Our Constitution is the product of thorough study, deep and mature considerations. The Constituent Assembly addressed into immensely complex task of devising a union with a strong Centre. In describing India as a "Union of States," the drafting Committee followed the language of Preamble from the British North American Act, 1867.
Our Constitution is the product of thorough study, deep and mature considerations. The Constituent Assembly addressed into immensely complex task of devising a union with a strong Centre. In describing India as a "Union of States," the drafting Committee followed the language of Preamble from the British North American Act, 1867.
Our Constitution is the product of thorough study, deep and mature considerations. The Constituent Assembly addressed into immensely complex task of devising a union with a strong Centre. In describing India as a "Union of States," the drafting Committee followed the language of Preamble from the British North American Act, 1867.
Constitutional Provisions vis--vis Governors Institution in India
Our Constitution is the product of thorough study, deep and mature considerations as well as extensive debate and discussion. It is a result of analytic and deliberate considerations as well as judicious draftsmanship on the part of the framers of the Constitution. The framers of the Indian Constitution were not writing on a clean slate. They had before them the working of the Governments under the Government of India Acts of 1919 and 1935. While framing the Constitution they were also influenced by geographical considerations, historical necessities as well as cultural and social diversities. The very fact that the Constitution of the Indian Republic is the product not of a political revolution but of the research and political deliberations of a body of eminent representatives of the people who sought to improve upon the existing system of administration of the country.
The Constituent Assembly addressed into immensely complex task of devising a union with a strong Centre. They had to bring into the Union not only the British provinces, but also the Princely states and remote inaccessible tribal areas. They were conscious that several areas and regions of this sub continent had from very long time been following their own such cultures, administrative systems, traditions customs and ways of life. It was, therefore, readily accepted that in this compelling catastrophe a bunch of states is needed through which the spirit of national stream may run. Hence the authors of Constitution of India were prospectively vigilant enough that all the units must remain attached with the Centre. In their view, it would be retrograde step both politically and administratively to frame a Constitution without unitary state as a basis.
Article 1(1) of the Constitution of India declares that India, that is Bharat, shall be a Union of States. In describing India as a Union of States the drafting Committee of the Constituent Assembly followed the language of Preamble from the British North American Act, 1867. It was done deliberately to explain that the Indian federation to be set up under the Constitution would be of the Canadian type. Explaining the significance of use of impression Union instead of the expression federation, Dr. B.R.Ambedkar, the Chairman of the Drafting Committee, said that the word was adopted to indicate two things, vis--vis: (a) that the Indian Federation is not the result of agreement between the units it constituted of and (b) that the component units had no freedom to secede from the Union so created
Referring to the United States federation, Dr. Ambedkar explained that the Americans had to wage a civil war to establish the States in America had no right of secession and their federation was indestructible. The Drafting Committee, thus, thought it better to make it clear at the outset rather than to left it at the speculation or to dispute in future. The discussion in the Constituent Assembly, held on this provision, contained in Article 1, made it further clear that the term Union was used as symbolic of the determination of the Constituent Assembly to maintain the unity of the Country. 1
Our politico-legal infrastructure both antecedently and politically is a federal one. Yet all that glitters is not gold. The implied hideouts of constitutional provisions bring forth the unitary infrastructure conferring autonomy to states in certain fields. It stands characterized as a Unitary State with subsidiary federal features rather than Federal State with subsidiary unitary features. 2 Similarly it has been characterized as a federal with strong centralized tendencies. 3
The above narrated set up was the need of the day. Hence Indias federal system originated in terms of its constitutional provisions, in the British Government of India of 1935 and in terms of its political thrust in the demand of Indian National movement for a pan Indian Central Government capable of reconciling regional pulls and pressures. The urgent need for national unity was further underlined by trauma of the partition of the Country. Therefore, deliberately the Constitution of India has inbuilt bias in favor of a greater centralization of power and allocation of larger jurisdiction to Central Government. Despite the facts that Article 1 of the Constitution speaks of dual polity, but due to provisions of single citizenship, single integrated judiciary, uniform civil and criminal law
1 Narender Kumar, Constitutional Law of India, Allahabad Law Agency, Faridabad, 2007, P-36. 2 Pandey, J.N :Constitutional Law of India, Central Law Agency, Allahabad, 2oo7, P-18. 3 Ibid, Note-2. for all the federating states and unified All India services, (Article 5,11,14,131,141, 312) India remains a unified polity. 4
5.1 Unitary Spirit vis--vis Governors Institution In pursuance of this unitary spirit, our constitutional entities are devised and framed by the framers of the Constitution and the entity of Governor has been devised and framed on the same tone and temper. There have been hectic discussions in regards to institution of Governor in the Constituent Assembly. All the pros and cons pertaining to its provisions as well as the nature of appointment were elebroately discussed in the Constituent Assembly before giving it a final touch. It is pertinent to deal with those deliberations of Constituent Assembly here.
Far from it, the history of the constitutional provisions relating to Governor in the Constituent Assembly is so enlightening. In the beginning the constitutional advisor, B.N.Rau, proposed that the Governor should be elected by the provincial legislation by secret ballot according to system of proportional representation by the single transferable vote.
After considerable discussion, Sardar Patel, the chairman of the Provincial Constitutional Committee, stated in the report to the Constituent Assembly that both the Union Constitution Committee and the Provincial Constitution Committee were in favor of adopting the Parliamentary system of the Constitution, the British type of
4 Khan, Rasheeduddin: Fedral India: A Design for Change, Vikas Publiction, New Delhi, P. 21-22. Constitution with which we are familiar. The report also recommended that Governor of each Province be elected directly by the people on the basis of adult suffrage.
In its deliberations, the Constituent Assembly also adopted a Model Provincial Constitution. Its main feature were that the Governor should be elected directly by the people on the basis of adult suffrage, should hold office for a term of 4 years and would be liable to be removed from his office by impeachment on the basis of stated misbehavior. 5
Draft Constitution prepared by the Drafting Committee and submitted to the President, suggested two alternatives: one was for the appointment of the Governor by the President from a panel of four candidates to be elected by the members of the State Legislature, by means of single transferable vote and by secret ballot; the other alternative was direct election by the people of the Province.
Hence, the phenomenon of elected Governor was confronted with a very hot debate in the deliberations of Constituent Assembly. Doubts were also expressed in the Assembly that the elected Governor might join hands with the Chief Minister of the Province and defy the Centre. Nehru was of the view that by joining the hands with the Chief Minister, Governor may encourage separatist tendencies.
