also
recommended that Governor of each Province be elected directly by
the people on the basis of adult suffrage.
In its deliberations, the Constituent Assembly also adopted a
Model Provincial Constitution. Its main feature were that the
Governor should be elected directly by the people on the basis of adult
suffrage, should hold office for a term of 4 years and would be liable
to be removed from his office by impeachment on the basis of stated
misbehavior.5
Draft Constitution prepared by the Drafting Committee and
submitted to the President, suggested two alternatives: one was for the
appointment of the Governor by the President from a panel of four
candidates to be elected by the members of the State Legislature, by
means of single transferable vote and by secret ballot; the other
alternative was direct election by the people of the Province.
Hence, the phenomenon of elected Governor was confronted
with a very hot debate in the deliberations of Constituent Assembly.
Doubts were also expressed in the Assembly that the elected Governor
might join hands with the Chief Minister of the Province and defy the
Centre. Nehru was of the view that by joining the hands with the
Chief Minister, Governor may encourage separatist tendencies.
5 Sorbjee, Soli, J: The Governor: Sage or Saboteur, Roli Books International, New Delhi, 1985, P-14.
But, the subsequent political events in the Country led to a
sharp second thought on the subject. The outbreak of communal riots,
partitions and its ghastly after math, Gandhiji’s assassination, the
communist upsurge in Telangana, all affected the mood and thinking
of the founding fathers and There was a deep seated fear that if the
Centre was not sufficiently strong and could not hold the constituent
units together, things would fall apart and anarchy would be loosed
upon the Country.
Ultimately the framers of the Constitution resolved that under
the new constitutional scheme, the Governor was to be formal
constitutional head with strictly limited powers that in the discharge of
almost all his functions would be required to follow the advice of his
Ministry. The Chairman of the Drafting Committee was vigilant
enough to infuse the unitary spirit in the Constitution as well as in the
infrastructure of Indian legal and political system. He expressed his
apprehension that it was not necessary to have such a functionary at so
much cost and so much trouble.
Ultimately, in the Constitution which the people of India gave
unto themselves on 26th Nov 1949, the Governor emerged as a
constitutional head appointed by the President of India for a term of
five years but holding office during pleasure of the President.6 The
Constitution of India which the people of India gave unto themselves,
is the collection of principles or body of fundamental rules which is
usually provided for the establishment, constitution and organization
6 Ibid, Note-5, P.15-16.
of the organs of the Government, their powers and functions manner
in which the said powers and functions are to be exercised, their
interrelationships, the relation between these organs of the
Government and people of the Country.
5.2 Organic spiri in the Constitution
Before we consider the provisions of the Constitution
governing the appointment and removal of the Governor, a resume of
the thinking and discussions that preceded the framing of those
provisions would be worth while. Our Constitution, establishing a
parliamentary system with a Cabinet Government, does not make
explicit provisions for dealing with every situation; there are things
that implicit in the Article of the Constitution and there are matters
left to be regulated by the conventions of parliamentary Government.
There are interstices between the Articles of the Constitution
which can be filled only by viewing the Constitution as an organic
whole and by observance of generally expected principles of
constitutional ethics and norms. Some of the words and phrases used
in the Constitution have followed the wording of Government of India
Act of 1935, or of the Constitutions of other countries of the British
Commonwealth; they have a meaning given them historically, or has
been used as words of art and should not be read literally. For instance
the words in Article 163 that ‘there shall be Council of Ministers… to
advise the Governor in the exercise of his functions’ really means that
the Governor shall act on the advise of the Council of Ministers.
The words in Article 164 of the Constitution that the Ministers
‘shall hold office during pleasure of the Governor’ are not intended to
give the Governor the unlimited and untrammeled power over the
tenure of the Ministers. They are not being read in isolation, or
construct without reference to the scheme of Government, established
by the Constitution; a Constitution requires a broader approach than
an act of Parliament. The thinking of the framers of the Constitution
can provide valuable aid in understanding the Constitution and can
remind us of the conventions they wanted and expected to be
followed.7
5.3 - Constitutional provisions vis-à-vis institution of Governor
Provisions relating to Governor with nomenclature of State
Executive reflect on the intention of the framers of the Constitution.
The provisions enshrined in the Constitution in regards to the
appointment and removal of the Governor depicts the powers and
functions as well as the relationship with other organs of the
Government.
The Governor is a constitutional functionary and an important
organ of the Government. He is the key actor and a bridge between
the Centre State relations. The framers of the Constitution deliberately
avoided election of the office of Governor in order to make him the
Center’s representative. In order to explore the constitutional status of
Governor it is imperative here to have a scant purview of provisions
7 Singh, L.P: Guide, Philosopher and Friend, in book, The Governor: Sage of Saboteur, Roli Books
International, 1985, P. 37-38.
relating to institution of Governor enshrined in Part VI of the
Constitution.
