Indian Political Science Association

THE GOVERNOR IN THE CONSTITUENT ASSEMBLY

Author(s): K. P. Singh
Source: The Indian Journal of Political Science, Vol. 26, No. 4, CONFERENCE NUMBER: XXVII
INDIAN POLITICAL SCIENCE CONFERENCE: MYSORE, 28th, 29th, & 30th DECEMBER, 1965
(October-December,1965), pp. 37-44
Published by: Indian Political Science Association
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THE GOVERNOR IN THE CONSTITUENT ASSEMBLY

Dr. K. P. Singh,
AssistantProfessorof PoliticalScience,
S. N. Govt. Post- GraduateCollege9
Khandwa(M.P.)

Abouttheactualpositionof the Governor:-

Controversy

Questionshave been raised about the actual position of the Governor

undertheIndianConstitution. It is thecontentionof somethattheGovernor
is a constitutionalhead, bound in all cases to accept the advice,tenderedby
the Chief Minister.1 Othersseem to allow him some discretionary powers,
whichhe exercisesin certainsituations.2 It has also been said thathe is not
only the constitutionalhead of the State but also the agent of the Central
Governmentand, as a consequence,bound to act in accordancewithCentral
directionseven if theyare in conflictwiththe advice,givenby his Ministers.3
The actions of the Governorof Madras, afterthe General Electionsof 1952,
in regardto the formationof the C. R. Ministry,of the Governorof Andhra
in 1955in regardto thedissolutionoftheAssemblyaftertheCongressMinistry
had been defeatedon the prohibitionissue, of the Governorof Kerala in
regardto the formationof the CongressMinistryin 1956 afterthe minority
P. S. P. Ministryhad to resignand the resigningChiefMinister,Shri Pattom
Thanu Pillay, had advised the Governor to dissolve the Assembly,of the
Governorof Kerala again in regard to the dissolutionof the Communist
Ministryin 1959,and of the Governorof Bombayin regardto the suspension
of sentencein the Nanavati case in 1960,were not whollyfreefrom contro-
versy. Such controversies are bound to growin futurewhenthe Centreand
at least some of the Statesare ruled by differentparties. It would,therefore,
be worthwhile to see what the framersof the Constitutionhad intendedthe
Governorto be.

ofopinionamongmembersof theProvincialConstitution
Difference Committee
:

One of the firstacts of the ConstituentAssemblywas to appointa Com-

mitteeon ProvincialConstitutionunderthe chairmanshipof SardarVallabh-
bhai Patel to framethe outlines of a model provincialconstitution.The

1. Thelatest inthisregard
assertion hasbeenmadeintheU.P.AssemblybySm.Sucheta
Kripalani,ChiefMinister, U. P. in the courseof her statementon the Chaturbhuj
Sharma episodeonSeptember,2,1965,reportedintheHindustanTimes
of September
4, 1965.
p. 239.
2. Pylee-'India'sConstitution,'
3. Ibid.p. 240.

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 38

repliesto questionaire,issued by the ConstitutionalAdviserto the members

of theCommittee,werenot unanimouson thepositionof theGovernorunder
the new constitutionand the mode of his appointment. While Shri B. G.
Kher envisagedreal powers for the Governorunder parliamentaryset-up,
Dr. P. Subbaroyandesiredhimto have onlyformaland ceremonialfunctions.
Some others,like Dr. K. N. Katju, wereof theviewthatthe Governorshould
have largeexecutivepowerson theAmericanmodel.4

As repliesto the questionairewere receivedfromseven membersonly,

it was not possibleforthe ConstitutionalAdviserto preparea memorandum,
embodyingthe majorityview of the Committee. An independentmemoran-
randumwas, therefore, preparedby him forconsiderationof the Committee.

