THE GOVERNOR: CONSTITUTIONAL POSITION AND POLITICAL REALITY

Author(s): RAJNI GOYAL

Source: The Indian Journal of Political Science , Oct. - Dec. 1992, Vol. 53, No. 4 (Oct. -
Dec. 1992), pp. 505-523
Published by: Indian Political Science Association

Stable URL: https://www.jstor.org/stable/41855632

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 THE GOVERNOR: CONSTITUTIONAL
POSITION AND POLITICAL REALITY

RAJNI GOYAL

Article 153 of the Indian Constitution provides that "there

shall be a Governor in each State." However the Seventh
amendment in 1956 makes it possible to appoint the same p
as a Governor for two or more States. Regarding his app
ment Article 155 stipulates that the Governor of a State sh
appointed by the President of India by warrant under his
and seal. Article 156 says that the Governor shall hold o
during the pleasure of the President. Subject to this pro
he shall hold office for a term of five years from the dat
which he enters upon his office. The Governor can resig
writing a letter of resignation addressed to the President.
former Governor continues to hold office till the new Governor
enters upon his office. Since he holds office during the pleasure
of the President no process of impeachment or any other method
of removal is not prescribed by the Constitution.

Qualifications for this post are that the person should have
completed the age of 35 years and should be a citizen of India.
He should not be a member of the Union or State legislature,
and if he is, his seat in the house falls vacant on the date on
which he enters the office as Governor. He shall not hold any
other office of profit. His emoluments, allowances and privileges
may be determined by parliamentary laws. No criminal proceed-
ings can be instituted against the Governor during his term of
office and no proceedings for his arrest or imprisonment can be
taken by any court. Civil proceedings in respect of an act done
by the Governor in his personal capacity can be instituted after
the prescribed statutory notice.

The Indian Journal of Political Science, Vol. 53» No. 4, Oct. - Dec. 1992

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506 THE INDIAN JOURNAL OF POLITICAL SCIENCE

Powers and Functions of the Governor

The powers exercised by the Governor can be studied under

two broad headings. Firstly, those powers which he exercises
with the aid and advice of the Chief Minister and his Council of
Ministers and secondly those powers which he exercises in his
discretion.

Powers Exercised on the Aid and Advice of the Chief Minister and
Council of Ministers

Article 154 states that the executive powers of the State

shall be vested in the Governor and shall be exercised by him
either directly or through officers subordinate to him in accor-
dance with this Constitution. The word subordinates includes
all the Ministers and the Chief Minister. Unless they were sub-
ordinate to him they could not excercise the executive powers
vested in him.1 His executive powers are co-extensive with the
legislative powers of the State legislature. It covers all the
subjects on which the State legislature can enact laws. A situa-
tion could arise when there is no rule or law of the legislature
relating to a particular subject. In that case the Governor can
exercise his executive powers by issuing administrative rules,
orders, circulars, instructions so long as the legislature does not
make any law on that subject.2

The Governor is required to frame rules of business allocat-

ing work to different ministries, Through the rules of business
and standing orders the Governor may delegate any of his execu-
tive powers except those actions which are to be exercised by him
at his discretion, to his ministers. By these rules, the Governor
on the advice of the Council of Ministers, allocates the various
subjects amongst particular ministers. These rules may empower
the Minister in charge of a subject to issue orders for the disposal
of matters within his charge.

He appoints the Council of Ministers for the State, the

Advocate General and the members of the State Public Service
Commission. As regards his legislative powers, vide the Twenty
Third Amendment in 1969, he appoints one member of the
Anglo-Indian community to the Legislative Assembly wherever
necessary* He also appoints a few members in the State Legis-
lative Council, if there is one, in the State» These persons should

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 THE GOVERNOR: CONSTITUTIONAL ... POLITICAL REALITY 507

have made their mark in the field of arts, science, literature or

social sciences etc. These appointments are also made in con-
sultation with the C. M. and his Ministers. The validity or
invalidity of these nominations cannot be enquired into by the
courts. The Governor is not bound to disclose any facts relating
to such nominations.3 If the office of the Speaker and Deputy
Speaker in the Legislative Assembly or that of the Chairman
and Vice-Chairman in the Legislative Council falls vacant, he
can appoint any other member from the Assembly or the Coun-
cil to take charge.

