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

5.1 Unitary Spirit vis-à-vis Governor’s Institution

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

18 Markandan, K.C: Sarkaria Commission and Constitutional Perspectives, ABS Publication, Jalandhar,

1991, P. 385-386.

appointment of Governor which were earlier asserted by the members

of the Constituent Assembly.

It is pertinent to mention here that there is a tremendous change

in Indian political scenario so far as the political parties are concerned.

Particularly in eighties, the political scenario observed the

mushrooming of regional parties in the states which latter on assumed

the status of national parties. So long as there was one party rule in

the Centre as well as in the states, the consultation with the Chief

Minster prior to the appointment of Governor was merely formality

and no difficulty ever arose in this matter. During this period the

institution of Governor remained almost dormant. But after the fourth

general election held in 1967, the political scenario under went a

radical change, as different political parties came into power in the

states a well as in the Centre in the form of political alliances. The

appointment of Governor became some what a controversial issue,

particularly in those states where the political complexion of the

Government differs from that of the Centre. These states apprehended

that the Governor appointed by the Centre Government and holding

office during pleasure of the President would not function objectively

and impartially, but at the bidding of the Central Government to

destabilize the State Governments.

The states belonging to other political complexion than that of

the Centre claimed not only consultation but rather their concurrence

in the matter of appointment of Governors. The Centre has not

accepted any such proposition, while the Centre consults the Chief

Minister; it is not ready to concede a veto to him in the matter of

appointment of Governor.

The study team of the Administrative Reform Committee has

suggested that though the Chief Minster of the State should be

consulted before a Governor is appointed, yet this should not dilute

the Primary responsibility of the Centre to appoint a competent and

suitable person as Governor.19

Recently, in 2004 an interesting controversy erupted between

the Government of United Progressive Alliance and the Chief

Minister of Tamil Nadu on the issue of prior consultation with the

Chief Minster at the time of appointment of Governor. United

Progressive Alliance’s Home Minister, Mr. Shiv Raj Patil, informed

the Chief Minister of Tamil Nadu, Jaya Lalitha, that the Centre

Government has decided to remove the Governor of Tamil Nadu,

Rama Mohan Rao, and to appoint Mr. Surjit Singh Barnala at his

place.

In response to the information of appointment of Mr Barnala as

Governor of Tamil Nadu, Jaya lalitha pointedly asked Patil that how

he could take this decision without consulting her. Patil conceded that

the Sarkaria commission on Centre-State relations had recommended

that the Centre should consult the State Government on the

appointment of Governors. He, however, said “but this is the ways

19 Jain, M.P: Indian Constitutional Law, Wadhwa & Co, Nagpur, 2005, P-330.

that we usually do these things” and described Mr. Barnala as a very

good choice for Governor.20

However there is no doubt that in public mind the office has

undergone devaluation even debasement. Some Governors have been

openly and widely accused of partisanship towards one party or

another, and allegations have been made that they had acted as an

agents of the Central Government, and not as holder of independent

constitutional office. And there is a disposition to proceed from

particular cases to the general distrust of Governors. In the wider

interest of healthy functioning of our parliamentary democracy and of

our federal system a review of the role of Governor is not only

appropriate but an urgent necessity.21

It is worth while to evoke here the cases in which the institution

of Governor has been openly politicalised, and the Governors are

forced to be critical by the parties in power at the Centre. The recent

instances of Bihar and Jharkhand during governship of Mr. Buta

Singh and Mr. Syed Sibte Rajvi, respectively, have projected on the

national scene the controversial aspect of the gubernatorial affairs. In

this context, the Honorable Supreme Court of India indicted Bihar

Governor Buta Singh of misleading the Centre in recommending the

dissolution of Bihar Assembly in May 2005, and said that the Union

Council of Ministers should have verified his report before accepting

20 W.W.W. Hindunnet. Com, the Site visted on 16.9.2008.

21 Singh, L.P: Guide Philosopher and friend, in book, The Governor: Sage of Saboteur, Roli Books

International, New Delhi, 1985, P-37.

it as a gospel truth.22 Media also has not lagged behind in highlighting

these controversies that ‘following the State Assembly elections,

Governor Syed Sibte Rajvi used questionable tactics to foist a short

lived UPA Government headed by Shibu Soren.23

A retrospective look at the deliberations of Constituent

Assembly unveils the facts that even in 1950 the framers of the

Constitution inferred that the Centre would do mischief through the

Governor in the States. The inference of members of Constituent

Assembly has proved to be absolutely true. The political parties in the

wake of its political polarization and political agendas have down

sized this institution of wisdom, sagacity and fortitude. Hence a new

look and new dimensions to the constitutional provisions containing

the appointment and removal of Governor are the need of the day.

