Escolar Documentos
Profissional Documentos
Cultura Documentos
92
and must have completed the age of thirty-five years. Article 159
prescribes the oath, which a Governor has to take before entering
upon his office. He has to swear in the name of God/solemnly
affirm that he “will faithfully execute the office of Governor (or
discharge the functions of the Governor) of........... (name of the
State) and will to the best of my ability preserve, protect and
defend the Constitution and the law and that I will devote myself to
the service and well-being of the people..............(name of the
State).”3
93
party or a pre-election group/coalition gets a clear majority, the
Governor has to exercise his judgment in the matter of whom he
should invite.
94
Ministry. The removal of the Governor under such circumstances
would otherwise mean that the Union executive would effectively
control the State executive, which is opposed to the basic scheme of
our federal Constitution. Article 356(1) was designed to secure that
if the Governor was pursuing policies which were detrimental to the
State or to India, the President would remove the Governor from his
office and appoint another Governor. This power takes the place of
an impeachment which clearly is a power to be exercised in rare
and exceptional circumstances”.4
4 H.M. Seervai, Constitutional Law of India (Forth Ed. Vol. Ill, N.M. Tripathi, Bombay, 1996, p.
3103
95
Governor as an Agent or Representative of the Centre.
96
level. They meant him also to be an important link with Centre."8
Sri Prakasa the former Governor agrees with this view when
he says: "To my mind, it is clear that the only official emblem
today of unity of the country is the Governor. I have a feeling that
even the President is not so. The Governor by convention comes to
one State from another, and is the Representative of the Centre.
Besides fulfilling the formal duties as Head of the State as
prescribed by the Constitution, and attending to inevitable social
engagements that fall to his lot, he is expected to keep the Central
authorities informed, of any movements in the State that might tend
to break up the unity and integrity of the land. He is also expected
to bring to the notice of the Central authorities, the needs of the
State. He is, thus, a servant of the State but a Representative of the
Centre. He can be very useful functionary both for the State to
which he is assigned, and for the country as a whole. In these
circumstances, it behoves all concerned to realise the importance of
the office of the Governor, and give him his due."9
8 Ibid
9 Sri Prakash, The Tribune, April 17, 1969, p. 4
97
Constitutional Head... It would be wrong to emphasise one aspect
of the character of his Role at the expense of the other and
successful discharge of his Role depends on correctly interpreting
the scope and limits of both."10
98
should be freely allowed to send 'Reports’ of the state of affairs in
his State. As a Representative of the Centre, the Governor should
see to it that democracy functioned in the State.14
But while conveying the needs of the State to the Centre, the
Governor should not publicly criticise the Central Government,
except in the form of a Governor's address prepared by the Council
of Ministers, otherwise, it may put him in difficulty. For instance,
Dharam Vira, the then Governor of Mysore, was summoned by the
President to express his displeasure over a speech which he made
on January, 15 1972, in which he criticised the Central Government
for reducing the special allocation to the State from 105 crores to
14 Ibid.
99
60 crores during the plan period. He said that if this cut is not
restored the State Government would not pay the overdrafts. He
was summoned to Delhi by the President to express his displeasure.
After the President expressed his displeasure, he apologised
privately as well as publicly through the Press. This happened just
15 days before his retirement.
100
to be made very clear, because such an idea finds no place in the
scheme of Government we envisage for the future."16
101
is considered capable of running a State on behalf of the President
no adviser may be appointed.
102
But, the use of the words 'or otherwise' (in Art. 356) show that
Presidential satisfaction could be based on other material as well.
This feature of our Constitution indicates most strikingly the extent
to which inroads have been made by it on the federal principle of
Government."21
103
It is also very interesting to note that between 1950-1966, the
President's Rule was imposed ten times in six States and one Union
territory. In Nehru era it was imposed, seven times i.e. in Punjab
(1951), Pepsu (1952), Andhra (1954), Travancore Cochin (1956),
Kerala (1956 and 1959) and Orissa (1961). Between 1964-66, it
was imposed two times in Kerala in 1964 and 1965 when Lai
Bahadur Shasiri was the Prime Minister. During Mrs. Indira
Gandhi's period of Prime Ministership between 1966-77,
President's Rule was imposed thirty-five times in fifteen States and
one Union Territory. In March 1977, the Janta government came
into power at the Centre and the President's Rule was imposed in as
many as nine States on April 30, 1977 after dissolving their
Assemblies.
104
brought operation and ration and they will remain a dead letter: Dr.
