GOVERNOR IN INDIAN FEDERAL

CONSTITUTION-I: CONSTITUENT ASSEMBLY

DEBATES REVISITED

ASHOK K. PANKAJ

This article revisits the Constituent Assembly Debates,

and argues that the intention of the Constitution makers
was to make provisions for Governor in sync with a fuller
federal Constitution, at least the original proposal suggests
so. The Report ofthe Provincial Constitution Committee had
provided for an elected Governor who will have ·security of
tenure and discretionary special responsibilities to prevent
any grave menace to the peace and tranquillity ofthe province
or any part thereof

The provision of elected Governor was strongly opposed

by the then Premiers ofprovinces. Strong and independent
position of Governor was also contested by the protagonists
ofa strong Centre. Consequently, the provision of 'elected'
Governor became 'appointed', and Governor lost the
security of tenure that became subject to the 'pleasure of
the President'. However, his 'special responsibilities 'were
retained in the shape of Presidents rule in a State.

Nevertheless, the Assembly intended the Governor as a

constitutional head of a State who would be ·a person of·
undoubiful ability and position in public life who at the same
time has not been mixed up in provincial party struggle or
factions'.

INTRODUCTION

THE ORIGINAL proposal of the Constituent Assembly was to provide for

Governors in provinces in sync with a truly federal Constitution. But post-
partition/post-independence and amidst secessionist threats of a few princely
States, the.federal sentiments were subdued in favour of a strong Centre. 1
The original position of the Governor, as proposed in the memorandum of
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the Constitutional Advisor to the Constituent Assembly and the report of the
Provincial Constitution Committee, was altered to suit a strong Centre even
though federalism was retained as basic organising principle of the Indian
Constitution.
The Constituent Assembly oflndia was set up on the recommendations of
the Cabinet Mission Plan, 1946, that envisaged a federal Constitution for India:
There should be a Union of India consisting of the provinces and the
Indian States and it should have the power to deal with the subjects of
defence, foreign affairs and communication with the ancillary powers
to raise the finance for the above subjects .... All subjects other than the
Union subjects and all residuary powers should vest in the provinces
(Singh 2000: 181).
As per the federal scheme of the Cabinet Mission Plan, the Constituent
Assembly by its resolution of 30 April 1947 constituted a Union Constitution
Committee and a Provincial Constitution Committee to suggest model
Constitutions respectively for the Union and the provinces. 2 The model
principles for the Union and provincial constitutions, as suggested by the
two Committees, favoured a parliamentary type of government combined
with a federal arrangement
The model of provincial Constitution committee proposed
provisions for an elected Governor who will have security of tenure and
discretionary special responsibilities to prevent any grave menace to the
peace and tranquillity of the province or any part thereof. The provision
of 'elected Governor' was strongly opposed by the then elected heads of
provinces who were members of the Constituent Assembly. The strong and
independent position of Governor and his fixed tenure with rigid removal
procedure was contested by the protagonists of a strong Union who alluded to
partition and communal violence, and secessionist threats of a few princely
states to suggest the need for a strong Centre. They insisted that there should
be a constitutional mechanism through which the Union government would
watch/control the activities of States.
This article visits the Constituent Assembly debates to assert that the
intention of the Constitution makers with respect to the role and position
of Governor in a State was truly federal, even though initial proposals
regarding the election/appointment and removal ofGovernor from the office
were later changed to suit a strong Centre. It also asserts that the successive
governments at the Centre have ignored the intention of the Constitution
makers and weakened the federal spirit of the Constitution by treating
Governors as political office of the Union government. Governors too have
demeaned the constitutional position by acceding to political demands of the
Union governments.
 GOVERNOR rN INDIAN FEDERAL CONSTITUTION I 613
ASHOK K PANKAJ

Part II of this article examines the original proposal of the Constituent

Assembly with regard to the office of Governor in Indian Constitution as
provided in the memorandum of the constitutional advisor and the report
of the Provincial Constitution Committee. Part three analyses the changes
in the original proposal leading to ·the swing in favour of a strong Centre,
and also analyses the context of the changes. Part four explains the violation
of the federal spirit of the Constitution by the Union governments and
underlining of the same by the two Commissions on Centre-State relations,
National Commission to Review the Working of the Constitution (NCRWC),
Administrative Reforms Commission-I (ARC-1) and the judiciary. The
final section argues for a change in the role and position of Governor in the
light of intentions of the Constitution makers, federal structure and working
experiences of the Constitution. It also suggests reading the recommendations
of the Sarkaria and Punchi Commissions on Centre-State relations, NCRWC
and ARC- 1 along with the intentions of the Constitution makers.
II

Memorandum of the Constitutional Advisor

B N Rau, the Constitutional Advisor to the Constituent Assembly, had
prepared a memorandum on the principles of provincial constitution3 that set
out the broad structure of the provincial constitution, and also defined the role
and position of Governor in provinces. The memorandum provided for a
parliamentary type of government in provinces, and specified the scope of
the executive and legislative powers of the provinces: "The Provinces were
to have a large measure of autonomy, all subjects other than foreign affairs,
defence and communications being vested in them, as well as residuary
power" (Rao et al., Vol. V, 1968: 382). It explained the executive powers of
the provincial governments: "Subject to the provisions of this Constitution and
of any special agreement, the executive authority of each Province shall
extend to the matters with respect to which the Legislature of the Province
has power to make laws" (Ibid., p. 384).
The executive power of a province will be exercised by a Council of
Ministers, fanned on the pattern of parliamentary form of government of
the United Kingdom type. It further proposed that the relations between the
Governor and the Council of Ministers would be based on the tradition of
British parliamentary system. Except in cases of special responsibilities to
be exercised by the Governor in his discretion, he shall act on the aid and
advice of the Council of Ministers. It also provided: "Special responsibilities
were conferred on him for the prevention of grave menace to the peace and
tranquillity of the Province or any part thereof and for the safeguarding of
the legitimate interests of the minorities" (Ibid., p. 383). The memorandum
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suggested that the administration of 'excluded' and 'partially excluded'