Constitutional jurisprudence, thus, demands induction of certain

clauses in Part VI, Chapter II of the Constitution. The clauses so

inducted should actively and deliberately provide safeguards to the

Governor so that he can make best use of his discretionary powers as

per tenements and spirit of the Constitution. In this context Article

156 of the Constitution required to be interpreted as per tenements and

spirit of the Constitution because the framers of the Constitution never

intended that Governor would not complete his term of five years in

the wake of political considerations. Hence, Article 156 of the

Constitution needs a cursory look.

22 Hindustan Times, January 25, 2006, P-1.

23 Hindustan Times, September 8, 2006, P-5.

5.6 -Article 156 - Term of office of Governor

Article 156 of the Constitution provides that:

(1) The Governor shall hold office during pleasure of the

President.

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

the President resign his office.

(3) Subject to the forgoing provisions of this Article a

Governor shall hold office for a term of five years from the

date on which he enters upon the office.

Provided that a Governor shall, notwithstanding the expiration

of his term continue to hold office until his successor enters

upon his office.24

Article 156(3) provides that Governor shall notwithstanding the

expiration of the term; continue to hold office until his successor

enters upon his office. Article 160 provides the provisions for

discharge of functions of the Governor in certain contingencies which

says that ‘the President may make such provisions as he thinks fit for

the discharge of the functions of the Governor of a State in any

contingency not provided for in this chapter. Thus Article 156(3)

contemplates that Governor is to continue to hold office not-

withstanding the expiration of the term. The effect of these words is to

exclude all questions of legality of the holding of office by the

24 The Constitution of India, Bare Provisions, Universal, New Delhi, 2005, P-141

Governor after the expiration of his term. There must be a Governor

under Article 153 and the interregnum is avoided by the proviso. A

person appointed as Governor continues to hold office till his

successor is appointed under Article 155 or an order is made under

article 160.25 Above observation elucidates that the Governor can

continue beyond five year terms also.

The Apex Court also pronounced in another decision that the

Governor however, continue to hold office even after the lapse of his

term till his successor enters upon his office under Article 156(2).

Thus a person once appointed a Governor continue to hold that office

till his successor enters upon his office.26

5.7 Contradictory nature of Article 156

Literally within the domain of Article 156(1) of the

Constitution, Governor is to hold office during pleasure of the

President. But within the ambit of clause 3 of this section, it is

specifically enshrined that subject to the forgoing provisions of this

section, the Governor shall hold office for a term of five years. Thus

intentionally and deliberately, clause 3 of Article 156 has been

eclipsed by clause 1 of Article 156 of the constitution. The framers of

the Constitution have locked the modus operandi of removal of the

Governor in this Article of contradictory effect.

25 S.R. Bommai, 1994 (3) SCC, P-1.

26 K. Ballabh v/s Commissioner of Inquiry, AIR 1969 SC, P-271

It is significant to mention here that Article 61 of the

Constitution provides the method of impeachment for the removal of

the President, but the Constitution nowhere does lay down the process

of removing the Governor of the State except by the central authority.

In other words the Centre Government absolutely enjoys the power

for the removal of the State Governor at any time, even without

assigning any reason. Obviously, the Centre Government is in a

position to keep the Governor, always under the influence.

In fact Article 156 of the Constitution is not in consonance with

the true spirit of the Constitution. In the United States, the Governor

of a State can be removed by the process of impeachment by the State

legislative body. Some State Constitutions provide the recalling

method of a Governor by popular vote. In Canada, the Lieutenant

Governor of the Province under Article 5 of the British North

American Act 1867 may be removed by the Governor General.