Ambedkar lived to denounce, in Rajya Sabha the imposition of
President's Rule in PEPSU in 1953 most violent kind of rape on the
Constitution. Thus, the gross abuse of the Centre's power to take
over the State, makes a mockery of the federal principles.
105
Governor really becomes 'function officio', and it is only by the
President's specific order that he becomes an Agent of the Centre.
Even in normal times i.e. when the President's Rule has not been
imposed in a state, the Governor generally as a spokes person of the
centre. It seems that the Governor has now become a tool in the
hands of the ruling party at the centre to control the State
Governments.
106
running the Government of the States "in accordance with the
provisions of this Constitution" is transferred to the ultimate care
of the Union Government-"federal coercion" as some
constitutionalists call it.
While the duty of the Union is direct in Article 355, the duty
to "Report" is implied in Article 356. What is not even implied is
that the Governor can do it in his discretion, i.e., independent of
the advice of the Ministry. If 'President' in this part means the
Council of Ministers in the Centre, why and how should 'Governor'
mean 'Governor in his discretion'. More about it later; for the
present, under what circumstances has the Governor to Report?
107
provisions of this Constitution" may broadly include the following:
108
Breakdown of law and order, as experience has so far shown,
occurred under diametrically opposite circumstances. In Kerala in
1959, when the first Communist Ministry was formed, it was the
Congress in Opposition that organised the breakdown of law and
order, and, President's Rule was unconstitutionally imposed there.
When his Government wants to suppress disorder, the Governor
should give all support to the Ministry and so also should the
Centre. In the other situation, the ruling party in the State itself
might organise disorders or at least connive at them and even
instruct the police not to interfere. This is what happened in West
Bengal under the two United Front Governments between 1967 and
1970. Under these circumstances, if the Governor feels that a
breaking point in popular patience is reached, he should make a
Report under Article 356, leaving the responsibility for taking steps
to the President.
The main thing for which the provision has been made is for
what is called the constitutional breakdown, and this may occur
under two sets of situations:
109
Constitution. In fact, it is to meet such a situation that Sec. 93 was
emphatically introduced in the 1935 Act. Again, it happened several
times between 1937 and 1945, when the Congress Party having
clear majorities refused office. In an Independent country, as ours,
such a situation may not ordinarily arise, though it cannot be Ruled
out altogether. Whatever it might be, the Governor, if the situation
permits, may try a fresh election; but the sooner he Reports to the
President under Art. 356, the better will it be for the State. That is,
Because it is most likely that the majority party has decided on
"wrecking" the Constitution because of a general grievance of the
people, and if a new' election is held, it is likely that the same party
will come back to power in greater numbers. The remedy is
President's Rule and negotiation by the Centre for the redress of the
grievance of the people.
110
feature for some time, may' be for a long time, until the various
parties would learn, as in the Scandinavian countries or in West
Germany today, to form permanent coalitions without losing the
individual party identities.
111
Governor dissolves the Assembly, it clearly means that he is
hopeful, or at least he has reason to hope that a new election might
result in the formation of some Government, even of a sort.
112
position. It need not make any recommendation as to the course to
be adopted, though he could and in practice he is doing, because it
is after all to be decided by the President and his Union Cabinet. In
all fairness, let the President (Cabinet) have a free choice of the
course to follow; otherwise, it is coercing the President.
(2) not consult the Centre either before the Report stage or
during the period when the President is seized of the
matter;
(3) not do any other thing (like dissolving the Assembly etc.)
in between the time of Reporting and President's decision.
113
(b) what is the Governor's Role during the President's
Rule?
114
that involve (un voted) expenditure and new taxation measures.
There is a tendency on the part of the Governors to try to improve
on the people, and also publicise, that Governor's (President's) Rule
is better than democratic Rule by popular Ministers. This must stop
completely as it gives wrong political education to the people and
may develop ideas of contempt for democracy. Two Guidelines:
115
The success of such an arrangement would depend on the
health of the working relationship between the Government and the
opposition. Conventions and attitudes in this field are yet to
develop fully. While the suggestion could be considered for
adoption in the due course, the Study Team felt that it is not likely
to prove workable at the present stage.
116
based, it would be hazardous to state that the President should
perform important functions like the appointment of Governors of
the State without the advice of his Council of Ministers.
Constitutionally, legally and otherwise the proper course is
undoubtedly that the President must act on the advice of his council
of Ministers in appointing Governors in the States. The advice of
the Council of Ministers represents the majority view in Parliament
and therefore such advice is binding on the Constitutional Head.
