In this article we will discuss about:- 1. Appointment of Governor 2. Qualifications for Appointment 3. Powers of the Governor 4. Governor and Dismissal of Ministry 5. Governor and the Legislators 6. Governor and Criticism of Ministry 7. Governor and Governor’s Address 8. Governor’s Address and Affrontation 9. Governor’s Committee 10. Suggestions for the Future.
Contents:
- Appointment of Governor
- Qualifications for Appointment
- Powers of the Governor
- Governor and Dismissal of Ministry
- Governor and the Legislators
- Governor and Criticism of Ministry
- Governor and Governor’s Address
- Governor’s Address and Affrontation
- Governor’s Committee
- Suggestions for the Future
1. Appointment of Governor:
Executive authority in an Indian State is vested in the Governor. According to the constitution this power shall be exercised by him either directly or through officers subordinates to him. In the Constituent Assembly there was a proposal that the Governor should be elected by the people, instead of his being nominated or indirectly elected by the President.
But the proposal was turned down by the Assembly on two important grounds. Firstly, that it will be difficult to have any workable division of powers between the Governor and the Chief Minister, when both have been elected by the people and enjoy people’s verdict.
Then another argument advanced was that in the country for quite some time atmosphere was likely to prevail in the states in which disintegrating forces were likely to play their role. In order to check these it was essential that the Governors should be powerful persons free from the mud slugging of elections and above appeasement policy of the electorates.
The Assembly, therefore, decided that the Governor should be appointed by the President. Accordingly now Governor is appointed by the President under his warrant and seal.
Though the President is free to appoint any person as the Governor of a state to whom he likes yet with the passage of time a convention has been developed that a person who is being appointed as Governor shall not be posted in the state to which he belongs. Barrings very few exceptions, like those of H.C. Mukherjee and Miss Padmaja Naidu, this convention is being maintained so far.
Then comes the problem of the consultation with the Chief Ministers in the appointment of Governors. As long as there was monolithic party system in the country in which Congress party was in power both at the centre and in the states, there was no problem.
Even if a Chief Minister did not feel happy about the appointment of an individual as Governor and his being posted to the state, there was no confrontation between the Centre and the states.
Moreover, Pt. Nehru’s towering personality was such that both inside and outside the House none dared challenge his decision in matters of appointment of a Governor. It is also said then only those persons were nominated as Governors, who by and large deserved the position and as such none even challenged the appointment on even personal grounds.
But after his death the situation changed and as a result of Fourth General Elections in the country non-Congress governments assumed power in some states. The Chief Ministers of .these states wanted that (a) they should be consulted in the appointment of Governors and (b) no defeated politician be posted to a state, as a reward for his past services to the Congress party.
They also wanted that Chief Minister of a state should invariably be consulted before a name was finalised for appointment as Governor. The Chief Minister of Bengal in 1967 gave a list of 3 names, namely, those of V.K. Krishna Menon, Prof. Aleem and Mrs. Aruna Asaf Ali and wanted the Centre to appoint one of them as the Governor of the state.
Similarly when Kanungo was appointed as the Governor of Bihar, the then Chief Minister protested against this appointment as that had been made without consulting him or approval of state cabinet. There was so much resentment that state cabinet decided not to make any arrangements for the reception of the new Governor.
But the then Home Minister Y.B. Chavan made it amply clear that it was not at all obligatory on the part of the Centre to get the consent of the state in matters of appointment of Governors.
In other words a state could not veto the decision of the Centre in such matters. This stand continues even today. When C.P.N. Singh was appointed as Governor of U.P. or C.M. Pooncha was transferred from MP the Chief Ministers concerned protested against the action of the Centre and said that the Centre had acted arbitrarily and the state concerned should have been consulted. But central government did not agree to this view point.
But one effect of 1967 general elections to the Lok Sabha was that some senior retired civil servants were appointed as Governors in some states and thus the tide of posting of defeated Congress candidates as state Governors was checked.
Some other traditions too would have developed but in 1971 when elections were held in the country, both at the Centre and in the states, Congress party again came to power and the resistance of states to the appointment of Governors by the Centre without the approval of state government, obviously weakened.
Whereas the opposition dominated states have been resenting discretion in appointments of the Governors, so far the central government has not laid down any norms about the appointment of executive heads of the state.
The Centre has been posting on the one hand mature statesmen like C. Rajagopslachari, Kailash Nath Katju, Mrs. Vijaya Lakshmi Pandit, K.M. Munshi and Mrs. Sarojini Naidu, and seasoned bureaucrats like L.P. Singh, Bhagwan Sahay, V.P. Menon, B.K. Nehru, B.N. Chakravarti, Dharam Vira and many others on the other.
Similarly on the one hand have been posted to the state Governors such persons who were to be politically rewarded for their services to the ruling party in the past and had now been not in the active politics, like Bhim Sen Sachar and Hafiz Muhammad Ibrahim and so on, whereas on the other persons of great eminence but never in active politics have been sent as Governors.
These include Gen. Srinagesh, Dr. A.N. Khosla, G.N. Singh and D.C. Pavate. All that need be noted is that even informally no guide lines or conventions have been developed about the appointment of Governors.
The opposition parties have all along protested that when a defeated politician is appointed as a Governor he never tries to behave as a constitutional head of the state. He usually tries to inject politics in the state and usually becomes a convenient tool in the hands of ruling party.