The memorandumsubmittedby Shri B. N. Rau, ConstitutionalAdviser,

envisagedforthe Goverrnor,forthe mostpart,the statusof a constitutional
head. He suggestedthe electionof the Governorby theprovinciallegislature
by secretvote accordingto the systemof proprotionalrepresentation by the
singletransferablevote. In his note,appendedto thisclause of thememoran-
'
dum,ShriRau discussedtheadvisabilityof havingGovernorseitherappointed
by theCentralGovernmentor electedby thevotersof theprovinceconcerned.
The formercould not be adopted due to the rigidschemeof federationunder
the CabinetMission Plan and thelatterwas not properin viewof thefactthat
the Governorsforthe mostpartwereintendedto be responsibleheads, acting .
on advice of the Council of Ministers.5

Whenthisclause of thememorandumcame beforethe ProvincialConsti-

tutionCommitteein its meetingon 6th June, 1947, the sharp difference of
opinion, earlier reflectedin replies to thequestionaire,was witnessedhere
also. " Some memberssuggestedthatthe Governorshould,a¡>in the United
States,have completeexecutiveauthority in a province,nominating
hiscabinet,
whichwouldbe answerableto himand notto thelegislatureand thathe should
be electedbythepeopleon a systemof adultfranchise. Some otherssuggested
that the Governorshould be a constitutionalhead, acting on the aavice of
PrimeMinister,who would be responsibleto thelegislatureand thathe should
be appointedby a systemof indirectelection. Some othermemberssuggested
thatthe Cential Governmentshoulo have a wide rangeof authorityover the
provincesand that the Governorshould functionas a liaisor betweenthe
Central Governmentand the ProvincialExecutive and that he should be
nominatedby the Central Governniert. In the discussion that followed
4. Theserepliesaregivenin a boundvolume, containing
cyclostyled entitled
papers,
Adviser's
'Constitutional Memoranda onProvincial
Constitution
withMinutes
ofthemeetings
oftheCommittee.' Thevolume isavailable
intheLibrary
oftheNational
Archives
ofIndia,
NewDelhi.
5. B.N.Rau- 'Indian's
ConstitutionintheMaking.'
p. 167.

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 39

on thesevarioussuggestions,it was feltthatthe primaryquestionto be consi-

dered was whetherIndia should be a unitaryState withthe Provincesfunc-
tioningas agents and delegates of the Central authorityor whetherIndia
should be a Federationof autonomousunits,cedingcertainspecifiedpowers
to the Centre. It was also consideredthat as this was a point of common
interestto the Union Constitution as well as Provincial Constitution
Committees,it would be desirableto have a joint meetingforthe purposeof
discussion."4

Decisionsof theJointCommittee;

The joint meetingwas held on 7th June, 1947 at which the decisions,
earliertaken by the Union ConstitutionCommitteeon 6th June,1947,were
confirmed. On the main issue of the formof Indian Constitution,
the Com-
"
mitteedecided that the Constitutionshould be a federalstructurewith a
strongCentre As regardsthe Governor,thejoint meetingcame to follow-
ingconclusions:
"
(a) Thereshouldbe a Governorat thehead of everyProvince.

( b) The Governorshould be appointedby the Provinceand not by

theCentralGovernment.

(c) The Provincial Executive should be of ParliamentaryCabinet

typewithsuch suitablemodifications as maybe consideredneces-
saryin thelightof Indian conditions.

(d) The Governorshouldbe appointedby directelectionon the basis

of adult franchisethrougha special electoralcollege.""

Provisions
Emergency on themodeofElectionoftheGovernor:-
and theireffect

It would appear fromabove that the decision to have the Governor

appointedby the Provincewas the directconsequenceof the earlierdecision
in regardto theformofIndianConstitution, whichwas to be federalin charac-
ter. It is to
difficult see, however,why the JointMeetingdecidedto have him
electedby universal suffrageeven in the contextof ParliamentaryGovernment
despite the verysound reasons given by the ConstitutionalAdviser against

6. DraftMinutes Constitution
of the Provincial Committee,held on 6thJune,
1947. (National ofIndiaVolume).
Archives
7. DraftMinutes oftheSecondJointMeetingoftheUnionandProvincial
Constitution
Committees, he'don7thJune,1947,at2-45p.m.inCouncilHouse,New Delhi, (National
ofI ndiaVolume),
/Archives

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 40

sucha course. It was perhapsdue to thediscretionary

powers,to be exercised
in emergencies,earlierenvisagedforthe Governor,that such a decisionwas
taken. In view of the then prevailingunstable conditionsin the country,
majorityof the membersattached greaterimportanceto stabilitythan to
theywantedthattheGovernorshouldbe clothed
and, therefore,
responsibility
power to act decisivelyin grave emergencies.8He could act
with sufficient
in thismanneronlywhenhe feltthathe had thebackingof theentrieprovince
behindhim.9