5 Sorbjee, Soli, J: The Governor: Sage or Saboteur, Roli Books International, New Delhi, 1985, P-14. But, the subsequent political events in the Country led to a sharp second thought on the subject. The outbreak of communal riots, partitions and its ghastly after math, Gandhijis 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 26 th Nov 1949, the Governor emerged as a constitutional head appointed by the President of India for a term of five years but holding office during pleasure of the President. 6 The Constitution of India which the people of India gave unto themselves, is the collection of principles or body of fundamental rules which is usually provided for the establishment, constitution and organization
6 Ibid, Note-5, P.15-16. of the organs of the Government, their powers and functions manner in which the said powers and functions are to be exercised, their interrelationships, the relation between these organs of the Government and people of the Country.
5.2 Organic spiri in the Constitution Before we consider the provisions of the Constitution governing the appointment and removal of the Governor, a resume of the thinking and discussions that preceded the framing of those provisions would be worth while. Our Constitution, establishing a parliamentary system with a Cabinet Government, does not make explicit provisions for dealing with every situation; there are things that implicit in the Article of the Constitution and there are matters left to be regulated by the conventions of parliamentary Government.
There are interstices between the Articles of the Constitution which can be filled only by viewing the Constitution as an organic whole and by observance of generally expected principles of constitutional ethics and norms. Some of the words and phrases used in the Constitution have followed the wording of Government of India Act of 1935, or of the Constitutions of other countries of the British Commonwealth; they have a meaning given them historically, or has been used as words of art and should not be read literally. For instance the words in Article 163 that there shall be Council of Ministers to advise the Governor in the exercise of his functions really means that the Governor shall act on the advise of the Council of Ministers.
The words in Article 164 of the Constitution that the Ministers shall hold office during pleasure of the Governor are not intended to give the Governor the unlimited and untrammeled power over the tenure of the Ministers. They are not being read in isolation, or construct without reference to the scheme of Government, established by the Constitution; a Constitution requires a broader approach than an act of Parliament. The thinking of the framers of the Constitution can provide valuable aid in understanding the Constitution and can remind us of the conventions they wanted and expected to be followed. 7
5.3 - Constitutional provisions vis--vis institution of Governor Provisions relating to Governor with nomenclature of State Executive reflect on the intention of the framers of the Constitution. The provisions enshrined in the Constitution in regards to the appointment and removal of the Governor depicts the powers and functions as well as the relationship with other organs of the Government.
The Governor is a constitutional functionary and an important organ of the Government. He is the key actor and a bridge between the Centre State relations. The framers of the Constitution deliberately avoided election of the office of Governor in order to make him the Centers representative. In order to explore the constitutional status of Governor it is imperative here to have a scant purview of provisions
7 Singh, L.P: Guide, Philosopher and Friend, in book, The Governor: Sage of Saboteur, Roli Books International, 1985, P. 37-38. relating to institution of Governor enshrined in Part VI of the Constitution.
Article 153 of the Constitution provides that there shall be Governor for each State 8 . Further, the proviso to Article 153, inserted by the Constitution (Seventh Amendment) Act, 1956, explains that there shall be no prohibition as to the appointment of the same person as Governor of two or more states. Thus the same person can be appointed as Governor of two or more states. 9
Article 154 of the Constitution states (1) The executive of the State shall be vested in the Governor and shall be executed by him either directly or through officers subordinate to him in accordance with the Constitution. (2) Nothing in this article shall- (a) be deemed to transfer to the Governor any function conferred by any existing law or any other authority; or (b) prevent Parliament or the legislature of the State from conferring by law functions or any authority subordinate to the Governor.
Article 155 of the Constitution provides that the Governor of the State shall be appointed by President by warrant under his hand and seal. 10
8 The Constitution of India, Bare Provisions, Universal Law Publishing, New Delhi, 2005, P-141. 9 Narender Kumar, Constitutional law of India, Allahabad Law Agency, Faridabad, 2007, P- 613. 10 Ibid, Note-8. Article 74 of the Constitution provides that there shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice. 11
Though the literal interpretation of article 155 of the Constitutiion connotes that the Governor shall be appointed by the President, but in effect and substance the Governor is appointed by the President of India in accordance with the advice tendered by the Council of Ministers to him as provided under article 74 of the Constitution.
Thus, the President of India, who is to act on the advice of his Council of Ministers, control the Governor through the power of appointment. The appointment of the Governor by the President makes Governor, the true nominee of the Centre. It is, therefore reasonable and one can further observe that the Governor is more or less the agent of the Centre than the head of the State to which he presides. The practical fact is that the Presidents part in nomination of the Governor is mere a formality. It was the complaint of Dr. Rajinder Prasad, the first President of India, that he often read the appointment of the Governors in the Press and was officially informed afterwards. 12
11 Ibid, Note-8, P-102. 12 Durga Das : India from Curzon to Nehru and After, St James, London, 1969, P-337. 5.4 - Constitution framers over view of Governor The Constituent Assembly fully debated on the merits and demerits of an elected v/s nominated Governor and finally opted for the system of presidential nomination, rather than direct election of the Governor because of the several reasons for example-
(1) A nominated Governor would encourage centripetal tendencies and, thus promote all India unity, on the other hand it has been apprehended that the elected Governor would to some extent encourage the separatist provincial tendencies more than otherwise. There would be far fewer links with the Centre. (2) In a Parliamentary system the head should be impartial, but a Governor elected by the direct vote of people would have to be party man. On this point it was stated in the Constituent Assembly that he should be a more detached figure acceptable to the province, other wise he could not function and may not be a part of the party machinery of the province. On the whole it should probably be desirable to have people from out side, eminent in some education and other fields of life who would naturally cooperate fully with the Government in carrying out the policies of the Government and yet represent before the public something above politics. (3) Conflict might arise between the Governor and the Chief Minister if both were to be elected by the people, for the former might claim to arrogate power to himself on the plea of his having been elected by the whole State as against the latter who would be elected only in a constituency which would be small part of the State. It was stated in the Constituent Assembly that when whole of the executive power is vested in the Council of Ministers, if there is another person who believes that he has got the backing of province behind him and, therefore, at his discretion he can come forward and can intervene in the governance of the Province, it would really amount to surrender of democracy. 13
It was dialected in the Constituent Assembly that the Gubernatorial Candidate should be of such caliber whose ability wisdom and rectitude could not be questioned. He should be a person of undoubted ability and position in public life that at the time has not been mixed with the public life and at the same time has not been mixed with provincial struggle and faction.
