CHAPTER - IV

A CRITICAL ANALYSIS OF THE

ROLE OF GOVERNOR IN THE CONTEXT
OF USE OF ARTICLE 356

This chapter while tracing the Historical Background of the

Institution of Governor, makes a critical analysis of the Role of
Governor in the context of Use of Article 356 and also suggests
certain 'Guidelines' for the Governor. The Chapter also discusses
'Dual Capacity' of Governor i.e., Governor as the Constitutional
Head of the State and Governor as the Representative or Agent of
the Centre; The recommendations of the Administrative Reforms
commission (ARC), National Commission to Review the working of
Constitution (NCRWC) and that of Inter-state Council (ISC) with
regards to the Role of the Governor have been incorporated. The
'Judicial Guidelines' provided by the Supreme Court in S.R.
Bommai's case have also been included in this chapter.

HISTORICAL BACKGROUND OF THE INSTITUTION OF

GOVERNOR:
Article 153 of the Constitution requires that there shall be a
Governor for each State. One person can be appointed as Governor
for two or more States. Article 154 vests the executive power of the
State in the Governor. Article 155 says that “The Governor of a
State shall be appointed by the President by warrant under his hand
and seal”1. Article 156 provides that “The Governor shall hold
office during the pleasure of the President”2. The term of the
Governor is prescribed as five years. The only qualifications for
appointment as Governor are that he should be a citizen of India

1 Article 155 of the Constitution of India

2 Article 155 of the Constitution of India

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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

Though the Governor is the executive Head of the State and a

part of the State Legislature and the administration of the State is
carried on in his name, the people of the State or their
representatives have no say in the matter of his appointment. While
the President is elected by the representatives of the people,
namely, the Members of Parliament and the Members of the State
Legislatures, the Governor is merely appointed by the President
which really means, by the Union Council of Ministers. In as much
as the Governor holds office during the pleasure of the President,
there is no security of his tenure. He can be removed by the
President at any time. There is no provision for impeaching the
Governor by the State Legislature. Indeed, if the Governor
misbehaves or acts in a manner against the interests of the people
of the State, as perceived by the State Legislature they cannot do
anything except perhaps complain to the President.

It may also be noticed that the Chief Minister is appointed by

the Governor. Where one party gets a clear majority, the Governor
may have no discretion or choice in the matter but where no single

3 Article 159 of the Constitution of India

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.

Today the situation is that different political parties are in

power in different States. In other words, the situation prevailing
between 1952 and 1967, when one party controlled both the
Parliament and State Legislatures, no longer continues. In such a
situation and because the Governor owes his appointment and his
continuation in the office to the Union Council of Ministers, in
matters where the Central Government and the State Government do
not see eye to eye, there is the apprehension that he is likely to act
in accordance with the instructions, if any, received from the Union
Council of Ministers rather than act on the advice of his Council of
Ministers. Indeed, the Governors today are being pejoratively
called the ‘Agents of the Centre’. It is true that the Central
Government is not expected to give any instructions which
compromise the status and position of the Governor nor is it
expected to remove him for not implementing the instructions given
by it, the experience for the last several years belies this hope. As
H.M. Seervai has pointed out in his commentary: “As the President
acts on the advice of his Ministry, it may be contended that if the
Governor takes action contrary to the policy of the Union Ministry,
he would risk being removed from his post as Governor and
therefore he is likely to follow the advice of the Union Ministry. It
is submitted that a responsible Union Ministry would not advise,
and would not be justified in advising, the removal of a Governor
because, in the honest discharge of his duty, the Governor takes
action which does not fall in line with the policy of the Union

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

The Role of Governors has come in for severe criticism -

sometimes, bordering on condemnation - in the context of Reports
they submit under and within the meaning of Article 356. Many a
Governor, has not covered himself with glory in that behalf.
Notwithstanding the recommendations guiding the discharge of
their functions in the Sarkaria Commission Report (to which we
shall presently refer) and the decisions of the Conference of
Governors, many Governors continue to behave in a manner not
consistent with true spirit of the Constitution.

DUAL ROLE OF GOVERNOR:

The Governor occupies a very important position under the

Constitution by virtue of his 'dual role', i.e. his position as a
Constitutional Head of the State and his position as a
Representative of the President (Union Government or Central
Government) in the State.

Thus, the Governor of a State has to act in a dual capacity

i.e. (i) Governor as the Constitutional Head of the State, and (ii)

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.

On the one hand, he is the Constitutional Head of the State

and is a part of the State apparatus. On the other hand, he is the
representative of the Central Government in the State and thus
provides a link with Centre.5 In making a 'Report' to the President
under Article 356 (1) the Governor acts not only as the Head of the
State but also as the Representative of the Centre, who is under an
oath to "Preserve, protect and defend the Constitution and the
Law"6 As mentioned in the Judgement of Bommai's case, the
Governor is like a person wearing two hats, with one hat, he is the
Head of the State of Government and with the other he is the
Representative of the President.

According to the Report of the Administrative Reforms

Commission, "the Governor functions, for most purposes, a part of
the State apparatus; but he is meant, at the same time, to be a link
with the Centre. This link and his responsibility to the Centre flows
out of the Constitution mainly because of the provision that he is
appointed and can be dismissed by the President. The Constitution
thus specifically provides for a departure from the strict federal
principles and it is relevant to observe that this departure is not
fortuitous or casual."7 This departure has been made because it was
in the interest of all India unity and it was expected that it would
encourage centripetal tendencies. "It is clear, therefore, that the
founding fathers of the Constitution did not intend the Governor to
be only a component in the apparatus of governance at the State

5 M.P. Jain, Indian Constitutional Law (1987) p. 187

6 Article 159 of the Constitution of India
7 Administrative Reforms Commission Report Vol. 1, Sept. 1967, pp. 272-273

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

It means that the Governor has to act in a 'dual capacity',

i.e., as a Constitutional Head of the State and as a Representative
or Agent of the Centre and this duality in his Role is perhaps the
most important and certainly the most unusual feature of the Indian
Constitution which has made the position of the Governor really a
very difficult one. Because of the dual Role "the holder of this
office is not required to be an inert cipher and that his character,
caliber and experience must be of an order that enables him to
discharge with skill and detachment his dual responsibility towards
the Centre and towards the State executive of which he is the

8 Ibid
9 Sri Prakash, The Tribune, April 17, 1969, p. 4

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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

Governor as a Representative or Agent of the Centre:

According to late Y. B. Chavan, the former Home Minister,

"the Governor to a State is a Constitutional Head except in three
Articles. These Articles are 239 (2), 200 and 356. Except in these
three Articles, the Governor functions as the Constitutional
Head."11

Under these three Articles the Governor acts as a

Representative of the Centre and in that capacity he has to perform
certain important duties.