areas might be vested as part of special responsibility of the Governor.
It also proposed to vest in Governor, acting in his discretion, the power
of "superintendence, direction and control of elections including the
appointment of elections tribunal..., but subject to the approval of a body
to be designated as the council of state, 4 consisting of a number of eminent
persons ... " (Ibid., p. 383).
Foreseeing the possibilities of a confrontation between the Governor
and the Council of Ministers, the memorandum suggested that in case of
a disagreement between the two, dissolution of the Legislative Assembly
would be the last resort. But if the same party returns to power, the Governor
would have no option but to accept the advice of the Council of Ministers.
This, to the constitutional advisor, had advantage in the sense that "the
discretionary power would at least have the effect of bringing the issue
before the electorate" (Ibid., p. 383).
The memorandum provided for an elected Governor who will be "elected
by the provincial legislature by secret ballot according to the system
of proportional representation by the means of the single transferable vote"
(Ibid., p. 383). At the same time, the memorandum referred to "the practice
of appointment of governor by the Central Government in a unitary
constitution and even in a federal Constitution approximating to the unitary
type of Canada" (Ibid., p. 383). Since the Cabinet Mission Plan did not
envisage this power of appointing Governor to be vested in the Union
government, the constitutional advisor suggested two alternatives, viz. (a)
direct election by the people, (b) indirect election by the legislature.
The memorandum proposed that "Governor may hold office normally for a
period of five years: that he could be removed for misbehaviour or infirmity of
mind or body by a resolution of the Provincial Legislature supported by a vote
of not less than two-thirds of its total membership: and that he would be eligible
for re-election once" (Ibid., p. 384). The memorandum did not suggest
any provision for filling the casual vacancy of Governor. As such a
large number of members of the Provincial Constitution Committee favoured
the creation of a post of Deputy Governor. To this proposal, the constitutional
advisor replied that under the parliamentary type of executive, the Deputy
Governor would be given hardly any function except in case ofa bi-camera!
legislature when he could be made ex-officio chairman of the upper chamber
like the Vice-President of the United States being the ex-officio chairman of
the Senate. Since most of the members were opposed to the creation of an
upper chamber in the provinces, the constitutional advisor proposed that
the 'council of state' at the Centre might make decision/arrangement
for filling the casual vacancy of the Governor.
 GOVERNOR IN INDIAN FEDERAL CONSTITUTION / 615
ASHOK K PANKAJ

The memorandum did not rule out the possibility of different types
of constitutional set-up in different provinces. 5 Hence, it suggested that in case
ofa province having specific requirement to have a more stable government,
the Governor may consider election of his ministers by the lower house of
the legislature of the province on the basis of proportional representation by
the means of the single transferable vote. The ministers so elected would enjoy
the tenure of the provincial legislature provided that he could be remove.d from
his office before the completion of the tenure by a resolution of the legislature
supported by not less than two-thirds of its membership (Ibid., p. 385).
Discussion on the Memorandum of the Constitutional Advisor
The memorandum of the Constitutional Advisor was laid before the
Provincial Constitution Committee for discussion6 that expressed divergent
views on the mode of appointment/election of Governor, his powers and
functions, and nature of the provincial Constitution in its meeting held on 6
June 1947. The views were so divergent that alternative models of Governor
were also discussed. Some members suggested elections, powers and functions
of Governor as in the United States; some favoured a constitutional Governor,
who will be indirectly elected and will act on the aid and advice of the Chief
Minister responsible to the legislature; and still some others favoured
Governor nominated by the central government and to work under the direct
supervision of the Centre exercising extensive authority over the provinces.
The views of the members of the Provincial Constitution Committee
were thus so divergent that a joint session of the provincial and Union
Constitution committees was held on 7 June 1947 to decide first whether
"independent India should be a unitary state with provinces functioning
as agents and delegates of the central authority, or a federation of
autonomous units ceding certain specific powers to the Centre" (Ibid., p. 386).
The joint session of the two Committees decided that the "Constitution of India
should be a federal structure with a strong Centre (Ibid., p. 386). It elaborated
on the nature of the provincial government, and held that Governor should
not be appointed by the Centre but chosen by the provinces. Further, "the
provincial executive should be of the parliamentary cabinet type with such
suitable modifications as might be considered necessary in the light of Indian
conditions; and that the Governors should be appointed by indirect election on
the basis of adult franchise through a special electoral college" (Ibid., p. 386).
The Provincial Constitution Committee discussed the memorandum
further in the light of the decision of the joint session of the two Committees.
Amongotherthings, it decided that "the minimum age of35 years should
be prescribed for the post of Governor; dispensed with the idea of a
Deputy Governor and favoured short-term vacancy not more than of four
months to be filled by the appointment made by the President and the long-
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duration vacancy to be filled by the usual process of election for a fresh five-year
term". The matter of vacancy in the office of the Governor was reopened on
June 11, 1947, in which it was decided that it would be filled through election
by the provincial legislature on the basis of absolute majority. But the new
incumbent would hold office only for the remaining period.
The Provincial Constitution Committee also dropped the idea of the
Consti.tutional Advisor to give option to the Governor to elect his council of
ministers by the members of the provincial legislature in specific cases through
the proportional representation system, and instead proposed the normal
parliamentary procedure of choosing the council of ministers by the head of
the government (not the head of the state). It, however, agreed to confer on
Governor special responsibilities for the prevention of "any grave menace
to peace and tranquillity of the province and any part thereof but did not
favour special responsibility for the protection oflegitimate interests of the
minorities" (Ibid., p. 387).
A sub-committee consisting of B.G. Kher, K.N. Katju and P.
Subbarayan was constituted to decide the electoral college for the election
of the Governor. The sub-committee suggested an electoral college (like
that for the President of the US) on the basis of territorial constituencies
for every I 0,000 adults and the electoral college would continue until a new
one had been constituted after the next general elections. The sub-committee
further suggested that the Supreme Court should have sole jurisdictions over
disputes arising out of the elections of the Governor.
The Provincial Constitution Committee at its meeting held on 10 June
l 94 7 did not agree with the idea of the election of the Governor by an
electoral college as suggested by the sub-committee. Instead, it decided that
"the Governor should be elected directly by the people on the basis of adult
franchise and the duration of his office would accordingly synchronise with
the life of the Legislature, namely, four years, so that the election of the
Governor would, as far as possible, be simultaneous with that of members
of the Provincial Lower House"(Jbid., p. 387). It, however, favoured the
removal of the Governor through impeachment procedure and proposed:
The Governor may be removed from office for stated misbehaviour
by impeachment, the charge to be preferred by the Provincial Legislature, or
where the Legislature is bicameral, by the Lower House of the Provincial
Legislature, and to be tried by the Upper House of the Federal Parliament,
the resolution in each case to be supported by not less than two-thirds of
the total membership of the House concerned (Ibid., p. 388).
Model Provincial Constitution
The Provincial Constitution Committee discussed the memorandum
and incorporated its provisions in the report on a model provincial
 GOVERNOR IN INDIAN FEDERAL CONSTITUTION 1617
ASHOK K PANKAJ