The Observations of Pt. Jawaharlal Nehru in the deliberations of the Constituent Assembly is worth quoting here that it would be definitely better if the Governor was not so intimately connected with
13 Constituent Assembly Debates, V. VIII, Lok Sabha Secretariat, New Delhi, 1999, Page 455. the local politics of the Province or with the factions in the Province and offered the view that it would be better to have a more detached figure, obviously a figure that is acceptable to the Province, yet he must not be known to be part of the party machinery of the Province. 14
In the leading case of a far reaching repute the Apex Court, after an exhaustive discussion and consideration of the relevant materials and authorities on the subject, Justice Krishna Iyer, with whom Justice Bhagwati concurred, pronounced that we declare the law of this branch of our Constitution to be that the President and Governor are custodians of all executive and other powers under various Articles, shall by virtue of these provisions, exercise their formal constitutional powers only upon and in accordance with the advice of their ministers except in a few well known exceptional situations. Without being dogmatic or exhaustive, these situations relates to (a) the choice of Prime Minster (Chief Minster), restricted through this choice is by the paramount consideration that he should command a majority in the House; (b) the dismissal of the Government which has lost its majority in House but refuses to quit the office; (c) the dissolution of the House where an appeal to the Country necessitous, also in this area the head of the State should avoid getting involved in politics and must be advised by his Prime Minister (Chief Minister) who will eventually take the responsibility for the step. 15
14 Govind Narain, Constitutional Obligations, Roli Books International, New Delhi, 1985, P-59. 15 Shamsher Singh v/s State of Punjab, 1975 (1) SCR, P-875. The intention of the farmer of the Constitutions was clear that they foresighted an impartial personality for the office of the Governor. Though at the time of framing of the Constitution, possibility of hung legislatures was feeble because of single party domination at national political portrait, yet the founding fathers attempted to deliver out the Constitution which can exhaust the changing political scenario in the coming future. In pursuance of it they emphatically asserted that the person selected as Governor would be a person who will hold the scale impartially as between the various factors in the politics of the State. The forgoing pronouncement of the Honorable Supreme Court also suggested that the Governor should not take part in politics so far his gubernatorial affairs are concerned. Hence, in the opinion of Apex Court the independent and impartial Governor is the need of the day.
It is pertinent here to recall that during the deliberations of the Constituent Assembly, some other modes of appointment of a Governor were also considered. The Idea of election was ruled out because it was felt that the co-existence of a Governor selected by the people and a Chief Minster responsible to the legislature might lead to friction and consequent weakness in the administration. On similar grounds, the idea of Governor being appointed by the President on the advice of the Central Government, out of a penal of four persons chosen by the State legislature was also ruled out. It was a result of mature deliberation that the present provisions were accepted. 16
16 Ibid, Note-14. Since the Constitution of India came into force the appointment of the Governor has been regulated by a set of two conventions:-
(1) First the Governor should belong to the State other than that in which he is being posted. This convention has been evolved in order to keep the Governor above the politics of the state. (2) Secondly, the appointment of the Governor requires the consultation between the state ministry and the Union Government. This is meant to ensure the cordial relationship between State and the Centre otherwise it is feared that without the consultation the utility of the institution may become less or even nil in the Indian polity. 17
However, it is a sad plight of the Indian political scenario that no healthy conventions are being followed or observed as per vision of the framers of the constitution.
5.5-Recommendations of Sarkaria Commision vis--vis Appointment of Governor- Sarkaria Commission has reviewed the 30 years span of working of Constitution from the context of Centre State relations. After reviewing the Centre-State relations, it has recommended certain measures, the adoption of which can lead to the meaning full cooperation in between the Centre and states altogether. The institution of Governor performs an integral role in Centre State relations; therefore, the Commission has made certain recommendations in regards to appointment of state Governors. The
17 Gehlot, S.N. State Governor in India, Getanjali Publcation, New Delhi, 1985, P-223. recommendations provide a criterion which is required to be followed by the constitutional functionaries while making appointment of Governors in the State in the following manner:-
Para (4.16.01) (4.6.09): A person to be appointed as a Governor should satisfy the following criteria:
(1) He should be eminent in some walks of life. (2) He should be a person from outside the state. (3) He should be detached figure and not too intimately connected with the local politics of the state. (4) He should be a person who has not taken too great part in politics, generally and particularly in the recent past. (5) In selecting a Governor in accordance with above criteria, persons belonging to the minority group should be given a chance hitherto.
Para (4.16.02) (4.6.09) - It is desirable that the politicians from the ruling party at the union are not appointed as Governor of a state which is being run by the other party or a combination of other parties.
Para (4.16.03) (4.6.25) - In order to ensure effective consultation with the state Chief Minister in the selection of a person to be appointed as Governor, the procedures of consultation should be prescribed in the Constitution itself by suitably amending Article 155.
Para (4.16. 04) (4.6.33) - The Vice President of India and the speaker of the Lok Sabha may be consulted by the Prime Minister in selecting the Governor. The consultation should be confidential and informal and should not be a matter of constitutional obligations. 18
Consultation in the above context means the ascertainment of the views of the concerned Chief Minster of the State as to the suitability of the person proposed as Governor of that State. It is pertinent to mention here that for every successful parliamentary system, good rapport between the Governor and the Chief Minster must exist. This rapport is of vital significance in our constitutional as well as political system in which the Governor, being a constitutional head of the Sate, should act as the friend, philosopher and guide of his Council of Ministers. Further, from this aspect of personal relationship that consultation with the Chief Minister at the initial stage itself, may prevent the choice of person which the Chief Minister because of personal reasons may not be able to work satisfactorily. In this sort of situation, the personal reasons of Chief Minister may adversely affect the consultation process.
Sarkaria Commissions Report has made above mentioned recommendations in regards to the appointment of Governor which came after 3o years of the working of the constitution. Report has repeated and underlined the same assertions regarding the
18 Markandan, K.C: Sarkaria Commission and Constitutional Perspectives, ABS Publication, Jalandhar, 1991, P. 385-386. appointment of Governor which were earlier asserted by the members of the Constituent Assembly.
It is pertinent to mention here that there is a tremendous change in Indian political scenario so far as the political parties are concerned. Particularly in eighties, the political scenario observed the mushrooming of regional parties in the states which latter on assumed the status of national parties. So long as there was one party rule in the Centre as well as in the states, the consultation with the Chief Minster prior to the appointment of Governor was merely formality and no difficulty ever arose in this matter. During this period the institution of Governor remained almost dormant. But after the fourth general election held in 1967, the political scenario under went a radical change, as different political parties came into power in the states a well as in the Centre in the form of political alliances. The appointment of Governor became some what a controversial issue, particularly in those states where the political complexion of the Government differs from that of the Centre. These states apprehended that the Governor appointed by the Centre Government and holding office during pleasure of the President would not function objectively and impartially, but at the bidding of the Central Government to destabilize the State Governments.