He is always willing to oblige the central government in the manner it likes. Though opposition parties prefer bureaucrats over such defeated politicians, yet many in the country do not favour the idea of putting them in Raj Bhavans.
According to them these people who have all along led an active life with vast powers at decision making level and processes, usually find it difficult to adjust themselves as nominal head of the state, where there is no active life and little decision making work.
It is also said that these people have spent their active life career in an atmosphere where there is no care for feelings and sentiments of the people. They are little concerned about the aspirations of the people and as such hey are not likely to be a success when face to face altogether in a different situation.
Recall of Governors:
Closely linked with appointment of a Governor is the problem of recall. All appointments of Governors are made by the President, which in effect means tire Prime Minister. Each Governor is a
ppointed for a period of 5 years, but he can leave his job earlier if he so likes by tendering his resignation.
But in 1969, the then Chief Minister of Bengal Ajoy Mukerjee demanded that state Governor Dharma Vira should be recalled from the state. All this happened over the address of Governor to the state legislature.
As usual the Address was prepared by the Chief Minister with the approval of the Cabinet, in which there were some unfavourable references about the action of the central government about the dissolution of Communist ruled state Assembly.
The Governor decided to omit two paragraphs of his Address. The result was that a controversy arose. The Chief Minister pleaded that as constitutional head of the state he was duty bound to read the address in its entirety, which had been prepared and approved by the state cabinet.
The Chief Minister demanded the withdrawal of the Governor. The Home Minister, however, did not agree with the demand on the plea that it will set a bad precedent and similar demands could pour in from many other states as well. He very firmly maintained that it was the prerogative of the President to post, transfer or recall a Governor and that state had nothing to do in such matters.
Of course, after some time the Governor was withdrawn from the state and S.S. Dhawan was posted in his place, but not on the demand of state government.
This one incident alone shows that in case persons of the type who are not suited to this type of job to which they are appointed as Governor, centre-state relations are likely to come under heavy strains.
In the words of Dr. Rao, “So in the end we are left with a moral command that the President should be a statesman of high impartiality and so also the Governors chosen by him, be active, sympathetic public men of a high moral structure, immensely interested in social service etc.”
A little laxity can cause many ripples in centre-state relations. Governor Ramlal, by his untactful handling of situation in Andhra Pradesh, created a difficult situation even for the ruling party at the centre. Governor Nurul Hassan had no smooth time in Orissa, when he was there in that state.
Similarly Kumud Behn Joshi too had difficult time as Governor and State Government requested the centre to withdraw her from the state. Present Tamil Nadu Governor has no cordial relations with Chief Minister Jayalalitha.
Calling of Resignations of Governors:
In January 1990, National Front Government at the centre advised President R. Vankataraman to call for the resignation of all Governors, as in its opinion during Congress (I) regime some Governors had been appointed purely on party considerations.
This step was criticised by Congress (I) which felt that the office of the Governor was being politicised and that it was an unhealthy trend. The Governors should be kept above all political upheavals. The National Front Government, however, felt that the process of politicisation of the institution of Governors had been started by Congress (I) and it needed setting the trend right.
Dismissal of Governor:
The President also has power to dismiss a Governor, once appointed by him, though so far no such dismissal has taken place. But a situation developed in 1980. After central elections in 1977 when Janata Government came to power at the Centre, it appointed some Governors to the states.
But in 1980 it was voted out of power and Congress (I) came to power at the Centre. The new government hinted that the Governors appointed by the Janata government should better resign. But none of the tendered resignation.
The central government was of the view that whereas some of these could be tolerated, some others must quit. Some Governors, saw writings on the walls and resigned. But the then Tamil Nadu Governor Prabhu Das Patwari had to be removed by the President, as he did not resign on his own. In 1992, President removed Governor of Nagaland M.M. Jacob.
After coming to power Narsimha government changed about 14 Governors who had been appointed by V.P. Singh and Chandra Sekhar governments which was considered a step towards the politicisation of the institution of governorship.
2. Qualifications for Appointment:
Governor is the executive head of the state and the President is empowered to appoint any person as Governor, provided he is an Indian citizen and is not below the age of 35 years. He should not hold any office of profit either in the central or in the state government.
Similarly he should also not be member of any House of state legislature or Parliament. In case he is so, he should vacate that before joining as Governor. He should not be insolvent on his appointment.
After his appointment he gets a monthly salary of Rs.11,000/- and such other allowances as are decided by the Parliament from time to time. He is also entitled to free furnished official residence. It is provided that during the term of his office his emoluments shall not be changed to his disadvantage.
Before entering upon his office he is required to take an oath before the Chief Justice of the High Court of the state to which he is appointed.
Ordinarily a person shall be appointed as Governor to one state only, but the President in his discretion can appoint a person as Governor to more than one state as well. L.P. Singh e.g., was Governor of Assam as well as North Eastern Hill States.
For some time Punjab and Haryana used to have one Governor. It is not quite common to have a Governor for more than one state. When a person is Governor to more than one State, his salary and allowances are charged from the states concerned proportionately.
Privileges of Governor:
During the term of his office a Governor is protected against all legal proceedings in courts of law and is not to be called to account anywhere for the exercise and performance of powers and duties of his office or any action done by him in the performance of his duties. No criminal proceedings can be instituted against him and no process for arrest issued against a Governor while in office.
3. Powers of the Governor:
In the constitution Governor has been given quite vast powers, which he is to enjoy as executive head of the state. But before discussing these powers, it may be remembered that in actual practice before the death of Pandit Jawahar Lal Nehru, the Governors acted as nominal heads of the state.