As a Representative of the Centre it is his duty that he must

keep the Centre informed of the affairs of his State whenever he
should feel that such things are going on which can endanger the
unity of the country. For this purpose the Governors send
fortnightly Reports to the President. But so long as these Reports
are sent to the President through the Chief Minister, the purpose
may perhaps not be served.12 But in spite of this A. P. Jain, the
former Governor of Kerala, is not in favour of the idea of the
Governor writing privately to the President on the affairs of the
State without informing the Chief Minister.' This would according
to him "add to the suspicion of the Chief Minister".13 It is,
however, difficult to agree with this view because "the Governor

10 Administrative Reforms Commission Report Vol. 1, Sept. 1967, p.27.

" Lok Sabha Debates, 4th Series, Vol. VII, VIII, Nos. 41-45, July 1968 Cot. 13495.
12The Tribune, Oct. 24, 1969, p. 4
13 The Statesman, May 3, 1970, p. 11.

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

As a Representative of the Centre, second duty of the

Governor is to look after the interests of the State and "if he feels
that the Centre must step into to help in this way or in that, to meet
any difficulty which the State itself is in no position to do, then he
must tell the Centre as much. For instance, V. V. Giri when he was
the Governor of Kerala, approached the Planning Commissions to
fight for the rights of Kerala. The Commission had allotted only
Rs. 105 Crores for the State in the Third Plan. He represented that
the State should get at least Rs 200 Crores for its development
programmes. He also raised, the issue so vigorously at the
Governors Conference that Mr. Nehru asked him whether he was
threatening the Centre.

He replied that if Socialism was to be implemented in Kerala,

the State should get at least Rs 200 Crores for its plan schemes.
Ultimately the Centre yielded to some extent, and increased the
allotment to Rs 175 Crores.

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.

Under Article 356, as a Representative of the Centre, it is his

duty to see that the Government of the State is carried on In
accordance with the provisions of the Constitution and whenever he
feels that the Government is not being carried on in accordance
with the provisions of the Constitution he must Report it to the
President. "The duty to Report flows from article 355 and is
specifically mentioned in article 356. The Union Government has
the duty to ensure that the Government of every State is carried on
in accordance with the provisions of the Constitution. It has no
agency in the State other than the Governor, to keep it informed of
the happenings there and whether the Government is being carried
on in accordance with the provisions of the Constitution. In the
event of a constitutional break down, the Governor is expected to
make a 'Report' to the President and can advise him to assume the
functions of Government of State..."15

Governor as an Agent or Representative of the Centre:

While speaking in the Constituent Assembly, T.T.

Krishnamachari, said: "I would at once disclaim all ideas, at any
rate so far as I am concerned, that we in this House want the future
Governor who is to be nominated by the President to be in any
sense an Agent of the Central Government. I would like that point

15 Administrative Reforms Commission Report, Vol. I, Sept. 1967, p. 276.

100
to be made very clear, because such an idea finds no place in the
scheme of Government we envisage for the future."16

This view has been also supported by K. Subba Rao the

former Chief Justice of the Supreme Court when he said that "the
Governor should not act as the Agent of the Central Government
but should act impartially as the Head of the State in terms of the
Constitution." But whatever view may have been of the framers of
the Constitution,17 it cannot be denied that under article 357 (1) (a)
whenever, the President authorises the Governor to act on his
behalf, the Governor acts, as the Agent of the Central Government.
While speaking on the "constitutional aspects of Dharam Vira
episode" in a group discussion organised by the Delhi study group,
P. Govinda Menon, the then Law Minister, said that "President's
Rule was not the Governor's Rule. The Union Home Minister could
always advise the President with regard to the conduct of a
Governor and request his withdrawal because the Union
Government administered the President's Rule."18

Hence, so far as the Centre is concerned, it is now firmly of

the view that "the President's Rule means Rule by the Centre...This
reading of the constitutional position has also been taken to mean
that the Centre may run a State with the help of advisers putting the
Governor on shelf and that such advisers could Report direct to the
Union authorities and take orders without even the knowledge of
the Governor. In other words, a Governor could be made
ineffective in case the Centre does not think him capable of
running the administration. A corollary to this is that if a Governor

,6C.A.D. Vol. VIII, p. 400.

17 The Times of India Oct. 20. 1969. P. 7.
18 Ibid., April 4,1969, p. 11.

101
is considered capable of running a State on behalf of the President
no adviser may be appointed.

Some Governors, for instance, Dharam Vira (when he was the

Governor of Kerala) have been left free to run the State under the
general supervision of the Centre".19

Governor's Report on the failure of Constitutional Machinery in

States and Dissolution of State Assemblies:

Although the President can act independently of the

Governor's Report in case of a situation in which the government of
the Slate cannot be carried on in accordance with the Constitutional
provisions, yet the Governor's Report generally forms the basis for
President's action.

Dr. B.R, Ambedkar justified the inclusion of the word

'otherwise' in Article 356 on the ground that in such emergent
situations the President should come into the field from the very
beginning and not after the supersession of the Constitution by the
Governor as envisaged under Article 188 of the Draft Constitution.
Thus Article 356 empowers the President even to act on his own
initiative.

In 'State of Rajasthan v. Union of India,'20 Justice

Bhagwati has also conceded that the inclusion of the word
'otherwise' in Article 356 gave the President very drastic Powers
which, if misused or abused can destroy the Constitutional
equilibrium between the Union and the States.

He says: "Indeed, the usual practice is that the President acts

under Art. 356(1) of the Constitution only on Governor's Report.

19 The Tribune, July 3, 1971, p. 4.

20 AIR (1977) SC 1361

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

It is important to note that a few things which were thought

inconceivable in constitutional terms, have happened under the
shelter of the word 'otherwise' in Article 356. Mass dismissal of
State governments without the Report of the Governors, not for
Constitutional breakdown, but to suit the convenience of the party
in power at the Centre, as it happened in '1977 and 1980- are some
such examples.