The states belonging to other political complexion than that of the Centre claimed not only consultation but rather their concurrence in the matter of appointment of Governors. The Centre has not accepted any such proposition, while the Centre consults the Chief Minister; it is not ready to concede a veto to him in the matter of appointment of Governor.
The study team of the Administrative Reform Committee has suggested that though the Chief Minster of the State should be consulted before a Governor is appointed, yet this should not dilute the Primary responsibility of the Centre to appoint a competent and suitable person as Governor. 19
Recently, in 2004 an interesting controversy erupted between the Government of United Progressive Alliance and the Chief Minister of Tamil Nadu on the issue of prior consultation with the Chief Minster at the time of appointment of Governor. United Progressive Alliances Home Minister, Mr. Shiv Raj Patil, informed the Chief Minister of Tamil Nadu, Jaya Lalitha, that the Centre Government has decided to remove the Governor of Tamil Nadu, Rama Mohan Rao, and to appoint Mr. Surjit Singh Barnala at his place.
In response to the information of appointment of Mr Barnala as Governor of Tamil Nadu, Jaya lalitha pointedly asked Patil that how he could take this decision without consulting her. Patil conceded that the Sarkaria commission on Centre-State relations had recommended that the Centre should consult the State Government on the appointment of Governors. He, however, said but this is the ways
19 Jain, M.P: Indian Constitutional Law, Wadhwa & Co, Nagpur, 2005, P-330. that we usually do these things and described Mr. Barnala as a very good choice for Governor. 20
However there is no doubt that in public mind the office has undergone devaluation even debasement. Some Governors have been openly and widely accused of partisanship towards one party or another, and allegations have been made that they had acted as an agents of the Central Government, and not as holder of independent constitutional office. And there is a disposition to proceed from particular cases to the general distrust of Governors. In the wider interest of healthy functioning of our parliamentary democracy and of our federal system a review of the role of Governor is not only appropriate but an urgent necessity. 21
It is worth while to evoke here the cases in which the institution of Governor has been openly politicalised, and the Governors are forced to be critical by the parties in power at the Centre. The recent instances of Bihar and Jharkhand during governship of Mr. Buta Singh and Mr. Syed Sibte Rajvi, respectively, have projected on the national scene the controversial aspect of the gubernatorial affairs. In this context, the Honorable Supreme Court of India indicted Bihar Governor Buta Singh of misleading the Centre in recommending the dissolution of Bihar Assembly in May 2005, and said that the Union Council of Ministers should have verified his report before accepting
20 W.W.W. Hindunnet. Com, the Site visted on 16.9.2008. 21 Singh, L.P: Guide Philosopher and friend, in book, The Governor: Sage of Saboteur, Roli Books International, New Delhi, 1985, P-37. it as a gospel truth. 22 Media also has not lagged behind in highlighting these controversies that following the State Assembly elections, Governor Syed Sibte Rajvi used questionable tactics to foist a short lived UPA Government headed by Shibu Soren. 23
A retrospective look at the deliberations of Constituent Assembly unveils the facts that even in 1950 the framers of the Constitution inferred that the Centre would do mischief through the Governor in the States. The inference of members of Constituent Assembly has proved to be absolutely true. The political parties in the wake of its political polarization and political agendas have down sized this institution of wisdom, sagacity and fortitude. Hence a new look and new dimensions to the constitutional provisions containing the appointment and removal of Governor are the need of the day. Constitutional jurisprudence, thus, demands induction of certain clauses in Part VI, Chapter II of the Constitution. The clauses so inducted should actively and deliberately provide safeguards to the Governor so that he can make best use of his discretionary powers as per tenements and spirit of the Constitution. In this context Article 156 of the Constitution required to be interpreted as per tenements and spirit of the Constitution because the framers of the Constitution never intended that Governor would not complete his term of five years in the wake of political considerations. Hence, Article 156 of the Constitution needs a cursory look.
22 Hindustan Times, January 25, 2006, P-1. 23 Hindustan Times, September 8, 2006, P-5.
5.6 -Article 156 - Term of office of Governor Article 156 of the Constitution provides that:
(1) The Governor shall hold office during pleasure of the President. (2) The Governor may, by writing under his hand addressed to the President resign his office. (3) Subject to the forgoing provisions of this Article a Governor shall hold office for a term of five years from the date on which he enters upon the office.
Provided that a Governor shall, notwithstanding the expiration of his term continue to hold office until his successor enters upon his office. 24
Article 156(3) provides that Governor shall notwithstanding the expiration of the term; continue to hold office until his successor enters upon his office. Article 160 provides the provisions for discharge of functions of the Governor in certain contingencies which says that the President may make such provisions as he thinks fit for the discharge of the functions of the Governor of a State in any contingency not provided for in this chapter. Thus Article 156(3) contemplates that Governor is to continue to hold office not- withstanding the expiration of the term. The effect of these words is to exclude all questions of legality of the holding of office by the
24 The Constitution of India, Bare Provisions, Universal, New Delhi, 2005, P-141 Governor after the expiration of his term. There must be a Governor under Article 153 and the interregnum is avoided by the proviso. A person appointed as Governor continues to hold office till his successor is appointed under Article 155 or an order is made under article 160. 25 Above observation elucidates that the Governor can continue beyond five year terms also.
The Apex Court also pronounced in another decision that the Governor however, continue to hold office even after the lapse of his term till his successor enters upon his office under Article 156(2). Thus a person once appointed a Governor continue to hold that office till his successor enters upon his office. 26
5.7 Contradictory nature of Article 156 Literally within the domain of Article 156(1) of the Constitution, Governor is to hold office during pleasure of the President. But within the ambit of clause 3 of this section, it is specifically enshrined that subject to the forgoing provisions of this section, the Governor shall hold office for a term of five years. Thus intentionally and deliberately, clause 3 of Article 156 has been eclipsed by clause 1 of Article 156 of the constitution. The framers of the Constitution have locked the modus operandi of removal of the Governor in this Article of contradictory effect.
25 S.R. Bommai, 1994 (3) SCC, P-1. 26 K. Ballabh v/s Commissioner of Inquiry, AIR 1969 SC, P-271 It is significant to mention here that Article 61 of the Constitution provides the method of impeachment for the removal of the President, but the Constitution nowhere does lay down the process of removing the Governor of the State except by the central authority. In other words the Centre Government absolutely enjoys the power for the removal of the State Governor at any time, even without assigning any reason. Obviously, the Centre Government is in a position to keep the Governor, always under the influence.
