Political Science

CHANAKYA NATIONAL LAW UNIVERSITY

TOPIC: SHOULD THE POST OF GOVERNOR BE ABOLISHED: A CRITICAL ANALYSIS

SUBMITTED BY:B.A.LLB.(Hons.)

ACKNOWLEDGEMENT

2 The project is the outcome of my hard work and dedication towards the project. The topic given was very informative. It was an interesting topic and it is a golden opportunity for me to present this topic. I am very thankful to our faculty Mr. S.P.Singh for guiding and helping me in making the project. I have completed the project with required information. Thank you.

TABLE OF CONTENT Introduction………………………………………………………………………………4 Powers of Governor……………………………………………………………………...7

3 Constitutional Provisions…………………………………………………………………9 Critical analysis of the role of governor………………………………………………….11 Conclusion………………………………………………………………………………..16 Bibliography………………………………………………………………………………17

INTRODUCTION

4 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.

In pursuance of the 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 elaborately 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,

5 the British type of 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.1 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. 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. 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,

1

Sorbjee, Soli, J: The Governor: Sage or Saboteur, Roli Books International, New Delhi, 1985, P-14.

6 constitution and organization 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.

POWERS OF GOVERNOR

7 The Governor is the chief executive authority in a state. He is appointed by the President on the advice of the Prime Minister. The Governor is appointed for a period of five years, but holds the office at the pleasure of the President. He may be removed by the President before the expiry of his term or he may even resign. Powers and Functions of the Governor: His functions include 1. Executive Powers: a) He is the constitutional head of the state; b) He appoints the leader of the majority party as the Chief Minister; c) He appoints the members of the council of minister on the advice of the Chief Minister; d) He appoints the Advocate General, Chairman and members of the respective State Public Commission; e) He nominates two Anglo-Indian members in the Vidhan Sabha; f) He can seek any information from the Chief Minister. 2. Legislative Powers: f) He is a part of the state legislative and can summon, adjourn or prorogue the state legislative. g) He can call for a joint sitting of both the houses. h) No bill can become a law until the Governor signs it. i) He can withhold a bill and send it to the President for consideration. j) He can issue ordinances during the recess of the legislature. k) He can dissolve the State Assembly before the expiry of its term on the advice of the Chief Minister or as directed by the President. l) He causes the annual Budget to be presented in the Vidhan Sabha. No money bill can be introduced in the Assembly without his prior approval. 3. Judicial Powers: a) The governor appoints the district judges. b) He is consulted in the appointment of the judges of the High Court by the President; c) He can, pardon, remit and commute the sentence of a person convicted by a state court. 4. Financial Powers:

8 a) He causes the annual budget to be laid before the Vidhan Sabha; b) No money bill can be introduced without his prior approval. 5. Discretionary Powers: The Governor can use these powers: a) If no party gets an absolute majority, the Governor can use his discretion in the selection of the Chief Minister; b) During an emergency he can override the advice of the council of ministers. At such times, he acts as an agent of the President and becomes the real ruler of the state; c) He uses his direction in submitting a report to the President regarding the affairs of the state; and d) He can withhold his assent to a bill and send it to the President for his approval.

CONSTITUTIONAL PROVISIONS 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

9 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 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‟ Further, the provison 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. 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. 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. Though the literal interpretation of article 155 of the Constitution 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

10 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. Rajendera Prasad, the first President of India, that he often read the appointment of the Governors in the Press and was officially informed afterwards.2

CRITICAL ANALYSIS OF THE ROLE OF GOVERNOR

2

Durga Das : India from Curzon to Nehru and After, St James, London, 1969, P-337..