Thus, the issue of the appointment and removal of the Governor

is the sole right of the Union Government and States have no voice on

this issue. It is very strange to note that Constitution, on the one hand,

has made the Governor ‘representative’ of the Centre and has granted

him some discretionary powers, but on the other hand the Constitution

has kept him completely free from the elected representatives of the

State. There is no effective check on the powers of the Governor by

the State which can prevent him from misusing his authority. The

state legislature, thus, has been deprived of the right of removing a

Governor.27

The verdict of the Rajasthan High Court is worth quoting here

that Article 156 provides that Governor holds office during pleasure

of the President. It further says that subject to the exercise of the

pleasure of the President, the Governor shall hold office for a term of

five years. It is, therefore, clear that the Governor has no security of

tenure and no fixed term of office. The expression ‘Pleasure of the

President’ is not justifiable.28

The Patna High Court has pronounced the verdict which can be

juxtaposed with the above mentioned verdict that five years term is

subject to the exercise of pleasure by the President and the President

of India is the best judge for the exercise of His pleasure to decide as

to when and in what circumstances the term of sitting Governor of

State should be reduced, or, instead of reducing the term, he may be

transferred from one state to another or may be asked to vacate the

office.29

Soli, J. Sorabjee has depicted the forgoing phenomenon in the

glaring words that one of the piquant incongruities of our Constitution

is that on a literal reading of its provisions, the Governor emerges as

the least secure and the least protected of all constitutional

functionaries. He is the only such functionary without any expressed

27 Gehlot, N.S: State Governors in India Tends and Isues, Geetanjali, New Delhi, P. 224-25.

28 Surya Narain v/s Union of India, AIR 1982 Rajasthan, P-1.

29 Indian Union Muslim league, AIR 1998 Patna, P-156.

security of tenure and any specific safeguard in the matter of his

removal.30

5.7 Politicalisation of Article 156

A constitutional authority like that of Governor in India can

enjoy the perks and a liveried status only during pleasure of the

President as per the contemplation of Article 156 of the Constitution.

President’s displeasure and that too in absence of any safeguard, can

kick the Governor out of the palatial ‘Raj Bhawan’ as and when

desired by the Central Government. In the presence of confronting

provisions of the Constitution relating to his term of office, the

Governor can remain moribund and eclipsed whereas his execution of

powers and particularly the execution of discretionary powers are

concerned. The compatibility of removal and displeasure in turn

adversely affect the decision making process of the Governor whereas

his special and discretionary powers are concerned.

In the real effect and substance, the Governor looks after as

well as nourishes the interests of the party or alliance to which he is

politically related. He is there in the State to care for the interests of

the leaders of party as well as the interests of workers of the party

which has inducted him in the State. These party leaders and party

workers are in a position to attract the vote bank of the State in favor

of the party to which the Governor is politically related.

30 Soli, J Sorabjee, The Constitution and the Governor, Roli Books International, New Delhi, 1985, P-13.

Governor in the real sense is a protem of the party in power. As

a natural corollary, he is to look after the vested interests and health of

the party in power to which he is politically related. Consequently, his

judgment is bound to affect the State’s decision making process by the

ideas which he already has on his slate. In this state of mind

intrinsically he will be pushed to do even apolitical act to safeguard

the health of his party, may it adversely affect the smooth functioning

of the State. While passing through this sort of affairs, off and on, he

has to act as a cross Governor. It is submitted that the contradictory

provisions relating to his tenure of office are the hurdle in his path to

be realized as a positive Governor. Thus, Article 156 of the

Constitution is used and misused to meet the partisan ends of the party

in power at the Centre.

5.8 Recommendations of Sarkaria Commission

Sarkaria commission in its report on Centre State relations has

recommended the following guidelines for the constitutional

functionaries regarding tenure of state Governors in India as follows:-

Para (4.16.05) (4.7.08) - states that the Governor’s tenure of office for

five year in a State should not be disturbed except very rarely and that

too for extremely compelling reasons.

Para (4.16.06) (4.8.08) - states that where the President is satisfied

that in the interest of the security of the State, it is not expedient to do

so, the Governor whose tenure is proposed to be terminated before the

expiry of the normal term of five years, should be informally apprised

of the grounds of the proposed action and afforded a reasonable

opportunity for showing cause against it. It is desirable that the

President (in effect the Union Council of Ministers) should get

explanation, if any submitted by the Governor against the proposed

removal from the office, examined by the advisory group consisting

of the Vice-President of India and the Speaker of the lok Sabha or a

retired Chief Justice of India. After receiving the recommendations of

this group the President may pass such orders in the case as he may

deem fit.

Para (4.16.07) (4.8.09) - contemplates that when, before expiry of the

normal term of five years, a Governor resigns or is appointed

Governor in another State, or has his tenure terminated, the Union

Government may lay a statement before both Houses of the

Parliament explaining the circumstances leading to ending of the

tenure. Where a Governor has been given an opportunity to show

cause against the premature termination of his tenure, the statement

may also includes the explanation given by him, in reply.