However the most important legislative power is that of

issuing ordinances. They are issued by him after the advice of
the President or the Chief Minister and his Ministers. He can
promulgate an ordinance under Article 213 (1) only when the
State legislature is not in session in order to meet an emergency
which requires immediate action. Under Article 213(2) such
an ordinance will have the same force as a law, that every such
ordinance will be laid before the State legislature and shall cease
to operate at the expiry of six weeks from the reassembly of the
legislature, or if before the expiration of that period a resolution
disapproving it is passed by the state legislature. An ordinance
can also be withdrawn by the Governor at any time. There are
three circumstances under which the Governor cannot promulgate
an ordinance without prior instructions from the President.
Fristly, if a bill containing the same provisions would require the
prior sanction of the President before its introduction; secondly,
if he would have deemed it necessary to reserve a bill containing
the same provisions for the consideration of the President; and
thirdly, if an act under the same provision would have been
reserved for the consideration of the President and would have
received his assent.

The power of issuing ordinances is an extremely useful one as

it facilitates immediate action in an emergency. But it must
always be exercised in good faith. Seervai, quoting Mr. Wadhwa's
work dealing with ordinances in Bihar, points out that a state
could be governed principally by ordinances without very little
legislative enactment. He says that in Bihar between 1971-1981,
163 acts were passed by the legislature and 1956 ordinances were
promulgated by the Governor In other words, in eleven years,

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508 THE INDIAN JOURNAL OF POLITICAL SCIENCE

taking an average, for every one act of the legislature there were
twelve ordinances of the Governor.4 In Bihar some ordinances
had a life of 13 to 14 years. This can happen because there is
no bar in the constitution to the number of times the Governor
can promulgate the same ordinance.
The Governor is also the ex-officio Chancellor in some of the
Universities and as such has statutory powers of the appointment
of the Vice-Chancellor or of nominating members to the various
bodies of the University. The Governor while doing so, generally
acts on the advice of the Chief Minister, but there have been
instances when the Governors have ignored the advice of the
Chief Minister.5 He must also consult the Education Minister
while appointing the Vice-Chancellor. Whenever the need arises
for a new Vice-Chancellor, the Chancellor appoints a committee
consisting of the State Government's nominee, a nominee of th
University Grants Commission, a nominee of the University
Senate and the Chancellors nominee. This committee prepare
a panel of names from among which, the Governor chooses one.6
His powers as Chancellor are not defined by the constitution but
are given by the enactment of the State legislatures. Hence they
vary from state to state. In all cases, as head of the state, he
must endeavour to maintain the autonomous character of the
university and must keep it free of political interference.

The Governor of a state also has the power to grant pardons,

reprieves, respites or remissions of punishment or to suspend,
remit, or commute the sentence of any person convicted of any
offence against any law relating to a matter to which the execu-
tive power of the state extends. He can also grant amnesty«
There is a difference between the pardon granted by the Presi-
dent under Ariticle 72 and by the Governor under Article 161.
The President has an exclusive power to grant pardon in cases
where the sentence is a sentence of death. Secondly, the Presi-
dent can pardon punishments or sentences inflicted by court
martial. The Governor has no such powers.7

Discretionary Powers of the Governor

It would be interesting to note at the outset that wherea

Article 74 not bestow on the president any discretionary powers,
Article 163 makes the Governor sole judge in matters in which
he is required to act in his discretion. Article 163 (1) explicitly

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 THE GOVERNOR: CONSTITUTIONAL ... POLITICAL REALITY 509

gives him discretionary powers when it says, "There shall be a

Council of Ministers with the Chief Minister at the head to aid
and advise the Governor in the exercise of his functions, except in
so far as he is by or under this constitution required to exercise
his functions or any of them in his discretion. If any question
arises whether any matter is or is not a matter as respects which
the Governor is by or under this constitution required to act in
his discretion, the decision of the Governor in his discretion shall
be final and the validity of anything done by the Governor shall
not be called in question on the ground that he ought or ought
not to have acted in his discretion."

The question whether, any, and, if so what advice was

tendered by Ministers to the Governor shall not be inquired
into in any court.

Besides this there are other articles too such as

(a) article 166(3} which states that the Gavernor can make
rules of business except in cases where he can act in his
discretion.

(b) article 200 says that the Governor can reserve a bill for
the consideration of the President.

(c) article 356(1) provides that the Governor can make a

report about the failure of the constitutional machinery
in the State.

