CHAPTER II

APPOINTMENT AND DISMISSAL OF GOVERNOR-

A LACK OF HEALTHY CONVENTION

a) Introduction:-

Indian Constitution is a written constitution. A written constitution may also

raise a number of problems as they arises in the countries which have unwritten
constitutions. Although India has a written constitution but regarding the
appointment of Governor the constitution only provides some qualifications1 and
declare that the Governor shall be appointed by the President.2 But there are certain
problems of Constitutional importance relating to the appointment of Governor
which are left by the Constitutional framers to be fulfilled by conventions3 to grow in
future.

Every State has a Governor. It is however, possible to appoint one person as

the Governor of two or more States.4 The President acts in the matter of appointment
of the State Governor on the advice of the Prime Minister with whom, therefore, the
effective power lies in this regard. The constitution gives a carte blanche to the
centre in the matter of appointment of a State Governor. But since the Governor has
a dual capacity, he is the head of the State as well as the representative of the Centre
in the State. It has been realized that with a view to increasing the smooth
functioning of the constitutional machinery in the State it would be best to
consult the State Chief Minister while appointing the Governor, and a
convention has grown accordingly. 5 So long as there was one party rule at the
centre as well as in the States.

The constitution was merely a formal affair and no difficulty ever arose in
the matter of appointment of the Governor. But after the Fourth General elections

1
These qualifications are: No person shall be eligible for appointment as Governor unless he is a citizen of
India and has completed the age of thirty-five years. See article 157. For conditions of Governors office see
article 158.
2
See Article 155.
3
The term 'convention' has been accepted largely through: the influence of Dicey. Law of he constitution,10th
ed. Chap.XIV and see Introduction, pp.cli to cxci.
4
Article 153.

24
held in February 1967, appointment of Governors has become a somewhat
controversial matter, particularly in those states where the political complexion of
Government differ from that of the Centre. Therefore, certain questions of
constitutional importance arose as to what were the proposed methods before
the Constituent Assembly, why direct election and panel system rejected, why
nomination accepted and moreover how far the system of nomination has
fulfilled the hopes of the framers of the Constitution and finally, what suggestions
were made by eminent persons, all are answered in this chapter in the following
orders.

b) Proposed Methods Before Constituent Assembly regarding appointment

of governor:

The drafting committee gave two alternative regarding the appointment of

Governor whether the status should have direct elections of Governor’s or have
indirect election. A proposal was moved for this through amendment during debates.
Peaking in the constituent assembly in favour of nominated Governor, Pandit
Jawaharlal Nehru emphasized the need of the nomination of a person who was above
Party Politics and educationist or otherwise an eminent person. He stated that:

“It probably would be desirable to have people from outside eminent people,
sometimes people who have not taken too grace a part in politics. Politician would
probably like a more active domain for their activities but there may be an eminent
education or persons eminent in other walks of life; who would naturally, white
cooperating fully. With the government and carrying out the policy of the
government, at any rate helping in every way so that policy might be carried out, he
would nevertheless represent before the public someone slightly above party and
thereby, in fact, help the Government. More than if he was considered as part of
party machinery....it is obviously desirable the eminent leaders to use the word for
the sake of simplicity: in future of hope we’ll not use the word ‘majority’ and
‘minority’ eminent leaders of groups should have a chance to think they will have a
far better chance in process of nomination than in election.”6

5
M.P. Jain: Indian Constitutional Law, 2003.
6
CAD Vol. IX

25
 Shri A.K. Ayyer a prominent member of Drafting Committee, while
supporting the system of nominated Governor’s underscored the point that not only
the persons of ndoubted ability will be selected but the provincial cabined be also
consulted. To him the Governor was a constitutional head, a sagacious counsellor
and advisor to ministry. Relevant quotation from his speech in the constituent
assembly is given below :

“In the normal working of the constitution, to have no doubt that the
convention will grow up of the government of India consulting the provincial
cabinet, in the election of Governor. If the choice is left to the President and his
Cabinet, the President may in, conceivable circumstances. With due regard to the
conditions of the province, choose a person of undoubted ability and position in
public life who at the same has not been mixed up in provincial party struggle or
factions. Such a person is likely to act as a friend and mediator of the Cabinet and
help in the smooth working of the Cabinet government in the early stages. The
central fact to be remembered is that the Governor is to constitutional head, a
sagacious counsellor and advisor to the ministry one who can throw oil over troubled
water. If that is the position to be occupied by the Governor, the Governor choosen
by the government of India, presumably with the consent of the provincial
government is likely to discharge his functions better that on who is elected on a
party ticket by the province as a whole base upon the Universal suffrage or by
Legislation on some principles of elections.”7

Intervening in the discussion, the Chairman of drafting committee, Dr. B.R.

Ambedkar made a significant observation that nomination or election was not the
issue: the Governor was to be a person known for his character, education and
position in public life, whether elected to nominated, the real issue was regarding the
power of Governor. Since, he was in favour of constitutional head, he was for
nominated Governor. He said that :

“It has been said in the course of debate that the arguments against election is
that there would be rivalry between the Prime Minister and Governor because both
driving there mandate from people at large. Taking for myself, that was not the

7
Ibid.

26
argument which influenced me because I do not accept that even under election there
would be any kind of rivalry between the Prime Minister and the Governor, for the
simple reason that the Prime Minster would be elected on the basis of policy while
the Governor could not be elected on the basis of policy, because he could not have
any policy and having no power. So far as i could visualize, the election of Governor
would be on the basis of personality; is he the right sort of person by his status, by
his character, by his education, by his position in public to fill in a post of Governor?
In the case of Prime Minster, the position would be is the program suitable, is the
program right? There could not, therefore, any conflict even we adopt the principle
of election.”

“I want to warn the house that the real issue before the house is really not
nomination or election, because as I said this functionary is going to be a purely
ornamental functionary, how he come into being whether by nomination or by some
other machinery is purely a psychological question. What would appeal most to the
people, a person nominated or a person in whose nomination the legislature has in
some way participated. Beyond that, it seems to me it has no consequence.
Therefore, the thing that I want to tell the house is this; that the real issue before the
house is not nomination or election, but what power you propose to give your
Governor. If the Governor is purely a constitutional Governor with no power than
what we contemplate expressly to give him in the act and has no power to
interference with the internal administration of the provincial ministry. I personally
do not see any very fundamental objection tom the principle of nomination.”8

After detail discussion, the constituent assembly decides in favour of

appointment of Governor by way of nomination and also decided that the Governor
should be appointed by the President by warrant under his hand and seal.