Para (4.16.08) (4.9.04) - enunciates that as a matter of convention, the

Governor should not, on demitting his office, be eligible for any other

appointment or office of profit under the Union or a State Government

except for a second term as Governor or election as Vice-President of

India or President of India. Such a convention should also require that

after quitting or laying down his office, the Governor should not

return to active party politics.31

Sarkaria Commission in its findings have evolved the

guidelines pertaining to relations between the President, in other

words the Central Government, on the one hand and the Governors

of states on the other hand. Sarkaria Commission in its report of far

reaching import has tried to provide the safeguards to the State

Governors against their arbitrary removals. The report reflects that

‘Audi Alterum Palterum’ should be made available to this

constitutional functionary of very high repute against his arbitrary

sacking. The findings viewed that right of representation should be

made available to the Governors which is desperately needed to him.

It is pertinent to mention here that Article 311 provides

constitutional safeguards to civil servants against any arbitrary

dismissal from their posts.

Article {311(2)} states that ‘No such person as aforesaid shall be

dismissed or removed or reduced in rank except after an inquiry in

which he has been informed of the charges against him and given a

reasonable opportunity of being heard in respect of those charges.’32

Report of Sarkaria Commission is not only in favor of

providing constitutional safeguards to the Governors in case of their

31 Ibid, Note-18, P-386.

32 Bare Provisions: the Constitution of India, Universal Publication, New Delhi, 2005, P-257

arbitrary removal, but has proposed with a sound hierarchical process

of bodies consisting of highest constitutional functionaries to look

into in, the matter of arbitrary removal of Governors.

5.9 Report of National Commission

Report of the National Commission to Review the working of

the Constitution, has also made recommendations in regards to the

affairs of Governors in India in the following segments:-

Para 8.14.1 The Commission had issued a consultation paper

with a questionnaire on the office of the Governor for eliciting public

opinion. The issues raised and the suggestions made in the

consultation paper relating to amendment of Article 155, 156, with a

view to entrusting the selection of Governors to a committee making

the five years term a fixed tenure providing the removal only by

impeachment.

Para 8.14.2 After carefully considering the public response and

after full deliberations, the Commission does not agree to dilute the

powers of the President in the matter of selection and appointment of

Governors. However, the Commission feels that the Governor of a

State should be appointed by the President, after consultation with the

Chief Minster of the State. Normally, the five years term should be

adhered to and removal and transfer of Governor should be by

following a similar procedure for appointment i.e. with the Chief

Minister of the concerned state.

Para 8.14.3 The Commission recommended that in the matter of

selection of a Governor, the recommendation of the Sarkaria

Commissions may be kept in mind.33

The National Commission in its report has emphatically under

lined the report of Sarkaria Commission in the matter of selection of

Governor and is of the view that the five years term of the Governor

must be adhered to. The National Review Commission has touched

another vital issue of ‘Consultation with Chief Minister’ of the State

not only in the case of appointment of the Governor but also in the

case of transfer of the Governor.

However, the sacking of Governors by the highest

constitutional functionary is not a new phenomenon in Indian polity.

It is a natural corollary that with the change of the party or alliance in

power at the Centre, the Governors must change.

5.10 Scenario of One Party at the Centre and State

So long as there is one party rule at the Centre as well in the

State the institution of Governor remains dormant. The first and in

some way the most interesting instance of a Governor acting wrongly

of his own against the wishes of the Prime Minster, is the installation

of the Rajagopalachari Ministry by Governor Shri Prakasha in Madras

in 1952. The Congress Party was in minority at the time of general

elections and Mr.Nehru recommended the democratic procedure of

33 Report of National Commission to Review the Working of the Constitution. V.I, Universal Publication

New Delhi, 2002, P-165.

allowing the other parties, if they could muster a majority, to form a

Ministry.

In a letter to Rajagopalachari, Nehru said that one thing we

should avoid is giving the impression that we stick to the office and

that we want to keep others out at all costs. But Sri Parkasha and

Rajagopalachari, to whom he consulted and the most congressmen

favored ‘Executive Government’ presumably as an alternative to a

ministry responsible to the Legislature. They were of the view that the

communists should be kept out of office and it should be asserted as

axiom of Indian Politics that the Congress ruled India whatever the

electoral setback in certain parts of Country. Rajagopalachari wrote to

Nehru that it would not ‘be justifiable from any point of view, even of

ideological democracy to leave patches of rebel area and go into

disorder.’ and that we can not work our democracy in fractions of

India. Nehru vetoed the suggestion of permanent Congress hegemony

and observed that the electoral defeat of Congress did not amount to

the failure of the Constitution. Nehru was convinced and said

categorically that others would also be given a chance to function.