It was due to several reasons. Firstly, at time of appointment the Prime Minister used to take care that only such persons were appointed as Governors, who by nature were not aggressive and could fully well adjust themselves to the frame work of being a nominal head of the state.
Then another reason was that at that time there used to be Congress party in power both at the centre and in the states. The state cabinet had full backing and support of the central government. Thus, whenever, a Governor made a complaint against Chief Minister that was not entertained and the former was clearly told that as nominal head of the state he had-no right to complain.
But when a state Chief Minister made a complaint against the Governor that was promptly attended. Still, another reason was that the Governors at that time used to be usually old Congress men and as such they knew the programmes and policies of the party in power and had not much to differ from the Chief Ministers.
Moreover, they knew that they have been rewarded for their equation with the central government or past services to the party and as such they should quietly pass their time. Still another reason was that at that time nation
had a towering personality in Pt. Nehru, who could satisfy as well guide any Governor.
In fact, in his presence no Governor could raise his voice. Lastly, the Governors followed the traditions set by the Presidents, their appointing bosses. Since Presidents in those days acted as nominal heads, the Governors in the states could not exert themselves to become real heads or use the powers which the constitution vested in them.
But after Fourth General Elections, situation Changed, Pt. Nehru had died by that time and there was split in the Congress party resulting in the exit of many old stalwarts. The Congress had lost heavily at the polls and in some states non-Congress governments had come to power.
In 1971, the situation, however, again changed because Congress party was returned to the Lok Sabha and thereafter in the states, with massive majority. Monolithic political party system almost again came back in the country. The Governors, therefore, again had to adjust themselves to the new situation.
In 1977, elections were again held in the country and in that newly formed Janata Party swept polls in North and Central India but its impact on the Southern states was not felt, where non-Janata Party Ministries remained in power. The result was that these state governments could create some problems. But their rule proved short lived and no serious problem about appointment of Governors, etc., arose.
As a result of elections held in 1980, Congress (I) government at the centre came to power. The party had massive mandate. State Assembly elections which were held in May 1980, also returned Congress (I) to power. Thus, again monolithic party system emerged which lessened the role of Governor in state politics.
Almost same position continued alter 1984 elections when Congress (1) was again given mass mandate after the general elections held in that year. The situation has, however, changed now. After 1989 general elections Congress (I) suffered defeat at the Centre and National Front government came to power.
The Congress (I), however, came to power in some southern States and thus a situation of confrontation could arise but that situation did not arise because that government had to leave office just after one year.
In 1991, elections were again held for the Lok Sabha and Congress (I) came to power at the centre. But when elections were subsequently held for some states, it lost power in several states. This would have created a situation of confrontation but fortunately that did not arise.
The states have practically dropped their demand that Chief Minister should be consulted by the Centre before any person is posted as Governor in his State.
Executive Powers:
Article 154 of the constitution has provided that all executive powers of the state shall be vested in Governor and all executive actions in the state will be taken in his name. He is to decide in his discretion who is to be invited as the Chief Minister of the state.
Other Ministers of the Council of Ministers will, of course, be appointed by him on the recommendations of the Chief Minister. Chairman as well as members of State Public Service Commission and Advocate General of the state are to be appointed by him.
The President of India consults him at the time of appointment of the judges of the High Court. Theoretically all Ministers of Council of Ministers hold office during his pleasure. He allocates business among the Ministers and calls for any information on any matter relating to state administration.
He has also right to be kept informed about state politics and happenings and any legislation that is proposed to be brought for approval before the House.
It is the responsibility of the Governor to send fortnightly report to the Centre about situation in the state. In case he reports that situation in the state is such that it is difficult to run state administration in accordance with the provisions of the constitution, a proclamation of emergency is made by the President, by which administration of the state is taken over by the President.
He makes appointments of all high positions in the state-like those of the Advocate General. He can call for any information from the Chief Minister. He also acts as a Chancellor all the universities located in the state.
Governor is supposed to be nominal head of the state, but he begins to play some important role in the executive field when there is no single political party with clear majority in the Assembly.
This is what happened during 1967 to 1972 when in some of the states there were coalition governments and defection politics was playing big role. It was in this situation that the Governor used his discretion as to who should be invited to form government.
In Rajasthan, Congress party leader Mohal Lal Sukhadia and Maharwal Laxman Singh, leader of some combined parties claimed their majority in the House and wanted to be invited to form government. At that time Dr. Sampurana Nand was Governor of the state. He invited Mohal Lal Sukhadia to form the Government as in his opinion, Singh could not give stable Government to the state.
Similarly Governor Hukum Singh also invited Mohal Lal Sukhadia and not Maharwal Laxman Singh to form the government when again both the leaders staked their claim to form government.
Similarly in 1970 both Gurnam Singh and Prakash Singh Badai staked their claims as leaders of the legislature party in Punjab Assembly and wanted to be invited to form government. Governor D.C. Pavate accepted the claim of Prakash Singh Badal and invited him to form the government.
Then came U.P. In that state some political parties combined together elected Girdhari Lal as their leader. He approached the Governor to be invited to form the government. Against him was the claim of B.K.D leader, Charan Singh. The Governor decided to invite the latter as in his opinion he alone could give stable government to the state.
In Bihar also a similar situation developed in December, 1970, when Daroga Rai Ministry went out of power.