Constitution that was submitted to the Constituent Assembly on June 27,

1947, and subsequently placed for discussion before the Assembly on
July 15, 1947. While moving the report of the Provincial Constitution
Committee on the floor of the Assembly, Vallabhhai Patel, the chairman
of the Provincial Constitution Committee, explained the nature of the
provincial Constitution:
The first question we had naturally to consider was whether the
provincial constitution shalt be of a unitary type or shall be of a federal
type, and as there was a little difference of opinion on this question, the
Committee thought it proper to have a joint session of the Provincial
Constitution Committee and the Union Constitution Committee. Both
these committees met and they came to the conclusion that it would
suit the conditions of this country better to adopt parliamentary system
of constitution, the British type ofconstitution with which we are familiar.
The committees have agreed and the Provincial Constitution
Committee has accordingly suggested that this constitution shall be a
parliamentary type of Cabinet (CAD, Vol. IV, 1999, p. 578).
Patel also thought it proper to clarify on the provision of special
responsibility of the Governor, as members of the Constituent Assembly were
apprehensive of the provision:
The Committee in setting this question intended to convey that the
Governor shall have the authority to report to the Union President about
the grave situation arising in the province, which would involve a grave
menace to the peace of the province. It was not their intention that this
power or authority, as to be exercised by the Governor which may
perhaps bring a conflict between the Ministry and the Governor.... the
committee came to the conclusion that the proper course would be to limit
this power (Governor's power in case of grave menace to peace and
tranquillity) to the extent of authorising him to report to the President
of the Union ... (Ibid., p. 579).
The important provisions of the model provincial constitution with
respect to appointment/election and power and functions of Governor in
provinces were as follows:
(a) Elected Governor with security oftenure: Clause 1 of the report of the
Provincial Constitution Committee provided for elected Governor- elected by
the adult voters of the State. Clause 2 provided for the security of tenure to the
Governor who "shall hold office for a tenn of four years, except in the event
of death, resignation or removal". It was provided:
[The Governor] may be removed from office for stated misbehaviour
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by impeachment, the charge to be preferred by the Provincial Legislature, or

where the Legislature is bicameral, by the Lower House of the Provincial
Legislature and to be tried by the Upper House of the Federal Parliament,
the resolution in each case to be supported, by not less than two-thirds of
the total membership of the House concerned (Ibid., p. 593).
In the course of debate, it was added that "the Governor will be removed
by a charge levelled by the Provincial Legislature and to be tried by the upper
House of Federal Parliament after investigation by a special commission of
that House" (Ibid., p. 699).
The model provincial constitution provided that a person elected
Governor shall hold a maximum of two tenures: he shall "be eligible for re-
election but only once" (Ibid., p. 593). To this, some members raised objections.
While replying to the objection raised by Naziruddin Ahmed (a member
from West Bengal), Patel defended the provision: "As the candidate for
the governorship will fairly be a man of substance, age and experience,
after the eight year period, he may better retire and give a chance to a younger
man" (Ibid., p. 609).
(b) Governor to act on the advice of the Council ofMinisters: Clause 7
of the report provided that "the executive authority of the Province shall be
exercised by the Governor either directly or through officers subordinate
to him ... " (Ibid., p. 594). Clause 9 explained "there shall be a Council of
Ministers 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" (Ibid., p. 594). However, a note
to the clause clarified discretionary powers of the Governor: "For the most
part, the Governor will act on advice, but he is required to act in his discretion
in the following matters:
1. the prevention of any grave menace to the peace and tranquillity of
the province or any part thereof (clause 15 (2) of this part),
2. the summoning and dissolving of the Provincial Legislature
(Clause 20 of this part),
3. the superintendence, direction and control of elections (Clause 22,
provision 2 of this part),
4. the appointment of the Chairman and the member of the Provincial
Public Service Comni.ission and of the Provincial Auditor General.
The note, however, emphasised that "the governor is not likely to abuse
his discretionary powers" (Ibid., p. 595).
(c) Convention of responsible government to be observed: Clause
12 of the report provided that "the Governor's ministers shall be chosen
 GOVERNOR IN INDIAN FEDERAL CONSTITUTION / 619
ASHOK K PANKAJ