The emergency powersof the Governorhad, however,a chequeredcareer

in theAssemblyand decisivelyinfluencedtheprovisionrelatingto his appoint-
ment. The memorandumsubmittedby Shri B. N. Rau to the Provincial
ConstitutionCommitteehad vested in the Governor special responsibility
for" the preventionof any gravemenaceto the peace and tranquilityof the
Provinceor any part thereof",in the exerciseof functionsrelatingto which
he was to act in his discretion.10

When this clause came before the Provincial ConstitutionCommittee

forconsiderationin itsmeetingon 9thJune,1947,theGovernorwas authorized
to issue ordinancein his discretionforthe dischargeof this special responsi-
"
bility.11At thismeeting a suggestionwas made thatin viewof the all-India
repercussionsof serious disturbancesin any Province,such an ordinance
should only be issued in consultationwiththe Presidentof the Union. In
view of the far-reaching importanceof this question,it was agreed that the
point should be discussedjointly with the Union ConstitutionCommittee,
The JointCommittee,in theirmeeting,held on 10th.June,1947,recommended
that wherea Governorthoughtthat there was grave menace to the peace
and tranquilityof his Provinceor anypartthereof,he mayreportto the Presi-
dent of the Union ana the latterwould, thereupon,take appropriateaction
undertheemergency powers,vestedin theUnion Constitution. The Provincial
ConstitutionCommitteeaccepted this view. It was made clear that this
meantthatthe onlyaction,whicha Governormay take, excepton advice ,is
to reportto the President."" This decision,whichwas incorporatedin the
1S
reportof the ProvincialConstitutionCommittee, shows the haltingand
hesitantattitudeof the constitution-makers towardsthe discretionary powers
of the Governor.

8. C.A.Debates,Vol.Vm,page441,SpeechofPt.HirdayNathKunzru.
9. Ibid.Page444,Speech
ofDr.'P.K. Sen.
10. Clause13oftheMemorandum ; SeeB. N. Rau- 'India'sConstitution
intheMaking/
Page 171-72.
11. DraftMinutes oftheMeeting of theProvincialConstitution
Committee on 11th
June,1947. (National ofIndiaVolume).
Archives
12,ConstitutionAssemblyofIndia,ReportsofCommittees, First
Series,
Page37,

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 41

But,some importantmembersof the Committeewereevidentlynot satis-

fiedwiththisarrangement.Theirviewwas thatthe Governor,beingtheman
on the spot,mustbe able to take immediateaction and should not be merely
a reportingagency. SincetheCommitteehad recommended thattheGovernor
should be electedon the basis of adult franchise,theythoughtthattherewas
no harmin investing himwithauthority to take immediateaction. Therewas
no comparisonin thisrespectwiththe Governor underthe Act of 1935 and
the Governorunder the proposed Constitution. It appears that this view
got majoritysupportat thetimeof preliminary considerationdue to thetragic
happeningsin Burma,wherethe PrimeMinisteralong withmanyof his colle-
agues was murderedin a suddenmanner. In theeventof sucha thinghappen-
ingin a Province,itwas thoughtadvisableto investtheGovernorwithsufficient
power to take action pendingPresidentialintervention.13 An amendment,
similarto Section 93 of the Governmentof India Act, 1935, was, therefore,
moved and adopted, thoughit was opposed by some importantmembers.
This amendment,which was incorporatedin the Draft Constitution,1948,
" "
empoweredtheGovernorin case of a graveemergency to issuea proclama-
tion and carryon the administration "
of the State in his discretion" fora
maximumperiod of two weeks,pendingaction by the President.14

The Panel System:

But, in regardto the schemeof electingthe Governorby universaladult
the DraftingCommitteefeltthatit was inconsistent
suffrage, withthe system
of responsiblegovernment, envisagedunderthe Constitution. The Drafting
Committee,therefore, suggestedan alternative schemeforthe appointment
of Governor. The Committeerecommendedthat the Governorshould be
appointedby the Presidentfroma panel of fourcandidates,to be electedby
the membersof the legislatureof the State in accordancewiththe systemof
proportionalrepresentationby means of single transferablevote. Some
membersof the Committeewerestronglyin favourof thisalternativebecause
"
theyconsideredthat the co-existenceof a Governor,elected by the people,
and a PrimeMinisterresponsibleto the Legislature,mightlead to frictionand
15
consequentweaknessin administration."