In fact Article 156 of the Constitution is not in consonance with the true spirit of the Constitution. In the United States, the Governor of a State can be removed by the process of impeachment by the State legislative body. Some State Constitutions provide the recalling method of a Governor by popular vote. In Canada, the Lieutenant Governor of the Province under Article 5 of the British North American Act 1867 may be removed by the Governor General.
Thus, the issue of the appointment and removal of the Governor is the sole right of the Union Government and States have no voice on this issue. It is very strange to note that Constitution, on the one hand, has made the Governor representative of the Centre and has granted him some discretionary powers, but on the other hand the Constitution has kept him completely free from the elected representatives of the State. There is no effective check on the powers of the Governor by the State which can prevent him from misusing his authority. The state legislature, thus, has been deprived of the right of removing a Governor. 27
The verdict of the Rajasthan High Court is worth quoting here that Article 156 provides that Governor holds office during pleasure of the President. It further says that subject to the exercise of the pleasure of the President, the Governor shall hold office for a term of five years. It is, therefore, clear that the Governor has no security of tenure and no fixed term of office. The expression Pleasure of the President is not justifiable. 28
The Patna High Court has pronounced the verdict which can be juxtaposed with the above mentioned verdict that five years term is subject to the exercise of pleasure by the President and the President of India is the best judge for the exercise of His pleasure to decide as to when and in what circumstances the term of sitting Governor of State should be reduced, or, instead of reducing the term, he may be transferred from one state to another or may be asked to vacate the office. 29
Soli, J. Sorabjee has depicted the forgoing phenomenon in the glaring words that one of the piquant incongruities of our Constitution is that on a literal reading of its provisions, the Governor emerges as the least secure and the least protected of all constitutional functionaries. He is the only such functionary without any expressed
27 Gehlot, N.S: State Governors in India Tends and Isues, Geetanjali, New Delhi, P. 224-25. 28 Surya Narain v/s Union of India, AIR 1982 Rajasthan, P-1. 29 Indian Union Muslim league, AIR 1998 Patna, P-156. security of tenure and any specific safeguard in the matter of his removal. 30
5.7 Politicalisation of Article 156 A constitutional authority like that of Governor in India can enjoy the perks and a liveried status only during pleasure of the President as per the contemplation of Article 156 of the Constitution. Presidents displeasure and that too in absence of any safeguard, can kick the Governor out of the palatial Raj Bhawan as and when desired by the Central Government. In the presence of confronting provisions of the Constitution relating to his term of office, the Governor can remain moribund and eclipsed whereas his execution of powers and particularly the execution of discretionary powers are concerned. The compatibility of removal and displeasure in turn adversely affect the decision making process of the Governor whereas his special and discretionary powers are concerned.
In the real effect and substance, the Governor looks after as well as nourishes the interests of the party or alliance to which he is politically related. He is there in the State to care for the interests of the leaders of party as well as the interests of workers of the party which has inducted him in the State. These party leaders and party workers are in a position to attract the vote bank of the State in favor of the party to which the Governor is politically related.
30 Soli, J Sorabjee, The Constitution and the Governor, Roli Books International, New Delhi, 1985, P-13. Governor in the real sense is a protem of the party in power. As a natural corollary, he is to look after the vested interests and health of the party in power to which he is politically related. Consequently, his judgment is bound to affect the States decision making process by the ideas which he already has on his slate. In this state of mind intrinsically he will be pushed to do even apolitical act to safeguard the health of his party, may it adversely affect the smooth functioning of the State. While passing through this sort of affairs, off and on, he has to act as a cross Governor. It is submitted that the contradictory provisions relating to his tenure of office are the hurdle in his path to be realized as a positive Governor. Thus, Article 156 of the Constitution is used and misused to meet the partisan ends of the party in power at the Centre.
5.8 Recommendations of Sarkaria Commission Sarkaria commission in its report on Centre State relations has recommended the following guidelines for the constitutional functionaries regarding tenure of state Governors in India as follows:-
Para (4.16.05) (4.7.08) - states that the Governors tenure of office for five year in a State should not be disturbed except very rarely and that too for extremely compelling reasons.
Para (4.16.06) (4.8.08) - states that where the President is satisfied that in the interest of the security of the State, it is not expedient to do so, the Governor whose tenure is proposed to be terminated before the expiry of the normal term of five years, should be informally apprised of the grounds of the proposed action and afforded a reasonable opportunity for showing cause against it. It is desirable that the President (in effect the Union Council of Ministers) should get explanation, if any submitted by the Governor against the proposed removal from the office, examined by the advisory group consisting of the Vice-President of India and the Speaker of the lok Sabha or a retired Chief Justice of India. After receiving the recommendations of this group the President may pass such orders in the case as he may deem fit.
Para (4.16.07) (4.8.09) - contemplates that when, before expiry of the normal term of five years, a Governor resigns or is appointed Governor in another State, or has his tenure terminated, the Union Government may lay a statement before both Houses of the Parliament explaining the circumstances leading to ending of the tenure. Where a Governor has been given an opportunity to show cause against the premature termination of his tenure, the statement may also includes the explanation given by him, in reply.
Para (4.16.08) (4.9.04) - enunciates that as a matter of convention, the Governor should not, on demitting his office, be eligible for any other appointment or office of profit under the Union or a State Government except for a second term as Governor or election as Vice-President of India or President of India. Such a convention should also require that after quitting or laying down his office, the Governor should not return to active party politics. 31
Sarkaria Commission in its findings have evolved the guidelines pertaining to relations between the President, in other words the Central Government, on the one hand and the Governors of states on the other hand. Sarkaria Commission in its report of far reaching import has tried to provide the safeguards to the State Governors against their arbitrary removals. The report reflects that Audi Alterum Palterum should be made available to this constitutional functionary of very high repute against his arbitrary sacking. The findings viewed that right of representation should be made available to the Governors which is desperately needed to him.
It is pertinent to mention here that Article 311 provides constitutional safeguards to civil servants against any arbitrary dismissal from their posts.
Article {311(2)} states that No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. 32
Report of Sarkaria Commission is not only in favor of providing constitutional safeguards to the Governors in case of their
31 Ibid, Note-18, P-386. 32 Bare Provisions: the Constitution of India, Universal Publication, New Delhi, 2005, P-257 arbitrary removal, but has proposed with a sound hierarchical process of bodies consisting of highest constitutional functionaries to look into in, the matter of arbitrary removal of Governors.