At that time both Karpoori Thakur and Bhola Paswan Shastri staked their claims and each one wanted to be invited to form the government Each asserted that he had the support of majority of MLAs in the state. But Governor did not accept the claim of Bhola Paswan Shastri and invited Karpoori Thakur to form government in the state.
The decision of the Governor in regard to inviting a person to form the government is final and cannot be challenged in any court of law. In 1967 West Bengal Governor decided to invite Dr. P.C Ghosh to form government, after he had dismissed Chief Minister Ajoy Mukherjee. The latter challenged the decision of the Governor in the High Court.
But the court did not agree with the petitioners and set aside the petition. Similarly in 1970 Allahabad High Court and subsequently Supreme Court did not accept a writ petition challenging the decision of U.P. Governor inviting T.N. Singh to form government, as he was an outsider. The Court held that Governor was the best judge to decide as to who should be invited to form government.
Legislative Powers:
Governor of a state is an integral part of state legislature, though not a member of either House. He summons and prorogues the legislature and dissolves state legislative Assembly.
He addresses state legislature at the commencement of the new session after each general election as well as budget session every year. In his address he outlines policies and programmes which the state government proposes to follow in the ensuing year for the betterment of the people.
He is fully empowered to send messages to the state legislature on a matter pending before it or otherwise. In a state where there is Legislative Council he nominates 1/6 of the members from among the persons who have excelled in any field of art, literature, social service, etc.
He also nominates some members o
f Anglo-Indian community in the state Assembly, if he is satisfied that that community has not been properly represented. All bills approved by the state legislature must receive his assent before these can go to the statute book.
The Governor is fully empowered to withhold his assent except, of course, in the case of money bills and return the same to the legislature for its reconsideration. If, of course, the Assembly on reconsideration passes the Bill in the form in which it was originally passed, the Governor must give his consent to that.
There are certain types of Bills which the Governor can withhold for the assent of the President. These include bills dealing with the acquisition of the private property, etc. Whether a person has disqualified himself to become a member of the Assembly or not, final decision is to be taken by the Governor, of course, in consultation with the Election Commission.
When the office of Speaker and Deputy Speaker and similarly that of the Chairman and Deputy Chairman falls vacant simultaneously, he appoints a member of the House concerned to preside over its meetings for a transitory period, till proper and regular arrangements are made.
But one important power which the Governor enjoys is when the state legislature is not in session. The Governor has the power at that time to issue ordinances. These have same force as any law passed by the state legislature, during the period of its operation.
These remain in force for a period of 6 months even after the re-assembly of state legislature. There are several regular commissions like the State Public Service Commissions and from time to time several commissions are appointed by the state government, reports of all these commissions are sent to him and he causes them to be laid .on the Table of the House.
It is, of course, within the discretionary powers of the Governor to call or not to call the Assembly to session. No difficulty is posed when Chief Minister enjoys absolute majority in the lower House and is prepared to summon an Assembly session as and when asked to do so.
But this becomes important when the Chief Minister has doubt about his position and wants to gain time to win over more M.L.As. who could support him, so that he could save his position.
In the states, Governors have several times used their discretion in summoning and proroguing the Assembly or adjourning it sine die. In other words this discretionary power of the Governor assumes great significance when there is political instability in the state.
As and when the Governor is in doubt about Chief Minister’s majority, he can ask him to summon an Assembly session by a fixed date. In case there is any delay that can mean that Chief Minister is using delaying tactics and is either not in majority or has lost majority support or is in doubt about his majority.
In the words of Singhvi, “Notwithstanding any difference of opinion with the Chief Minister and the Council of Ministers the Governor is entitled to summon the House to meet at such time and place as he thinks fit and he can justifiably treat this as a matter in which he is required to act in his discretion under the constitution.”
In 1967, West Bengal Governor Dharam Vira, asked Chief Minister Ajoy Mukerjee to convene the Assembly by 23rd November, 1967, to prove his majority. When Mukerjee showed his reluctance, the Governor dismissed the Ministry and invited Dr. P.C. Ghosh to form ministry.
Similarly the Governor of Orissa asked Chief Minister R.N. Singh Deo in December 1970 to prove his strength on the floor of the House after he had been informed that Hare Krishna Mehtab had withdrawn his support. He fixed the date of session on January 15, 1971.
In 1995, Ms. Mayavati wanted some more time to prove her majority in the House but Governor Motilal Vora did not agree to that. In this connection it may be pointed out that though normally convening date for Assembly sessions is suggested by the Chief Ministers, yet in such circumstances when political situation is fluid and MLAs are changing their loyalties, the Governor uses his discretion.
In some cases when there was a demand and also clear indication that a Chief Minister had lost confidence of the House and Assembly session should be called, the Governors declined to summon Assembly session.
In Haryana, Governor B.N. Chakravarty did not ask Chief Minister Rao Birendra Singh to summon Assembly and face that for trial of strength, though his majority was in doubt. In 1970, Chief Minister Bansilal lost the majority of the House, due to large scale defections, but Governor B.N. Chakravarty did not summon the Assembly.
In September, 1970, U.P. Governor, B. Gopala Reddy felt that Chief Minister, Charan Singh, had lost confidence of the Assembly. He dismissed the Ministry without calling Assembly, though the Chief Minister was very much prepared to face the House.
In 1995, after the removal of Mayawati government in U.P. the Assembly was kept in a state of animation during which period B.J.P. and other political parties informed Governor Moti Lal Vora that these were in a position to form the government. But he felt that no party could provide stable government. He, therefore, invited no party to formed the government and recommended its dissolution.