(d) article 239(2) gives him certain functions when appoint-

ed to be Administrator of a Union Territory.

(e) article 239(2) bestows on him the power to make rules.

(f) Sixth Schedule - This gives the Governor of Assam
two discretionary powers; the first deals with disputes
between the Government of Assam and an autonomous
Tribal District Council with respect to the sharing of
royalties that accrue from the lease of mining rights
within the autonomous district; the second relates to
the manner in which the Governor may apply certain
special administrative provisions in the constitution
with respect to tribal areas in Assam vis-a-vis particular
tribal areas.
P - 11

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510 THE INDIAN JOURNAL OF POLITICAL SCIENCE

Besides the Governor has certain special responsibilities to>

discharge according to the directives issued by the President
under Article 371(2), 37 1 A( 1) (b), 371G etc. He does not have
to consult the C.M. or his Council of Ministers.

Although the word 'in his discretion' is mentioned in the

constitution, the provisions relating to the exercise of these
powers are couched in general and vague terms. K. V. Rao, a
noted political scientist lays the blame for this vagueness on the
defective composition of the Constituent Assembly and lack of
time at the disposal of the Assembly. He says "The whole set of
articles numbering about 20 concerning the state governments
were passed in a hurry in one day ... that the whole constitution
and its structure was envisaged in such away as if ... the congress
and its then High command would be in power for a long time.*
The authority of the Governor even in the discretionary field is
not unrestrained. If it is misused either as a result of personal
ambitions or as partisan in the currents and cross currents of
state politics, the President can always check him, if necessary,
he may even remove him. "Discretion has to be exercised so as
not to jeopardise the working of parliamentary democracy."*
Following are given some cases when an opportunity arises for
the Governor, to exercise his discretion:

(a) Appointment of a Chief Minister

In case, when there is a party in the state legislature with a

clear-cut majority, the Governor has no discretion because he
has only to invite the leader of the party to become the Chief
Minister, This did not pose any problems till 1967 because the
Congress enjoyed a comfortable majority both at the Centre and
in the States. The post- 1967 period, posed a dilemma as the
Congress after the General Election of 1967 elections was reduced
to a minority in eight states.. Several questions of importance
arose. In case there was no party with an absolute majority in
the state legislature, should he invite the leader of the single
largest party? This may be the congress again in some states and
asking it to form the government would be wrong because "the
voters may or may not have voted in favour of the opposition,
one thing is clear that they certainly voted against the congress.10
Or, should he ask the leader of the single largest opposition party
or a group of parties merged in a coalition to form the govern-

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 THE GOVERNOR: CONSTITUTIONAL ... POLITICAL REALITY 511

ment? Noted constitutional experts have supported this view

that the leader of the opposition be invited if he is sure of pro-
viding a stable government, K. Subba Rao opines that the
leader of the opposition be invited unless his chances of forming
the government are quite bleak. The term 'stability* is taken to
mean not only the numerical superiority of the ruling party but
also its ability to hold on to the majority strength and continuing
with it.11 In both the above given cases the problem becomes
embarassing and complicated due to the presence of independents
in the legislature and defections from one party to the other. No
easy solutions are available and "whichever minority party or
group of parties was called upon to form a government, stood
the chance of converting itself into a majority by securing the
support of defectors from other parties by promising ministerial
office to the leaders of the defectors."12

How, then, is the Governor to make his choice? For this

purpose the Governors have generally employed these three
methods: List system, Parade system or Physical Verification and
List-cum-Parade system. Under the first method he can ask the
contenders a list of their supporters and to enquire from each
member his choice. If the balance is held by the independents
he must enquire from each independent, his verdict. The parade
system is the physical verification of the list in the Assembly. He
must summon the session of the Assembly and ask the conten-
ders to show their strength without the least possible delay.
The result is not very satisfactory and does not give effect to the
verdict of the electorate. But the electorate has to thank itself
for not giving a clear verdict."13 In case he used both the methods
it is known as list cum parade method.