Whythesystemof nomination was adopted:

In the meantime,however,opinionin the Assemblyitselfregardingthis
matterhad changed.16 When,therefore, thisarticlecame beforetheAssembly
forsecondreading,afternearlytwo yearsof earlierdecision,an amendment 5
A. Vol.
13.C. Debates, IV, Pages -
795 817 of
; Speeches Mr.B. M. Gupte,ShriT.
Pt.Lakshmi
Prakasam, KantMaitra,Mr.B. G. Kher,Dr.P. K. Sen,Prof.N. G. Rangaand
HonourableSardar Patel.
Vallabhbhai
14.Article ofIndia,1948.
188,DraftConstitution
ofIndia,1948,page57.
15.DraftConstitution
Vol.VIII,Page452,SpeechofShriK. M. Munshi.
16éC. A. Debates,
m-6

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 42

seekingto substitutethe methodof simplenominationby the President,re-

ceived wide support. As this was a going back on a previousdecision,the
questionoccasioneda marathondebatein theAssemblyafterwhichtheamend-
mentwas carried. The reasons responsiblefor this importantchange were
as follows:-

(1) Firstly,it was realisedthatthe electionof the Governoron the basis

of universalsuffrage was incompatiblewithparliamentary formof government,
which had been adopted in the Provinces. 44Afterwe have adopted the
Britishmodel said Mr. K. M. Munshi,44the electionof the Governorby
adult franchisein the Provinceremainedan anomaly,a completelyout of
date and absurd thing The energyand expenditureof a Provincewould
be wastedin puttinga secondrate man in the partyat the head of a Govern-
mentas a reallyfirstratepersonwould preferChiefMinistership to thisguber-
natorialoffice. Such a person,moreover,was morelikelyto comeintoconflict
44
with the provincialministry. With the prestigeof a generalelection by
adult franchise", said Mr. Munshi," he mightseek in a givencontingency to
overridethepowersofthePrimeMinister". It was pointedout by ShriAlladi
KrishnaswamiAyyar that "nowhere does the systemof election of the
Governorexistwhereinstitution of responsiblegovernment is themainfeature
"
of the constitution ;1T

(2) Secondly,it was feltthatit was betterto have an impartialconstitu-

tional head in the provinces,who would bringto bear a detached outlook
ratherthan a person,who was involvedin the partypoliticsof the province.
Speakerafterspeakerpointedout the need fora Governor,who would act as
a " lubricator", who would " throwoil overtroubledwaters who would be
" a harmoniouselementin the constitution ". This positioncould be filled
betterby a person,chosenby the Governmentof India thanby one, whc was
electedon a partyticketby the provinceas a whole or by the legislature; 18

"
(3) Thirdfactor,responsibleforthischange,was thewaningofthe federal
" in the later
sentiment stages of constitution-makingand the need feltfor
a closer associationbetweenthe Centraland ProvincialGovernments. After
Partition,thistemperovertooktheframers oftheConstitutionand,forobvious
reasons,they were now more concerned to safeguardthe unityof India and
check fissiparoustendenciesthan about safeguardingprovincial interests.
It was, therefore,thoughtthatthe appointmentof the Governorby the Presi-
dent 44would add a close link betweenthe Centreand the Provincesand a

Vol.VIII,Pages431and452.
17. C. A. Debates,
18«Ibid. Page432,SpeechofShriAlladiKrishaswami
Ayyar.

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 43

clash betweenthetwo would be avoided,whichwould otherwiseoccasionally

result."19 The electionof the Governoron the otherhand " would, to some
20
extent,encouragethatseparatistprovincialtendencymorethanotherwise."