According to Article 155 of the Constitution, the Governor of the State

is to be appointed by the President by warrant under his hand and seal. It may be
noted here that according to the "Principles of the Model Provincial
Constitution"' as adopted by the Constituent Assembly, the Governor was to be
elected directly by the people on the basis of adult franchise. 9 Subsequently,

8
CAD Vol. IX.
9
B.Shiva Rao et.al., Framing of India's Constitution (1968). Vol. II. p.667.

27
this matter was discussed by the Drafting Committee, some of the members
were of the opinion that "the co-existence of a Governor, elected by the people and
the Prime Minister responsible to the legislature might lead to friction and
consequent weakness in administration."10 Therefore, they proposed that the
Governor of the state should be "appointed by the President under his hand and seal
from a panel of four candidates to be elected by the members of the Legislative
Assembly of the State or where there is a Legislative Council in the State, by all
members of the legislative Assembly and of the legislative council, assembled
together at a joint meeting, in accordance with the system of proportional
representation by means of the single transferable vote.”11 But later on, the "special
committee considered the mode of selection of Governors and was of the view that
the Governor should be directly appointed by the President and that it was not
necessary to provide for a panel of candidates for such appointment."12

Therefore, it is clear that when Article 131 of the Draft Constitution was
discussed by the Constituent Assembly, it had the following three proposed
methods before it for the appointment of the Governor:

i) Direct Election

ii) Panel System

iii) Nomination

c) Grounds for the rejection of Direct Election:

It is not that the member of the constituent assembly did not take notice of the
perversions of being made to go on the statute book yet the majority supported the
official view and stultifying factor were imported in the constitution. Professor
Sibban Lal Sakesna took a strong objection to the proposal of making the Governor
an agent of the central govt. He said that a Governor appointed by the central
government would upset the fundamental equilibrium between the center and the
states and would result in the concentration of power in center.13

10
Ibid.,Vol.III . p.482
11
Ibid,pp.482-83
12
Ibid. Vol. IV p.68.
13
CAD, Vol.VIII. PP.450-452.

28
 Biswanath Das also took cudgels against the proposal and said tat it was quite
likely that different political parties would com to rule at the center and the province
and than the former, tough the Governor nominated by them, would use him to grind
their axe.14

The official opinion, however, did not agree to the above view. Alladi Krihna
Swami Iyer advanced argument for a nominated Governor. He said that the election
of Governor in parliamentary system of government was not only unnecessary but
also dangerous because a constitutional crisis of a great magnitude might take place
if the elected Governor overruled the advice of his ministry.15 According to him, a
Governor nominated by the government of India would more effectively fulfill the
role of a counsellor to his ministry and provide a close link between the center and
the provinces. Pt. Nehru supported Iyer’s view and expressed his apprehension about
conflict and confrontation coming the above views suffered from squint-eyed and
oblique view and did not spare up with the parliamentary system. While one was
loaded with the possibility of a popularly elected between the Governor and his
ministry if former was elected. He said “…that would to some extent encourage the
separatist provincial tendency more than otherwise”16 Both of Governor seeking to
assert himself, would overrule the advice of his ministry creating a stalemate and
breakdown, the other was equally perverse because being a nominee and agent of the
central government he was bound to act according to their political convenience,
against the advice of his ministry. The constituent assembly rightly rejected the idea
of an elected Governor nominated by the central government. The proposal that
Governor should be directly elected by the people on the basis of universal adult
franchise was rejected on the following grounds:

i) As the real powers are vested in the Chief Minister and his cabinet, the
outstanding persons in the political life of the State, would prefer to be Ministers and
not Governors. Consequently, the party in power at State level would put only
second rate persons for election to the office of the Governor and the
Governor would be the nominee of the Chief Minister.

14
Ibid. P.455
15
Ibid. PP.430-32
16
Ibid. P.445.

29
 "The expenditure and energy of a Province under election would have been
wasted in putting second rate man in the party at the head of the Government."17

ii) Founding fathers wants that the head of the State should be above the
party politics. Therefore, it was pointed out that one of the essentials of the
successful cabinet Government in a Province or in the country as a whole was the
existence of a fairly impartial constitutional head. If the Governors were to be
elected by the direct vote of all voters in a province, the Governor was. likely to be a
party man for the election would be on party lines.18

iii) While framing the constitution, framers have in their minds,

interest for the leaders of minority groups. They were of the view that if the
election system is adopted the minority leaders will not be able to get the
office. According to Jawahar Lal Nehru, "It is obviously desirable that eminent
leaders of minorities will have a far better chance in the process of nomination then
in election.19

iv) It was also pointed out that it "would be desirable to have people from
outside eminent people... while cooperating fully with the Government and
carrying out the policy of Government, at any rate helping in every way
so that that policy

might be carried out, would nevertheless represent before the public some one
slightly above party and thereby in fact, help that Government more than if he
was considered as part of the party machine."20

d) Grounds for the rejection of Panel system:

In the constituent Assembly, Dr. B.R. Ambedkar made a significant

observation that nomination or election was not the issue: the Governor was to be a
person known for his character, education and position in public life, whether elected
to nominated, the real issue was regarding the power of Governor. Since, he was in
favour of constitutional head, he was for nominated Governor.

17
KM. Munshi, CAD. Vol VIII. p.452.
18
CAD. Vol. VIII. p.428.
19
Ibid., p.456.
20
Ibid., p.455

30
He said that :

“It has been said in the course of debate that the arguments against election is
that there would be rivalry between the Prime Minister and Governor because both
driving there mandate from people at large. Taking for myself, that was not the
argument which influenced me because I do not accept that even under election there
would be any kind of rivalry between the Prime Minister and the Governor, for the
simple reason that the Prime Minster would be elected on the basis of policy while
the Governor could not be elected on the basis of policy, because he could not have
any policy and having no power. So far as I could visualize, the election of Governor
would be on the basis of personality; is he the right sort of person by his status, by
his character, by his education, by his position in public to fill in a post of Governor?
In the case of Prime Minster, the position would be is the program suitable, is the
program right? There could not, therefore, any conflict even we adopt the principle
of election.”

“I want to warn the house that the real issue before the house is really not
nomination or election, because as I said this functionary is going to be a purely
ornamental functionary, how he come into being whether by nomination or by some
other machinery is purely a psychological question. What would appeal most to the
people, a person nominated or a person in whose nomination the legislature has in
some way participated. Beyond that, it seems to me it has no consequence.
Therefore, the thing that I want to tell the house is this; that the real issue before the
house is not nomination or election, but what power you propose to give your
Governor. If the Governor is purely a constitutional Governor with no power than
what we contemplate expressly to give him in the act and has no power to
interference with the internal administration of the provincial ministry. I personally
do not see any very fundamental objection tom the principle of nomination.”

The method for the appointment of Governors proposed was the Panel
system. Some of the members of the Constituent Assembly suggested that the
President shall appoint the Governor out of a panel of three or four persons elected
by the State Legislature on the basis of a proportional representation by means of a
single transferable vote system.

31
 But this panel system was also rejected on the following grounds:

i) Framers of the Constitution were of the view that if the panel system is
adopted it will lead to the friction between the Legislature and Governor at the
one hand and on the other hand between the Central Government and the Provincial
Government.

ii) It was also felt that in the interest of All -India Unity, and
with a view to encouraging centripetal tendencies, it was necessary that the
authority of the Government of India should be maintained intact over the
Provinces. To say that the President may nominate from a panel of names really
means restricting the choice of the President. It is only for this reason it was
contended that the choice of the President should be unrestricted and unfettered.21

e) Grounds for the acceptance of nomination:-

Under the resolution which was adopted in April, 1947, the Constituent
Assembly of India authorised the appointment of the 'Provincial Constitution
Committee' to submit its report on the main Principles of a Model Provincial
Constitution.22 Since then the framers of the Constitution adopted the idea of setting
up "a minimum Federation with a weak Centre"23 for, under the Cabinet Mission's
Plan of May 16, 1946, some general restrictions and conditions were laid down
under which the provinces were to have “a large measure of autonomy”, all the
subjects other than foreign affairs, defence, communications, being vested in them.24

Keeping in view the restrictions imposed by the Cabinet Mission Plan of

1946, the Provincial Constitution Committee in its meeting on May 5, 1947, decided
to circulate to the members a self-contained memorandum which might serve as a
basis of discussion on the Principles of a Model Provincial Constitution. But this,
however did not prove successful. Only-seven members out of twenty five members
of Provincial Constitution Committee conveyed their views to Shri B.N. Rau on the

21
Brijeshwar Prasad, Ibid., p. 426
22
The Committee consisted of twenty five members including Sardar Patel. See: Shiva Rao., B.,
(ed)., The Framing of India's Constitution, (New Delhi, The Indian Institute of Public Administration,
Vol. 11, 1967) p. 452.
23
Santhanam, K., Union-State Relations in India (Bombay, Asia, Publishing House, 1963), p. 60.
24
Shiva Rao., B., op. cit., (A Study) p. 382.