and summoned by him and shall hold office during his pleasure". However,
Clause 14 added:
... in the appointment of his ministers and his relations with them, the
Governor shall be generally guided by the conventions of the responsible
government as set out in Schedule... (Schedule... will take the place of the
Instrument of Instructions now issued to governors) ... but the validity
of anything done by the Governor shall not be called in question on
the around that it was done otherwise than in accordance with these
conventions (Ibid., p. 595).
(d) Special responsibility of the Governor: Clause 15 (1)
provided special responsibilities of the Governor: "In the exercise
of his responsibilities, the Governor shall have the following special
responsibilities, namely, the prevention of any grave menace to the peace
and tranquillity of the Province or any part thereof. Clause 15 (2) clarified:
... in the discharge of his special responsibility, the Governor shaU act
in his discretion; provided that if at any time in the discharge of his special
responsibility he considers it essential that provision should be made by
legislation, but is unable to secure such legislation, he shall make a report
to the President of the Federation who may thereupon take such action
as he considers appropriate under his emergency powers (Ibid., p. 595).
Special responsibility of the Governor aroused much debate in the
Constituent Assembly. Federalists1 were apprehensive of its centralising
effects. The issue was whether the Governor should be given this special
responsibility to maintain the peace and tranquillity in the province and if it
would not dilute the federal spirit.
G. B. Pant, the premier of the United Provinces, was strongly opposed to
the provision giving special responsibility to the Governor. He, how~ver,
agreed to reconcile his position to that of his party. Hussain Imam (a member
from Bihar) also raised his concern and opposed this provision. But a large
number of members favoured it on the ground of the critical conditions
prevailing at that time. While discussion on the model provincial constitution
was in progress, pre-partition communal violence had resulted in serious
law and order problem in various provinces. The-provincial governments
were unable to handle it firmly and efficiently. Alluding to the new
developments, B M Gupte (a member form Bombay spoke:
[W]e are living in a revolutionary age, we are living in almost perilous
times. Horrible tales of arson, murder and loot continue to be our daily
fare of news ... The whole atmosphere is explosive ... It has, therefore,
become imperative that apart from the machinery of the Government,
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there shall be reseived somewhere power to deal with a serious threat

to law and order promptly.... For .such circumstances, power must be
reseived in the hands of the Governor (Ibid., p. 764-765).
Whereas B. M. Gupte favoured this special power in the hands of the
Governor, Hriday Nath Kunzru was in favour of retaining this power with
the federal government. Prof. N G Ranga, KM Munshi, Vallabhbhai Patel
were among other important leaders who defended this special power of
the Governor in spite of a federal constitution. Patel argued:
When there is a complete breakdown of the machinery of law and
order and if any such event as the recent unfortunate incident in Burma
(assassination of General Aung San and his colleagues on the July 19,
1947) takes place or a similar tragedy of such a nature arises, or, as we
have seen incidents like the recent unfortunate ones in our country in
some provinces take place -- if such, situation arises, there should be a
provision like this to tackle the problem (Ibid., p. 781).
At the same time, he cautioned "it is the spirit in which constitution
is worked that matters" (Ibid., p. 781 ).
After much debate, the Constituent Assembly approved discretionary
powers to the Governor to assume all or any of the functions of the provincial
government if he is satisfied on his discretion that there is a grave situation
threatening peace and tranquillity of the province and that it is not possible
to carry on the government of the province on the advice of the council of
ministers. However, this proclamation shall be forthwith communicated by
the Governor to the President of the Union, who may take such action as he
considers appropriate under his emergency power and the proclamation will
have effect only for 14 days unless revoked earlier either by the Governor
himself or by the President.
The federal provisions of the model provincial constitution were in
consonance with those of the Union Constitution Committee that described
India as "a federal Constitution". Part V of the model Union Constitution
that dealt with the federal distribution of legislative powers between the
Centre and the States explained the basic principles of federalism :
The Union Constitution Committee has, however, decided that the
constitution should be a federal structure with a strong Centre; there
should be three exhaustive legislative lists, viz., federal, provincial and
concurrent, with residuary powers to the Center; and the state should
be on par with the Provinces as regards the Federal Legislative subjects
to the consideration of any special matter which may be raised when
the lists have been fully prepared (Ibid., p. 728).
 GOVERNOR IN INDIAN FEDERAL CONSTITUTION I 621
ASHOK K PANKAJ

III

Draft Constitution Deviated from the Agreed Principles of Model

Provincial Constitution
Fundamental changes took place in political and constitutional arenas
in between the approval of the model provincial constitution and preparation
of the Draft Constitution. First, the Constituent Assembly became a fully
sovereign legislative and Constitution making body. The limitations/
restrictions imposed by the Cabinet Mission Plan including British paramountcy
lapsed with the passage of the Independence of India Act, 1947.8 Second, pre-
partition and post-partition communal violence and post-partition massive
influx of Hindu population from the newly created state of Pakistan and then
their resettlement created tremendous administrative challenges before the
provincial governments which they were unable to meet without Centre's
assistance. Third, the process of integration of princely states with the Union
of India had not been completed. Hyderabad and Junagarh refused to join
the Union and declared their secessionist intentions. Jammu and Kashmir
faced external aggression for its forceful merger with Pakistan.
Even the federalists (among the members of the Constituent Assembly)
were jolted by the above developments, and agreed to reconcile their
positions in favour of a strong Centre. Jawaharlal Nehru, while presenting
the supplementary report of the Union Power Committee on July 5, 1947,
candidly spoke about the new situation:
Momentous changes have since occurred . . . Now the partition is a settled
fact, we are unanimously of the view that it would be injurious to
the interests of the country to provide for a weak central authority .. .
At the same time, we are quite clear in our minds that there are many
matters in which authority must lie solely with the Units and that to
frame a constitution on the basis of a Unitary state would be a retrograde
step, both politically and administratively. We have accordingly come
to the conclusion ... that the soundest framework of our constitution is a
federation with a strong centre (CAD, Vol. V, 1999, p. 58).
The Drafting Committee was overwhelmed by the concern for the unity
and integrity of newly independent India. The Draft Constitution deviated
from the accepted principles of federalism as agreed by the Provincial and
the Union Constitution Committee. By the time the Draft Constitution was
discussed and finalised in July-August 1949, the unitary sentiments had become
even stronger. The initial proposals of the Union and Provincial Constitution
Committees that were more federal in nature were considerably diluted in
favour of a strong Centre. Accordingly, significant changes were also made
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in the role and position of Governor in the Draft Constitution. The section
below explains those changes.
a) Elected to Appointed Governor: The joint meeting of the Provincial and
the Union constitution committee had decided to have an elected Governor
in the provinces. The Draft Constitution provided for an 'appointed'
instead of an 'elected' governor which was not only against the accepted
principles of the Union and provincial constitutions, but raised much debate
in the Constituent Assembly.
Members vehemently opposed this change. Mohd. Tahir (a member
from Bihar) and Rohini Kumar Chaudhary (a member from Assam) led the
discussion opposing this change. Rohini Kumar Chaudhary apprehended that
the appointed Governor would be a constant source of tussle between the Union
and State governments in case of different political parties elected to power
at the Centre and in States. He pointed out that those who had argued that
the elected Governor would create conflicts between the ministry and the
Governor were, in fact, premiers of the provinces. He spoke:
It is said that if you have an elected governor, there may be friction between
the governor and the prime minister [Premiers of the provinces were also
called Prime Ministers] and I suppose it is the fear of the present day
premiers of different provinces which is responsible for this decision
of nomination of governor ... (CAD, Vol. VIII, 1999, p. 437).
It is learnt that B.G. Kher, the then Prime Minister of Bombay, who was
also a member of the Constituent Assembly, prevailed on other members to
change the provision from that of an elected to an appointed governor. The
elected head of the provinces apprehended that an elected Governor would
draw more power, authority, and respect vis-a-vis the provincial premier
representing only one legislative constituency. The administrative arguments
like unnecessary exercise in case of a responsible ministry and extra expenditure
on elections without much purpose were also advanced in support of an
appointed Governor.
H.V. Karnath, Alladi Krishnaswami Ayyar, B.G. Kher and B.R. Ambedkar
among others strongly defended this change. While replying to the objections
of Rohini Kumar Chaudhary and other members, H. V. Karnath explained:
.... to my mind there have been sound reasons why the decision should
be altered today in the light of the circumstances that have arisen since
the passing of that article in August 1947 ... the scheme envisaged in the
July-August session 1947, was more of a federal type ... (Ibid., p. 427).
Alladi Krishnaswami Ayyar defended this change on the ground that a
convention would grow up requiring the Union Cabinet to consult the premier
of the concerned province while selecting the Governor for that province. He
 GOVERNOR IN INDIAN FEDERAL CONSTITUTION I 623
ASHOK K PANKAJ