As against the expectations of Dr. B.R. Ambedkar, Article

356 neither remained a dead letter nor it was sparingly used. Upto
March, 2009, Presidents Rule has been imposed more than one
hundred times and to be more precise one hundred and twenty times
uptill now in the States including Union Territories. It has. been
imposed two times in Andhra Pradesh, five times in Assam, ten
times in Bihar, four times in Goa, five times in Gujarat, three times
in Haryana, two times in Himachal Pradesh, three times in Jammu
and Kashmir, six times in Karnataka (Mysore), nine times in Kerala
(Travancore Cochin), four times in Madhya Pradesh, one times in
Maharashtra, nine times in Manipur, three times in Meghalaya,
three times in Mizoram, five times in Nagland, eight times in
Orissa, nine times in Punjab & (Pepsu), four times in Rajasthan,
two times in Sikkim, four times in Tamil Nadu, five times in
Tripura, ten times in Uttar Pradesh, four times in West Bengal.

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.

President's Rule was also imposed in Karnataka, Tripura,

Mizoram and Pondicherry after the coming of the Janata Party in
power at the Centre. After Mrs. Indira Gandhi became Prime
Minister again, the President's Rule was imposed in as many as
nine States on February 18, 1980 after dissolving their Assemblies.

This shows that the expectations of the founding fathers of

the Constitution that Article 356 would be most sparingly used
have completely been belied. Dr. B.R. Ambedkar was emphatically
of the view that Centre could intervene "only when the government
is not carried on in consonance with the provisions laid down for
the constitutional government to the provinces. Whether there is
good government or not in the act province is not for center to
determine."22 He was not unaware of the possibility of the abuse of
these provisions but contended himself with express never be

22 C.A.D. Vol. IX, p. 177

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.

From a critical analysis of the Role of Governor in the

context of us of Article 356 during last sixty years, it has been
revealed that there have developed some disturbing trends with
regard to the Role of Governor. Between the constitutional position
of the Governor and the actual practice there is a wide hiatus which
defeats the very basic beliefs of the framers of the constitution. The
disturbing trends and violation cover all aspects: the appointment
of the Governor in consultation with and with the consent of the
State Government; the public image, caliber and stature of the
persons to be appointed as Governor; the security of tenure of
Governors; Governor's power to appoint Chief Minister, to dissolve
and suspend State Assemblies, to dismiss ministers, to reserve a
bill for president's consideration and the imposition of president's
Rule in the states on Governor's Report.

The former Karnataka Chief Minister of Karnataka Mr.

Ramakrishna Hegde, presented a white paper in the Karnataka
Assembly in the third week of January 1983 on the Role of the
Governors and seriously alleged that the Governors have always
acted at the "instigation" of the ruling party at the centre,
"dabbling" in politics and thus becoming victims of "political
perversion. This charge against the Role of Governor is also proved
in the preceding pages of this Study.

It can be concluded that during the President's Rule, the

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.

The Governor is supposed to be the Constitutional Head of a

State. He is dignified part of the Government. He is highly
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.

Hence to make the Role of Governors really meaningful in

centre-state relations and for maintaining the principles and spirit
of parliamentary government, it is suggested that the exercise of
discretionary powers by the Governors should be guided by the
healthy and democratic conventions which may grow from time to
time in the working of the Constitution.

GOVERNOR AND PRESIDENT'S RULE

A clear understanding of the philosophy behind the
imposition of President's Rule is necessary.

Article 355 is an after-thought, and it was introduced to make

sure that the Centre has got authority, given to it by the
Constitution itself, to interfere in State matters to the extent even
of suspending the State's normal functioning. At one stroke, as
against all accepted canons of federalism, the responsibility for

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?

Everything turns now on the meaning of "in accordance with

the provisions of this Constitution." For one thing, it can mean
anything because as argued some time, back, when life and liberty
are in danger or Harijans are not treated well, the constitutional
guarantees may be said to have failed and the Centre could interfere
in State matters. For another thing, it might mean, perhaps in a
limited way, a situation when the constitutional machinery breaks
down because of the failure to operate Articles 163 and 164, i.e.,
when the Governor is unable to find a Council of Ministers to aid
and advise him which at the same time could command a majority
in the Legislature. As originally conceived under Section 93 of the
1935 Act, from which this provision was lifted, it carried the
second meaning; but from the proceedings -of the Constituent
Assembly, it is difficult to say whether it did not carry also the first
meaning. (Otherwise, it is difficult to understand the significance
of'otherwise' in Art. 356).

Thus, the meaning of the term "in accordance with the

107
provisions of this Constitution" may broadly include the following:

a) When the Ministry is absolutely corrupt and misusing the

machinery of the Government for dishonest purposes but is
firmly saddled in power backed by a comfortable majority.

b) When law and order completely breaks down, and

ordinarily it is beyond the means of the State to control it.

c) When the Governor is unable to form a Ministry

collectively responsible to the Legislature.

So far we have not seen any instance of a Governor

"Reporting" under Art. 356 that his Government is corrupt and
therefore, President's Rule should be introduced. We ourselves
stated above that, since ensuring good government is not a
responsibility of the Governor but of the people, we may also
approve of the silence of the Governor on this account. Otherwise,
Kairon in Punjab, Biju Patnaik and Biren Mitra in Orissa and
Bakshi Gulam Muhammad in Kashmir, should have been
unceremoniously "Reported" and President's Rule introduced. Not
doing so seems to be also in accordance with the wishes of the
Constituent Assembly; for when Pandit H.N. Kunzru asked in the
Assembly whether Article 356 was intended for ensuring "good
government" in the States, Dr. Ambedkar did not give a definitely
positive reply.

So far so good. But unfortunately, the Constitution does not

provide a way out of this difficult situation where the Ministry is
corrupt but has a strong legislative backing probably also obtained
through corruption. The best thing, therefore, now is for the
Governor to make such 'Reports’ under Article 356 so that the
President could take such action as he might think fit.

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:

(1) Where a party wins an absolute majority in the election

just held, and not only refuses to accept office, but also
refuses to allow a minority government to function.