11 The position of the Governor of a State in the Indian polity has been a subject of much controversy almost since the inception of the office. There are some who adopt the language of ridicule and sarcasm and others of bitter criticism. Different opinions have been expressed on the office of the Governor. Certain individuals and parties advocate total abolition of the Governorship. As early as 1947, Principal Sreeman Narain Agarwal stated that “there is no necessity for a Governor” and the P. S. P. holds a similar view today. There are some who stand for the retention of the Governor‟s office, but advocate certain changes; and others are satisfied with the present constitutional position of the Governor. The suggestion for the abolition of the post of the Governor is primarily based on economic considerations. Under the new Constitution, a Governor is paid Rs. 5,500 per month. In addition to this he is paid an allowance of Rs. 1,600 on appointment, to purchase clothes; Rs. 70,000 at the time of appointment, for furnishing the Raj Bhavan; and Rs. 4,92,900 per annum, to meet the expenses over his residence, tours etc. All this is considered to be avoidable expenditure. The force of the argument lies in the fact that so much amount is spent on an individual whose presence is not required and that the administration does not suffer by his absence. Under the new Constitution the Governor is a nominal executive and so it is argued that it is not right to spend such large sums over an individual whose business is to say „yes‟ to what the Cabinet says. It was said of the French Presidency that it was “an office with the sole virtue of impotence. Its incumbent must neither act nor think.” The same is said to be the case with a Governor. Sri Sri Prakasa when he was the Governor of Madras once remarked, “Nobody cares for Governors. While Governors under the British regime said „yes‟ or „no‟ with authority, in the present set-up of constitutional Governorship, what can poor Governors say?” In a more pungent tone Sri J. B. Kripalani remarked, “After the advent of democracy, the one person most ridiculous is the Governor. He has no power to govern his own actions. Any speech he has to make anywhere has to be approved by his Chief Minister...What are the functions of the Governor then? These include opening of girls‟ schools, hotels, cinemas and sometimes even sweetmeat shops.” As the Governor‟s post is thus a costly superfluity, the sooner it is abolished the better. There are others who stand for the retention of the Governor‟s post, but advocate certain changes in its nature. Serious objection is raised against the present system of choice of the Governor. The method of nomination is the very negation of democracy and deprives the people of the democratic freedom of self-expression. Elections are considered as the life breath of democracy and their absence its demise. The upholders of this view take their inspiration from the system that prevails in the U. S. A. The Governor of a State in the U. S. A. is elected by the people of the State. It is further argued that the appointment of the Governor by the President of India cuts short the autonomy of the States and goes against the principle of State autonomy. On this ground it is further pointed out that the Governor of a State must belong to that State. A more considerate view about the appointment of the Governor is that the President of India should appoint the person that is elected by the Legislature of the State. This method will have the double advantage of introducing the democratic procedure, while preserving the bond of unity between the Centre and the States.

12 As the attack on the Governorship is primarily based on economic grounds, an odd suggestion is made for honorary Governors by Dr. Pattabhi Sitaramayya, ex-Governor of Madhya Pradesh. Today in every branch of administration there are honorary officers in responsible posts. In local administration, the Chairman of a Municipality is not paid. In judicial administration, there are honorary magistrates. The President of a Co-operative Bank or Cooperative Stores holds an honorary post. In all these cases public spirit and integrity count more than monetary considerations and those occupying the honorary posts have established a noble tradition in public service and honesty. The system of honorary Governors may also prove a success, if men of integrity and public spirit are chosen. A study of the proposals for a change in the position of the Governor shows that they are unsound in theory and unworkable in practice. The economic factor looms large in the criticism levelled against the Governor. Sound political conclusions can hardly be drawn by judging institutions in terms of rupees and naya paise. If monetary considerations alone are to be the guide in determining political institutions, democracy itself has to be given up, for of all systems of government it is the costliest. India‟s first General Election cost Rs. 10,40,00,000. Every member of Parliament is paid Rs. 40 per day when the Parliament is in session besides the travelling allowances. Compared with such expenditure, the salary of a Governor, Rs. 5,500, pales into insignificance. In fact the Governors of several States have voluntarily cut their salaries and Mr. C. M. Trivedi, ex-Governor of Andhra Pradesh, was drawing only Rs. 1,530 per month. However, in a country like India, where there is devastating poverty, it would be a sound economic principle to fix the maximum salary of an individual at Rs. 1,000 per month. The critics of the Governor who describe him as a figure-head view that office with a jaundiced eye. Viewed in the right perspective the Governor , far from being a “sleeping partner”, acts as a balance wheel of the State Government. Under the new Constitution he is a factor to be reckoned in administrative, legislative and financial matters. All executive action of the Government of a State is to be conducted in the name of the Governor. He appoints the Chief Minister, and other Ministers on the advice of the Chief Minister. He is empowered to lay down rules for the convenient transaction of business and for the allocation of business among Ministers. It is the duty of the Chief Minister to furnish to the Governor all information relating to administration and proposals for legislation. According to the letter of the Constitution the Governor is vested with supreme legislative powers. He has a right to address the legislature and send messages to it. He possesses the triple legislative powers of assent, dissent and reservation of bills. Any bill can be entered in the statute book only on receipt of his assent. In financial matters also the powers of the Governor are worthy of note. He causes the Annual Financial Statement showing the receipts and expenditure to be placed before the legislature of the State. Every demand for a grant must be made only on his recommendation. Like any other Head of a State, the Governor has the privilege to grant pardons, reprieves, respites or remissions of punishments. Above all, he occupies a unique position as a coordinating agency between the Centre and the States. The Governor under the British rule was a benevolent despot and the Governor of today is the constitutional Head of the State. Today he is not expected to override the Ministers, but as the highest dignitary in the State, he can advise and admonish the Cabinet.