5.9 Report of National Commission Report of the National Commission to Review the working of the Constitution, has also made recommendations in regards to the affairs of Governors in India in the following segments:-
Para 8.14.1 The Commission had issued a consultation paper with a questionnaire on the office of the Governor for eliciting public opinion. The issues raised and the suggestions made in the consultation paper relating to amendment of Article 155, 156, with a view to entrusting the selection of Governors to a committee making the five years term a fixed tenure providing the removal only by impeachment.
Para 8.14.2 After carefully considering the public response and after full deliberations, the Commission does not agree to dilute the powers of the President in the matter of selection and appointment of Governors. However, the Commission feels that the Governor of a State should be appointed by the President, after consultation with the Chief Minster of the State. Normally, the five years term should be adhered to and removal and transfer of Governor should be by following a similar procedure for appointment i.e. with the Chief Minister of the concerned state.
Para 8.14.3 The Commission recommended that in the matter of selection of a Governor, the recommendation of the Sarkaria Commissions may be kept in mind. 33
The National Commission in its report has emphatically under lined the report of Sarkaria Commission in the matter of selection of Governor and is of the view that the five years term of the Governor must be adhered to. The National Review Commission has touched another vital issue of Consultation with Chief Minister of the State not only in the case of appointment of the Governor but also in the case of transfer of the Governor.
However, the sacking of Governors by the highest constitutional functionary is not a new phenomenon in Indian polity. It is a natural corollary that with the change of the party or alliance in power at the Centre, the Governors must change.
5.10 Scenario of One Party at the Centre and State So long as there is one party rule at the Centre as well in the State the institution of Governor remains dormant. The first and in some way the most interesting instance of a Governor acting wrongly of his own against the wishes of the Prime Minster, is the installation of the Rajagopalachari Ministry by Governor Shri Prakasha in Madras in 1952. The Congress Party was in minority at the time of general elections and Mr.Nehru recommended the democratic procedure of
33 Report of National Commission to Review the Working of the Constitution. V.I, Universal Publication New Delhi, 2002, P-165. allowing the other parties, if they could muster a majority, to form a Ministry.
In a letter to Rajagopalachari, Nehru said that one thing we should avoid is giving the impression that we stick to the office and that we want to keep others out at all costs. But Sri Parkasha and Rajagopalachari, to whom he consulted and the most congressmen favored Executive Government presumably as an alternative to a ministry responsible to the Legislature. They were of the view that the communists should be kept out of office and it should be asserted as axiom of Indian Politics that the Congress ruled India whatever the electoral setback in certain parts of Country. Rajagopalachari wrote to Nehru that it would not be justifiable from any point of view, even of ideological democracy to leave patches of rebel area and go into disorder. and that we can not work our democracy in fractions of India. Nehru vetoed the suggestion of permanent Congress hegemony and observed that the electoral defeat of Congress did not amount to the failure of the Constitution. Nehru was convinced and said categorically that others would also be given a chance to function. Without informing Nehru the Governor nominated Rajagoplachari to the Upper House. He was thereupon elected leader of the Congress Party; and the Governor ignoring Nehrus specific reminder that the Chief Minster should be a member of the Lower House invited Rajagoplachari to form the Government. The Prime Minister and President disapproved of the whole business but the matter had to be left at that the Governor has acted within his constitutional discretion, even though his action was violative of democratic morality and was of dubious constitutional propriety. 34
The Congress party, however, in the above episode approved the unconstitutional act of the Governor under the umbrella of discretionary power of the Governor; obviously, the Governor was of same complexion as that of the Centre. If there have been the Governor sponsored by the party other than the Congress, he might have been sacked away.
In fact the party or alliance in power at the Centre, wants to know in clear terms whether the Centre Governments policies and strategies are being followed in the States. The Centre Government remains alert with the help of Governors particularly with regards to the affairs of State Government which is not of her complexion. The Centre Government always remains busy in finding out the ways and means to topple the Governments of political parties which are not of her complexion. Those Governors who do not endeavor shoulder to shoulder with the Central Government have to go unheard. Thus, so far there is one party rule, both at the Centre as well as in the State; the Governors complete their normal term of five years.
Contrary to the beliefs of the framers of the Constitution the Governors are removed for reasons not at all within their contemplation. A change of Government at the Centre and desire to
34 Sigh, L.P: Guide, Philosopher and Friend, in book, The Governor: Sage or Saboteur, Roli Books International, New Delhi, 1985, P-45. reward the party men has in some cases led to the removal or transfer of Governors before expiry of their terms.
Instances of removal of Governors by the Central Government are not scanty. Article 156 of the Constitution whose clause 3 is controlled by Clause 1 has been used and misused by the Central Government for sacking the Governors not due to constitutional or juristic reasons but in the wake of political reasons . To elucidate the use and misuse of this Article, it is imperative to highlight some instances of removal of Governors rather we can say the arbitrary removal of Governors. The instances of this pedigree bring into light the phenomenon, that the recommendations of Sarkaria commission were given no waightage while removing the Governors from their august offices. Recommendations of Sarkaria Commission are an earnest attempt to fill the hiatus of constitutional provisions pertaining to institution of Governor.
5.11 1980 Episode of removal of Governor of Tamil Nadu The Governor of Tamil Nadu, Prabhu Patwari was appointed by the Janta Paety Government who was in keeping of Gandhian ideology. The moment he joined the Raj Bhawan in Tamil Nadu, he banned drinking, smoking as well as serving nonvegetarian food in the Governors house. In the mean time the Government at the Centre changed and the Congress party came into power. According to his ideology, he did not allow to serve the drinks as well as the non vegetarian food to the VIPs of the Congress Government. This coupled with the views of the Central Government, in other words the Congress (I) Government that the Governor should resign the moment a new Government came to power, led to the withdrawal of the Presidents pleasure and consequent removal of the Governor on 26 th
of October 1980. 35 Hence, it has become a natural corollary, that party in power at the Centre, equipped with Article 156 of the Constitution with one pretext or the other remains busy in finding out the ways and means to sack the Governors which are not of her party as well as ideology.
5.12 1981 Episode of removal of Governor of Rajasthan In a leading case, the Rajasthan High Court upheld the dismissal of the Governor of Rajasthan, Raghukul Tilak, by the President. Raghukul Tilak assumed office of Governor during the regime of Janta Party. He was removed from office on August 8, 1981, by the Indira Gandhi Government.