Similarly the Governor has the power to prorogue the Assembly. Though again normally this is done in consultation with and on the advice of the Chief Minister, yet in peculiar circumstances proroguing can help him, particularly at time when he seems to be losing the confidence of the House.
In Madhya Pradesh Governor. K.C. Reddy, on the advice of Chief Minister D.P. Mishra suddenly prorogued the House, to save the Congress Ministry. At that time some Congress legislators had left the party, reducing the government to minority.
But one very important power with the Governor is that of making recommendation to the President that it is not possible to run state administration in accordance with the constitution. This has received wide criticism.
It is alleged by many Chief Minister that in this regard discretionary powers vested in the Governor have not been properly used. The Governors, in very many cases, report in the manner, in which the central authorities wish them to report.
The Governors in several states have dissolved state Assemblies in their discretion, because so far no guidelines have been evolved about the dissolution of Assemblies. Normally, however, it is expected that the Assembly should be dissolved on the recommendations of the Chief Minister.
But Governor uses his discretion when the Chief Minister has lost the confidence of the House and there is no possibility of a stable government or when serious law and order situation has arisen in the state and the state government has failed to tackle that or when the Governor is of the view that rights and interests of scheduled castes, scheduled tribes and other backward classes are not being fully protected.
In 1971, Madras Legislative Assembly was dissolved on the advice of Chief Minister Karunanidhi and that of Punjab on the advice of Chief Minister Prakash Singh Badal. In 1973, Orissa Governor dissolved state Assembly on the advice of Chief Minister Mrs. Nandini Satpathy, without providing an opportunity to opposition leaders to prove their strength and this was resented by the High Court.
In 1968, Governor Dharam Vira recommended President’s rule in West Bengal when he was satisfied that no stable government could be formed in the state and so happened in Rajasthan, when leader of the Congress party Mohan Lai Sukhadia declined to form government after Fourth General Elections.
In 1967, Governor Private recommended President rule when he found that neither of the party leaders was in a position to form a government.
In 1968, when U.P. Governor found that neither C. B. Gupta nor Harish Chandra, two leaders staking their claims for the formation of government, could give stable government to
the state, he recommended dissolution of the House.
In March 1973, Governor B. K. Nehni suggested imposition of President’s rule in Manipur. But in 1974 Governor of Gujarat did not send his report to the President for the dissolution of State Assembly, though the situation in the state had been so much worsened that army had been called to assist the civil authorities for the maintenance of law and order.
Though it is discretionary power of the Governor to recommend to the President about the imposition of President’s rule in the state yet he is to take some factors into consideration.
These are:
(1) The Governor should accept the advice of only the Chief Minister, who en joys the confidence of the House and not of the one who has lost confidence of the House.
(2) That other leader or leaders have been provided an opportunity to prove their strength on the floor of the House thus ensuring that they cannot provide stable government.
(3) That the action of the Governor does not appear to be partial, meaning thereby that he is in no way making an attempt to save one political party or the other.
(4) That there is equally no undue delay in the formation of a stable Ministry so that progress of the state does not suffer due to lack of decision making process at the political level.
Financial Powers:
As executive head of the State, Governor has certain financial powers. It is duty and constitutional obligation of the Governor to cause the statement of income and expenditure for the year to be laid on the Table of the House.
Every demand for grant must be made with the recommendation of the Governor. In the State budget there is a provision for unforeseen expenses. The Governor is authorised to spend these at his direction.
The salaries and allowances of judges of the High Court and the Chairman and members of the State Public Service Commission are also non- votable. These are placed at the disposal of the Governor. In financial matters, however, power of the Governor is somewhat restricted in one sense. He cannot return a financial bill for the reconsideration of the House. Every financial bill presented to him must be consented.
Judicial Powers:
In judicial matters Governor has some powers. He decides about postings, transfers and promotions of the district judges and other officers belonging to judicial service of the state. In the State High Court when a judge is going to be appointed, President consults the Governor of the state and in this way Governor has a hand in the appointment of judges of the High Courts.
Being the head of the Judiciary, Governor cannot be called to appear before any court for his actions, as long as he holds that office. He can pardon and reprieve or reduce the punishment of a person who has been adjudged guilty by any court in the state. He, however, cannot increase any such punishment.
He cannot grant pardon in cases involving death sentence or sentence pronounced by Court Martial. In the case of K.M. Nanavati Vs. State of Bombay the Supreme Court has held that Governor’s power to suspend sentence was subject to rules made by that court.
The Court ruled that, “The Governor cannot exercise his power of suspension of the sentence of the period when the Supreme Court is seized of the case …. After the filing of the petition and till the judicial process is over, the power of the Governor cannot be exercised.”
Miscellaneous and Discretionary Powers:
Governor is to ensure that accounts of the state are being maintained properly and the money is being spent for the purpose for which it has been allocated. For this purpose he receives and causes the Report of the Accountant General of the State placed on the Table of the House.
State Public Service Commission is an autonomous body. He receives report on the work of the Public Service Commission and sends the same to the State Council of Ministers for report and gets that placed before the Assembly for its approval.
In several matters he acts in his discretion such as selection of Chief Minister, dismissal of Ministry, dissolution of Legislative Assembly, assent to non-money bills; reserving a bill passed by the Legislative Assembly for the assent of the President and informing the President about failure of constitutional machinery in the state.