contemplated:
In the normal working of the constitution I have no doubt that the
convention will grow up of the Government of India consulting the
provincial Cabinet, in the selection of the Governor... the President
may... choose a person of undoubtful ability and position in public life
who at the same time has not been mixed up in provincial party struggle or
factions ... The central fact to be remembered is that the Governor is to be
a constitutional head, sagacious counsellor and advisor to the Ministry...
(Ibid., p. 431).
B.R. Ambedkar, the chairman of the Drafting Committee, also
intervened to clarify the doubts of the members:
... the governor is not to have any kind of functions- to use a familiar
phraseology ... no functions which he is required to discharge either in his
discretion or in his individual judgment.... If the constitution remains in
principle the same as we intend that it should be, that the governor
should be a purely constitutional governor... (Ibid., p. 469).
(b) Governor lost the security of tenure: The Provincial and
Union Constitution Committees had agreed to give security of tenure to the
Governor and to make him independent of political interferences/influences.
The Provincial Constitution Committee had approved the principle that the
Governor shall hold a tenure of four years unless his post is vacated by his
sudden death orresignation, or he is removed by an impeachment proceedings,
charges framed by the State legislature and to be confinned by the upper
house of federal Parliament.
The Draft Constitution deviated from the proposal of the Provincial
Constitution Committee and made provision for removal of the Governor
by the President oflndia who should have the power to remove the Governor
in case of his unwillingness to work under the guidance of the federal
government, or in case ofhe/she developing collusive (secessionist) interests
with the provincial government.
A number of Constituent Assembly members raised objections to this
change in the Draft Constitution. Their main contention was that the Union
Government would misuse this power. Prof. Shibban Lal Saxena (a member
from the United Provinces, the present Uttar Pradesh) asked Ambedkar to
justify the change in removal provision. K. T. Shah pleaded strongly for the
security of tenure to the Governor, and suggested in this regard:
We must not leave the governor to be entirely at the mercy of the pleasure
of the President... at least while he is acting correctly, in accordance with
the constitution following the advice of his ministers, he should not be at
the mercy ofthe President who is away from the province ... (Ibid., p. 471 ).
624 I rNDlAN JOURNAL OF PUBLIC ADMINJSTRATION
VOL. LXI. NO. 4, OCTOBER-DECEMBER 2015

Loknath Misra (a member form Orissa) suggested removal of the

Governor by the President on the ground of misbehaviour but only on the
impeachment resolution by the State legislature.
(c) Discretionary Powers of Governor: Opinions were divided whether
the Governor should be allowed to hold discretionary powers in spite of
a responsible government headed by the provincial premier. The Provincial
Constitution Committee had specified four discretionary powers of the
Governor, viz. (a) prevention of any grave menace to the peace and
tranquillity of the province or any part thereof, (b) the summoning and
dissolving of the provincial legislature, (c) the superintendence, direction
and conduct of election (that was dropped at the stage of discussion), and (d)
appointment of the chairman and members of the provincial public service
commission and the provincial auditor general.
H .V. Karnath and Shibban Lal Saxena opposed discretionary powers
of the Governor. But the majority in the Constituent Assembly favoured
retention of the discretionary powers. Some of them were, however, of
the view that the specific provisions should be made to reduce the element
of discretion in the selection of the provincial premier by the Governor. To
support his argument, Rohini Kumar Chaudhary illustrated how the Governor
had misused the discretionary power in the selection of the provincial premier:
[I] know to my cost or to the cost of my province that in the year 1942, a
governor acting in his discretion selected his ministry from a minority party
and that minority was ultimately converted into a majority ... The House
will remember that the exercise of his discretion by the governor of the
province of Sindh led to the dismissal of one of the popular ministers -
Mr. Allah Bux (Ibid., p. 499).
Pandit Thakur Das Bhargava requested the Constituent Assembly to
spell out the discretionary powers of the governor as a model code while
exercising his discretion in the selection of the provincial premier. Ambedkar
replied to this, and defended the provision by saying that it was a constitutional
fashion not to specify the discretionary powers of the Governor in selection of
the provincial premier. However, he suggested that the traditions/conventions
of responsible government necessitate that the premiere will be appointed
from the majority party. He further clarified the provision regarding removal
of the Governor on the pleasure of the President:
[I]t is the intention of this constitution that the Ministry shall hold office
during such time as it holds the confidence of the majority. It is on that
principle that the constitution will work. .. 'During pleasure' is always
understood to mean that the pleasure shall not continue notwithstanding
the fact that the Ministry has lost the confidence of the majority ... (Ibid.,
p. 520).
 GOVERNOR IN INDIAN FEDERAL CONSTITUTION / 625
ASHOK K PANKAJ