The Court pointed out that the Governor while discharging his functions works as a channel of communication and contact between the State and the Centre; the Governor is an appointee of the President and expressly holds office during his pleasure. The Governor thus has no security of tenure and no fixed term of office. Article 156(3) is controlled by the Article 156(1) of the Constitution. The President in exercise of his pleasure may cut short the five years term of the Governor. Consequently, the President can ask the Governor to resign or may terminate him from his office. The Governor may be removed
35 Sorabjee, Soli, J : The Constitution and Governor, in Book, The Governor: Sage or Saboteur, Roli Books International, New Delhi, P- 19. by the expression of Presidents displeasure before the normal term of five years and the Presidents pleasure under Article 156(1) is unjustifiable. 36
Forgoing expression makes it vivid that removing a Governor is much easier than removing an employee of the Central Government, while both hold office during the pleasure of the President. A Government servant enjoy protection of Article 311 and many other legal remedies under Administrative Law as well as under civil service rules while no such statutory or non statutory remedies are available to Governor against his arbitrary removal.
5.13 1989 Episode of Dismissal of Governors by N.F. Government A glaring instance of removing the Governors from their offices is the dismissal of all State Governors appointed by the congress (I) Government by the National Front Government under the stewardship of Mr. V.P. Singh as Prime Minster of India. The manner, in which the Governors were asked to resign by the President, was to defy the spirit of the Constitution. This unconstitutional event has deteriorated the status and dignity of this office of high repute.
National front Government viewed that the previous Congress Government had made political appointments of Governors which were not proper and the present Government is committed to remove corruption from public life. It was also argued that with the change of the Government at the Centre, the Governors should also be changed
36 Surya Narain v/s Union of India, AIR 1982 Rajasthan, P-1. in order to give the new Government the opportunity to tone up the administration. 37
It is submitted that the National Front Government under the pretext of toning up the administration of the Country removed all the Governors appointed by the previous Congress (I) Government with the handy available armory of Article 156 of the Constitution. Offices, thus, vacated were filled by the party in powers by her own party leaders. In fact, it is the only available modus operandi with the party in power to compensate with the office of the Governor to her party leaders who could not find berth in the Parliament.
5.14.1991 Episode of Removal of Governors by Congress Government When the Congress party came into power at the Centre in 1991, the position and status of the office of Governor was further devaluated. Congress party which had at that time criticized the action of Mr.V.P.Singhs Government did the same thing. Mr. Narsimha Rao Government changed at least 14 Governors who were appointed by Mr. V.P.Singh and Chander Shekher Governments and replaced them with party leaders. This act was done merely to devaluate the institution of Governor.
Sarkaria Commssion does not favor the summary curtailment of 5 years term of the Governors except for extremely compelling reason. The Commission strongly recommended against the
37 Pandey, J. N: Constitutional Law of India, Central Law Agency, Allahabad, 2008, P-514. appointment of discarded or defeated politicians to the august office of Governor as they would try to justify their choice by acting as agents of the centre. 38
5.15 Dismissal of Governor of Bihar in 1991 The Centre Government withdraw the pleasure of the President and dismissed the Bihar Governor Mr. Yunus sleem on February13, 1991 for committing the impropriety in criticizing the imposition of Presidents rule in Tamil Nadu in course of his speech to the joint session of the Bihar Legislature on February10, 1991. He was dismissed after he refused to cave in to intense pressure from the New Delhi to submit his resignation. 39
5.16. 1992 episode of dismissal of Governor of Nagaland The removal of the State Governor was again brought in to focus by the summary dismissal of the Governor of Nagaland, Shri M.M. Thomas on April 11, 1992. Earlier, the Governor had dissolved the State Legislative Assembly on the advice of then Chief Minister retaining him as a Care Taker Chief Minister till fresh elections could be held. The Governor had done so in the exercise of his powers under Article 172(2) (b) without consulting the Centre Government before taking such an action. The Centre Government did not approve the action of the Governor. Accordingly, Centre imposed the Presidents rule in the State under Art. 356 on April 2, 1992 and dismissed the Governor soon after. The Centers justification for taking the action
38 Ibid, Note-37. 39 Kashap, Anirbhan: Governors Role in India Constitution, Lancer Books, New Delhi, 1993, P-146. was that the Chief Minister had already lost his majority in the legislature, when he advised the Governor to dissolve the House. The opposition parties in Parliament described Centers action as an attack on the federal character of the Constitution.
The above episode did bring to the forefront, the issue of crucial importance to the Indian federalism that whether the Governor is a constitutional functionary in his own right or he is bound to seek the consent of the Centre. Theoretically speaking as per the constitutional provisions, the Governor is entitled to decide of his own that whether the powers vested in him by the Constitution should be exercised or not at a particular movement. It is not necessary to seek the Centers consent to his proposed exercise of such power. Therefore, in theory, in the instant case, the Governor may not have done any thing wrong or improper in exercising his power under Article 174 and dissolving the House. But, then, hitherto, the practice has been developed in the different manner. Governors rarely act in their own judgment independently of the centers view. They usually act either at the behest, or with the consent, expressed or implied of the Centre.
This practice cannot be regarded as being in conformity with constitutional rectitude. Even politically this practice is not sound because the Centre and the State may belong to different political parties and the decision of the Centre Government in such a situation may have political overtone. Therefore, it will be best to leave the Governor who is man at the spot free to decide as to how to exercise his constitutional powers and the situation arises. 40
5.17 Removal of Governors by U.P.A. Government in 2004 The Supreme Court referred to a five judge bench, a writ petition challenging the removal of four Governors appointed during former National Democratic Alliance regime, observing that the important question of law relating to appointment and removal of Governors requires consideration by the larger bench.