(b) Dismisssal of the Chief Minister and the Council of Ministers

This issue raises a number of knotty questions and has been

used by the Centre to assert its own hegemony at the state level.
In theory the Chief Minister and his ministers according to
Article 164(1) hold office during the pleasure of the Governor.
Yet they are not totally at the mercy of the Governor because
clause (1) of article 164 must be read together with clause (2) of
the same article. It says that the Council of Ministers is collec-
tively responsible to the state legislature. It also includes the
Chief Minister ostensibly for he is the head of this council. This

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512 THE INDIAN JOURNAL OF POLITICAL SCIENCE

means that so long as the ministry enjoys the confidence of the

legislature it can hold office. However the phrase is not as simple
as it sounds and may lead to several complicated problems some
of which are dealt with below: What happens when a Chief
Minister and his partymen are reduced to a minority in the
legislature through defections? The Governor in this case can
ask the G. M. to prove his strength on the floor of the Assembly.
The Committee of Governors appointed by the President in
1970, had recommended that a CM's refusal to test his strength
on the floor of the Assembly can well be interpreted as prima
facie proof of his no longer enjoying the confidence of the legis-
lature. It may also happen that a reluctant C. M. may try to
change the date of the Assembly meeting. When the C. M.
dilly-dallying tries to bypass the meeting, the Governor has no
alternative but to dismiss the G. M. and his ministry. He can
also make a report to the President under article 356 regarding
the failure of constitutional machinery in his State. In case, the
strength is tested during an Assembly meeting and the C. M.
fails to muster a majority he can easily be dismissed by the
Governor. What is to be emphasized here is that dismissal should
take place only after a clearcut verdict by the Assembly. In
other words, Article 164(1) should come into force when Article
164(2) has been fully observed. A situation may arise when a
defeated ministry refuses to resign even after a vote of no-confi-
dence has been passed against it. In such a circumstance the
Governor is entitled to dismiss the ministry and install a new
ministry in the State.14 Defeat of the government on important
policy matters, for instance the budget, also tantamounts to a
vote of no-confidence against the Government and creates ground
for the intervention by the Governor and would in all probability
lead to the dismissal of the government.

But what would happen in case of a Chief Minister who is

accused of corruption, maladministration or any other unpatrio-
tic deed and is enjoying the confidence of the house. Pylee says
that a Chief Minister or a Minister can be removed if they under-
mines the unity of the nation and establish an independent state
or enter into secret negotiations with a foreign power with a view
to breaking away from the federal union. The Governor may
justifiably dismiss such a Ministry, even if it enjoys a majority in
the legislature."15 In cases of corruption too the Governor can

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 THE GOVERNOR: CONSTITUTIONAL ... POLITICAL REALITY 513

order the prosecution of the Chief Minister which may sub-

sequently lead to his dismissal. The case of Antulay can be
cited here. Mr. M. A. R. Antulay took over as the C. M. of
Maharashtra in 1980. In August 1981 an eminent journalist
Arun Shourie in an article in the fIndian Express* charged Mr.
Antulay with abuse of power in allotting cement, an essential
commodity in short supply to certain bigbuilders as quid pro quo
for donations made to the trusts which he had created, contrary
to the guidelines laid down for equitable distribution. P. B.
Samant and others filed a petition in the Court of Justice Lentin
and Antulay was found guilty of corruption.

Antulay resigned and appealed to the Appeal Court, The

latter Shri Mehra upheld the verdict of Justice Lentin. The
Government of Maharashtra acting on his own discretion after
giving a sull hearing to Mr. Antulay gave his sanction to the
applicants to prosecute Antulay under the prevention of corrup-
tion Act.

(c) Dismissal of a Minister or the Council of Ministers

When the Governer appoints the Chief Minister under

Article 164 (1) he is not acting on anyone's advice. But while
appointing the Council of Ministers under the same clause he
acts on the advice of the Chief Minister. This would imply that
he is not as free while removing a Minister or the Council as a
whole as he is while removing the Gheif Minister. The advice
of the Chief Minister is obligatory on the part of the Governor
with regard to the dismissal of other Ministers. "In the absence
of such authority in the hands of the Chief Minister, parliamen-
tary democracy is nothing but a farce."16 The Governor can
dismiss a Minister on the advice of the Chief Minister. How-
ever, he cannot dismiss the ministry in a collective form, for the
words "during the pleasure of the Governor" in reality mean the
pleasure of the legislative assembly. The right to oust them
collectively belongs to the Assembly and not to the Governor.
Lastly, in all cases of dismissal either of the C.M., a Minister or
the entire ministry the decision of the Governor is final and can-
not be challenged in any court of law.17

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514 THE INDIAN JOURNAL OF POLITICAL SCIENCE

(d) Prorogation of the Legislature

The Governor exercises this power by virtue of the fact that

he is an integral part of the legislative process. A word may be
said here about the difference between adjournment, prorogation
and dissolution of the legislature. An adjournment is an interr-
uption in the normal business of the house in the course of one
and the same session and this power is exercised exclusively by
the Speaker. Prorogation means end of a session of the Assem-
bly; dissolution means the end of the Assembly and a signal for
fresh elections.