(d) Special Responsibility Became President's Rule: The Draft Constitution

transfonned special responsibility of the Governor into President's rule in the
State (Article 356 of the Constitution). The provision authorised that if the
President either on the report of the Governor or otherwise on his satisfaction
is convinced that the constitutional machinery in the State has broken doWn,
he may take to himself all the powers of governance of the state.
The members of the Constituent Assembly had already opposed the
provision of special responsibility of the Governor during the discussion
on the principles of the provincial constitution. It was further opposed
at the drafting stage when the provision of special responsibilities was
changed into emergency power of the President. G. B. Pant, the then
premier of UP, first, opposed it, but then reconciled his position to that of
his Party. H V Karnath found the term "internal disturbance and otherwise"
in emergency provision (Article_ 356 of the Constitution) very disturbing
and wide-ranging. He argued that they are very wide and elastic terms;
the Centre can take into its own hand provincial administration any time
on any slight pretext. He also found this provision capable whittling down
provincial autonomy:
[I]t is dishonest on our part to say in one article that public order shall
be the responsibility of the state and then in another article to confer
powers upon the Union Government to intervene in the internal affairs
of the state ... It is a foul transaction, setting at naught the scheme of
even limited provincial autonomy. I shall pray to god that He may grant
sufficient wisdom to this house to see the folly, the stupidity, the criminal
nature of this transaction ... It is a constitutional crime to empower the
President to interfere not merely on the report of the Governor or Ruler
ofa state, but otherwise ... (CAD, Vol. IX, 1999, p.138).
Thakur Das Bhargava defended the change on the ground that "in the
growing conditions of India when we see so many fissiparous tendencies
working in the country... it is only a cementing measure ... (CAD, Vol.
IV, 1999, p.170). B R Ambedkar hoped that it would not be treated ''as
a wanton, arbitrary, unauthorised act", as "notwithstanding the many
provisions whereby the centre has been given powers to override the
provinces, nonetheless it is a Federal Constitution ... (Ibid.il43). Still
further, he wished it would tum into a dead letter as the country settles
down smoothly. He replied:
"[I] do not altogether deny that there is a possibility of these articles
being abused or employed for political purposes ... the proper thing we
ought to expect is that such articles will never be called into operation
and that they will remain a dead letter... " (Ibid., p. 177).
626 I INDIAN JOURNAL OF PUBLIC ADMINJSTRATION
VOL. LXI, NO. 4, OCTOBER-DECEMBER 2015

IV

Federalists Vindicated
Federalists, who were in favour of independent and autonomous position
of Governor in provinces as per the tradition and practices of federal
Constitutions, had apprehended misuse ofthe powers ofGovernor by the Union
Government. They had cautioned against the appointment of political persons
as Governors, and warned that it would lead to partisan role of Governors
in States. They were concerned particularly about the discretionary powers
of Governors and their likely misuse at the behest of the Union Government.
The working of the Indian Constitution suggests that the apprehensions
of the federalists were true. Merit has often been ignored in the selection of
Governors. Political persons have dominated the appointment of Governors.
Further, Governors have often been removed on political considerations. There
have also been instances of Governors blatantly misusing their discretionary
powers; so much so that Governor's discretionary power has been brought under
the purview of judicial review which is against the spirit of the Constitution.
President and Governors have been given, as per the original intents of
the makers, certain constitutional immunities and their decisions are not
supposed to be questioned in a court oflaw.
The appointment of Governor from "persons of undoubtful ability and
position in public life who at the same time has not been mixed up in"
party politics has been a major desideratum of constitutional practices. The
phenomenon is not new. TheARC-1 had observed way back in 1968 that
"in some cases, Governors were appointed on considerations extraneous
to merit". It also underlined that "when persons defeated in elections are,
shortly thereafter, appointed as Governors, the worth and dignity of the
office greatly suffers" (ARC, Vol. 1, 1968, p. 23). The Sarkaria Commission
made a detailed survey of the appointments of Governors between August
1947 and October 1984 and found that "over 60 per cent of the Governors
had taken active part in politics, many of them immediately prior to their
appointment' (Sarkaria Commission Report, Vol. I, 1988, p.122). On the
other hand, "persons who were eminent in some walk of life constituted less
than 50 per cent". Moreover, "this percentage shows a steep fall when the
figures for the period from 1980 onwards are compared with those for the Nehru
period-August 1947 to May 1964" (Ibid., p. 122).
My own survey of 31 incumbent Governors as on September 24, 2006,
shows that 16 were former MPs, MLAs, ministers including four chief
ministers and one Union minister; eight former civil servants (2 IPS, 3 IPS,
2 IAS, and one former Secretary General of Lok Sabha); four former military
Generals; two academicians; and one former judge. The trend continued. As
 GOVERNOR IN INDIAN FEDERAL CONSTITUTION I 627
ASHOK K PANKA.J