(2) Where no party wins a clear majority, and no agreement on

Coalition is available ant thus no Government at all is
possible to form.

Situation No. I occurred in pre-independent India under the

Montford Reforms in what was then Central Provinces, when the
Swarajya Party under E. Raghavendra Rao refused office and
refused to allow any other Ministry to function, thus "wrecking" the

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.

Situation No.2 sometimes follows a Coalition situation,

where the polities have so many differences among them that it
would not be possible for any government to be formed at all. In
this situation, there are two variants. If the State is a long-standing
multi-party State, no useful purpose will be served by dissolving
the Assembly and attempting another election with a dose of
President's Rule in between. This was tried in Kerala without much
use. The multi-party State cannot be coerced into becoming a bye-
party or single-party State through constant use of Art. 356.

Talking about this problem in the Constituent Assembly, Dr.

Ambedkar positively asserted that Art. 356 should not be used
frequently; in fact, he fervently hoped that this Article would never
be put to any use at all.

In such a State, unstable Government will be a normal

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.

The second variant occurs in a State which normally returns

a party with a majority. Here, when the people get annoyed with
this party, generally they vote against it without all of them
choosing another party to vote to power. This is what happened in
States of V.P., Bihar etc. at the time of 1967 elections resulting in
unstable Coalition Governments. Here, the remedy is to wait for
some time and dissolve the House, with the consents of leaders of
various parties and have a new election. Either the State may revert
to the ideal condition, or it may be that once again unstable
Governments will be formed in great succession, which may be an
indication that perhaps the State was changing its character into a
multi-party one. The Governor should, under this condition, either
dissolve the House or Report to the President-in either case, only
after consulting as many leaders as possible.

Above we questioned if there is any 'discretion' at all here as

intended by the Constitution; and now we find that as the situation
develops, the Governor has to exhaust all chances of forming a
stable Government before he Reports; which means that every
leader, in turn must inform him of his inability to form the
Government, and this amounts to taking advice from them all.
Whatever it is, there is no meaning in consulting the Centre and it
is better that the practice so far followed is given Up.

Dissolution by the Governor under Art. 174 and Reporting to

President under Art. 356, are two alternate remedies. When the

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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.

In this regards few Guidelines may be indicated here: The

Governor should:

(1) allow even as many "unstable" Governments as required or

possible to be formed;

(2) should not dissolve the House as long as some Government

(responsible to the Assembly) is possible, however, likely
to be unstable;

(3) should try one or two dissolutions if found required; and

(4) should Report only in case the Governor is fully satisfied

that no government (stable or unstable) is possible at all '
for the time being even after one more election.

Thus, when the Governor Reports, the position in the State is

as follows:

(1) The Legislature is alive, i.e., not dissolved; but

(2) No Government can run at all, because

(a) has then government had no legitimacy to continue

and

(b) the majority party (if there be one) is unwilling to

form the Government, nor would it allow a minority
Government, or

(c) (in case of multiple parties) no understanding could

be reached to form the Government.

The Governor's 'Report* thus is expected to explain this

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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.

Thus, it is wrong to dissolve the House first and then Report

to the President, as Pavate in Punjab (1971) and Dhawan in West
Bengal (1971) did, consequently presenting a fait accompli the
President and leaving him with no 'discretion'. What Governor
Barooah did in Bihar is much worse (December 1971). He received
the resignation of the Ministries [individually! (?)], sent an urgent
"Report" to the, President (through a personal messenger) and
while awaiting Central orders on it, dissolved the Assembly
(summoned to meet next day) and accepted the resignation of all
(34) Ministers except those of the Chief Minister and another-all
probably on (informal) Central instructions.

Three Guidelines are indicated here: The Governor should

(1) not present a fait accompli to the President; let the

President make a free decision;

(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.

Two more questions arise in connection with President's

Rule:

(a) when is it to end? and who will decide?

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 (b) what is the Governor's Role during the President's
Rule?

The Constitution is silent on this point; and the practice of

the Governor recommending again, for revocation, or the Centre
lifting it on its own, is all right. So also the Governor consulting
the Centre, formally, during President's Rule is also all right; for,
after all, as shown below, he is now no more the Head of the State
but purely an agent of the Centre.

However, one point may be added. There art' no objective

tests or visible signs, on which to base the decision to revoke. It is
based at present on the convenience of the Ruling Party at the
Centreit is both inevitable and reasonable and thus legitimate. One
criterion, however, should be avoided-that the people had enough of
it and so they may be allowed a chance at voting again. A better
criterion would perhaps be a near unanimous request from the State
leadersafter all, it is for them to compose their differences.

So far as the 'legitimacy' of President's Rule is concerned, it

can be said that President's Rule has the least democratic
legitimacy. It may be pointed out that, due to bad copying of
Sections 93 and of the Government of India Act, 1935 the Governor
becomes function officio under President's Rule. Consequently, the
Governor becomes only a delegate of the power of the President
who has himself no locus stand in the matter except as a stop-gap,
notwithstanding what was said in the Constituent Assembly. Thus, a
Guideline for the Governor:

The Governor should not show off during President's Rule

and should avoid ego-boosting measures, especially of altering the
decisions of the previous Ministers and introducing other 'reforms'

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:

1. President's Rule should be as short as possible.

2. It should be a status quo Rule, containing the old approved,

policies and taxes, the only exception being in the case of
measures required for keeping law and order.

The Special Study Team of the Administrative Reforms

Commission (ARC) has examined several suggestions with regard
to the appointment of Governor and these are:

1) The first is that the appointment of Governors should be made

subject to ratification by Parliament. The underlying object is to
place a helpful curb on the discretion of the Central Executive.
But consider it unlikely that this suggestion will achieve the end
in view for with a majority in Parliament the party in power will
find it easy to get approval for its nominee and ratification will
thus become a mere formality. The practice suggested also
carries the danger that individual names may be discussed in
Parliament. This may not only be unwholesome in itself but may
also deter good man from accepting posts of Governor.

2) An alternative to the above suggestion is the central government

should informally consult the Leader of the Opposition in the
Lok Sabha on every selection of a Governor before making the
appointment.

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.