It is a convention that while prorogating the house the Gover-

nor must consult the Chief Minister and the Council. Yet this
principle cannot be accepted in toto. He has a discretion in this
regard which must be judiciously exercised. When the Chief
Minister advises the Governor to prorogue the Assembly in the
middle of the session to save the ministry from a defeat in the
Assembly or there is a no-confidence motion against the Chief
Minister or his Council, the Governor in his discretion can refuse
to do so. The C.M. may have lost his majority due to defection
or splits in the party and yet he was tempted to stay on in power
and indulge in horse trading to regain what he had lost viz*
majority support.18 In such a case the Governor must carefully
scrutinize the situation and proceed to prorogue only when he is
satisfied that the motion is not frivolous but genuine.

(e) Summoning the House

The Governor is empowered to summon the chambers of

the State legislature simultaneouly or separately but more
than six months should not elapse between two sessions.
Under Artcile 175 (1) he can also summon a joint session and
address both the houses. This does not hold good when the
State is under President's rule under Article 356 and the State
Assembly is dissolved or in a state of suspended animation. Con-
stitutional experts are sharply divided on the question whether
this is a discretionary power or not. Normally and conventionally
it ought to be treated as a duty rather than a power. He will
consult the Chief Minister and his Ministers because the latter
provide business for a session of the legislature. But, what
happens when a Chief Minister fearing a defeat in the Assembly

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 THE GOVERNOR: CONSTITUTIONAL ... POLITICAL REALITY 515

does not advise the Governor to summon the session. By not

summoning the legislature, would not the Governor be violating
the constitution? Can he be removed by the President for not
summoning the legislature? What would happen if the same
party is ruling at the Centre and in the State and the President
advised by his Council of Ministers (who also belong to the same
ruling party) advises the Governor not to summon the session?
What is the proper course of action? These question have no
dogmatic answers, since the Governors have behaved differently
at different times in the same context. Conflicting views of
jurists makes the situation still more confusing. Dr. Ambedkar
was of the view that since it was more of a duty rather than a
power by not summoning it he would be violating the constitua
tion. The Governor's conference held at New Delhi in 1970-
was of the opinion that since the Assembly was the proper fo
for assessing the claims of the contenders, the Governor co
summon it even if the Chief Minister advised against it. Exp
like C.K. Dephtary, M.C. Chagla and L.M. Singhi also hold
that, it is his discretionary power.

(f) Dissolution of the Assembly

If the ministry enjoys a majority and yet demands dissolu-

tion there is no alternative but to order dissolution. Similarly,
the Governor can order dissolution, under article 356, if the
Ministry resigns without passing the budget. But if the suggestion
of dissolution comes from a ministry that has lost its majority
and is afraid of the opposition taking over, the Governor can
refuse. In this case, it is his duty to summon the house and try
to find an alternative in the Assembly. In his discretion he can
refuse to accept the advice of dissolution. However he should
avoid entering into Controversy or becoming a party to the
politics of defectors himself. This august office should not be
misused by the Centre to engineer defections. The Congress
party has been particularly accused of this whenever its position
weakened in the States.

(g) Reservation of Bills for Reconsideration by the President

In the process of legislation, the Governor does not have a

total veto power but can only stall legislation. Under Article
200 the Governor can reserve a bill passed by the legislature for

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516 THE INDIAN JOURNAL OF POLITICAL SCIENCE

the reconsideration of the President. A bill can be reservrd under

the following circumstances: (i) if the bill is unconstitutional (ii)
if it is against the larger interest of the country, (iii) if it is indirect
opposition to the directrve principles of State policy, (iv) if the
bill passed by the State legislature is of grave national impor-
tance, (v) if it endangers the position of the High Court and (vi)
if the bill, under Article 31 (3) is dealing with the compulsory
acquisition of property.19 It is interesting to note that "Article
200 does not contemplate that the Governor shall first give his
assent and when the bill has become a full- fledged law, reserve it
for the consideration of the President. Reservation is an alterna-
tive to his giving or refusing assent to the Bill. Indeed in matters
where reservation is compulsory, the Governor is probihited from
giving his assent."20 But it is certainly a discretionary power
because the Chief Minister or the Council of Ministers would
certainly not advise the Governor to reserve a bill for the Presi-
dent after it has been passed by a majority in the legislature
However, the constitution does not specify the time limit within
which the Governor can reserve the bill and when the bill would
come back.