on 30 September 2014 out of 27 incumbent Governors including Lieutenant

Governor of Delhi, 20 were from active political background. This includes
five former chief ministers and four former Union ministers. The rest
eleven were either ministers in state governments or MLAa and MPs. Out
of remaining seven, five were fonner bureaucrats (2 IAS and 3 IPS), one was
a retired military general, and another one was fonner Chief Justice of India
whose appointment was opposed by many particularly in legal fraternity.
The lack of security of tenure to the Governor is a matter of serious
concern. A study of 154 tenures of Governors between August 1947 and 10
September 1986 by the Sarkaria Commission shows that only one third (50)
of them lasted the nonnal five year tenn and about two-thirds (104) lasted less
than five years. The trend shows that between August 1947 and March 1967,
out of 66 tenures, only 32 lasted full five year term. But between April 1967
and September 1986, out of 88 tenures, only 18 lasted the normal five year
tenn. The insecurity of tenure bears significantly on the role of Governor.
The Sarkaria Commission has rightly emphasised:
The ever-present possibility of the tenure being terminated before the
full tenn of five years, can create considerable insecurity in the mind
of the Governor and impair his capacity to withstand pressures, resist
extraneous influences and act impartially in discharging his discretionary
functions' (Ibid., p. 125).
Another disturbing trend, which has developed in recent years, is the
summary removal of Governors with the change of guard at the Centre. This
practice was resorted to by the United Progressive Alliance Government in
2004 when a number ofNational Democratic Alliance Government-appointed
Governors were removed. When the NDA came back to power at the Centre
in 2014, the same story was repeated. A numberofUPA- appointed Governors
were asked to resign. Inconvenient Governors are frequently transferred
from bigger to smaller states. Frequent transfers are often done to pester such
Governors with a view to make them either follow the command of the ruling
party at the Centre or tender resignation.
Some of the Governors too have failed to uphold the dignity of the
position, and adhere to constitutional propriety. This has caused political and
constitutional crisis a number of times leading to judicial interventions. The
improper behaviour of the Governor not only drags his high constitutional
position to political controversy but invites judicial intervention in the domain
originally intended to be outside the purview of judicial review.
While examining the Centre-State relations, the Sarkaria Commission
underlined three facets of the Governor's role in states: (a) "as the
constitutional head of the State operating under a system of parliamentary
democracy; (b) a link between the Union and State Governments; and
628 / INDIAN JOURNAL OF PUBLIC ADMINISTRATION
VOL. LXI, NO. 4, OCTOBER-DECEMBER 2015

(c) as an agent of the Union Government in a specific areas during normal

times [e.g. Article 239 (2)] and in a number of areas during abnormal
situation [e.g. Article 356 (I)]" (lbid. , p. 118). It observed that there
has been 1i ttl e controversy regarding the role of the Governor under Article
239 ( l) in nonnal times and under Article 356 ( l) in abnormal situation. Much
of the controversy has arisen with respect to the constitutional role of the
Governor especially when he applies different parameters and principles
in the selection and dismissal of chief ministers; testing of majority on
the floor of the House; dissolution of the Assembly; recommendation of
the President's rule; and reserving Bills for the consideration of the President
(Ibid., p. 1988).
Governor's role in recommending President's rule in the State has raked
much of the tensions in Centre-State relations at least till the Supreme Court's
S. R. Bommaijudgement in 1994. The Sarkaria Commission has examined
the imposition of President's rule (use of Article 356) in the States, and
found that about two-thirds of the cases upto May 1987 were avoidable. It
has aptly observed in this regard:
The burden of the complaints against the behaviour of Governors, in
general, is that they are unable to shed their political inclinations,
predilections and prejudices while dealing with different political
parties in the State. As a result, sometimes the decision they take in their
discretion appear as partisan . . . Such behaviour tends to impair the system
of Parliamentary democracy, detracts from the autonomy of the States,
and generates strain in Union-State relations (Ibid., p. 118).
The misuse of Article 3 56 became so rampant that the Supreme
Court issued a guideline to the Governor while applying Article 356 of the
Constitution and brought this decision under the purview ofjudicial review.9
Centralists Belied
On the other hand, the apprehension of the centralists has largely been
belied. Ethnic and regional aspirations have off and on been mobilised
around secessionist demands challenging territorial integrity of India.
However, they have shown great amenability to political and constitutional
solutions. The language riots of the 1960s, pregnant with secessionist threats
were resolved through a formula that allowed the use of English as official
language of the Union oflndia as long as non-Hindi states wished to continue
it. The militant movement for the creation of a separate Sikh state of Khalistan
in the early 1980s was resolved through firm administrative action and
restoration of popular government through the conduct ofAssembly elections,
which had been overdue for three years. The secessionist demand of Mizo
Nationai Front was resolved through political dialogue - Rajiv Gandhi-
 GOVERNOR IN INDIAN FEDERAL CONSTITUTION I 629
ASHOK K PANKAJ

Mizo National Front Accord. The constitution of Darjeeling Autonomous

Hill Development Council ended Gorkha National Liberation Movement
(GNLF) of Subhas Ghising. It is learnt that the dilution ofautonomy (pre~ 1953
situation) ofJammu and Kashmir (J&K) enjoying special status under Article
370 of the Indian Constitution and the dismissal of the popular governments
of Abdullahs (Shaikh and Farooq) have also added to separatist/secessionist
problem in the State.
The federal government has shown great ability to accommodate
regional and ethnic demands very often through the creation of new States;
the Constitution provides simple provision for this under Articles 2-4 of the
Constitution. The nwnber of states has increased from 16 in 1956 (after the
first major reorganisation of States) to 29 in 2014. Most of the new states
have been carved out of the existing ones to accommodate regional and
ethnic aspirations for separate homelands. Maharashtra was bifurcated in
1960 to create Gujarat. Haryana and Himachal Pradesh were carved out of
the Punjab in 1966. Assam has been split a number of times to create the
seven sister-states ofNorth-East. More recently, Bihar, MP, UP andAndhra
Pradesh were bifurcated to create Jharkhand, Chhattisgarh, Uttarakhand, and
Telangana, respectively.
More importantly, the arguments that justified a strong Centre at
the time of Independence, namely, the apprehension of breaking of Union
of India do not hold ground today. The federal democratic Constitution of
India has worked successfully for more than six decades, and its reversal
is very unlikely. On the other hand, political developments over the last
two decades have further strengthened the sinews of Indian federalism. The
nwnber of national parties has been dwindling while that of the regional parties
has been proliferating. 10 State-based regional parties have developed strong
political base in their respective states. These parties have played
crucial role in government fonnations and setting the agenda of the coalition
governments at the Centre for almost two decades between 1996 and 2014.
Economic forces particularly the dismantling of the planning and adoption of
economic liberalisation have weakened control of the Union Government over
States in development process, though a strong bias. towards Union persists
in federal distribution of economic resources.
Changing the Role ofthe Governor
The demand for change in the role of Governor in Indian federalism
has come out from various quarters. The ARC- I was the first major official
review of the role and position of Governor aiming at better Centre-State
relations. The Rajamanar Corrunittee on Centre-State relations, constituted by
the Government of Tamil Nadu in 1969, underlined the centralising effects
of the role of Governor on Indian federalism, and recommended suitable
630 I INDIAN JOURNAL OF PUBLIC ADMINISTRATION
VOL. LX1, NO. 4, OCTOBER-DECEMBER 2015