32
subject in the form of replies to the questionnaire.25 In these circumstances it was not
possible to prepare a memorandum embodying the majority view of the Provincial
Constitution Committee.

The constitution Adviser, Mr. B.N. Rau, thereafter, submitted an independent

memorandum prepared by himself to the Provincial Constitution Committee on May
30, 1947, in which he proposed that the Governor should be elected by the
Provincial Legislature by a secret vote according to the system of proportional
representation by the single transferable vote.26

Further, in the meeting of the Provincial Constitution Committee held on

June 6, 1947, the Provincial Constitution Committee discussed the matter of the
appointment of the Governor-envisaged in the draft memorandum.27 Some members
of it were of the view that the Governor should be elected by the people on a system
of adult franchize, while another group of members was of the view that the
Governor being a constitutional head, should be appointed by a system of indirect
election. Some other members suggested that for the functioning of the Governor as
"a liaison between the Central Government and the Provincial executive", the
Governor -should be nominated by the Central Government. The Committee,
-however, decided that the matters of common interest to the -Union as well as -the
-Provincial Constitution Committees. should be discussed in the joint meeting of
both the committees.

On June 7, 1947, the joint meeting of the Union Constitution and the
Provincial Constitution Committees was held in which the following conclusions
were taken up28:

A. There should be a Governor as the bead of every Province.

B. The Governor should be appointed by the Province and not by the Central
Government.

25
See: The Minutes of the Meeting vide B. Shiva Rao., op. cit., Vol. 11, p. 645-46 (Patel was elected
as the Chairman of P.C.C.) Ibid p. 645.
26
For a detailed study of the Memorandum. Ibid, p. 632, Also see, Rau, Sir Bengal, India's
Constitution in the Making, (ed. by B.Shiva Rao Madras, Allied Publishers Pvt., Ltd., 1963 edn.) p.
167.
27
See: The Minutes of the P.C.C., Ibid, Vol., II, pp. 646-47.
28
Ibid, p. 609.

33
C. The Provincial executive should be of the Parliamentary Cabinet type.,

D. The Governor should be appointed by indirect election on the basis of adult

franchize through a special electoral college.

At its meeting held on June 11, 1947, the Provincial Constitution Committee
decided the following things with regard to the office of the Governor

“(a) that there should be direct election on the basis of adult suffrage ;

(b) that the duration of the office of the Governor should be, coterminous, with
the life of the Legislature, viz. four years; and

(c) there should be simultaneous election with the election of the members of the
Lower House".29

The Chairman of the Provincial Constitution Committee Sardar Patel at last

submitted its report on June 27, 1947 under the title of a “Memorandum on the
Principles of a Model Provincial Constitution”, which was finally submitted to the
Constituent Assembly on July 15 1947.30

In this ‘Memorandum of the Principles of a Model Provincial Constitution’, it

was provided that “for each Province there shall be a Governor to be elected directly
by the people on the basis of adult suffrage.31 But the Committee was of the opinion
that the election of the Governor should, as far as possible, synchronize with the
general election to the Provincial Legislative Assembly, although it was admitted
that it would be difficult to provide by Statute, because the Legislative Assembly,
might be dissolved in the middle of its term.32

Shri B.G. Kher, further commented on the Clause I of the Memorandum that
synchronization of the general election and the election of the Governor would be
problematical because if the Assembly was dissolved before its term, then the
Governor might have to be elected in middle of the term of the Assembly. He
suggested that synchronization could be secured by providing that the Governor

29
Ibid, p. 652.
30
Ibid, p. 656.
31
Vide Clause I of the Memorandum on the Principle of a Model Provincial Constitution, Ibid, p.
657. See also, the Constituent Assembly Debates, Vol. IV, p. 593.

34
should resign after each dissolution but it was his fear that if it was so done by law,
the Governor might be reluctant to dissolve the House when he was asked by the
Chief Minister.33

The Provincial Constitution Committee further recommended in its

Memorandum that casual vacancies in the office should be filled in by the Provincial
Legislature with the system of proportional representation by means of a single
transferrable vote. Further in case of the Governor's absence from his duty or
incapacity or failure to discharge his functions, the President of the Federation might
appoint a person for a period not exceeding four months to discharge the functions
of the Governor.

When the first three Clauses of the Memorandum were under discussion in
the Constituent Assembly on 16th July, 1947. Pandit Govind Ballabh Pant moved an
amendment to create the post of Dy. Governor in every Province. He said in the
Assembly:

“It is likely that the Governor may have to go abroad for important public
business, that he may be deputed for diplomatic services of an important character
for short period or he may be required to perform other duties for a limited period
which may not allow him to discharge his normal functions. For such occasions we
should have Dy. Governor to take his place”.34 This amendment later on, was
accepted by the Constituent Assembly.35

Thus, the Constituent Assembly accepted the principle of an elected

Governor and deleted the idea of nominated Governor by, the Central Government.
Shri Govind Ballabh Pant while defending his amendment opined that the idea of
nominated Governor by the President of India would be “an embarrassing duty” for
the President of the Federation. Besides it would be, repugnant to the principle of
provincial autonomy.36

32
Shiva Rao., B., op. cit., Vol., 11, p. 663.
33
Vide Clause 3(1) & (2) of the Memorandum, Ibid.
34
The Constituent Assembly Debates, Vol., IV, p. 610.
35
Ibid p. 610.
36
Ibid.

35
 The Constituent Assembly, after reviewing the Memorandum thoroughly,
adopted the Principles of a Model Provincial Constitution on July 17, 1947.37

The following were the main features of the Provincial Constitution relating to
the appointment of the Governor adopted by the Constituent Assembly.38

(i) The Governor should be elected directly by the people on the basis of adult
suffrage, and hold office for a term of four years, except in the event of
death, resignation and removal. Further he would be liable to be “removed
from his office for stated misbehavior by impeachment, the charge to be
preferred by the Provincial Legislature, or where the Legislature was
bicameral, by the Lower House of the Province and to be confirmed by the
Upper House of the Federal Parliament after investigation by a special
committee of the House, the resolution in each case to be supported by not
less than two-third of the total membership of the House concerned”.39

(ii) It was provided that there would be a Deputy Governor for every Province
who would be elected by the Provincial Legislature with the system of
proportional representation by single transferrable vote, after every general
election. He would fill a casual vacancy in the office of the Governor on the
absence of the latter.40

Thus, in the initial stage of framing the Constitution, the framers of the
Indian Constitution decided that the governor should be elected directly by the
people on the basis of adult suffrage, for it was their impression that an elected
Governor would give stability to the Government of the Province.41 This decision
was in conformity with the idea of giving each State the “maximum autonomy” as a
unit of the Federation.42

37
Ibid p. 646.
38
See : B. Shiva Rao, op. cit., Vol., II, p. 667-68.
39
Clause 2(2) of a Model Provincial Constitution, Ibid, see also, CAD, Vol. 4, p. 593.
40
Clause 3, Ibid, p. 668.
41
Rao, K.V., "The Govenor in the Constituent, Assembly; Journal of the Society for the Study of
State Governments (Varanasi) Vol. I, Nos. 1 & 2, Jan-June, 1968, p. 3.
42
Pylee, M.V., The Constitutional Government in India (Bombay; Asia Publishing House, 1968), p.
508.