The Governor of Assam has discretionary powers in the administration of tribal areas of his state, whereas Governor of Nagaland can take steps in his discretion about checking violent activities of hostile Nagas. The validity of anything done in his discretion shall not be called in question on the ground that he ought or ought not have acted in his discretion.
He can issue ordinance when the legislature is not in session and can also seek the advice of the President on any important legislative matter.
But in this connection it may be pointed out that except in exceptional circumstances or in situation of political instability the Governor has no discretion. He remains a nominal head. In the words of Dr. Sharmu, “The Governor is the constitutional head of the state just as the President is of the Union. We may say that he is President shorn of his emergency and transitional powers.”
4. Governor and Dismissal of Ministry:
In November 1967, Governor of West Bengal Dharam Vira, got an impression that Chief Minister, Ajoy Mukerjee, had lost confidence of the House and the Chief Minister desired to convene Assembly meeting on December 18.
The Governor, however, wanted that the meeting should be called earlier, but when Chief Minister insisted on his date, the Governor in his discretion dismissed Ministry and invited Dr. P.C. Ghosh to form the Ministry and call session of the Assembly.
Accordingly when new Chief Minister called Assembly session on November 29, 1967, Speaker created constitutional crisis, by adjourning the House sine die. This created a lot of controversy and main issue that came to focus was whether Governor had any constitutional right to dismiss the Ministry, without ascertaining whether the Chief Minister enjoyed the confidence of the Assembly or not.
Article 164 of the constitution of course provides that the Minister shall hold office during the pleasure of the Governor but in the case of Sunil Kumar Bose and others Vs. The Chief Secretary of Government of West Bengal (1950), it was observed that, “The Governor under the present constitution cannot act except in accordance with the advice of his Minister … The power to act in his discretion or in his individual judgment has been taken away.”
In this particular case, there were two main reasons which prompted the Governor to dismiss the Ministry:
(a) That the Chief Minister did not call for session of the Assembly on the date, on which the Governor desired it to be convened. This delay clearly meant that the Chief Minister was not in majority and was gaining time.
(b) It was not in the interest of a state and was constitutionally unjustified to continue a minority Ministry in power in the state.
As regards the date of convening the session of the Assembly, under the constitution what is provided is that interval between two sessions of Assembly should not be more than 6 months. As long as this provision of the constitution is not violated, it is the responsibility of the Chief Minister to suggest a date on which Assembly session should be called.
Though technically Governor summons the Assembly, yet the date is decided by the state cabinet. Not only this, in this particular case the difference between the two dates suggested by the Governor and the Chief Minister was not much and could have been adjusted in the spirit of gi
ve and take.
As regard minority government it is, of course, correct that minority government should not continue and as soon as Chief Minister feels that he has lost confidence of the House he should resign.
It is not at all justified for the Governor to develop a subjective notion that the Chief Minister has lost confidence of the majority in the House and therefore; government should be dismissed. This can lead to serious consequences in a parliamentary form of government.
Not only this, hut in India there have also several instances, when Governors allowed minority governments to remain in power. When C. Rajagopalachari was invited to form government in Madras, he was not in majority.
5. Governor and the Legislators:
Under the constitution presiding officer of a House is the custodian of rights and privileges of the members and he is supposed to maintain decorum in the House. In England, from where India has much borrowed as a parliamentary form of government, the members of Parliament have clearly understood that Queen is merely constitutional head of the state.
But in India there have been several instances when the legislators in the states did not allow Governor to proceed further, when he came to address a session of the House. But what assumed a great significance was in 1966 when Governor Hukam Singh was not allowed to proceed in the Rajasthan Assembly and he himself expelled 12 MLAs from the House.
This created a controversy; namely, whether Governor could expel an MLA from the House. Those who favoured this point were of the view that he was an integral part and the limb of the House and as such quite competent to do so. On the other hand those who criticised his action argued that maintaining decorum in the House was the responsibility of the Speaker and the Governor had nothing to do with that.
The controversy would have much developed and assumed constitutional significance, but in between fourth general elections came and secondly thereafter no other Governor in any other state ever took a similar step as had been taken by the Governor in Rajasthan.
The point at issue, however, remains unresolved i.e., whether the Governor can at all expel an unruly M.L.A. from the House, when he comes to address the Assembly.
6. Governor and Criticism of Ministry:
Governor being nominal head of the state is not supposed to indulge in politics, much less use press and platform to vindicate his grievances and view point about his government. Of course, he has every right to write to President what he feels about his government.
In October 1973, Bihar Governor, D.R. Bhandare went to Nagpur and Bombay and there at those places he is alleged to have said in the open meetings that in his state Ministers and highly placed public servants were corrupt.
He is also stated to have said that in order to check corruption in the state, he had recommended to the President to dissolve state Assembly. These remarks of a Governor drew nation wide criticism and main point was whether a Governor had any right to publicly criticise his government. But after a few days when he came back to his state capital he openly denied, what had been reported in the press.
He said that he had no right to recommend dissolution of Assembly, when there was political stability. But the state government was not satisfied with this and demanded his recall. It was of the view that his continued remaining in the state was likely to effect smooth working of state administration.
Similarly in 19X9, Andhra Pradesh Governor Kumud Bahun Joshi also critisised some policies of the State Government which was highly resented by the latter and a demand was made for her recall.
7. Governor and Governor’s Address:
It is constitutional obligation of the Governor to address every new session of the Assembly and budget session at its beginning. In this the Governor reads an address prepared by his government, which outlines its achievements and programmes of the future. It is, thus, a policy document which is prepared by the government and the Governor is not supposed to make any changes in that.