Article 153 of the Constitution provides that ‘there shall be
Governor for each State’8. Further, the proviso to Article 153, inserted
by the Constitution (Seventh Amendment) Act, 1956, explains that
there shall be no prohibition as to the appointment of the same person
as Governor of two or more states. Thus the same person can be
appointed as Governor of two or more states.9
Article 154 of the Constitution states
(1) The executive of the State shall be vested in the Governor
and shall be executed by him either directly or through officers
subordinate to him in accordance with the Constitution.
(2) Nothing in this article shall-
(a) be deemed to transfer to the Governor any function
conferred by any existing law or any other authority; or
(b) prevent Parliament or the legislature of the State from
conferring by law functions or any authority subordinate to the
Governor.
Article 155 of the Constitution provides that the Governor of
the State shall be appointed by President by warrant under his hand
and seal.10
8 The Constitution of India, Bare Provisions, Universal Law Publishing, New Delhi, 2005, P-141. 9 Narender Kumar, Constitutional law of India, Allahabad Law Agency, Faridabad, 2007, P- 613. 10 Ibid, Note-8.
Article 74 of the Constitution provides that there shall be a
Council of Ministers with the Prime Minister at the head to aid and
advise the President who shall, in the exercise of his functions, act in
accordance with such advice.11
Though the literal interpretation of article 155 of the
Constitutiion connotes that the Governor shall be appointed by the
President, but in effect and substance the Governor is appointed by the
President of India in accordance with the advice tendered by the
Council of Ministers to him as provided under article 74 of the
Constitution.
Thus, the President of India, who is to act on the advice of his
Council of Ministers, control the Governor through the power of
appointment. The appointment of the Governor by the President
makes Governor, the true nominee of the Centre. It is, therefore
reasonable and one can further observe that the Governor is more or
less the agent of the Centre than the head of the State to which he
presides. The practical fact is that the President’s part in nomination
of the Governor is mere a formality. It was the complaint of Dr.
Rajinder Prasad, the first President of India, that he often read the
appointment of the Governors in the Press and was officially informed
afterwards.12
11 Ibid, Note-8, P-102.
12 Durga Das : India from Curzon to Nehru and After, St James, London, 1969, P-337.
5.4 - Constitution framer’s over view of Governor
The Constituent Assembly fully debated on the merits and
demerits of an elected v/s nominated Governor and finally opted for
the system of presidential nomination, rather than direct election of
the Governor because of the several reasons for example-
(1) A nominated Governor would encourage centripetal
tendencies and, thus promote all India unity, on the
other hand it has been apprehended that the elected
Governor would to some extent encourage the
separatist provincial tendencies more than
otherwise. There would be far fewer links with the
Centre.
(2) In a Parliamentary system the head should be
impartial, but a Governor elected by the direct vote
of people would have to be party man. On this point
it was stated in the Constituent Assembly that he
should be a more detached figure acceptable to the
province, other wise he could not function and may
not be a part of the party machinery of the province.
On the whole it should probably be desirable to have
people from out side, eminent in some education
and other fields of life who would naturally
cooperate fully with the Government in carrying out
the policies of the Government and yet represent
before the public something above politics.
(3) Conflict might arise between the Governor and the
Chief Minister if both were to be elected by the
people, for the former might claim to arrogate power
to himself on the plea of his having been elected by
the whole State as against the latter who would be
elected only in a constituency which would be small
part of the State. It was stated in the Constituent
Assembly that when whole of the executive power
is vested in the Council of Ministers, if there is
another person who believes that he has got the
backing of province behind him and, therefore, at
his discretion he can come forward and can
intervene in the governance of the Province, it
would really amount to surrender of democracy. 13
It was dialected in the Constituent Assembly that the
Gubernatorial Candidate should be of such caliber whose ability
wisdom and rectitude could not be questioned. He should be a person
of undoubted ability and position in public life that at the time has not
been mixed with the public life and at the same time has not been
mixed with provincial struggle and faction.