36
 Meanwhile the political situation of the country abruptly changed when the
partition of the country became a certainty and the restriction and limitation
expressed under the Cabinet Mission Plan on the authority of the Constituent
Assembly disappeared from August 15, 1947.43 This change as such retained the
supremacy of the Constituent Assembly. As the result of this change the scheme of a
loose Federation under the Cabinet Mission Plan, however, withered away from the
Indian scene and the framers underlined the need of “a strong Central
Government”.44 More over, this change removed the Muslim League from the
Indian scene which acted as a sort of a counter-balancing political factor in this
country. Further, the communal riots and refugee influx after the independence of
India, the problem of merging the native States into the Federation of India
compelled the members of the Constituent Assembly to give up the idea of a
Federation of autonomous units. They, therefore decided to make India “a Union of
States”.45 These factors impressed the members for altering radically the provision
of the appointment of the State Governor.46

Further, when the Draft Constitution relating to the appointment of the

Governor came for discussion in the Draft Committee, the divergent opinions were
expressed by the members. On the method of choosing the Governor, it was then
realized by some of the members of the Committee that the co-existence of
Governor elected by the people and a Chief Minister responsible to the Legislature
might lead to a friction between the Governor and the Chief Minister of the
Province. This would make the administration of the Province weak. The
Committee, therefore, suggested an alternative method of appointing the Governor.
It was of the view that the Governor should be appointed by the President of the
Union out of a panel of four persons elected by the method of proportional
representation by means of single transferable Vote.47

43
Shiva Rao, B., op. cit., (A Study), pp. 385-86.
44
Kaushik, P.D., "The Constituent Assembly and the Governor", Journal of the Society for Study of
State Governments, (Varanasi Vol., IV, No. 3 & 4, July- December, 1971 p. 247. See also
Santhanam, K., op. cit., p. 60.
45
Ibid, p. 247.
46
The Draft Constitution was prepared by the Drafting Committee and submitted to the Constituent
Assembly on February 21, 1948. The Draft Article 131 was related to the appointment of the
Governor. B. Shiva Rao, op. cit., Vol., III, p. 564.
47
Ibid, p. 546. Also see, Gadgil, D.R., some observations on the Draft Constitution, (Poona, The
Gokhale Institute of Politics and Economics, 1948) p. 52. This suggestion was also made by the

37
 After this the Special Committee in its meetings of April 10 and 11, 1948 48
came to the conclusion that an elected Governor would be 'completely useless' for
controlling the administration of the Province. It was then realized that an elected
Governor having the prestige from the public might seek an emergency to override
his Ministry's advice. It also thought that the presence of two persons elected would
lead to a very piquant situation in the Provinces. The Committee recommended that
the Governor should be appointed directly by the President of India. After the
meeting of the Committee on October 18, 1948, Dr. Ambedkar did not accept the
recommendation of the Special Committee for the change in the appointment to be
decided by the Constituent Assembly itself.49

By this time the framers of the Constitution had undergone enough

experience of the administration during the course of two years (1947-49) when they
met on May 30, 1949 for discussing the draft Article 131 of the Draft Constitution.
They discussed thoroughly the following four alternatives for selecting the Governor
of the Province.

(i) Election by adult suffrage.

(ii) Election by the members of the Lower House or both Houses of the
Provincial Legislature either by the system of proportional representation or
otherwise.

(iii) Selection by the President of the Union out of a panel submitted by the
Lower House of the State Legislature, and

(iv) Appointment by the President of India.

The first three alternatives were rejected. The last alternative i.e. the
amendment moved by Shri Brajeshwar Prashad was accepted.50 The amendment
was deemed essential for preserving the unity and integrity of the country.

Draft Committee. See the comments and suggestions on the Draft Article 131, Ibid, pp. 68-70.
48
For a detailed study, see : the Minutes of the Meetings of the Committee, B. Shiva Rao., op. cit.,
Vol. IV, p.40.
49
Ibid, pp. 415 -16.
50
For the Draft Article 131, he moved the amendment: "The Governor of State shall be appointed by
the President by warrant under his hand and seal", C.A.D., Vol., 8, p. 425.

38
 Shri Brajeshwar Prashad was of the view; "in the interest of All India Unity
with a view to encouraging centripetal tendencies, it is necessary that the authority
of the Government of India should be maintained over the Provinces.”51

He further opined that the selection of the Governor from a panel of names
would restrict the free choice of the President of India. He wanted that the President
should be free from the influence of the Provincial Legislature. He also wanted that
the man from the same Province should not be appointed by the President as the
Governor of that Province because it would give ‘encouragement to fissiparous
tendencies’. He, therefore, wanted that the choice of the President should be
"unrestricted and unfettered" while selecting the Governor for any Province of the
Union.52

Shri H.N. Kamath while supporting the amendment was of the opinion that
in a Parliamentary form of Government, It is obvious that the method of choice by
direct election is absolutely inappropriate and unacceptable. He further stated:

“If the Governors were to be elected by the direct vote of all voters in a
Province he is very likely to be a party-man with strong views of his own, and
considering that he will be elected by the whole Province-by the entire adult
population of the Province-he will think that he is a far superior man and a far more
powerful man than the Chief Minister or Premier of the State who will be returned
from one constituency only, but because he happens be the leader of the majority
party, he will be nominated Premier by the Governor. There will be two conflicting
authorities within the State: One is the Premier and the other is the Governor…
Therefore, there will be in the administration of the Province very often points of
conflicts of friction between the elected Governor and the elected Chief Minister”.53

Shri Alladi Krishnaswami while supporting the amendment of Mr.

Brajeshwar Prashad, strongly expressed the views:

“If the Governor is properly functioning as the Constitutional Head, the

expenses involved in going through the process of election is out of all proportion to

51
C.A.D., Vol. VIII, p. 426.
52
Ibid.
53
Ibid, Pp. 428-29.

39
the powers vested in the Governor under the Constitution”.54

He further said that the process of election for the Governor would pose a
danger of clash between the Premier and Cabinet responsible to the Legislature and
the Governor elected by the people on the basis of Universal suffrage. Citing the
example of Canada, he opined:

“If the choice is left for the President and his Cabinet, the President may, in
conceivable circumstances, with due regards to the condition of the Province, choose
a person of undoubted ability and position in public life who at the same time has
not been mixed up in Provincial party struggle or factions. Such a person is likely to
act as a friend and mediator of the Cabinet and help in the smooth working of the
Cabinet Government in the early stages.”55

He further said-

“The central fact to be remembered is that the Governor is to be a

Constitutional Head, a sagacious counselor and adviser to the Ministry one who can
throw oil over troubled waters”.56 In the interest of good working of the
Parliamentary form of the Government he suggested to adopt the 'Canadian Model'
and have the Governors appointed by the President for the units of the Indian
Union.57 Dr. P.S. Deshmukh was of the view that when our Constitution was being
framed on the pattern of the Act of 1935 having a responsible Government, there
was no need of the Governor to be elected by the people because the Governor under
the responsible Government was to be a “figurehead and not a person who can
interfere with the day to day administration.”58 He further argued that in case of an
elected Governor, "the relationship between the Provincial Prime Minister and him
in all probability would never be cordial" and the circumstances might arise when
the elected Governor, by joining the Prime Minister of the Province, might agree "in
defying the Centre altogether".59 He, therefore, suggested: "the wisest thing for us is
to give the power of appointment" of the Governor to the President and “the

54
Ibid, p. 432.
55
Ibid.
56
Ibid, pp. 431-32.
57
Ibid, p. 433.
58
Ibid, p. 433.

40
appointment should be made only during the pleasure of the President.”60

Dr. P.K. Sen felt that an elected Governor with the backing of the whole
provicinal population would try to interfere with the responsible Government.
Moreover the process of election of the Governor, would impose "tremendous
strain" upon each Province.61