13 He can exercise influence, though not power. As Gandhiji remarked, the Governors will be in a position to exercise “all-pervading moral influence.” The working of the Constitution during the last seven years has proved the significance of the Governor in the administration of a State. In times of political instability the Governor acted as a great stabilizing factor. Certain States like the Punjab and Kerala have become problem States and the smooth working of Government in those States has depended on the ability and tact of the Governor. Today a problematic position has arisen by the formation of a Communist Government in Kerala, and it is the ability and resourcefulness of the Governor that go a long way in promoting understanding and harmony between the State Government and the Centre. The fact that the wise counsels and wide experience of Sri C. M. Trivedi contributed not a little to maintaining smooth administration in the infant State of Andhra, is another instance to prove that the Governor is not an ornamental figure-head. So on pragmatic considerations, if not for any other reason, the retention of the Governorship has justification. Under the parliamentary system of Government there is need for a nominal executive, because the tenure of the real executive is not fixed. With the fall of the Cabinet a vacuum will be created in the administrative field, in the absence of the Governor. It is he who maintains continuity in administration and enables a smooth change-over from the fall of one Cabinet to the establishment of another. Due to this reason, in every country having the parliamentary system, a nominal executive which provides stability for the Government, has been established. The Governors in Australia and the Lieutenant Governors in Canada are illustrative of this fact. There is no parliamentary federation without a nominal executive corresponding to the Governor in an Indian State. Is it wise to abolish an institution which is of a universal nature? The need for a permanent executive like the Governor, is all the more necessary in a parliamentary democracy having the multi-party system. Cabinet instability is inescapable under the multi- or poly-party system, as is evident from the history of France and some of the States in India like the Punjab, Kerala, Andhra and Orissa. In view of the large size of the country and diverse interests of the people, India may have in future the multi- party system. So there is a prima facie need for an officer having experience and commanding popular respect, to maintain continuity in administration. Moreover a high and experienced dignitary is necessary in a parliamentary system of Government to form the Cabinet. The formation of the Cabinet is “a work of great time, great labour and great responsibility.” What Disraeli said a century ago holds good even today. Under the two-party system, the choice of Ministers is made in a rather mechanical way. But when no party commands an over-all majority in the legislature, a man of great courage, tact and imagination is necessary for the formation of a stable Cabinet. This can be well illustrated from what happened in the Madras State in 1952 when the Congress party in the legislature faced the formidable opposition of the United democratic Front led by the veteran leader, the late Sri T. Prakasam. The choice of Sri C. Rajagopalachari as Chief Minister by Sri Sri Prakasa, the then Governor of Madras, averted parliamentary anarchy in the Madras State. Several of the suggestions made for a change in the nature of the Governorship are unsound in principle. One such is the proposal to have an elected Governor. Those that make this proposal are led a way by the system that prevails in the U. S. A. It would be inappropriate to

14 imitate the American system, for while the U. S. A. has a non-parliamentary executive, India has adopted the parliamentary type. In the former the States have adopted the type of „strong‟ Governor. In some States even the budget is prepared by the Governor and in legislation “he is hardly second to the legislature itself.” Quite different is the case in India. The Governor of a State in India is expected to act on the advice of the Council of Ministers. It would be sheer waste of money if the method of election is adopted for the choice of a nominal executive. Politically also the principle of election may prove injurious, for an elected Governor may become a rival to the Cabinet. So the principle of election in the case of the Governor will be economically a waste and politically it may prove dangerous. The Constitution does not prevent the President of India from appointing a person of a State as the Governor of that State. However, during the last half-a-dozen years of the working of the Constitution, a very healthy convention has been set up, of the appointment of a person belonging to one State as the Governor of another State. This procedure helps a great deal in preventing localism and promoting inter-state understanding. Moreover, the Governor must establish a name for his detached and impartial outlook and this will be possible only when an outsider is appointed. The appointment of the Governor by the President is further criticized as an encroachment on State autonomy. It is no exaggeration to say that arguments like these are based on parochial considerations and ignore the wider interests of the country. Localism and provincialism which led to disunity and division in the country, have been the root causes for India‟s enslavement in the past. So the makers of the Indian Constitution took great care to curtail narrow provincialism and preserve the unity of the country. It was with this object that India was made a co-operative and not a competitive federation. Moreover, in every country, due to the growth of international tensions, the trend is towards vesting more and more powers in the Central Government and all proposals for greater State autonomy go against the time spirit. The economic argument in the case of the Governor has taken curious turns and an odd proposal like the appointment of honorary Governors, is made. The protagonists of this view fail to realise that no responsible post can be efficiently managed by an honorary officer. This was realised long ago in all countries and consequently the system of payment to members of parliament came into existence. The analogy of the Municipal Chairman is misleading for local administration does not involve heavy responsibilities. But even in that limited sphere, the need is felt for the appointment of a paid officer called the Commissioner. So the idea of appointing honorary Governors is not practicable. Another erroneous view about the Governor is that the pomp and pageantry connected with his post will be an anomaly under the socialist pattern of society. A correct understanding of the concept of equality requires a sense of proportion. Equality has never been understood in any country to mean complete identity, and even in Soviet Russia, the Head of the State does not live in the same way as a factory laborer or a peasant. Moreover, with the growing international contact and the visits of foreign dignitaries, the maintenance of an establishment befitting the dignity of the Head of a State is indispensable.