Without informing Nehru the Governor nominated Rajagoplachari to

the Upper House. He was thereupon elected leader of the Congress

Party; and the Governor ignoring Nehru’s specific reminder that the

Chief Minster should be a member of the Lower House invited

Rajagoplachari to form the Government. The Prime Minister and

President disapproved of the whole business but the matter had to be

left at that the Governor has acted within his constitutional discretion,

even though his action was violative of democratic morality and was

of dubious constitutional propriety.34

The Congress party, however, in the above episode approved

the unconstitutional act of the Governor under the umbrella of

discretionary power of the Governor; obviously, the Governor was of

same complexion as that of the Centre. If there have been the

Governor sponsored by the party other than the Congress, he might

have been sacked away.

In fact the party or alliance in power at the Centre, wants to

know in clear terms whether the Centre Government’s policies and

strategies are being followed in the States. The Centre Government

remains alert with the help of Governors particularly with regards to

the affairs of State Government which is not of her complexion. The

Centre Government always remains busy in finding out the ways and

means to topple the Governments of political parties which are not of

her complexion. Those Governors who do not endeavor shoulder to

shoulder with the Central Government have to go unheard. Thus, so

far there is one party rule, both at the Centre as well as in the State;

the Governors complete their normal term of five years.

Contrary to the beliefs of the framers of the Constitution the

Governors are removed for reasons not at all within their

contemplation. A change of Government at the Centre and desire to

34 Sigh, L.P: Guide, Philosopher and Friend, in book, The Governor: Sage or Saboteur, Roli Books

International, New Delhi, 1985, P-45.

reward the party men has in some cases led to the removal or transfer

of Governors before expiry of their terms.

Instances of removal of Governors by the Central Government

are not scanty. Article 156 of the Constitution whose clause 3 is

controlled by Clause 1 has been used and misused by the Central

Government for sacking the Governors not due to constitutional or

juristic reasons but in the wake of political reasons . To elucidate the

use and misuse of this Article, it is imperative to highlight some

instances of removal of Governors rather we can say the arbitrary

removal of Governors. The instances of this pedigree bring into light

the phenomenon, that the recommendations of Sarkaria commission

were given no waightage while removing the Governors from their

august offices. Recommendations of Sarkaria Commission are an

earnest attempt to fill the hiatus of constitutional provisions pertaining

to institution of Governor.

5.11 1980 Episode of removal of Governor of Tamil Nadu

The Governor of Tamil Nadu, Prabhu Patwari was appointed by

the Janta Paety Government who was in keeping of Gandhian

ideology. The moment he joined the ‘Raj Bhawan’ in Tamil Nadu, he

banned drinking, smoking as well as serving nonvegetarian food in

the Governor’s house. In the mean time the Government at the Centre

changed and the Congress party came into power. According to his

ideology, he did not allow to serve the drinks as well as the non

vegetarian food to the VIP’s of the Congress Government. This

coupled with the views of the Central Government, in other words the

Congress (I) Government that the Governor should resign the moment

a new Government came to power, led to the withdrawal of the

President’s pleasure and consequent removal of the Governor on 26th

of October 1980.35 Hence, it has become a natural corollary, that party

in power at the Centre, equipped with Article 156 of the Constitution

with one pretext or the other remains busy in finding out the ways and

means to sack the Governors which are not of her party as well as

ideology.

5.12 1981 Episode of removal of Governor of Rajasthan

In a leading case, the Rajasthan High Court upheld the

dismissal of the Governor of Rajasthan, Raghukul Tilak, by the

President. Raghukul Tilak assumed office of Governor during the

regime of Janta Party. He was removed from office on August 8,

1981, by the Indira Gandhi Government.

The Court pointed out that the Governor while discharging his

functions works as a channel of communication and contact between

the State and the Centre; the Governor is an appointee of the President

and expressly holds office during his pleasure. The Governor thus has

no security of tenure and no fixed term of office. Article 156(3) is

controlled by the Article 156(1) of the Constitution. The President in

exercise of his pleasure may cut short the five years term of the

Governor. Consequently, the President can ask the Governor to resign

or may terminate him from his office. The Governor may be removed

35 Sorabjee, Soli, J : The Constitution and Governor, in Book, The Governor: Sage or Saboteur, Roli

Books International, New Delhi, P- 19.

by the expression of President’s displeasure before the normal term of

five years and the President’s pleasure under Article 156(1) is

‘unjustifiable’.36

Forgoing expression makes it vivid that removing a Governor is

much easier than removing an employee of the Central Government,

while both hold office during the pleasure of the President. A

Government servant enjoy protection of Article 311 and many other

legal remedies under Administrative Law as well as under civil

service rules while no such statutory or non statutory remedies are

available to Governor against his arbitrary removal.