(4) Lastly,it wa¿ feltthatsincetheGovernor'spositionwas now envisaged

to be thatofa constitutional head,theexpenditure
and thebotherationinvolved
in goingthroughtheprocessof electionwas " out of all proportion to the
power,vestedin the Governor."21

RejectionofthePanel System:-

A wordis necessaryhereaboutthereasonswhichled to therejectionofthe

panel system,suggestedby the Drafting Committee. Firstly,as has already
been statedabove,theneed feltforhavingan impartialconstitutional head was
to some extentresponsibleforthis. A person,electedby the legislature, must
necessarilybe a party man and could noi bringto bear a detached outlook.
"
Secondly,as has also beenpointedout above, he could notprovidethat close
"
link withtheCentre,whicha person,appointedbytheGovernment of India,
does. Butthefactor,whichseemsto havedecisivelyweighedwiththeAssembly
in rejectingthis droposal was the experiencegained in connectionwith lhe
appointmentof vice-chancellors of universities. If the panel systemhad not
workedwellintheuniversities, howcould itworkfortheGovernment? 22 But,
theessentialmeritofthepanel system, or forthatmatter,anysystemofelection,
thattheperson,holdingtheofficeofthe Governorshouldbe acceptable to the
Province,was recognizedby the makersof the Constitution. For this,they
hoped that the convention,already grownin Canada and also in India, of
consultingthe provincialcabinet concernedbefore the appointmentof the
Governorwouldbe maintainedand no unwantedpersonwouldbe imposedon a
province.23

-
powersof theGovernor
Fate of Emergency

At the secondreadingstage,one moreimportantchangewas made in the

positionoftheGovernor. This was in regardto his emergency powers,earlier
It was feltthatifthe " is
President to take the
given. ultimately responsibly

19. C. A.Debates, ofShriAJladi

Vol.VIII,Page432,Speech KrishnaswamiAyyar.
20. Ibd. Page455,SpeechofHonourable ShriJawaharlalNehru.
21. Ibid. Pages431and468,Speeches ofShriAlladi Krishnaswami
Ayyar andHon'ble
Dr.B. R. Ambedkar.
22. Ibid. Page432SpeechofShriAlladi,Krishnaswami Ayyar.
23. C. A. Debates,Vol.VIII,Pages432and462,Speeches ofShriAlladiKrishnaswami
A yyatandShriT. T. Krishna
machari.

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 44

of enteringinto provincialfieldin orderto sustaintheconstitution,embodied

in thisConstitution, thenit i «muchbetterthatthe Presidentshouldcome into
the fieldrightat the verybeginning."24 An importantreasonforthisshiftin
opinionwas thealteredpositionoftheGovernor,who was nowto be nominated
bythePresident.25The articlewhichgave Governorpowerto assumeauthori-
ty for fifteen
days pendingPresidentialaction was, therefore, deletedleaving
exclusiveauthorityinthehandsofthePresident.

-
Conclusion

The evolutionary survey,attemptedabove,leads to theconclusionthatthe

markerof the Indian Constitutionhad intendedthe Governorto be primarily
the Head of the State and not an agent of the Central Government. His
nominationbythePresidentdoes not alterthisbasic position,foralthoughthis
" "
provisionwas partlydue to a desireto providea link withtheCentre,itwas
mainlythe resultof the adoption of Parliamentary formof government. It
followsas a consequenceand theconstitution makersmade it amplyclearthat
the Governormust be acceptableto the ProvincialGovernmentand must
normallyact as a constitutional head in relationto his ministers.There are,
however, some occasions when any constitutional head urder a parliamentary
systemhas to exercisesome discretion,as forexample,in appointingthe Chief
Ministerwhen no single party commandsmajorityin the legislature, the
Governor,like any otherconstitutionalhead has necessarilyto exercisethat
amountof discretion*

24. Ibid. Vol,IX, Pages132-33,

SpeechofHono'bleDr. B. R. Ambedkar.
25. Ibid. Page152,SpeechofMr.B. M. Gupte.
* Forwantofspace,I haveconfined onlytothefundamental
myself aspectofthequestion
andomitted fromconsideration
someotherarticles
oftheConstitution, articles
particularly
163,167,200,356and244(2)readwithparas9(2)and18(2)and18(3)ofthesixthschedule.
Thesearticles haveobviously
beenputtodealwithspecialmatters
andoccasions andcannot
be construedto havebeenintended toalterthefundamentalfeatureof theConstitution

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