117
context of use of Article 356 :
118
support enjoyed by the Ministry. When a question arises as
to whether the Council of Ministers enjoys the confidence
of the majority in the Assembly, and the Chief Minister
does not advise the Governor to summon the Assembly, the
Governor may, if he thinks fit, suo motu summon the
Assembly for the purpose of obtaining its verdict on the
question,
119
Judge of the Supreme Court was constituted to “examine and review
the working of the existing arrangements between the Union and
States in regard to powers, functions and responsibilities in all
spheres and recommend such changes or other measures as may be
appropriate”. The notification dated June 9, 1983 appointing the
Commission stated further that “In examining and reviewing the
working of the existing arrangements between the Union and States
and making recommendations as to the changes and measures
needed, the Commission will keep in view the social and economic
developments that have taken place over the years and have due
regard to the scheme and framework of the Constitution which the
founding fathers have so sedulously designed to protect the
independence and ensure the unity and integrity of the country
which is of paramount importance for promoting the welfare of the
people”.
120
Governor does not become an agent of the Central Government.
Such a Report has to be made by the Governor as required by his
oath which obliges him to “preserve, protect and defend the
Constitution” and to devote himself “to the service of well-being of
the people” of that State. If he is honestly satisfied, in a given
situation that the government of that State cannot be carried on in
accordance with the provisions of the Constitution, it becomes his
duty to make a Report to that effect to the President. This he does
as the Governor of the State and in the interest of the State and not
as “the agent of the Centre”. It is another matter that because of the
conduct and actions of some over the last several decades, they
have earned this notoriety and the pejorative appellation of an
agent.
121
multi-faceted Role, that Governor is linchpin of constitutional
apparatus, that Governor’s office assures continuity of Government
and that it should not be dispensed with. The Commission
proceeded to discuss the manner of selection of Governors, the term
of their office, their eligibility for further offices after the expiry
of their term and the retirement benefits available to them. The
Commission then discussed the areas in which the Governor has to
act in his discretion and the need for such discretionary powers.
Finally, the Commission set out its recommendations in paragraphs
4.16.01 to 4.16.24.
122
State Council should formulate the Guidelines governing the
discretionary powers by the Governors and that after their
acceptance by the Union Government such Guidelines should be
issued in the name of the President. The Government of India,
however, did not accept this recommendation saying that the matter
should best be left to the conventions which may be established or
which may be evolved in that behalf. In this state of affairs, the
Sarkaria Commission concluded that it is not possible to lay down
any Guidelines governing the functions and duties of the
Governors, partly because it is not possible to foresee all the
situations which may develop calling for the exercise of discretion
by the Governor.
(iii) must not have participated in active politics at least for some
time before his appointment;
123
action is to be taken against him he must be given a
reasonable opportunity for showing cause against the grounds
on which he is sought to be removed. In case of such
termination or resignation by the Governor, the Government
should lay before both the Houses of Parliament a statement
explaining the circumstances leading to such removal or
resignation, as the case may be;
124
Minister from among the following parties or groups of parties
by sounding them, in turn, in the order of preference indicated
/
below:
125
the Legislative Assembly, he must normally go by the advice of
Council of Ministers but where a no confidence motion is moved
and the Chief Minister advises proroguing the Assembly, he should
not accept it straightaway and advise him to face the House.
126
“the unflattering episode shows in unmistakable terms the
Governor’s unnecessary anxiety to dismiss the Ministry and
dissolve the Assembly and also his failure as a constitutional
functionary to realize the binding, legal consequences of and
give effect to the orders of the court”.
26 National Commission to review the working of the constitution (NCRWC) - A Consultation Paper
on the Institution of Governor under the Constitution, Vigyan Bhawan, Annexure, New Delhi, May
11,2001, pp. 13-16
127
constitutional obligation”.
128
sending “ad hoc or fortnightly Reports to the President” is not a
healthy one. Instead of recommending the stoppage of such
practice, the Sarkaria Commission has recommended that while
sending such Reports, the Governor should take the Chief Minister
into confidence unless there are overriding reasons to the contrary.