5.13 1989 Episode of Dismissal of Governors by N.F. Government

A glaring instance of removing the Governors from their offices

is the dismissal of all State Governors appointed by the congress (I)

Government by the National Front Government under the stewardship

of Mr. V.P. Singh as Prime Minster of India. The manner, in which

the Governors were asked to resign by the President, was to defy the

spirit of the Constitution. This unconstitutional event has deteriorated

the status and dignity of this office of high repute.

National front Government viewed that the previous Congress

Government had made political appointments of Governors which

were not proper and the present Government is committed to remove

corruption from public life. It was also argued that with the change of

the Government at the Centre, the Governors should also be changed

36 Surya Narain v/s Union of India, AIR 1982 Rajasthan, P-1.

in order to give the new Government the opportunity to tone up the

administration.37

It is submitted that the National Front Government under the

pretext of ‘toning up the administration’ of the Country removed all

the Governors appointed by the previous Congress (I) Government

with the handy available armory of Article 156 of the Constitution.

Offices, thus, vacated were filled by the party in powers by her own

party leaders. In fact, it is the only available modus operandi with the

party in power to compensate with the office of the Governor to her

party leaders who could not find berth in the Parliament.

5.14.1991 Episode of Removal of Governors by Congress

Government

When the Congress party came into power at the Centre in

1991, the position and status of the office of Governor was further

devaluated. Congress party which had at that time criticized the action

of Mr.V.P.Singh’s Government did the same thing. Mr. Narsimha Rao

Government changed at least 14 Governors who were appointed by

Mr. V.P.Singh and Chander Shekher Governments and replaced them

with party leaders. This act was done merely to devaluate the

institution of Governor.

Sarkaria Commssion does not favor the summary curtailment of

5 years term of the Governors except for extremely compelling

reason. The Commission strongly recommended against the

37 Pandey, J. N: Constitutional Law of India, Central Law Agency, Allahabad, 2008, P-514.

appointment of discarded or defeated politicians to the august office

of Governor as they would try to justify their choice by acting as

agents of the centre.38

5.15 Dismissal of Governor of Bihar in 1991

The Centre Government withdraw the ‘pleasure of the

President’ and dismissed the Bihar Governor Mr. Yunus sleem on

February13, 1991 for committing the impropriety in criticizing the

imposition of President’s rule in Tamil Nadu in course of his speech

to the joint session of the Bihar Legislature on February10, 1991. He

was dismissed after he refused to cave in to intense pressure from the

New Delhi to submit his resignation.39

5.16. 1992 episode of dismissal of Governor of Nagaland

The removal of the State Governor was again brought in to

focus by the summary dismissal of the Governor of Nagaland, Shri

M.M. Thomas on April 11, 1992. Earlier, the Governor had dissolved

the State Legislative Assembly on the advice of then Chief Minister

retaining him as a Care Taker Chief Minister till fresh elections could

be held. The Governor had done so in the exercise of his powers under

Article 172(2) (b) without consulting the Centre Government before

taking such an action. The Centre Government did not approve the

action of the Governor. Accordingly, Centre imposed the President’s

rule in the State under Art. 356 on April 2, 1992 and dismissed the

Governor soon after. The Center’s justification for taking the action

38 Ibid, Note-37.

39 Kashap, Anirbhan: Governor’s Role in India Constitution, Lancer Books, New Delhi, 1993, P-146.

was that the Chief Minister had already lost his majority in the

legislature, when he advised the Governor to dissolve the House. The

opposition parties in Parliament described Center’s action as an attack

on the federal character of the Constitution.

The above episode did bring to the forefront, the issue of crucial

importance to the Indian federalism that whether the Governor is a

constitutional functionary in his own right or he is bound to seek the

consent of the Centre. Theoretically speaking as per the constitutional

provisions, the Governor is entitled to decide of his own that whether

the powers vested in him by the Constitution should be exercised or

not at a particular movement. It is not necessary to seek the Center’s

consent to his proposed exercise of such power. Therefore, in theory,

in the instant case, the Governor may not have done any thing wrong

or improper in exercising his power under Article 174 and dissolving

the House. But, then, hitherto, the practice has been developed in the

different manner. Governors rarely act in their own judgment

independently of the center’s view. They usually act either at the

behest, or with the consent, expressed or implied of the Centre.