changes in the role and position of governor. It went to the extent of

recommending the repeal ofArticles 356-357 of the Constitution. The Conclaves
ofNon-Congress Chief Ministers were political articulation of the demand for
change in the role of Governor.
The Sarkaria Commission on Centre-State Relations, constituted by
the Union Government in response to the Conclaves of Non-Congress
Chief Ministers, has made comprehensive recommendations to change
the role and position of Governor in Indian federalism. The NNCRWC and
then M. M. Punchhi Commission (on Centre-State relations) have, in
fact, reiterated most of the recommendations of the Sarkaria Commission
in this regard. The Supreme Court has also referred to the recommendations
of the Sarkaria Commission in S.R. Bommai and other judgements while
issuing guidelines to the Governor. 12
It would be trite to repeat the recommendations of the above
mentioned Commissions and Committees. However, what is important is to
underline the fact that the successive governments at the Centre have shown
great reluctance to accept impartial and apolitical position of Governor. By
doing so, they have not only ignored the intention of the Constitution makers,
but have emasculated a vital federal link between the Centre and the States.
The moot point is: should the Constitution be amended to change the role
and position of Governor? Even if changes are made through amendment/s,
will it be practical to visualise all possible situations and accordingly lay
down a schedule of instructions to the Governor? While the Constitution
makers were opposed to the idea of putting down an instrument of instructions,
the Supreme Court has relied on it while issuing an instrument of instructions
to the Governor in S.R. Bommai and other judgements.
One can argue that the abuse of Article 356 has declined dramatically
since the Bommai judgement. Governors have also used their discretionary
powers more cautiously as they are now open to judicial review. But
would it not be better to encourage inculcation of constitutional morality
and development of healthy conventions and practices? The conviction of
the Constitution makers lay in such development. For, it depends on how we
work the Constitution: " ... whether we observe the letter and ignore the spirit
or whether we observe both the letter and the spirit in equal measure" (Pattabhi
Sitaraymayya, CAD, Vol. IX 1999, p. 945).
A political consensus should. be built to ensure that the appointments
and functioning of Governors are not vitiated by the political interests of
the Union Government. Governors are vital federal link between the Centre
and the States and as such should be allowed to perform their constitutional
responsibilities impartially and fearlessly. At the same time Governors should
also adhere strictly to the constitutional provisions and follow the propriety
 GOVERNOR IN INDIAN FEDERAL CONSTITUTION I 63 I
ASHOK K PANKAJ

of the federal constitution. The instrument of instructions to the Governor,

the Constituent Assembly was opposed to, and the Supreme Court of India has
relied on, is neither a healthy convention, nor does it omen good for federalism.
In the process, the separation of power, one of the supplementary pillars of
a federal democratic constitution, has been compromised while the Supreme
Court has issued an instrument of instructions to the Governor.
Endnotes
1The terms "Union" and ''Centre", which have been used interchangeably in this article, stand

for the Federal Govenunent.

2The Union Constitution Committee was headed by Jawaharlal Nehru who submitted its

report on July 4, 1947, and the Provincial Constitution Committee was chaired by Vallbhbhai
Patel who submitted its report on June 27, 1947. ln the meantime, the constitutional advisor
also prepared a memorandum on the provincial Constitution.
3The 'memorandum' was circulated on May 30, 1947, which was discussed in detail

by the Provincial and Union Constitution Committees.

4 The idea of the Council was dropped by the Union Constitution Committee later on.

5The idea of the different models of provincial executive was not favoured by the membeIB

of the Constituent Assembly and was dropped at the discussion stage.

6The Provincial Constitution Committee discussed it on 6, 8, 9, 10, and 11June,1947.
'Federalists were in favour of a more federal Constitution and Centralists were oriented
towards a strong Centre.
8The British Parliament passed the Independence of India Act 1947, on July 15, 1947, that got

theRoyalAssentonJuly 18, 1947.

9 In S.R. Bommai judgement, the Supreme Court issued guidelines to the Governor. See The

Supreme Court Cases, Vol. 3. 1994, pp.296-299.

10In the first Lok Sabha, there were fourteen national political parties. The nwnber of national

parties came down to six by the 15th Lok Sabha election.

11 Ramakrishna Hegde, the Chief Minister of Kamataka, convened a conference of four

Southern Chief Ministers on 20 March 1983 in Bangalore to discuss the various issues of
Centre-State relations. Apart from N. T. Rama Rao (Chief Minister of Andhra Pradesh),
M. G. Ramchandran (Chief Minister of Tamil Nadu) and D Ramachandran (ChiefMinister
of Union Territory of Pondicherry) attended this conference. But K. Karunakaran, the
Congress Chief Minister ofKerala, did not attend it. Following Hegde, N. T. Rama Rao,
the Chief Minister of Andhra Pradesh, called a conference of fourteen non-congress Chief
MinisteIB at Vijayawada on 28 May 1983 that demanded establishment of a commission to
review fiscal relations between the Centre and the States and to recommend other measures
to improve Centre-State relations. Six months later, FarooqAbdullah, the ChiefMinister of
Jammu and Kashmir (J& K), called another conference of non-Congress chief ministers that
was held in Srinagar on 5- 7 October 1983. It also raised the issue of role of Governor in
Centre-State relations. See Granville Austin ( 1999), pp. 543-544. ·
12The Supreme Court issued guidelines to the Governor in S. R. Bommaijudgement (1994)

and reasserted it in Rameshwar Prasad vs Union ofIndia (2006). It also laid down the doctrine
of 'composite floor test' in Jagdambika Pal vs. Union ofIndia ( 1998).

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