But this suggestion has evidently fallen on deaf ears. Having regard
to the manner in which the Governors are appointed and the
constant control exercised at present by the Central Government
over them, it perhaps appears more appropriate that this practice
should altogether be stopped except where the Governor feels that
consistent with his oath and in the interest of the people of the
State, a Report should be made to the President as contemplated by
and within the meaning of Article 356 of the Constitution. Since the
Governor has taken oath ‘to preserve, protect and defend the
Constitution and the law’ and also ‘to devote himself to the service
and well-being of the people’ of that State, it becomes incumbent
upon him, wherever he is honestly satisfied that a situation has
arisen where it is not possible to carry on the government of the
State in accordance with the provisions of the Constitution (as
adumbrated in the decisions of the Supreme Court [in particular in
the latest decision in S.R. Bommai v. Union of India (AIR 1994 SC
1918), he should make a Report to the President. Such a Report
should not be made either because he has been instructed by the
Central Government to do so or for any other reason. It should also
not be with an eye upon exercising real power in the sense that
once the Ministry is dismissed, the governance of the State
effectively passes into his hands, no doubt assisted by the advisers
who are normally appointed by the Central Government.
129
Accordingly, the commission recommend that Articles 155
and 156 of the Constitution be amended to provide for the
following: -
(b) the term of office, viz., five years, should be made a fixed
tenure;
(c) the provision that the Governor holds office “during the
pleasure of the President” be deleted;
If the above changes are brought about, not only the oath
taken by the Governor would not remain a mere formality, but the
130
office of the Governor would be invested with requisite dignity and
integrity. We may point out that this change would in no way
reflect upon the duties and functions of the Governor even in the
matter of making a Report under Article 356. To reiterate, having
taken an oath to “preserve, protect and defend the Constitution and
the law”, the Governor is bound, wherever he finds that “a situation
has arisen in which government of the State cannot be carried out in
accordance with the provisions of (this) Constitution”, to send a
Report to the President to that effect. The ultimate loyalty of the
Governor should be to the Constitution.
131
standing, reputation and learning. But, by and large, the picture has
not been an inspiring one. This is because very often active
politicians, politicians defeated at the polls and men lacking in
integrity and fairness and individuals not possessing an
understanding of the constitutional system - persons who were
more interested in their personal career rather than public good -
were chosen for this office. It is their conduct, by and large, which
has induced us to make the aforementioned suggestions; it is not
that we take any pleasure in running down the institution of
Governors. As we have said earlier, there have been and there are
certain very remarkable and excellent individuals holding this
office and whose fairness, independence and commitment to public
good has been, and is, beyond question.
27 K.V. Rao, Guidelines for the Governors in Virender Grover, (E.D.), Federal System, Central State
Relations and State Autonomy, Deep & Deep Publications, New Delhi, 1977, pp. 432-435
132
(majority) party or the leader of the largest single party
(except in case this party was in power previous to the
election and was defeated) should be invited to the Ministry,
just after an election.
133
frequent testing on the floor of the House.
134
has no democratic legitimacy.
• Governors should keep their ears and eyes open and should
have good channels of communications besides the Chief
Minister. But at the same time they should not allow Raj
Bhawans to be talking shops for disgruntled politicians and
ministerial aspirants.
135
himself useful, dignified and non-controversial.
28 Press Release of Inter-State Council (ISC), Ministry of Home Affairs, 13, March, 2003.
136
The Standing Committee took the following decisions in
regard to the Commission’s recommendations on ‘Emergency
provisions’:-
137
accepted. The Standing Committee, however, decided not to
accept another recommendation of the Commission that the
material facts and grounds on which Article 356 is invoked
should be made an integral part of the Proclamation issued
under that Article.
CONCLUSION:
138
particularly when his functions relate to matters in which the
Central Government may be vitally concerned. It is, therefore,
important that the Government must be enabled to exercise his
Constitutional functions with a clear understanding and on the
basis of principles which are accepted by the State Governments
and the Central Government and on the basis of agreed
conventions.
139
party in power at the Centre and the field of selection should
extend much beyond the political arena.
140
accordance with the provisions of the Constitution, he must Report
the same to the President as contemplated by Article 356. This is
also a requirement of the oath taken by him viz., to “preserve,
protect and defend the Constitution”. The Central Government
should also desist from undue interference with the State
Governments and should indeed respect the powers of the States.
The State’s powers, few they are, should not be whittled down
further. On the contrary, the effort should be to preserve the federal
nature of our Constitution. The interest of our nation is in
“cooperative federalism” and not in confrontational politics or
politics of domination.
141
respected and is supposed to be a non-partisan functionary. He is
also a necessary and useful part so Parliamentary system of
government. But how for he would be useful and respected depends
upon himself- to what extent he makes himself useful, dignified and
non-controversial.
142
and proper sense and to enable him to live up to his oath truthfully.
His loyalty must be to the Constitution and to none else and his
commitment to the well being of the people of his State. He must
command respect by his conduct. Despite everything an ideal
Governor need to act in caution.
143