This practice cannot be regarded as being in conformity with

constitutional rectitude. Even politically this practice is not sound

because the Centre and the State may belong to different political

parties and the decision of the Centre Government in such a situation

may have political overtone. Therefore, it will be best to leave the

Governor who is man at the spot free to decide as to how to exercise

his constitutional powers and the situation arises.40

5.17 Removal of Governors by U.P.A. Government in 2004

The Supreme Court referred to a five judge bench, a writ

petition challenging the removal of four Governors appointed during

former National Democratic Alliance regime, observing that the

important question of law relating to appointment and removal of

Governors requires consideration by the larger bench.

In July 2004, the United Progressive Allaince Govrnment

removed Kailash Pati, Kedar Nath Sahni, Babu Parmanand and

Vishnu Kant as Governors of Gujrat, Goa, Haryana and Uttar Pradesh,

admitting the Petition challenging their removal, the Supreme Court

has sought a response from the Centre Government.

In its reply, the Centre Government asserted that the term of

office of five years for a Governor was subject to the doctrine of

‘pleasure of the President’ embodied in Article 156(1) of the

Constitution. It said that the five years term is not absolute and can be

abridged at the pleasure of the President implying that the President

has the unfettered power to order the removal of the Governors and

that could not be questioned in the Court of law.

The Centre submitted that the exercise of a power founded on

the doctrine of pleasure even though the same was on the aid and

40 Jain M.P. Indian Constitutional Law, Wadhwa, Nagpur, 2005, P. 332-33.

advice of Council of Ministers could not be questioned by the Court

particularly in view of the bar of Article 361(1) of the Constitution

granting immunity to the President. The affidavit denied the allegation

that the four Governors were removed due to ideological difference. It

said that the allegation of the petitioners that they were removed due

to differences in ideology was based on some media reports and not in

facts, the Center said that Constitution did not specify any ground for

revoking the pleasure of the President resulting in the removal of the

Governor and added that the Constitution also did not specify any

procedure for their removal. 41

History is being repeated now, though the axe has fallen only

on four Governors so far. The assumption that the Centre which is an

appointing authority has the right to dismiss the Governor without

giving him reason for it or following any legal procedure, ignores the

basic right of every citizen in our democracy to be heard before he is

punished.

The Governor is a constitutional functionary entrusted with

solemn responsibility to ‘preserve, protect and defend the Constitution

and the law’. He takes the same oath on the assumption of the office

as that taken by the President with the difference that the Governor’s

oath refers to the well being of the people of the State, while the

President’s oath refers to the well being of the whole country. His is

an independent office which is not subject to the control of Central

Government.

41 W.W.W. India. Org, site visited on 18.9.2008.

5.18 Summarily dismissal of Governors: a fallacious doctrine

In the wake of power politics, some highly fallacious theories

and doctrines had been propounded by certain political parties and

leaders about the right of Central Government to summarily dismiss

the Governors of the State. The explanation furnished by the Central

Government is as wrong as ‘Mufti Doctrine of 1990’ when the

V.P.Singh Government demanded resignation of all Governors

through letter addressed to the President, Mr. R.Venkatarman in

January 1990, the theory put forward by then home Minster Mufti

Mohammad Sayeed was that with the change of Government at the

Centre there should also be a change of Government in the States. The

theory was that the Governor should be the Center’s ‘own man’

irrespective of the fact that the Constitution expected him to be totally

non partisan and impartial functionary.42

The President of India, who holds office for a term of five

years, can be removed from office only by impeachment for violation

of the Constitution, after following the elaborate procedure provided

in Article 61 of the Constitution.

A Judge of the Supreme Court or a Judge of a High Court can

be removed from his office only on the ground of proved misbehavior

or incapacity and after an address by each House of Parliament,

supported by majority of total membership of the House and by a

majority of not less than two-thirds of the members of that House

42 Ibid, Note-41.

present and voting, has been presented to the President in the same

session for his removal. (Articles124 (4); 217).

The Comptroller and Auditor-General of India and Election

Commissioner can only be removed from office in the like manner

and on the like grounds as a Judge of the Supreme Court.(Article148;

324.)