3) The third suggestion is that the appointment of Governors

should not be treated as the prerogative of the Union
Government. It is argued that these appointments do not fall
within the scope of Article 74 (1) according to which the
President must act on the advice of his Ministers. Since the
Governor is not merely a Presidential Agent but also the
Constitutional Head of the State apparatus and in that capacity
independent of the Union Government, it has been suggested
that appointment by the Union Government acting through the
President is not consistent with the federal character of the
Constitution. The implication is that the President can and
should act in his discretion in the appointment of Governors.

This suggestion poses a fundamental Constitutional questions

which has implications going beyond the appointment of
Governors. The issue whether the President possesses discretionary
powers under the Constitution or not, and the further issue whether
he should possess such powers or not, are serious questions which
do not yield to an easy solution. The Study Team, therefore
considers that for the purpose of their study, the existing practice
of the President acting on Ministers of Council of Ministers advice
in appointing Governors, should continue.

Having regard to the pattern on which our Constitution is

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.

Even from the point of view of constitutional prosperity it is

certain that if the President acts on the advice of the Council of
Ministers, he only acts in accordance with the majority view in
Parliament.

As a matter of 'constitutional convention' it may possibly be

more healthy and more proper if the Prime Minister consult the
leaders of the opposition parties before tendering advice to the
President in making a particular appointment. The conditions in the
country will promote such consultation with the opposition parties
in the near future. This may remove one of the most potent causes
of tension between the Central Government and Ruling parties in
the States which are generally opposed to the party ruling at the
Centre.

Recommendations of the Administrative Reforms Commission

with regard to the Role of Governor in the Context Of Use of
Article 356:23

The Administrative Reforms Commission made the following

recommendations with regard to the Role of Governor in the

23 Recommendations and Conclusions of Administrative Reforms Commission-A Compendium, July

1970, pp. 52-53

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context of use of Article 356 :

• A person to be appointed as a .Governor should be one who

has had a long experience in public life and administration
and can be trusted to rise above party prejudices and
predilections. He should not be eligible for further
appointment as a Governor at after the completion of his
term. Judges, on retirement, should not be appointed as
Governors. However, a judge who enters public life on
retirement and becomes a legislator or holds an elective
office may not be considered ineligible for appointment as
Governor.

• The convention of consulting the Chief Minister before

appointing a Governor is a healthy trend that may, continue.

• Guidelines on the manner in which discretionary power

should be exercised by the Governors should be formulated
by the Inter-State Council and on acceptance by the Union
issued in the name of the President. They should be placed
before both Houses of Parliament.

• The Governor, besides sending the fortnightly Reports to

the President, should make ad hoc Reports as and when the
need arises. He must Report to the President and also in
regard to the reservation of Bills for the consideration of
the President.

• When the Governor has reason to believe that the Ministry

has ceased to command a majority in the Assembly, he
should come to a final conclusion on this question by
summoning the Assembly and ascertaining its verdict on the

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 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,

• Where functionaries like the Speaker act arbitrarily and

prevent the functioning of legislatures effective remedies
must be devised by the legislatures themselves by way of
formulating Rules of business which would enable the
legislature to transact the business.

• When a Ministry is defeated in the Assembly on a major

policy issue and if the outgoing Minister advises the
Governor to dissolve the Assembly with a view to obtaining
the verdict of the electorate, the Governor to dissolve the
Assembly with a view to obtaining the verdict of the
electorate, the Governor should accept the advice. In other
cases, he may exercise his discretion.

• The Governor should not only receive information as

provided for in Article 167, but he should also actively look
for it with a view to discharging his Constitutional
responsibilities effectively.

SARKARIA COMMISSION'S RECOMMENDATIONS WITH

REGARD TO THE ROLE OF GOVERNOR:24
A Commission headed by Justice R.S. Sarkaria, a former

24 Reports and Recommendations of Commission on Center-State Relations, (Sarkaria Commission),

1988, Part-1, Chapter- V, pp. 135-137.

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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”.

In Chapter IV, the Commission first examined the historical

background to the institution of Governor, the constitutional
provisions concerning the Governor and the scope of these
provisions and then pointed out the three main facets of Governor’s
Role. The three facets so pointed out are: (a) as the constitutional
head of the State operating normally under a system of
Parliamentary democracy; (b) as a vital link between the Union
Government and the State Government; and (c) as an agent of the
Union Government in a few specific areas during normal times [e.g.
Article 239(2)] and in a number of areas during abnormal situations
[e.g. Article 356(1)]. Pausing here, we must say that really
speaking, the Constitution did not envisage the Governor as an
agent of the Centre. By making Reports under Article 356, the

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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.

Coming back to the Sarkaria Commission, it took note of the

criticism with respect to the Role of the Governor and also set out
the matters in which the Governor has to act in his discretion. The
matters in which the Governor, according to the Commission, is
expected to use his discretion are:-

(i) In Choosing the Chief Minister

(ii) In testing majority of the government in office

(iii) In the matter of dismissal of a Chief Minister

(iv) In dissolving the Legislative Assembly

(v) In recommending President’s Rule

(vi) In reserving Bills for President’s Consideration.

The Commission then referred to the suggestions received by

it with respect to the institution and Role of Governor which inter
alia established out that this office is of vital importance having

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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.

The Commission also discussed the issue of laying down

'Guidelines' for the Governors in Paras 4.15.01 to 4.15.06 under
the heading “Guidelines for Governors”. The Commission
observed that laying down such Guidelines is a difficult task and
that they should be evolved in course of time embodying accepted
conventions.

The Commission pointed out that the Administrative Reforms

Commission Study Team on Central State Relationships (1967) had
emphasized the need for the formulation of a national policy to
which the Union and States subscribed, which gave recognition to
the Role of the Governor and guided the responses of the Union, the
States and the Opposition parties to any actions taken in discharge
of it. The Commission opined that such a national policy should
spell out the implications of the Governor’s Role in the form of
conventions and practices, keeping in view the national objectives
of defending the Constitution and the protection of democracy.
I

The Commission referred to the fact that the Administrative

Reforms Commission had also recommended in 1969 that the Inter

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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.