Under Article 201 when the Governor sends a bill to the

President for reconsideration the President has to declare whether
he is giving or withholding his assent. In cases of non-money
bill, the President if he is not giving his assent, can ask the
Governor to send the bill back to the House or Houses as the case
may be. The House or Houses will reconsider this bill, sent by
the President, within a period of six months from the date of
receipt of such message and if it is again passed by the House or
Houses, with or without amendment, it shall be presented agaia
to the President for his consideration.

(h) Governor's Assent to Bills and Returning of Bills Back to the House

Article 200 says that when a Bill has been passed by the
State legislature it shall be presented to the Governor and the
Governor declares whether he assents, is withholding assent or
reserving a bill for reconsideration by the President. In case of
money bills he cannot withhold his assent because under Article
207 money bills can be introduced in the State legislature after
the approval of the Governor. Hence he cannot withhold assent
to a bill he had apprved of in the first instance. He cannot send
a money bill back for reconsideration by the House.

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 THE GOVERNOR: CONSTITUTIONAL ... POLITICAL REALITY 517

In case of a non-money bill he can send the bill back to the

Assembly together with his recomendations in his message to the
House or Houses. The House or Houses will reconsider this bill
and if it is passed again with or without the amendments desired
by the Governor, the Governor cannot withhold his assent and has
to sign the bill. It may be mentioned here that returning the bill
to the legislature does not mean withholding assent. Siwach in his
study gives examples to prove his point and says that when assent
is withheld the bill is not sent back for reconsideration.21 Article
200 does not specify any time limit within which the bill has to
be sent to the legislature by the Governor, for reconsideration.
It merely uses the words "as soon as possible."

Time and again Governors have withheld their assent on a

particular bill because this power is given by Article 200. 22 But
generally, the power has not been used because probably that
was the intention of the Constitution makers. They certainly did
not want him to act as the super, limb of the legislature. Frequent
misuse of this power may lead to the resignation of the ministry.
Besides healthy parliamentary norms have taken shape in such a
manner that he does not use an absolute veto but can bypass an
embarassing position by reserving the controversial bill for the
Presidents' consideration.

{i) Governors Address

According to Article 175(1) the Governor can address either
house of the State legislature separately or both the houses
assembled together. He also delivers the special address at the
commencement of the first session after each General Election to
the Legislative Assembly at the commencement of the first session
of the year and an inaugural address at the budget session. The
address, whenever delivered, is prepared by the Chief Minister
and his Council of Ministers. The address must not make any
reference to the High Court and should be in accordance with
the oath that the Governor takes under Article 159. In all cases
it is a written speech and he merely intones the words of the
ministry. The important question in this regard is that can he
delete an objectionable part from this address. Prominent jurists
like Ashoka Sen and M. C. Setalvad have held the view that he
can avoid reading certain lines or paragraphs when these lines or
paragraphs condemn the Governor for his earlier actions (it
would be as if the Governor was delivering a verdict against his
P- 12

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518 THE INDIAN JOURNAL OF POLITICAL SCIENCE

own self) and of it is not within the limits of constitutional pro-

priety.

(j) Seeking Information

The right of the Governor to seek information from the
Chief Minister is again a discretionary one because it would be
fallacious to say that the Governor should consult the Chief
Minister before seeking information from him. Under Article
167(a) it is the duty of the Chief Minister to keep the Governor
informed about the decisions of the Council relating to the
administration of the affairs of the State and proposals for legis-
lation. Under Article 167 (c) the Governor is empowered to ask
the Chief Minister to submit for the consideration of the Council
of Ministers any matter on which a decision has been taken by
a Minister but which has not been considered by the Council.
This power is related to the power of asking for information.
"For while going through the decisions of the government both
by the Cabinet and individual Ministers, the Governor may come
across a particular decision made by a Minister which, in his
opinion, requires reconsideration by the Cabinet as a whole.28

Governor's Report and President's Rule under Article 356.