In July 2004, the United Progressive Allaince Govrnment removed Kailash Pati, Kedar Nath Sahni, Babu Parmanand and Vishnu Kant as Governors of Gujrat, Goa, Haryana and Uttar Pradesh, admitting the Petition challenging their removal, the Supreme Court has sought a response from the Centre Government. In its reply, the Centre Government asserted that the term of office of five years for a Governor was subject to the doctrine of pleasure of the President embodied in Article 156(1) of the Constitution. It said that the five years term is not absolute and can be abridged at the pleasure of the President implying that the President has the unfettered power to order the removal of the Governors and that could not be questioned in the Court of law. The Centre submitted that the exercise of a power founded on the doctrine of pleasure even though the same was on the aid and
40 Jain M.P. Indian Constitutional Law, Wadhwa, Nagpur, 2005, P. 332-33. advice of Council of Ministers could not be questioned by the Court particularly in view of the bar of Article 361(1) of the Constitution granting immunity to the President. The affidavit denied the allegation that the four Governors were removed due to ideological difference. It said that the allegation of the petitioners that they were removed due to differences in ideology was based on some media reports and not in facts, the Center said that Constitution did not specify any ground for revoking the pleasure of the President resulting in the removal of the Governor and added that the Constitution also did not specify any procedure for their removal. 41
History is being repeated now, though the axe has fallen only on four Governors so far. The assumption that the Centre which is an appointing authority has the right to dismiss the Governor without giving him reason for it or following any legal procedure, ignores the basic right of every citizen in our democracy to be heard before he is punished. The Governor is a constitutional functionary entrusted with solemn responsibility to preserve, protect and defend the Constitution and the law. He takes the same oath on the assumption of the office as that taken by the President with the difference that the Governors oath refers to the well being of the people of the State, while the Presidents oath refers to the well being of the whole country. His is an independent office which is not subject to the control of Central Government.
41 W.W.W. India. Org, site visited on 18.9.2008. 5.18 Summarily dismissal of Governors: a fallacious doctrine In the wake of power politics, some highly fallacious theories and doctrines had been propounded by certain political parties and leaders about the right of Central Government to summarily dismiss the Governors of the State. The explanation furnished by the Central Government is as wrong as Mufti Doctrine of 1990 when the V.P.Singh Government demanded resignation of all Governors through letter addressed to the President, Mr. R.Venkatarman in January 1990, the theory put forward by then home Minster Mufti Mohammad Sayeed was that with the change of Government at the Centre there should also be a change of Government in the States. The theory was that the Governor should be the Centers own man irrespective of the fact that the Constitution expected him to be totally non partisan and impartial functionary. 42
The President of India, who holds office for a term of five years, can be removed from office only by impeachment for violation of the Constitution, after following the elaborate procedure provided in Article 61 of the Constitution. A Judge of the Supreme Court or a Judge of a High Court can be removed from his office only on the ground of proved misbehavior or incapacity and after an address by each House of Parliament, supported by majority of total membership of the House and by a majority of not less than two-thirds of the members of that House
42 Ibid, Note-41. present and voting, has been presented to the President in the same session for his removal. (Articles124 (4); 217). The Comptroller and Auditor-General of India and Election Commissioner can only be removed from office in the like manner and on the like grounds as a Judge of the Supreme Court.(Article148; 324.) The Chairman or any other member of the Public Service Commission, in normal course, may be removed from his office on the ground of misbehavior. (Article 317) Any member of a civil service of the Union or a State, however low in the hierarchy, cannot be removed without being accorded a reasonable opportunity of being heard, barring certain exceptional cases specified in the Constitution. Yet a Governor, the head of a State, has no security of tenure, nor any safeguard against his removal. 43
It is pertinent to highlight here the facts that the framers of the Constitution did not expressively ensured security of tenure and safeguards against the arbitrary removal of the Governors. The silence of the founding fathers in this matter was due to the fact that the removal would be only for violation of the Constitution or such misbehavior as would render the person unfit to occupy the office of Governor.
43 Sorabjee, Soli, J: The Constitution and the Governor, in book, The Governor: Sage or Saboteur, Roli Books International, New Delhi, 1985. Professor K.T Shah in the course of debate in Constituent Assembly specifically raised the point that we must not leave the Governor to be entirely at the mercy or pleasure of the President and so long he acts in accordance with the advice of the constitutional advisers of the Province, he should, I think, be irremovable during term of office, that is, five years according to this Article. Shah moved an amendment proposing that the Governor could be removed from office not only on the ground of violation of the Constitution but also on the other grounds, such as treason or any offence against the safety, security or integrity of the Union, bribery or corruption, or on account of physical or mental incapacity duly certified. 44
The intentions of the framers of the Constitution can be inferred from the above propositions that though they were in favor of the Presidential nomination of the Governor at the cost of an elected Governor, but their intention can nowhere be inferred that they were in favor of keeping the Governor insecure to this extent. (Emphasis supplied) The absence of safeguards was also castigated by Professor Shiban lal Saxena in forth right terms that He will be purely a creature of the President, that is to say the Prime Minister and party in power at the Centre. When once a Governor has been appointed, I do not see why he should not continue in office for his full term of five years and why you should make him removable by the President at his whim. It only means that he must look to the President for continuing in office and so continue to be subservient to him. Such a Governor
44 Constituent Assembly Debates, V. VIII, Lok Sabha Secretariat, New Delhi, 1999, P-471. will have no independence and my point is that the Centre might try to do so some mischief through that man. 45
Futuristic contemplation of the framers of the Constitution has been proved to be absolutely true. The Centre in the real sense is doing mischief in the States by arbitrarily removing the Governors in one pretext or the other. At the same time it must be remembered that in removing the Governor the President acts on the advice of his Council of Ministers. His act, in truth, is the action of the executive Government and is not immune from judicial scrutiny. In such cases it is possible to challenge the action, not on account of breach of convention but on the ground that the power of removal, though absolute in terms, is subject to implied and inherent limitation, that it can be exercised only in violation of the Constitution, or other similar acts on the part of the Governor which render him unfit to occupy this constitutional office. Above all, any action which is established to be arbitrary or capricious or mala fide can be successfully challenged. In the memorable words of justice Bhagwati, No one, however highly placed, and no authority, however lofty, can claim that it shall be the sole judge of the extent of its power under the Constitution or whether its action is within the confines of such power laid down by the Constitution. It is for this Court to uphold the constitutional values and to enforce the constitutional limitations. 46
45 Ibid - 473. 46 State of Rajasthan v/s Union of India, SCR 1978 (1), P-31. Conclusive Remarks However the present scenario demands that the grounds for the removal of the Governor be expressively castigated in the Constitution and the removal process should be on the same grounds and in the same manner as the removal process of a judge of the Supreme Court or the High Court. These constitutional reforms are necessary to strengthen the role of the Governor and to make it more effective and meaningful. The observations of Pandit Jawaharlal Nehru, in this context, are worth quoting here: We have made a Constitution and we should abide by the Constitution, nevertheless, let it not be said that that Constitution, every part of it, every chapter and corner of it, is some thing that is so sacrosanct that it cannot be changed even if the needs of the Country or the Nation so required. Undoubtedly, it can be changed whenever necessary, not lightly but after full thought, if it is thought that the part of the Constitution comes in the way of the nations progress. 47
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47 Jagdish Swarup: Constitution of India, V.2, Modern Law Pulications, New Delhi, 2006, P-V.