K.M. Munshi was of the opinion that since the members, of the Constituent
Assembly had adopted the "British Model" for India, the election of the Governor by
adult franchise in the Provinces remained “an anomaly, a completely out of date and
absurd thing.”62 He further held:

“The expenditure and the energy of a Province under election would have
been wasted in putting a second rate man in the party at the head of the Government.
That would mean that he will be subsidiary in importance to the Prime Minister as
he would be his nominee. If that is going to be the case, there is no reason why the
force of a huge election has to undergo.”63

Dr. Munshi further pointed out that an elected Governor by adult franchise
would try to over-ride the powers of the Prime Minister which would inevitably lead
to a conflict. He maintained that an elected Governor would not be able to kept
himself detached from party politics as the Governor nominated by the President.
When there would be a rivalry for Premiership, the nominated Governor who would
be completely detached from party-politics of the Province would be much better
than a person who is wedded to the party. In this view:

“It would be much better that this person is nominated and thus cut away
from the party political of the Province, so that the competition or the race between
the rival groups is conducted in a fair, reasonable and Constitutional manner. All
things considered, it would be better to have a Governor nominated by the Centre,
who is free from the passions and jealousies of local party politics.”64

59
Ibid, p. 434.
60
Ibid, p. 434.
61
Ibid, p. 444.
62
Ibid, p. 452.
63
Ibid, p. 452.
64
Ibid, p. 453.

41
 Pt. Nehru, one of the Chief spokesman in framing the Constitution, said:

“Now one of the things that we have been aiming at a great deal has been to
avoid any separatist tendencies, the creation of groups etc. I feel that if we have an
elected Governor that would to some extent encourage the separatist Provincial
tendency more than otherwise. There will be far fewer common links with the
Centre…... Apart from the tremendous common links burden of these elections for
the Provincial and Central Legislature, to aid another election on this major scale
would mean not only spending a tremendous deal of the energy and time of the
Nation but also the money of the Nation and divert it from far more worthwhile
projects”.65

Further he maintained that the election system for the Governor would
encourage the "narrow Provincial way of thinking and functioning in each Province"
and might produce conflicts in the smooth working of the Provincial Machinery. He
observed:

“In providing for a stable democratic machine it is very important for us not
to take any step which might tend towards loosening the fabric of India or loosening
the Governmental Machinery and thus producing conflicts. We have passed through
very grave times and we have survived them with a measure of success. We have
still to pass through difficult times and I think we should always view things from
this context of preserving the unity, the stability and the security of India and not
produce too many factors in our Constitutional Machinery which will tend to disrupt
that unity by frequent resources to vast elections which disturb people's minds and at
the same time divert a great deal of our resources towards electoral machines rather
than towards the reconstruction of the country.”66

He further observed: that (election) seemed unnecessary, apart from leading to

conflict and waste of energy and money and also leading to a certain disruptive
tendency in this big context of an active Governor plus Parliamentary system of
democracy.67

65
Ibid, p. 455.
66
Ibid, p. 455-56.
67
Ibid, p. 456.

42
 Shri T.T. Krishnamachari explaining the merits of the Presidential and
Parliamentary types of the Government in context with the Article 131 of the Draft
Constitution observed:

“The elected Governor is not going to be the Champion of liberty of the

Province, that he is not going to be the Champion of the minority interest as against
an elected Chief Minister. If we decide on an elected Governor we are duplicating
the process and provide room for conflict.”68

Dr. B.R. Ambedkar clarifying the position stated “the Governor is not to have
any kind of functions” and he would be required to follow the advice of his Ministry
in all matters, then there was no need to “impose upon the electorate the obligations
to enter upon an electoral process which would cost of a lot of time, a lot of trouble
and I say a lot of money as well.”69 Further, nobody would like to contest an
electron for the post which was of an ornamental position for its powers.

Thus, the amendment moved by Shri Brajeshwar Prasad for the Article of the
Draft Constitution was adopted after a heated discussion by the Constituent
Assembly in May, 1949 in the best interest of preserving the unity, stability and
tranquility of the country. The tragic events after the partition like the Kashmir war,
the influx of Refugees from Pakistan, the separatist tendencies of the former rulers
of the native States, the Telengana agitation made the framers persistently to realize
that a strong and centralized Government at the top, was inevitable for Preserving
the all India unity in the forthcoming period. They, hence, adopted the Canadian
method for the appointment of the Governor. Moreover, the framers also wanted to
maintain a close link between the Federal Government and the Governments of the
units through a nominated Government by the President of India.70 They, therefore,
preferred the Canadian method suitable for the Indian Union rather than other three
methods discussed in the Constituent Assembly.

Later, the Article 131 of the Draft Constitution became the Article 155 of the
present Constitution which reads as follows;

68
Ibid, p. 463.
69
CAD, Vol., 8. p. 469.
70
Shri Krislmaswami Ayyar and Shri Nehru's main emphasis was for maintaining the link between
the Union-State relations. Ibid, pp. 432 and 455 respectively.

43
 “The Governor of a State shall be appointed by the President by warrant
under his hand and seaI”

After rejecting the direct as well as the indirect methods of election, the
members of the Constituent Assembly decided that the Governor shall be appointed
by the President. There is a Parallel analogy in the Constitution of Canada where the
Lieutenant- Governor of each of the Provinces is appointed by the Governor-General
on the Advice of the cabinet.

Alladi Krishnaswami Ayyar while supporting this method of the

appointment of the Governor said that "in the normal working of the constitution, I
have no doubt that the convention will grow up of the Government of India
consulting the Provincial cabinet, in the selection of the Governor. If the choice is
left to the President and his cabinet, the President may, in conceivable
circumstances, with due regard to the conditions of the Province choose a person
of undoubted ability and position in public life who at the same time has not been
mixed up in provincial Party struggle or factions. Such a person is likely to act as a
friend and mediator of the cabinet and help in the smooth working of the cabinet
government in the early stages. The central fact to be remembered is that the
Governor is to be constitutional head… is likely to discharge his functions better
than one who is elected on a party ticket by the Province as a whole based upon the
universal suffrage or by legislature on some principle of election."71

In Canada and Australia there is a convention that the Governor of a State is

appointed on the advice of the Provincial Government.72 Framers of the Constitution
hoped that a similar convention will also grow up in the Indian Constitution. Jawahar
Lal Nehru as well as Alladi Krishnaswami Ayyar mentioned in the Constituent
Assembly that there was likely to be convention that while appointing the Governor,
Provincial cabinet would be consulted. Therefore, after considering the various
pros and cons of the problem it was decided that the Governor should be
appointed by the President.

71
CAD, Vol. VIII, pp. 431-32.
72
See, Supra, Chaprer-1 of this thesis.

44
f) How far the system of nomination has fulfilled the hopes of the
framers of the Constitution:-

Although there is a term of 5 years given to a Governor, he does not have

even the protection that a peon enjoys in Government service and is sometimes foot-
balled out or about. The humiliating fact is that the Governor has taken it lying
down, by and large. Many have been hungry politicians of the Party in Central
power holidaying in the Raj Bhavan plotting for an opportunity for re-entry.

The Study Team of the Administrative Reforms Commission, headed by

Shri M.C. Setalvad, in its Report submitted in September 1967 likewise observed:

"There have been instances of persons appointed as Governors continuing

their connection with active policies, and in some cases returning to active
policies after ceasing to be Governors. We have no hesitation in recommending that
there should be a firm convention that no person who is appointed Governor
should take part in politics after his appointment such."