Under Article 356 the President can declare emergency in a

State on receipt of a report from the Governor of the State or
otherwise if he is satisfied that a situation has arisen in which the
government of the State cannot be carried out in accordance
with the provisions of the Constitution. An important aspect of
this article is that emergency can be imposed on a state even
without the Governor's report. Kathuria in his book "President's
Rule in India" has given an excellent analysis of the factors
that could lead to such an emergency. In brief they are: (a)
breakdown of law and order machinery, (b) political instability
as a result of defections, (c) paralysis of the parliamentary
process, for instance if even after losing the majority the Chief
Minister does not resign» (d) corruption, maladministration»
separatist activity and terrorism, (e) popular agitation against
the Ministry, (f) loss of public confidence in the majority, (g) a
party with an absolute majority refuses to form the government
and prevents the installation of a minority government, (h) no
coalition government is set up, (i) it can be voluntarily courted
by a State to override a peculiar or particular problem.24

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 THE GOVERNOR: CONSTITUTIONAL ... POLITICAL REALITY 519

Such an emergency can have the following effects : (a) the

President can assume to himself all or any of the functions of the
government of the State other than the High Court, (b) declare
that the powers of the legislature of the State shall be exercisa-
ble by or under the authority of the Parliament and (c) make
provisions necessary or desirable for giving effect to the objects
of the proclamation.

Every such proclamation must be laid before each house of

the Parliament and will cease to exist at the expiration of two
months unless before this term expires it has been approved by
both chambers of the Parliament. If during this time of two
months the Lok Sabha is dissolved and the Rajya Sabha has
approved then the proclamation shall cease to operate at the expi-
ration of thirty days from the date on which the Lok Sabha first
sits after its reconstitution, unless before the expiration of this
term it was approved by the Lok Sabha, A proclamation so
approved shall, unless revoked, cease to operate on the expiration
of a period of six months from the date of issue of the proclama-
tion. Unless revoked, its life can be extended by six months
«ach, several times, but in no case beyond three years.

Article 356 is a corollary to Article 355. The latter imposes

a duty on the Union to secure that the government of every
State is carried on according to the provisions of this Constitution.
The former gives the Union the power to ensure that Article 355
becomes effective and in case of difficulty to overcome it by
imposing Article 356.

The Governor while sending the report has to use his own
discretion and judgement. "By the very nature of the power it
cannot be exercised on the advice of the Ministry for it may very
often happen that the report may itself be a condemnation of
the Chief Minister to the effect that the government run by the
Chief Minister is not being conducted ... in accordance with the
constitution.25 At the same time, he must act bonafide and must
have materials to sustain his judgement that the government of
the State could really not be carried out*

Is the Governor an Agent of the Centrei

There are a few articles in the Constitution which make the

Governor an important link in the chain of relationship between

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520 THE INDIAN JOURNAL OF POLITICAL SCIENCE

the Union and the States. Article 160 says that the President
may confer on a Governor functions in any contingency not pro-
vided in the Constitution. Under Article 200 the Governor can
reserve a bill for the reconsideration of the President. Under
Article 356 emergency is proclaimed by the President on the
basis of the Governor's report or otherwise. Article 167 puts an
obligation on the Chief Minister to keep the Governor informed
about the state affairs and the latter informs the President.
Article 257 provides that the executive power of the State sha
be so exercised as not to prejudice the exercise of the executiv
power of the Union viz. the Governor should follow the advic
and instructions of the President.

Keeping these articles in mind, what exactly is the role of

the Governor vis-a-vis the Centre? Has he merely to function as
the 'good boy' of the Centre or can he exercise his own judge-
ment and discretion? The seeds of the problem are inherent in
his method of appointment. He is nominated by the President.
K.V. Rao says that it is this thing which is most obnoxious. He
says "Today at the root of all troubles is the simple fact that the
Head of the State is neither chosen by that State nor is he res-
ponsible to it, nor removable,,..81 By the very method of appoint-
ment and removal the Governor becomes subordinate to the
President and events prove that he cannot disobey him. R
distinguishes between his role as a 'link' and that of an 'agent
His role as a link is more positive than the role of an agent. H
"cannot be both these things at the same time. He should be a
reflection of the State government... but not its antithesis no
spy of the Centre.32 Leaving aside the discussion as to what a
ideal situation would be, the post 1967 period shows that t
Governor is today more an agent of the Centre rather than o
the State. S.C. Dash has an interesting comment to make in th
regard. He says "A split personality is at times an encumbera
and a Governor is expected to display such a personality.
can play the role of a Dr. Jeky 11 with the Union governmen
and Mr. Hyde with the State Council of Ministers and it wou
be difficult for either party to bring him to book.38