15 The abolition of the Governor‟s post will necessitate the appointment of another officer of a similar nature. What is taken away by the right hand has to be replaced by the left. The storm of argumentation that raged in Britain over the abolition of monarchy has calmed down, for the abolition will not make Britain any more democratic than she is today. Nor will it result in any appreciable saving of resources. Similar considerations lend support to the retention of the Governor of a State in India. Though the present expenditure over the Governor is inconsequential, any possible reduction in it should be welcome in a poor country like India. While the dignity and status of the Governor have to be maintained, pomp and splendor have to be severely cut down. Under the socialist pattern of society, there should be no officer in the style of the Grand Mughal. The maintenance of expensive establishments at different places for the stay of the Governor during the different seasons, the expenditure over addresses of welcome, and all kinds of pomp and pageantry, have to be curtailed. The post of the Governor should not be an avenue for the party in power to favor its own party men. The dignity and honor of the Head of the State can be retained only when persons of high character, great mental caliber and meritorious service are appointed. The Governor‟s post should not be converted into a coveted job for party men or an asylum for those defeated in elections. It should be occupied by those who have earned a name for integrity and public service. The Governor as the chief executive of a State , must be able to give sound advice to the Ministers and safely pilot the ship of State through all kinds of political storms. This requires sound understanding and long experience. So the tenure of the Governor of a State should be sufficiently long so that he may act as a reservoir of experience. Healthy conventions should be set up in matters of appointment and tenure of the Governor.

CONCLUSION The Parliamentary system of the Cabinet type, which the Constitution has adopted at the State level, is not on all fours with that of the United Kingdom. It is a case sui generis. The Governor in our system does not function as constitutional head for the whole gamut of his responsibilities.

16 There is an important area, though limited and subject to Constitutional constraints, within which he acts in the exercise of his discretion. It will bear reiteration that there are more than one facet of his role. As a 'bridge' between the union and the State, he can foster better understanding between them and remove such misapprehensions as may be souring their relations. He is sentinel of the Constitution. He is a live link of channel between the Union and the State. As such link, it is his duty to keep the Union informed of the affairs of the State Administration, whenever he feels that matters are not going in accordance with the Constitution, or there are developments endangering the security or integrity of the country. The Governor thus assists the Union in discharging its responsibilities towards the States. The part which the Governor plays to help maintain the democratic form of Government in accordance with the Constitution is of vital importance. In the ultimate analysis, due observance of the Constitutional provisions is the soundest guarantee of enduring unity and integrity of the nation. In sum, the functions of the Governor are at once diverse and important. Functioning in normal times as the constitutional head of the State and as a vital link between the Union and the State, he becomes an agent of the Union in certain special circumstances, e.g., when a proclamation under Article 356 is in operation. He fills the vaccum and ensures continuity in executive government for short periods during which no Council of Ministers is available to aid and advise him. The Governor is the key functionary of the system envisaged by the Constitution. No other constitutional functionary can discharge these responsibilities in addition to his own duties.

BIBLIOGRAPHY The following informations have been collected from: STATUTES:

17 Constitution of India JOURNALS: CNLU Law Journal WEBSITES: www.jstor.org/stable/41853885 lawmin.nic.in/ncrwc/finalreport/v2b2-4.htm http://shodhganga.inflibnet.ac.in/bitstream/10603/10661/10/10_chapter%205.pdf ARTICLES: The Sarkaria Commission Report