Now, coming to the recommendations of the Sarkaria

Commission in regard to the institution of Governor, they are
briefly the following:-

The person to be appointed as a Governor -

(i) should be an eminent person;

(ii) must be a person from outside the State;

(iii) must not have participated in active politics at least for some
time before his appointment;

(iv) he should be a detached person and not too intimately

connected with the local politics of the State;

(v) he should be appointed in consultation with the Chief Minister

of the State, Vice-President of India and the Speaker of the
Lok Sabha;

(vi) His tenure of office must be guaranteed and should not be

disturbed except for extremely compelling reasons and if any

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 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;

(vii) After demitting his office, the person appointed as Governor

should not be eligible for any other appointment or office of
profit under the Union or a State Government except for a
second term as Governor or election as Vice-President or
President of India, as the case may be; and

(viii) At the end of his tenure, reasonable post-retirement benefits

should be provided.

Sarkaria Commission further recommended that in choosing a

Chief Minister, the Governor should be guided by the following
principles, viz.:

(i) The party or combination of parties which commands the

widest support in the Legislative Assembly should be called
upon to form the government.

(ii) The Governor’s task is to see that a government is formed and

not to try to form a government which pursue policies which
he approves.

(iii) If there is a single party having an absolute majority in the

Assembly, the leader of the party should automatically be
asked to become the Chief Minster.

(iv) If there is no such party, the Governor should select a Chief

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 Minister from among the following parties or groups of parties
by sounding them, in turn, in the order of preference indicated
/

below:

(i) an alliance of parties that was formed prior to the

Elections.

(ii) the largest single party staking a claim to form the

government with the support of others, including
‘independents’.

(iii) a post-electoral coalition of parties, with all the partners

in the coalition joining the government.

(iv) a post-electoral alliance of parties, with some of the

parties in the alliance forming a Government and the
remaining parties, including ‘independents’ supporting
the government from outside.

(v) The Governor while going through the process described

above should select a leader who in his (Governor’s)
judgment is most likely to command a majority in the
Assembly.

It was also recommended that a Chief Minister, unless he is

the leader of a party which has absolute majority in the Assembly,
should seek a vote of confidence in the Assembly within 30 days of
taking over. This practice should be religiously adhered to with the
sanctity of a Rule of law.

The other recommendations made by the Sarkaria

Commission are that the issue of majority support should be
allowed/directed to be tested only on the floor of the House and
nowhere else and that in the matter of summoning and proroguing

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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.

JUDICIAL GUIDELINES IN S.R. BOMMAU CASE

This would be evident from the decision of the Supreme

Court in S.R.Bommai V. Union of India25. A few observations
from the said judgment may be apposite. In his judgment delivered
for himself and Kuldip Singh J., Sawant J. commented thus upon
the conduct of the then Governor of Karnataka:

“It was improper on the part of the Governor to have

arrogated to himself the task of holding, firstly, that the earlier 19
letters were genuine and were written by the said legislators of
their free will and volition. He had not even cared to interview the
said legislators but had merely got the authenticity of the signatures
verified through the legislature secretariat.... We are of the view
that this is a case where all canons of propriety were thrown to
winds and the undue haste made by the Governor in inviting the
President to issue the Proclamation under Article 356(1) smacked
of mala fides.... The action of the Governor was more objectionable
since as a high constitutional functionary, he was expected to
conduct himself more fairly, cautiously and circumspectly. Indeed
it appears that the Governor was in a hurry to dismiss the Ministry
and dissolve the Assembly” (para 76).

While dealing with the conduct of then Governor of

Meghalaya, the learned judge made similar observations and
observed finally :

25 AIR 1994, 3 SCC 1.

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 “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”.

Similar observations were made by B.P. Jeevan Reddy J. in

the judgment delivered by him for himself and S.C. Agarwal J. and
with whose judgment S.R. Pandian J. agreed fully. (The opinions of
Sawant, Jeevan Reddy and Pandian JJ. constitute the majority
opinions in the said decision.)

ROLE OF GOVERNOR AND THE RECOMMENDATIONS OF

NATIONAL COMMISSION TO REVIEW THE WORKINGS OF
THE CONSTITUTION (RNCRWC)26

The Commissions agreed with all the recommendations

contained in Chapter IV (relating to Governors) in the Sarkaria
Commission Report subject to the following:

(1) The Commission agreed that Article 155 of the

Constitution requires to be amended. The Sarkaria Commission
recommends that Article 155 should be amended to include
consultation with the Chief Minister of the State for which the
Governor is to be selected and appointed. But so far as consultation
with the Vice-President of India and Speaker of the Lok Sabha is
concerned, the Sarkaria Commission does not say that such
consultation should be provided for expressly in amended Article
155. On the contrary, it says that such consultation should be
“confidential and informal and should not be a matter of

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”.

The Commission suggested that this consultation may be

made by the Prime Minister while selecting a Governor. The
Commission however, thinks that the experience gained over the
last 14 years since the Sarkaria Commission Report may call for a
more specific amendment in Article 155. It would be appropriate to
suggest a committee comprising the Prime Minister of India, the
Home Minister of India, the Speaker of the Lok Sabha and the
Chief Minister of the State concerned to select a Governor. (This
committee may also include the Vice President of India if it is
thought appropriate.) Instead of ‘confidential and informal
consultations’, it is better that the process of selection is
transparent and unambiguous.

(2) Another suggestion which the Commission made in this

behalf is to provide that where a pre-election coalition enters the
general-elections’ fray as such, it should be treated as one political
party/grouping and if one such coalition /grouping obtains a
majority, the leader of such coalition/grouping (elected or
indicated, as the case may be) shall be called to form the Ministry.
Indeed, recommendations to this effect have already been made by
the present Commission in another context. It has been
recommended that such pre-poll alliance/coalition should be treated
as one political party for the purpose of the Tenth Schedule to the
Constitution of India (law relating to defections). So far as post-
electoral coalition of parties is concerned, the recommendations
made by the Sarkaria Commission are quite appropriate. We
endorse them.

(3) The commission was of the opinion that the practice of

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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.