This practice has been borrowed from England where ‘Address from the Throne’ is prepared by the Prime Minister and read by the Queen.
Whatsoever is said in that; is accepted because in that country it is clear that it is a document of the government and if there is anything wrong in that, that should be the responsibility of the government, because Queen can do no wrong. Moreover, in England Queen has no discretionary powers.
But in India the position is different. Here the Governor has discretionary powers and it is this constitutional obligation to see that nothing is done in the state which strains the relations of the executive with the judiciary or conduct and behaviour of judges is unnecessarily attacked.
An interesting case, happened in West Bengal. Governor Dharm Vira advised the President that Ajoy Mukherjee Ministry in the state was not in a position to give a stable government and that it should be dismissed. On his advice the government was dismissed.
But the way in which this was done became a matter of controversy. When mid-term elections were held, Ajoy Mukerjee was again returned to power and the Ministry demanded that the Governor should be recalled.
The Governor himself even wanted that he should be transferred to some other state. But central government did not wish to leave an impression that the Governor was being called back on the advice of Chief Minister, because that could lead to several serious constitutional problems.
The refusal of the central government to recall the Governor very much annoyed West Bengal government. In between, Ajoy Mukerjee government moved the High Court about wrong dismissal of government by the Governor but the court did not accept government’s view point, as in its opinion the Governor was the sole judge to decide about the dismissal of the Ministry.
In the address prepared for the Governor, Ajoy Mukerjee Ministry added two paragraphs in which dismissal of the Ministry by the Governor and the support given to him by the centre was condemned. This indirectly meant reflection on the central government as well as High Court.
The Governor suggested to the Chief Minister that these paragraphs should be omitted as these neither dealt with any policy statement nor indicated any achievement of the government. But Chief Minister insisted on their being read out.
In spite of the fact that controversy was going on the address when printed and laid on the Table of the House included those two paragraphs. When, however, Governor Dharam Vira read his address he omitted these.
This of course created a pendulum in the House, but raised a wider issue as to whether the Governor was in his constitutional rights to omit any portion of an address prepared by the cabinet and whether he was duty bound to read that in to-to. The opinions were bound to differ.
Those who favoured the action of the Governor argued that he was justified because:
(a) Omitted portion did not deal with any policy statement or achievement of the government and as such it was not obligatory on his part to read that.
(b) He himself had dismissed the government and his decision had been upheld by the court. Reading these paragraphs would have cast indirect reflection on the judiciary. It was the responsibility of the Governor to see that there was no unnecessary reflection on the judiciary.
(c) In these paragraphs central government had been adversely criticised. How could a Governor condemn the central government which had acted on his advice and was not in the House to defe
nd itself.
But on the other hand the supporters of government action felt that the Governor was constitutional head of the state and it was his constitutional duty to read a prepared address. If there was anything wrong the government would have been condemned on the floor of the House and taken to task for including in the address unnecessary references.
But the controversy did not Hare up because after some time the Governor was recalled and thereafter, in no other state such a situation arose.
8. Governor’s Address and Affrontation:
Though in India it is quite well known that Governor is constitutional head of die slate and he has practically nothing to do either with policy making or formulation and that affrontation to his authority has no meaning, yet on several occasions, the opposition parties have used the occasion of his addressing the House, to express their grievances. The opposition several times has boycotted his address on one pretext or the other.
In the Punjab Vidhan Sabha 16 opposition Members walked out of the House to join a procession outside the House, as Governor Ujjagar Singh began his speech to inaugurate budget session of state legislature.
In 1969, except one SSP member, the entire opposition boycotted the Governor address of the state legislature as a protest against alleged installing of a puppet Ministry by the Governor in the state and that too in an illegal and unconstitutional manner.
In West Bengal in 1969, Governor Dharam Vira could address the House after great physical strain and some of the members even blockaded the way from which he was to walk in to address the House. As already said Governor Hukam Singh had to suspend 12 MLAs in Rajasthan Legislative Assembly who did not allow him to proceed with his address.
In Maharashtra Governor had to call Marshal to take one MLA (Mr. Dhote) out of the House for his shouting in the House and not allowing him proceed with his address. In fact, in India there is no state in which Governor’s address was either not boycotted or not disturbed.
In January, 1990 addresses Governors of Tamil Nadu, U.P. and M.P. were disturbed on the plea that since they had resigned they had no right to address the Assembly.
9. Governor’s Committee:
Governors who were supposed to be constitutional heads in some cases began to act in a manner which invited wide spread criticism. Their actions about summoning, proroguing and dissolving Assemblies, as well as some of their actions received wide spread criticism, particularly by non-Congress opposition parties.
They demanded that a code of conduct should be evolved and guidelines issued to the Governor on such important matters. It was, however, felt that issuing written guidelines would be a difficult, and perhaps not a practical solutions to the problem, because the Governors had to act under different situations and circumstances.
When Governors, however, met for their annual conference in 1970, President V. V. Giri decided to set up a Committee of five Governors, headed by Kashmir Governor, Bhagwan Sahey, to study the provisions of the constitution and to recommend whether it was possible to lay down some guidelines to deal with the problems which faced Governor in their dealings with the cabinet, legislature and in the use of his discretionary powers.
The Committee interviewed several people and submitted its reports in October, 1971. It was of the view that it was difficult to lay down any guidelines and, in fact, laying down such guidelines was unconstitutional.