The Observations of Pt. Jawaharlal Nehru in the deliberations
of the Constituent Assembly is worth quoting here that it would be
definitely better if the Governor was not so intimately connected with
13 Constituent Assembly Debates, V. VIII, Lok Sabha Secretariat, New Delhi, 1999, Page 455.
the local politics of the Province or with the factions in the Province
and offered the view that it would be better to have a more detached
figure, obviously a figure that is acceptable to the Province, yet he
must not be known to be part of the party machinery of the Province.14
In the leading case of a far reaching repute the Apex Court,
after an exhaustive discussion and consideration of the relevant
materials and authorities on the subject, Justice Krishna Iyer, with
whom Justice Bhagwati concurred, pronounced that we declare the
law of this branch of our Constitution to be that the President and
Governor are custodians of all executive and other powers under
various Articles, shall by virtue of these provisions, exercise their
formal constitutional powers only upon and in accordance with the
advice of their ministers except in a few well known exceptional
situations. Without being dogmatic or exhaustive, these situations
relates to (a) the choice of Prime Minster (Chief Minster), restricted
through this choice is by the paramount consideration that he should
command a majority in the House; (b) the dismissal of the
Government which has lost its majority in House but refuses to quit
the office; (c) the dissolution of the House where an appeal to the
Country necessitous, also in this area the head of the State should
avoid getting involved in politics and must be advised by his Prime
Minister (Chief Minister) who will eventually take the responsibility
for the step.15
14 Govind Narain, Constitutional Obligations, Roli Books International, New Delhi, 1985, P-59.
15 Shamsher Singh v/s State of Punjab, 1975 (1) SCR, P-875.
The intention of the farmer of the Constitutions was clear that
they foresighted an impartial personality for the office of the
Governor. Though at the time of framing of the Constitution,
possibility of hung legislatures was feeble because of single party
domination at national political portrait, yet the founding fathers
attempted to deliver out the Constitution which can exhaust the
changing political scenario in the coming future. In pursuance of it
they emphatically asserted that the person selected as Governor would
be a person who will hold the scale impartially as between the various
factors in the politics of the State. The forgoing pronouncement of the
Honorable Supreme Court also suggested that the Governor should
not take part in politics so far his gubernatorial affairs are concerned.
Hence, in the opinion of Apex Court the independent and impartial
Governor is the need of the day.
It is pertinent here to recall that during the deliberations of the
Constituent Assembly, some other modes of appointment of a
Governor were also considered. The Idea of election was ruled out
because it was felt that the co-existence of a Governor selected by the
people and a Chief Minster responsible to the legislature might lead to
friction and consequent weakness in the administration. On similar
grounds, the idea of Governor being appointed by the President on the
advice of the Central Government, out of a penal of four persons
chosen by the State legislature was also ruled out. It was a result of
mature deliberation that the present provisions were accepted.16
16 Ibid, Note-14.
Since the Constitution of India came into force the appointment
of the Governor has been regulated by a set of two conventions:-
(1) First the Governor should belong to the State other than
that in which he is being posted. This convention has been evolved in
order to keep the Governor above the politics of the state.
(2) Secondly, the appointment of the Governor requires
the consultation between the state ministry and the Union
Government. This is meant to ensure the cordial relationship between
State and the Centre otherwise it is feared that without the
consultation the utility of the institution may become less or even nil
in the Indian polity.17
However, it is a sad plight of the Indian political scenario that
no healthy conventions are being followed or observed as per vision
of the framers of the constitution.
5.5-Recommendations of Sarkaria Commision vis-à-vis
Appointment of Governor- Sarkaria Commission has reviewed the
30 years span of working of Constitution from the context of Centre
State relations. After reviewing the Centre-State relations, it has
recommended certain measures, the adoption of which can lead to the
meaning full cooperation in between the Centre and states altogether.
The institution of Governor performs an integral role in Centre
State relations; therefore, the Commission has made certain
recommendations in regards to appointment of state Governors. The
17 Gehlot, S.N. State Governor in India, Getanjali Publcation, New Delhi, 1985, P-223.
recommendations provide a criterion which is required to be followed
by the constitutional functionaries while making appointment of
Governors in the State in the following manner:-
Para (4.16.01) (4.6.09): A person to be appointed as a Governor
should satisfy the following criteria:
(1) He should be eminent in some walks of life.
(2) He should be a person from outside the state.
(3) He should be detached figure and not too intimately
connected with the local politics of the state.
(4) He should be a person who has not taken too great part in
politics, generally and particularly in the recent past.
(5) In selecting a Governor in accordance with above criteria,
persons belonging to the minority group should be given a
chance hitherto.
Para (4.16.02) (4.6.09) - It is desirable that the politicians from the
ruling party at the union are not appointed as Governor of a state
which is being run by the other party or a combination of other
parties.
Para (4.16.03) (4.6.25) - In order to ensure effective consultation with
the state Chief Minister in the selection of a person to be appointed as
Governor, the procedures of consultation should be prescribed in the
Constitution itself by suitably amending Article 155.
Para (4.16. 04) (4.6.33) - The Vice President of India and the speaker
of the Lok Sabha may be consulted by the Prime Minister in selecting
the Governor. The consultation should be confidential and informal
and should not be a matter of constitutional obligations.18
Consultation in the above context means the ascertainment of
the views of the concerned Chief Minster of the State as to the
suitability of the person proposed as Governor of that State. It is
pertinent to mention here that for every successful parliamentary
system, good rapport between the Governor and the Chief Minster
must exist. This rapport is of vital significance in our constitutional as
well as political system in which the Governor, being a constitutional
head of the Sate, should act as the friend, philosopher and guide of his
Council of Ministers. Further, from this aspect of personal
relationship that consultation with the Chief Minister at the initial
stage itself, may prevent the choice of person which the Chief
Minister because of personal reasons may not be able to work
satisfactorily. In this sort of situation, the personal reasons of Chief
Minister may adversely affect the consultation process.
Sarkaria Commission’s Report has made above mentioned
recommendations in regards to the appointment of Governor which
came after 3o years of the working of the constitution. Report has
repeated and underlined the same assertions regarding the