The Chairman or any other member of the Public Service

Commission, in normal course, may be removed from his office on

the ground of misbehavior. (Article 317)

Any member of a civil service of the Union or a State, however

low in the hierarchy, cannot be removed without being accorded a

reasonable opportunity of being heard, barring certain exceptional

cases specified in the Constitution. Yet a Governor, the head of a

State, has no security of tenure, nor any safeguard against his

removal.43

It is pertinent to highlight here the facts that the framers of the

Constitution did not expressively ensured security of tenure and

safeguards against the arbitrary removal of the Governors. The silence

of the founding fathers in this matter was due to the fact that the

removal would be only for violation of the Constitution or such

misbehavior as would render the person unfit to occupy the office of

Governor.

43 Sorabjee, Soli, J: The Constitution and the Governor, in book, The Governor: Sage or Saboteur, Roli

Books International, New Delhi, 1985.

Professor K.T Shah in the course of debate in Constituent

Assembly specifically raised the point that ‘we must not leave the

Governor to be entirely at the mercy or pleasure of the President and

so long he acts in accordance with the advice of the constitutional

advisers of the Province, he should, I think, be irremovable during

term of office, that is, five years according to this Article. Shah moved

an amendment proposing that the Governor could be removed from

office not only on the ground of violation of the Constitution but also

on the other grounds, such as treason or any offence against the safety,

security or integrity of the Union, bribery or corruption, or on account

of physical or mental incapacity duly certified.44

The intentions of the framers of the Constitution can be inferred

from the above propositions that though they were in favor of the

Presidential nomination of the Governor at the cost of an elected

Governor, but their intention can nowhere be inferred that they were

in favor of keeping the Governor insecure to this extent. (Emphasis

supplied)

The absence of safeguards was also castigated by Professor

Shiban lal Saxena in forth right terms that ‘He will be purely a

creature of the President, that is to say the Prime Minister and party in

power at the Centre. When once a Governor has been appointed, I do

not see why he should not continue in office for his full term of five

years and why you should make him removable by the President at his

whim. It only means that he must look to the President for continuing

in office and so continue to be subservient to him. Such a Governor

44 Constituent Assembly Debates, V. VIII, Lok Sabha Secretariat, New Delhi, 1999, P-471.

will have no independence and my point is that the Centre might try to

do so some mischief through that man.45

Futuristic contemplation of the framers of the Constitution has

been proved to be absolutely true. The Centre in the real sense is

doing mischief in the States by arbitrarily removing the Governors in

one pretext or the other.

At the same time it must be remembered that in removing the

Governor the President acts on the advice of his Council of Ministers.

His act, in truth, is the action of the executive Government and is not

immune from judicial scrutiny. In such cases it is possible to

challenge the action, not on account of breach of convention but on

the ground that the power of removal, though absolute in terms, is

subject to implied and inherent limitation, that it can be exercised only

in violation of the Constitution, or other similar acts on the part of the

Governor which render him unfit to occupy this constitutional office.

Above all, any action which is established to be arbitrary or

capricious or mala fide can be successfully challenged. In the

memorable words of justice Bhagwati, “No one, however highly

placed, and no authority, however lofty, can claim that it shall be the

sole judge of the extent of its power under the Constitution or whether

its action is within the confines of such power laid down by the

Constitution. It is for this Court to uphold the constitutional values

and to enforce the constitutional limitations.46

45 Ibid - 473.

46 State of Rajasthan v/s Union of India, SCR 1978 (1), P-31.

Conclusive Remarks

However the present scenario demands that the grounds for the

removal of the Governor be expressively castigated in the

Constitution and the removal process should be on the same grounds

and in the same manner as the removal process of a judge of the

Supreme Court or the High Court. These constitutional reforms are

necessary to strengthen the role of the Governor and to make it more

effective and meaningful. The observations of Pandit Jawaharlal

Nehru, in this context, are worth quoting here:

“We have made a Constitution and we should abide by the

Constitution, nevertheless, let it not be said that that

Constitution, every part of it, every chapter and corner of it, is

some thing that is so sacrosanct that it cannot be changed even

if the needs of the Country or the Nation so required.

Undoubtedly, it can be changed whenever necessary, not lightly

but after full thought, if it is thought that the part of the

Constitution comes in the way of the nation’s progress.47

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47 Jagdish Swarup: Constitution of India, V.2, Modern Law Pulications, New Delhi, 2006, P-V.