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 Accordingly, the commission recommend that Articles 155
and 156 of the Constitution be amended to provide for the
following: -

(a) the appointment of the Governor should be entrusted to a

committee comprising the Prime Minister of India, Union
Minister for Home Affairs, the Speaker of the Lok Sabha
and the Chief Minister of the concerned State. (Of course,
the composition of the committee is a matter of detail
which can always be settled once the principal idea is
accepted);

(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;

(d) provision be made for the impeachment of the Governor by

the State Legislature on the same lines as the impeachment
of the President by the Parliament. (The procedure for
impeachment of the President is set out in Article 61.) Of
course, where there is no Upper House of Legislature in
any State, appropriate changes may have to be made in the
proposed Article since Article 61 is premised upon the
existence of two Houses of Parliament; and

(e) In the matter of selection, the matters mentioned in paras

4.16.01 and 4.16.02 of the Sarkaria Commission Report
(Annexure - I) should be kept in mind.

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.

The Commission was equally of the opinion that the changes

suggested above would make the Governor an independent and fair
arbiter whenever a dispute arises whether the Chief Minister/
Council of Ministers has lost the confidence of the House - an area
where many a Governor has not covered himself with glory. He
would rather insist upon a floor test or allow the matter to be
fought out on the floor of the Assembly. He would not resort to
counting of heads in the Raj Bhavan. Even in the matter of
selection of Chief Minister, where no single party had obtained a
clear majority, he would fairly follow the conventions established
in this behalf and not be led away by any instructions from the
Centre. It has become essential, in the interest of our constitutional
system, to retrieve and restore the glory and dignity of this office.

The Commission however hastened to add that in suggesting

the aforementioned changes in Articles 200 and 201, the
Commission should not be understood as belittling the institution of
Governor. The Commission recognize that among Governors there
have been many fair and independent persons - persons of great

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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.

GENERAL GUIDELINES FOR THE GOVERNORS:

There is also another view that favours formulation of

Guidelines for the manner in which the discretionary powers should
be exercised by the Governors. But it may not be possible to cover
all situations by such Guidelines and the better curse would be to
bring at least some uniformity in the Roles of all Governors in
exercising their discretionary powers. For providing such a code of
instructions for the Governors, the constitution should be amended
so as to insert a new schedule in the constitution containing certain
Guidelines for the Governors.

Some 'General Guidelines'27 for Governors may be summed

up as under:

• Tire leader of the majority party, or the leader of a coalition

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

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 (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.

• A Chief Minster once appointed and approved by the

Assembly will continue as Chief Minister until he himself
resigns or is thrown out by the Assembly. A directly defeated
Chief Minister should resign or be dismissed by the
Governor.

• A voluntarily resigning Chief Minister (apart from a defeated

one) has the first preference to form the next Ministry, if he
so desires.

• The leader of the Opposition or the leader of the largest party

in the Opposition, that has defeated a Ministry, or his
nominee, has the first preference to form the new Ministry in
case of defeat of the previous one in the Assembly.

• The Governor must invariable accept the recommendations of

the Chief Minister (of whatever status, except of a defeated
one) in appointing and dismissing other Ministers.

• A newly formed Ministry or an old Ministry after each major

reshuffle must face the Assembly and take vote of confidence
as soon as reasonable; and meanwhile no major decision
should be implemented by the Government, .especially
through Ordinances.

• The Governor need not be in devilish hurry to summon the

Assembly merely to test the majority. The Constitution and
Rules of Procedure of the Assembly themselves provide for

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 frequent testing on the floor of the House.

• Corruption and breakdown of Law and Order are no grounds

for dismissal of a Ministry. They Governor may "Report" to
the President and the President may order fresh elections (a
proposed new convention).

• The Governor should not 'suo mota' dissolve the House,

except in one circumstances (12 below), especially on
grounds of instability, i.e., frequent changes of Ministries.

• An undefeated Chief Minister of a single party Government

(unless in the meantime he is removed from leadership by his
party) has a right to ask for dissolution.

• A defeated Chief Minister of a single party has also a right to

dissolution in one circumstance, where he was defeated on a
major policy or programme which received electoral mandate
at the election previously held.

• The only time the Governor could'suo mota dissolve the

Assembly is when after sufficient attempt it is clear to him
that no Government (Ministry) at all is possible and he has
reason to believe that a fresh election would help.

• A Governor's dissolution should be followed by another

election, but not by President's Rule.

• It is only after repeated elections and inability to get a

Ministry at all that President's Rule should be clamped; and
President's Rule should be as short as possible.

• During President's Rule, no Governor should show off nor

should he alter the policies and decisions of the Government
which were approved by the Legislature - President's Rule

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 has no democratic legitimacy.

• Governors are not the custodians of good government, but

only instruments of democratic functioning. Governors are
Heads of the States, but not Agents of the Centre. Governors
should never seek, nor the Centre should ever give,
instructions on'the use of discretionary powers.

• Governors should lead simple life and make themselves

useful in many ways. They should avoid costly travel and
cheap publicity. They may encourage cultural, intellectual
and social service activities.

• 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.

• A good Governor can play the part of a good 'Ombudsman'

for aggrieved services and helpless citizens, especially
minorities. Hundreds of petitioners are suffering and their
representations are languishing in dusty Government files
while Governors are. fiddling in Raj Bhawans. This is one
way in which the Governor can make himself useful in the
process of Government.

• Governor is the Head of a State. He is the dignified part of

the Government. He is highly respected and is non-partisan.
He is also a necessary and useful part of parliamentary
system of government. How far he would be useful and
respected depends upon himself to what extent he makes

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 himself useful, dignified and non-controversial.

To enable the Governors to perform their functions properly

in accordance with the provisions of the Constitution, it is essential
that only right persons are appointed as Governors. A Governor
must be an impartial person who by his ability, character and
behaviour inspires respect.

Discredited, defeated and 'burnt out' politicians should not be

appointed as Governors. It is further suggested that a Governor
should remain in office for his full five years' term and the
procedure for his removal should be made the same as prescribed
for of the judges of the Supreme Court and he should be ineligible
for any other office under Government after retirement.

RECOMMENDATIONS OF STANDING COMMITTEE OF

INTER-STATE COUNCIL (ISC): REGARDING STATE
EMERGENCY PROVISIONS CONTAINED IN ARTICLE 355,
356, 357:28

The Standing Committee held in-depth discussion on the

safeguards to Article 356 suggested by the Sub-Committee and
twelve recommendations of Sarkaria Commission on ‘Emergency
Provisions’, taking into account the Supreme Court judgement in
Bommai case. The Standing Committee observed that the
safeguards contained in the judgement in Bommai's case, which is
already a part of the law of the land, are adequate to prevent misuse
of Article 356. It was decided that the propositions laid down in the
Bommai judgement should be appropriately incorporated in the
Constitution.