Conclusions

Several questions and problems arise regarding the role

the Governor in State politics. They will continue to haunt

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 THE GOVERNOR! CONSTITUTIONAL ... POLITICAL REALITY 521

and it would be wrong to blame the Constitution makers in this

regard for they could not have visualized all the problems that
would arise. Each article relating to him may give rise to new
controversies but to understand his position, we deep must look
at the Constitution as an organic whole. This, and several con-
ventions, have emerged which make the smooth running of the
government possible. He certainly does not have much to do,
but that is because the Constitution makers intended it that way.
He is not supposed to run a parallel government in the State.
His role is that of a sagacious counsellor, mediator and arbitrator
rather than an active politician. He has to abide by the advice
of the Council of Ministers but that does not mean immediate
acceptance. He can reserve bills for reconsideration and prevent
hasty decisions. Great caution and restraint must be exercised
while reporting to the President under Article 356 otherwise his
image as the guardian of the State would get tarnished. It is
suggested that he keep himself away from active politics. An
active politician who has identified himself with a political party
cannot inspire the total trust of the people. Lastly, critics of the
institution should realise that in a parliamentary democracy it is
a necessity and slowly it is emerging from slumber and some
Governors have taken up cudgels on behalf of the States at the
risk of losing their jobs also. Hence "it would be a gross fallacy
to regard the institution of the Governor as a faint presence like
a full moon at mid-day.34

NOTES

1. Seervai, H. M., Constitutional Law of India , Tripath

Bombay, 1984, III ed., Vol. II, p. 1736.

2. Basu, D. D., Shorter Constitution of India9 Prentice Ha

New Delhi, 1988, p. 419.

3. Si wach, J. R., Office of the Governor. A Critical Stud

1950-73, Sterling, New Delhi, 1977, p. 124.

4. Seervai, Ibid.> p. 2139.

5ê Siwach, pp. 260-261.

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522 THE INDIAN JOURNAL OF POLITICAL SCIENCE

6. Govind Narain, "Constitutional Obligations" in

Sorabjee Soli et. al. ed., The Governor, Sage or Saboteur , Roli Books,
New Delhi, 1985, p. 77.

7. Pandey, J. N., "The Constitutional Law of India", Central

Law Agency, Allahabad, 1981, p. 312.

8. Rao, K. V., "Role of State Governor in India in Grover

Verinder. ed , Essays on Indian Government and Politics, Deep and
Deep, New Delhi, 1988, pp. 194-195.

9. Pylee, M. V., " Role of State Governor in India" p. 193.

10. Dahiya, M. S., Office of the Governor in India, Sundeep,

Delhi, 1979, p. 57.

11. Cited in Siwach, p. 52.

12. Seervai, p. 1723.

13. Ibid., p. 1723.

14. Gehlot, N. S., The Office of the Governor. Constitutional

Image and Reality, New Delhi, 1977, p. 87.

15. Pylee, M. V., Constitutional Government in India, Asia

Publishing Co., Bombay, p. 521.

16. Dahiya, p. 88.

17. Siwach, p. 83.

18. Gupta, D. C., Indian Government and Politics, Vikas, New

Delhi, 1978, p. 35.

19. For details see Sorabjee Soli, "The Constitution and

the Governor" in Sorabjee ed., p. 25 and Varadachari, V. K.,
Government in the Indian Constitution, Heritage, New Delhi, 1980,
p. 62.
20. Basu, pp. 461-462.

21. Siwach, p. 223.

22. Gehlot, N. S., State Governors in India : Trends and Issues ,

Gitanjali, New Delhi, 1985, p. 146.

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 THE GOVERNOR: CONSTITUTIONAL ... POLITICAL REALITY 523

23. Pylee, p. 523.

24. Kathuria, H. S., President's Rule in India , Uppal, New

Delhi, 1990, pp. 342-350.

25. Sen Ashoka, "Role of Governors in the Emerging Pattern of

Centre- State Relations in India", National, Delhi, 1975, p. 65.

26. Grover ed., p. 195.

27. Ibid., p. 159.

28. Ibid., p. 210.

29. Sorabjee, ed., 30.

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