The Study Team noted the qualities expected of a Governor and

remarked that ''many of those who have filled posts of Governors during the last 16
years fallen short of this standard. It is our considered view that the real reason for
this state of affairs is not the paucity of suitable persons, but the lowly place given
to the post of Governor in the minds of those responsible for making the
appointments.

g) Dismissal of the Governor

Article 156 stipulates “The Governor shall hold office during the pleasure of
the President. Therefore, it is often claimed that the Governor must, as a rule, have a
fixed tenure. As Kedia Pandey have observed the constitution has not prescribed the
ground for the removal of the Governor. But, surely it is not compatible with a
system which claims to be based upon justice and democratic norms. But with the
change of the government at the center, they were asked to design and as they paid
no heed to it, they have summarily been sacked. It is rightly held that for every
functionary either the service period or the retiring age must be mentioned in express
terms. And, for his dismissal both the reason and procedure should be clearly fixed

45
so that he finds, in necessity, ample opportunity of self defense. In short, a person,
even of the lowest rank is personally entitled to a fixed tenure of office and there
must be some definite rules and procedure fir his untimely removal. Otherwise, his
independence of mind and sense of security are sure to be badly affected.

Our constitution has followed these principles in the case of almost all
important functionaries. For example, our President though normally elected for five
years can be earlier impeached for violation of constitution.73 However, not only the
reason of his impeachment but also the procedure of such punitive act has been
determined by the constitution. This Article clearly stipulates that no such charge can
be preferred against him unless a resolution moved after atleast fourteen days’ notice
in writing and signed by not less than one-fourth of the total number of members of
the Lok Sabha has been given. Such a resolution, then, must be passed by a majority
of not less than two-thirds of the total membership of the House. If it is also accepted
by the other House by such special majority, the President is removed. In short, both
the reason for and procedure of such removal have been clearly determined by the
Constitution itself. However, the procedure is so cumbrous that it is very difficult to
use it for the removal of an unwanted President.74

So, the Article is most likely to remain as a dead-letter for the future.

Similarly, Article 124(4) and 217(1)(B) provide the ground and method for
the impeachment of the judges of the Supreme Court and High Courts respectively.
On the grounds of proven ‘misbehaviour or incapacity’ such a resolution is moved
and if it is passed by the majority of total membership of both the Houses and also by
a majority of not less than two-thirds of the members present and voting, the relevant
Judge is dismissed. Article 324(5) stipulates that the Chief Election Commissioner
can also be removed on the like manner and on the like grounds as the Judge of the
Supreme Court. However, it is also a difficult mechanism which is likely to remain
practically ineffective. The Speakers of the Lok Sabha and State Assemblies too
maybe dismissed. But, as Article 94(c) and Article 179(e) indicate, a resolution to
that effect mist be passed in the Lok Sabha and Assembly respectively. In other
words, they hold office so long they can they can claim the majority of the members

73
Article 61.
74
Dr. S.C. Das, the constitution of India, p.323.

46
in the relevant House. So, they too are procedurally irremovable so long they are
backed by the majority.

But, in the case of the Governor, the Constitution has expressively vested an
unconstitutional and discretionary power to the appointing authority. As Article
156(1) stipulates, ‘The Governor should hold office during the pleasure of the
President’. The Governor may, however. Resign his office by writing under his own
hand addressed to the President. And, Article 156(3) states:

Subject to the foregoing provisions of this Article, a Governor shall hold

office for a term of five years from the date on which he enters his office.

This means that unless he resigns or is dismissed earlier, a Governor may

hold office for five years. But, positively re-stated, it suggests that the President can,
at any moment, dismiss him at his discretion, because clause (1) of the Article has
used the significant term ‘pleasure’ which is a mental phenomenon. In other word,
the Governor’s tenure entirely depends upon the subjective satisfaction of the
President who can, without having explained the reason or a given charge sheet or
show cause notice, withdraw his ‘pleasure’ for removing an unwanted Governor. As
Sachdev Gupta75 writes,

He can be removed by the President at any time who need not assign any
reason.

Similarly, Dr. M.M. Singh76 has observed:

The President may, at any time and on any ground, remove him from his
office.

The word ‘pleasure’ is, obviously, very significant, because it is the

manifestation of a mental mood which may not have any link with objective factors
or proven facts. Thus, neither the matter nor the reason of the removal of the
Governor has been determined in the Constitution. He holds office so long the
President- rather, the Prime Minister- is satisfied with him. In this way, the issue of

75
Indian Constitution, p.153.
76
The Constitution of India, p. 770.

47
gubernatorial dismissal has been kept beyond the judicial ambit.77 Interestingly, he
may also be transferred to another state before or after expiry of normal five year
turn. But, on the contrary, he may be reappointed in the similar state if the interest of
the central ruler demand.

Obviously, such a major was adopted in order to make the Governor a central
agent. However, Alladi Krishna Swami Ayer, a member of drafting committee,
cogently refuted such allegations in the Constituent Assembly.78 The Governor is
really, in the words of Sardar K.M. Panikar, ‘The watch-dog of the Center’. Thus,
though the West Minister model of Britain has been introduced both at the Center
and States, there is a significant difference between the two administrative
mechanism. The President is liable to impeachment by parliament, but the Governor
cannot be removed by the state Legislature even when he earns the wrath of the
Minister or the local representatives.

However, at the initial stage some political stalwarts like K.N. Katju, Sarojini
Naidu, G.B. Pant, and so on occupied the gubernatorial chair in different states. They
had, moreover, close ties with and imposing influence over the Central government
which belong to their own party-men. So, during those formative years, this question
of dismissal of Governor never arose. But, with the passage of time, everything
changed.

Honorable Supreme Court observed in the case of Hargobind v. Raghukul

79
Tilak, “It is impossible to hold that the Governor is under the control of the
government of India. His office is not subordinate or subservient to the government
of India. He is not amenable to the directions of the government of India nor he is
accountable to them for the manner in which he carries out his functions and duties.
He is an independent constitutional office which is not subject to the control of the
government of India.”

After the election of 1967, some non-congress parties come to power in

several states but the Congress retained its authority in Center. Resultantly, the

77
As Dr. S.C. Kashyap has observed, ‘the pleasure’ of the Governor is not Justiciable. The Governor
has no security of service. He may be removed by the President at any time.
78
Constituent Assembly Debates (CAD), Vol. VIII, p. 4.
79
AIR 1979, SC p.1109.

48
Center-State tension dragged the Governors to the Political battle field. In such
uneasy situation, some Governors were indecently dismissed as mere political
scapegoats. Thus when, after the temporary set back of 1977, Indira Gandhi came
back to power in 1980, Raghukul Tilak of Rajasthan, Sadik Ali of Maharashtra and
Prabhudas Patwari of Tamil Nadu were asked to resign. Accordingly, Tilak and Ali
stepped down but Patwari declined to depart and so, he was promptly axed.80
However, in 1989, a more deplorable misuse of such Central authority was found by
which the V.P. Singh government peremptorily dismissed fifteen Governors with a
single stroke in order to induct its chosen person in their place. In 1992, M.S.
Thomas the Governor of Nagaland, was similarly removed by the Congress
government and in 1998 the BJP led the Union Government either transferred or
removed the Governor of some states like UP, MP, Gujarat, Mizoram, Bihar etc.
Significantly, P.C. Alexander of Maharashtra was granted an extension of service but
R.N. Reddy of West Bengal had to depart without any valid reason. Prabhat Kumar,
the Governor of Jharkhand was also sacked on grounds of financial charges which
wee never legally examine. Thus, the tenure of the Governor is often linked to
Center-State relations. With the gradual erosion of the Congress monolith, different
parties have found an opportunity to occupy power in different states and, as sich,
India Politics has now become a federal panorama. In such a situation, Center-State
relationship sometimes becomes tensed and the Governors are often called to pay the
price. They are actually in the horns of dilemma-if they defy the stat cabinet, it
lambasts them for alleged autocracy, and if they disobey the Central directives, an
order of dismissal is sure to follow. So, Dr. V.D. Mahajan81 has aptly observed, “he
may be sandwiched between party tug-of-war”.