28 Press Release of Inter-State Council (ISC), Ministry of Home Affairs, 13, March, 2003.

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 The Standing Committee took the following decisions in
regard to the Commission’s recommendations on ‘Emergency
provisions’:-

i) The Commission’s recommendation that Article 356 should

be used as a measure of last resort was accepted.

ii) The recommendation of the Sub-Committee that a show-

cause notice be issued to the State Government before
taking action under Article 356, except in a situation when
not taking immediate action would lead to disastrous
consequences, was agreed to.

iii) The Commission’s recommendation that in the event of an

‘external aggression’ or ‘internal disturbance’ paralyzing
the State Administration, all alternative courses available to
the Union under Article 355 should be exhausted to contain
the situation, was accepted.

iv) The Commission’s recommendation regarding placing of the

Proclamation before Parliament within two months of issue,
and that the Legislative Assembly should not be dissolved
before the Presidential Proclamation issued under Article
465(1) has been laid before the Parliament and the
Parliament has had an opportunity to consider it, were
accepted.

v) The Commission’s recommendation for incorporating the

safeguards corresponding to clauses (7) and (8) of Article
352 in Article 356 was accepted.

vi) The Commission’s recommendation that the Governor’s

Report be in the nature of a ‘speaking document’ was

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 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.

The Standing Committee took note of the Action Taken

Report on the recommendations of Sarkaria Commission submitted
by the Secretariat. Out of total 247 recommendations of the
Commission, the Council has so far taken decision in respect of 230
recommendations of which 152 have been implemented, 27 are at
various stages of implementation and 51 recommendations have not
been found acceptable by the Council and the concerned
Ministries/Departments of Union Government.

CONCLUSION:

In order to enable the Governor to successfully discharge his

functions under the Constitution, an agreed 'Code of Conduct'
approved by the State Governments, the Central Government, the
Parliament and the State Legislatures should be evolved. This code
of conduct should first of all lay down 'norms and principles'
which should be evolved. This 'Code of Conduct* should first of
all lay down certain 'norms and principles' which should guide
the exercise of the Governor's 'discretion' and his powers which he
is entitled to use and exercise on his personal judgement.

The Governor's Role being not merely formal or ornamental

there are circumstances in which he might be called upon (and in
fact recent experience in the State has shown that he may
frequently be so called upon) to exercise his own judgement and in
some situations the exercise of his judgement can be crucial

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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.

Further, it is equally important that the Governor must act

judiciously, impartially and efficiently while exercising his
discretion and personal judgement. The Report of the special Study
team of the Administrate Reforms Commission raises four
questions for the purpose of assuring that the Governor may
properly exercise his functions:

(i) questions relating to the appointment of Governor to

ensure that persons of the requisite caliber are appointed;

(ii) questions relating to the conditions, arrangements and

procedures enabling the Governors to perform their duties;

(iii) questions relating to the power and procedures for keeping

the Centre informed of happenings in the States;

(iv) questions relating to the clarification and need for

extension of areas involving the exercise of his own
judgemet by the Governor.

As regards (i) above, there can be no doubt that person of

high caliber and quality must be appointed to fill up the high office
of the Governor. Everything that is necessary to find the best man
for filling this office should done. In selecting the person to be
appointed as the Governor, the choice should not be confined to the

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party in power at the Centre and the field of selection should
extend much beyond the political arena.

Regarding (ii) above, the 'procedure for appointment of

Governors should be clearly laid down' and once laid down it
should never be deviated from the like the appointment of the
judges of the High Courts. The prescribed procedure must provide
for consultation with the Chief Minister at the time of appointment
of the Governor. The conditions of appointment must also he laid
down and must assure a fixed tenure for the Governor so that the
Governor is not under the constant threat of removal by the Central
Government. The Constitution prescribes the term of five years for
the Governor but subject to his removal at any time by the
President. The procedure must ensure that a Governor should
normally be allowed to function for five years unless there are
overwhelming reasons for transferring him or removing him.

The changes suggested by the Commission in Articles 200

and 201 seem essential if the arbitrary action on the part of the
Governors is to be checked. It is necessary to invest the office of
the Governor with the requisite independence of action and to rid
them of the bane of ‘instructions’ from the Central Government. It
is necessary to make him the Governor of the State in its full 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. Only then any

advice given by him will be respected by the Council of Ministers
and the Legislature. Where he finds that a situation has arisen
where the government of the State cannot be carried on in

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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.

The former Governor Karnataka Chief Minister, Mr.

Ramakrishna Hegde, presented a white paper in the Karnataka
Assembly in the third week of January 1983 on the Role of the
Governors and seriously alleged that the Governors have always
acted at the "instigation" of the ruling party at the centre,
"dabbling" in politics and thus becoming victims of "political
perversion. This charge against the Role of Governor is also proved
in the preceding pages of this study.

It is submitted that during the President's Rule, the 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.

The Governor is supposed to be the Constitutional Head of a

State. He is dignified part of the Government. He is highly

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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.

Hence to make the Role of the Governors really meaningful

in centre-state relations and for maintaining the principles and
spirit of parliamentary government, it is suggested that the exercise
of 'discretionary powers' by the Governors should be 'guided by
the healthy and democratic conventions' which may grow from
time to time in the working of the Constitution.

The Governor should not only be neutral but also seem to be

neutral. Much depends upon the political integrity of the Governor.
He should not allow himself to be misled by the vested interests. "A
Governor can do a great deal of good if he is a good Governor and
he can do a great deal of mischief if he is a bad Governor inspite of
the very little power given to him under the Constitution."

He should not work against the State Government which

represents the popular will. So, if he stands against the wishes of
the Ministry, it will be an undemocratic Act. Such a Situation
warrants a rethinking about his status and position. The
discretionary powers of the Governor should not lead to the
butchering of duly elected Governments, as it would hasten the
death of democracy.

To conclude it can be submitted that it is necessary to invest

the office of the Governor with requisite independence of action
and rid them of bane of 'instructions' from the Central Government.
It is also necessary to make him the Governor of the State in its full

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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.

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