There was no authority in the constitution which could lay down such guidelines. Much will depend on the spirit of give and take and degree of political discipline which was bound to develop with the passage of time.
The Committee was of the view that if a Chief Minister avoided facing the Assembly at the earliest, it was clear indication of the fact that he had lost confidence of the House and the Governor was very much justified in dismissing such a Ministry. Another suggestion of the Committee was that a Governor should invite only such person as Chief Minister who was a member of the legislature.
No outsider should ordinarily be invited to head the government. In case any such person was invited he should get himself elected to either House at the earliest.
The Committee viewed with concern that some Chief Ministers, after their swearing in ceremony postponed the formation of Council of Ministers. It was of the view that this tendency should be discouraged and Ministers should be appointed as early as possible, after swearing-in of the Chief Minister.
If a Governor doubted majority strength of the Chief Minister, then Assembly session should be called at die earliest possible opportunity so that majority claim of the Chief Minister is tested.
Then another recommendation of the Committee was that if certain Ministers in a coalition Ministry belonging to a particular party or group resigned due to disagreement with the Chief Minister, then the latter need not resign.
If, however, doubts were raised about majority support of Chief Minister’s party or parties it was obligatory on the part of the Chief Minister to establish beyond doubt his strength in the Assembly and that too at the earliest possible opportunity.
Constitutionally the Governor was bound to accept the advice of Chief Minister. But in case he felt that a particular action was unjustified, he should record that, indicating the nature of his objections.
The Committee also said that, “It is clear that he cannot break up the coalition by seeking to dismiss the Ministers representing the partnership and yet claim to remain in office himself.”
The Committee was also of the view that in order to assist the Governors in evolving healthy conventions with respect to all these issues a special wing in President secretariat may be set up to collect and make available all authentic information regarding political and constitutional development in all the states from time to time.
The Governor is die head of the state, and has certain constitutional obligations to discharge. It is, therefore, wrong to think and believe that he is merely agent of the President at the Centre. He has several obligations towards his state as well.
It is not possible to ban defections legally, because that is likely to offend some provisions of the constitution.
These recommendations of the Committee were placed before the annual conference of the Governors held in November, 1971. The conference appreciated the recommendations but was of the view that it was not possible to lay down any guidelines.
It was not possible, firstly, because written guidelines could come in conflict with the provisions of the constitution and secondly, it was difficult to anticipate all eventualities and situations in which Governor was required to function.
In November 1973, President V.V. Giri, while addressing the conference of Governors, again pointed out that in their relationship with the Council of Minister, they were required to work in a certain anonymity and should not openly criticise their governments.
He said that the Governor and the Council of Ministers do not function in competition with each other and that press and platform is not the forum for Governors for ventilating grievances. When a state is placed under President’s rule, the Governor is not running a care taker government, but he is to see that state machinery remains in ‘tact’ and Governor is responsible for its efficient running.
He pointed out that conventions, of course, have their own place in India but reliance on conventions without regard to totality of circumstances in a given case may not only be irrelevant but also misleading. He suggested the
Governors that they should remain away from political parties clashes.
10. Suggestions for the Future:
Under the constitution, the Governor is required to function as an independent personality in the state in which he is posted. He is not merely an agent of the Centre. But with the passage of time, an impression has gained ground that he is the representative of Centre in the state and sure to work in the manner he will be required to do so by the Centre. This impression need be removed at the earliest.
Then another impression is that it is a sinecure job which is given to someone as a favour by the Centre, particularly to those who have ceased to be active in life and are to be accommodated. Again this impression should be wiped out.
On the other hand an impression should be created that Governor has been carefully selected purely on merits and is the most suited one to deal with complicated affairs of public life and can judiciously hold a balance between national and regional interests. He should inspire confidence of all political parties in the state with his conduct and behaviour.
He should avoid taking rash and drastic steps and behave in a manner that his impartiality is never in doubt. As far as possible he should take decisions on the spot so that there is no impression that he is acting under the guidance of central government only.
A Governor should not create an impression that he is acting parallel to his Council of Ministers or is a court of appeal against the decisions of his government.
While making an appointment the centre should see that a Governor is a person of unquestionable integrity, honesty and that he has distinguished himself in life, so that he is listened with care in die state.
No active politician with clear political affiliations should be appointed as Governor, because such a person cannot inspire trust and confidence of other political parties. Not only this, but he spends a lot of his time in the politics of state of his interest. It will be better, if educationists, scientists, etc., who have long administrative experience are appointed as Governors.
As far as possible, before making an appointment of a person as Governor, state concerned should be consulted and its view point appreciated. This will leave an impression that die Governor is not being imposed on die state.
It should be laid down as a service condition that after their retirement the Governors shall not take part in active politics, so that they can act in a detached manner.
Dr. A. K. Sen, former Union Law Minister opined that, “In order to give true meaning to the office of the Governor, the first essential thing is to choose proper person for filling the high office. It should not be heated as a last refuge of a retired politician, or a civil servant, or as a place for the distribution of patronage. Outstanding men in the political, social or educational life of country, who are not controversial figures must obviously be the proper choice.”
Unless person of sterling qualities and integrity without political biases and ambitions and expectations for the future career are appointed as Governor, controversy about their actions is bound to be there and opposition parties are likely to feel that the head of the state is not looking after their interests, but only those of the ruling party at the Centre. Their conduct and behaviour will continued to be questioned.