But the occupant of such an exalted office cannot be treated in such an

undignified and humiliating manner. In fact, the present method of dismissal of the
Governor inconsistent with and derogatory to the high position assigned to him by
the constitution. It is a cardinal fact, that the present method of the appointment and
dismissal of the Governor is inconsistent with the federal principle. As Soli Sorabji82,
the attorney General of India, has observed, such Central authority has seriously
impaired the dignity and the integrity of the Governor.

80
Dr. A.C. Kapoor, The Indian Political system, p.350.
81
The Constitution of India, p. 262.

49
 Circumstances devalued the post, and with that there was a logical fall in the
standard of selection for Governors. The post came to be treated as a
sinecure for mediocrities or as a consolation prize for what are sometimes referred
to as 'burnt out" politicians. Most of the persons selected were old men of the
ruling party at the centre. All this should not be construed to mean that no
suitable men were appointed but their number was small.

The Administrative Reforms Commission in its Report on Centre-State

Relationship submitted in June 1969 made similar observations. (vide page 23 of its
Report).

The situation has considerably deteriorated since. At least two members

of the ruling party who had to resign from office as Ministers following judicial
strictures were subsequently appointed as Governors; to wit, Shri M. Chena Reddye
and Shri Ram Lal.

A new danger to democracy when read ominously in the light of frequent

use of the Army to suppress civil commotion, is the appointment of vintage military
veterans as Governors. What happens if they begin to govern by themselves or if a
President were also a military boss?

Even regarding transfers of Governors, the humours, hungers and failures

of the party in Central power determined the situation. Dr. Dhawan, in his
study "President's Rule in the States" writes:

A Governor should normally be appointed for five years. But this is not
always the case. There are various instances where the Centre may have shortened
the tenure of a particular Governor for political reasons. Thus, in Punjab in
1966,Governor Ujjal Singh was replaced by Dharma Vira, two days before the latter
sent his report recommending the imposition of President's rule in Punjab. Again
Governor Dhawan of West Bengal went on 'leave' and later resigned as Governor of
West Bengal in 1971 well before his tenure expired. This may have taken place
because he invited the Communists to prove that they had a majority in the
legislature with a view to forming a Government, because they were the single

82
“The Governor: sage or spy”, The Times of India, Sunday, July 10, 1988.

50
largest minority party...83

The White Paper prepared by the Karnataka Government quotes Shri H.M.
Seervai, which is pertinent to this point.

"The events upto the resignation of Mr Antulay and the subsequent

events including, the sanction given by the questions about the position of the
Governor, the present position is very unsatisfactory: however, it will be fully
discussed in the Chapter on the Union and the State Executive in Vol. II of this book.
It is enough to say that the tenure of the Governor's office at the pleasure of the
President, which means, in effect, the Union Government, is most unsatisfactory and
is liable to grave abuse. The Governor has certain powers under the Constitution. He
is not the servant or agent of the President as the Governor's oath of office clearly
shows. The exercise of the power to remove or transfer a Governor must cause grave
disquiet in the public mind. For example, during the hearing of the petition against
Mr Antulay, culminating in the judgment of Mr Justice Lentin, Air Chief Marshal
Mehra was the Governor of Maharashtra. Under the Constitution, a report by the
Governer on the working of the State Ministry is contemplated under Article 356.
Some time after Mr Antutay resigned, Mr Mehra was transferred from the office of
Governor of Maharashtra to the office of the Governor of Rajasthan, without any
reason being assigned, and he was succeeded by the Air Chief Marshal Latif, who,
after the appeal Court judgment, gave sanction to prosecute Mr.Antulay, as stated
earlier. Public confidence in the position and authority of the Governor would be
gravely impaired by happenings of this kind. It will be suggested in a fault
discussion on the Governor's position that his tenure of office must be fixed for a
period of 5 years. However, as there is no provision in our Constitution for removing
a Governor by a process of impeachment, such as there is for the removal of the
President, such a provision should be introduced in the Constitution.”84

These vices have been most prominent during the Congress (I) regime but
have not been absent during the Janata Rule also. Appointment (sometimes disguised
as resignation) has reduced the high office to gross ridicule. The current situation is a
shameful stultification of the norms expected by the founding fathers and desiderated

83
N.M. Tripathi Pvt Ltd. 1979, p. 118.
84
Constitutional Law of India. Vol. 1,p.1070.

51
by the dignified, though ornamental, office. When Governors have genuflected, they
have been benefited. When they have resisted, they have paid the penalty.
Politicisation of the powers of the Governor has imperiled the impartiality of the
incumbent. Indeed, the functioning of some Governors like Ram Lal in Andhra
Pradesh has been a constitutional shock, but he has and has had close cousins
elsewhere.

Having regard to these distortions and remembering the frequency with

which the office has been corrupted for dismissing Cabinets and ushering in
President's rule, the time has come for the nation to restructure the process of
appointment, functioning and termination of Governor's office. Mark you; the
functional integrity of the State head is integral to the federal process.

It is interesting to note that the Constitution Review Committee has opined

that revival of the old glory and dignity of Governor, it is necessary to change the
mode of his appointment. According to the prevailing method, the Governor is
appointed by the President and, as such the holder of the office becomes, ultimately,
the center’s man. But the aforesaid committee has felt that the Governor should be
dignified head of the Province and not a mare central instrument. This is why, it has
proposed to form a committee consisting the President, Vice-President, Prime
Minister, Chief Minister and such other key persons in order to choose the Governor.
It believes that in such case, the Governor would no longer be regarded as a docile
instrument at the hands of the center. As Pylee85 observes, “There is hardly any
qualification prescribed for the appointment of the Governor”. So, the center finds
the opportunity to send any person as Governor of Province. In fact, they have been
chosen from different walks of life-bureaucracy, judiciary, bar, university, army,
public life and so on. But one thing is certain- all of them have been actively
associated with the ruling party at the center.86

However, a convention has meanwhile developed by which an outsider of the

Province is chosen as the Governor. The makers thought that a local person might be
seriously involved in the State-Politics and it would, thus, tell upon the role he was
designed to play. Fortunately, the idea has taken a practical shape through the above

85
An Introduction to the Constitution of India, p. 200.
86
H.H.Das- India Democratic government and politics, p. 200.

52
said convention.

Sometimes another healthy practice was also followed, but it has not yet
crystallized into a convention. On some occasions, however, the Chief Minister of
the relevant state was consulted before such an appointment. But, more often than
not, prior information about the appointment is not given and even an unfriendly
person of the State Government has been imposed upon it as Governor.87 There, can
be no doubt that this is an important departure from the strict federal principle. In the
U.S., the ‘model federation’, Governor’s are elected by the local people and in
Canada, the states have a say in the matter of such appointment.88

The constituent assembly after a lengthy and serious debate ultimately

preferred to provide for the appointment of the Governor by nomination but not by
election and accordingly a provision empowering the President to appoint Governors
has been incorporated in the Constitution of India.

B.P. Singhal Versus Union of India & Anr,89 Supreme Court held “under
Article 156(1), the Governor holds office during the pleasure of the President.
Therefore, the President can remove the Governor from office at any time without
assigning any reason and without giving any opportunity to show cause. Though no
reason need be assigned for discontinuance of the pleasure resulting in removal, the
power under Article 156(1) cannot be exercised in an arbitrary, capricious or
unreasonable manner. The power will have to be exercised in rare and exceptional
circumstances for valid and compelling reasons. The compelling reasons are not
restricted to those enumerated by the petitioner (that is physical/mental disability,
corruption and behaviour unbecoming of a Governor) but are of a wider amplitude.
What would be compelling reasons would depend upon the facts and circumstances
of each case.”

h) Suggestions:-

But inspite of the advantages above mentioned there is a feeling that this
method of appointment needs a change and time and again this demand had

87
S.L.Sikri- Indian govt. and politics, p.223.
88
G.S.Pandey- Constitutional law of India, p. 227.
89
Decided by Hon’ble Supreme Court on May 7, 2010

53
been made both inside and outside parliament and the following suggestions
have been made in this connection:

1. The Governor should be appointed only with the concurrence of the

State Government.

2. The Governor should be appointed by the President from a panel of

names approved by the Government of that Sane

3. He should be appointed by the President out of panel of names prepared by

the Central Government in consultation with the opposition at the Centre.90

4. The appointment of the Governors should be got approved from Parliament.

5. The Governor of the State should be elected by the Legislatures of the State.

6. The Governors should be appointed by the President not in consultation

with Ministers but on the advice of a high powered body.

7. The President should exercise his discretion in the appointment of

Governors and he should not act on the advice of the Council of Ministers in
this respect.

8. He should be elected by an electoral college consisting of the members

of the State legislative Assembly, legislative council, whenever it
exists and the members of all the autonomous local bodies of the State.

9. The Governor should he appointed by the President out of panel of names

recommended by the President's council consisting of ex-judge of the
Supreme Court.

10. The appointment of Governor by the President (which in turn rests on the
advice of the council of Ministers), must have the approval of atleast two-
third members of Lok Sabha (House of the people) or one-half of the
members of both houses of Parliament.

From the point of view the Rajamannar appointed by the Tamil Nadu government in

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Prakashvir Shastri, Lok Sabha Debates, Vol. XLV, Nos. 1-10, November 19,1970,col.337.

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1968 opined that before appointing the Governor, the central government should talk
with the Minister of the Province. The administrative reforms committee also expressed
the same view. Article 156(1) should be amended in order to change the method of
gubernatorial dismissal. The Governor should be allowed to function for the full term
and that if his ouster is warranted by valid reasons, he must be given sufficient
opportunity to argue his case.

i) C o m m e nt s of S ar k a ri a C o m m i s si o n on Appointment/
R e m o v a l o f Governor: -

The Sarkaria Commission in its report has come out with some very
useful observations and suggestions on the issue of appointment and removal of
Governor. It is of the view that much of the criticism against the Governors could
have been avoided if only their selection had been made on correct principles to
ensure appointment of right type of persons as Governors. The replies to the
questionnaire of the Commission on the point reveal some very unhealthy
trends/practices in the appointment of Governors. There have been instances of
discarded arid disgruntled politicians from the party in power at the Centre being
appointed as Governors when they cannot be accommodated elsewhere. Such
persons naturally tend to function as agents of Union government rather than as
impartial constitutional functionaries. Examples of Ministers being appointed
Governors after being removed from office on account of adverse judicial comments
have also been cited. The Commissions is of the view that;

1) A person to be appointed as a Governor should satisfy the following criteria:

i) He should be eminent in some walk of the life.

ii) He should be a person from outside the State.

iii) He should be a detached figure and not too intimately connected with the
local politics of the State.

iv) He should be a person who has not taken too great a part in politics
generally, and particularly in the recent past. Agreeing to the views expressed by Pt.
Nehru in the Constitutional Assembly, the Commission further says that in selecting a
Governor in accordance with the above criteria, persons belonging to the minority

55
groups should continue to be given a chance as hitherto.

2) It is desirable that a politician from the ruling party at the Union is not
appointed as Governor of a State which is being run by some other party or a
combination of other parties.

3) The Vice-President of India and the Speaker of Lok Sabha may be consulted by the
Prime Minister in the selection of Governor. The consultation should be
confidential and informal and should not be matter of constitutional obligation.

4) The Governor’s tenure of office of 5 years in a State should not be disturbed

except very rarely and that too, for some extremely compelling reasons.

5) Save 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 the
explanation, if any, submitted by the Governor against his proposed removal
from office, examined by an 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 recommendation of this group, the President may pass
such orders in the case as he may deem fit.

6) 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 Parliament
explaining the circumstances leading to the 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 include the
explanation given by him, in reply.

7) 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-

56
 President or President of India. Such a convention should also require that,
after quitting or laying down his office, the Governor shall not return to
active partisan politics.

8) A Governor should, at the end of his tenure, irrespective of it s

duration, be provided reasonable post-retirement benefits for his surviving
spouse.

Consent of the Chief Minister:

For proper working of the parliamentary system, discussed the

Sarkaira Commission, there has to be a personal rapport between the Governor
and the Chief Minister. Only then the Governor as the constitutional head will be
able to act us 'friend, philosopher and guide' of his Council of Minister. It is of the
view that in order to ensure effective consultation with the State Chief Minister in
the selection of a person to be appointed as Governor, the procedure of
consultation should be prescribed in the Constitution itself by suitably
amending Article 155. Where-two or more states are to have a common Governor,
the Chief Minister of each of them may be consulted. The main purpose of
consulting the Chief Minister according to the Commission, is to ascertain his
objections, if any, to the proposed appointment. If the Union Government considers
that the objections of the Chief Minister are not groundless, it may suggest an
alternative name. However, if it finds that the objections are frivolous or
manifestly untenable, it may inform the Chief Minister accordingly and proceed to
make the appointment.

ii) Recommendations of National Commission to rev iew the

working of Constitution on appointment/removal of Governor:-

The Commission, in the light of experience gained over the years

since the Sarkaria Commission Report, made some more useful suggestions on
the subject. It agreed with most of the recommendations of Sarkaria Commission
subject to certain conditions. The recommendations of the Commission are as below:

The Commission agreed that Article 155 of the Constitution requires

to be amended. While agreeing to the idea of consultation with the Chief Minister of

57
the state, Sarkaria Commission had suggested consultation with the Vice President
and the Speaker

of Lok Sabha. It was, however, of the view that such consultation should be
confidential and informal and should not be a matter of constitutional
obligation. The National Commission for the Review of Constitution, on
the other hand, favours a more transparent procedure. It also suggests the
constitution of a committee comprising the Prime Minister of India, the Home
Minister of lndia, the Speaker of Lok Sabha and the Chief Minister of the state
concerned to select the Governor. The Committee may also include the Vice
President of India. The Commission recommends that article 155 and 156 of the
Constitution be amended to provide for the following:

1) The appointment of Governor should be entrusted to a committee comprising

the Prime Minister of India, Union Minister of home affairs, the speaker
of Lok Sabha and the Chief Minister of the concerned state;

2) The term of office viz. five years should be made a fixed tenure;

3. The provision that the Governor holds office during the pleasure of the
President be deleted;

4) Provision be made -for the impeachment of the Governor by the state

legislature on the same lines us the impeachment of President by the
Parliament. Of course where there is no upper house of State legislature,
appropriate changes may be made in the procedure to make up for such non-
existence.

5) In the matter of selection of Governor, it recommends the acceptance of the

guidelines mentioned in para 4.6.01 and 4.6.02 of Sarkaria Commission
Report.

According to the Commission, with the above changes, not only the oath
taken by the Governor would not remain a mere formality but his office would be
invested with requisite dignity and integrity.

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