Chapter 5

Constitutional Provisions vis--vis Governors Institution in India

Our Constitution is the product of thorough study, deep and
mature considerations as well as extensive debate and discussion. It is
a result of analytic and deliberate considerations as well as judicious
draftsmanship on the part of the framers of the Constitution. The
framers of the Indian Constitution were not writing on a clean slate.
They had before them the working of the Governments under the
Government of India Acts of 1919 and 1935. While framing the
Constitution they were also influenced by geographical
considerations, historical necessities as well as cultural and social
diversities. The very fact that the Constitution of the Indian Republic
is the product not of a political revolution but of the research and
political deliberations of a body of eminent representatives of the
people who sought to improve upon the existing system of
administration of the country.

The Constituent Assembly addressed into immensely complex
task of devising a union with a strong Centre. They had to bring into
the Union not only the British provinces, but also the Princely states
and remote inaccessible tribal areas. They were conscious that several
areas and regions of this sub continent had from very long time been
following their own such cultures, administrative systems, traditions
customs and ways of life. It was, therefore, readily accepted that in
this compelling catastrophe a bunch of states is needed through which
the spirit of national stream may run. Hence the authors of
Constitution of India were prospectively vigilant enough that all the
units must remain attached with the Centre. In their view, it would be
retrograde step both politically and administratively to frame a
Constitution without unitary state as a basis.

Article 1(1) of the Constitution of India declares that India,
that is Bharat, shall be a Union of States. In describing India as a
Union of States the drafting Committee of the Constituent
Assembly followed the language of Preamble from the British North
American Act, 1867. It was done deliberately to explain that the
Indian federation to be set up under the Constitution would be of the
Canadian type. Explaining the significance of use of impression
Union instead of the expression federation, Dr. B.R.Ambedkar,
the Chairman of the Drafting Committee, said that the word was
adopted to indicate two things, vis--vis: (a) that the Indian Federation
is not the result of agreement between the units it constituted of and
(b) that the component units had no freedom to secede from the Union
so created

Referring to the United States federation, Dr. Ambedkar
explained that the Americans had to wage a civil war to establish the
States in America had no right of secession and their federation was
indestructible. The Drafting Committee, thus, thought it better to
make it clear at the outset rather than to left it at the speculation or to
dispute in future. The discussion in the Constituent Assembly, held on
this provision, contained in Article 1, made it further clear that the
term Union was used as symbolic of the determination of the
Constituent Assembly to maintain the unity of the Country.
1


Our politico-legal infrastructure both antecedently and
politically is a federal one. Yet all that glitters is not gold. The implied
hideouts of constitutional provisions bring forth the unitary
infrastructure conferring autonomy to states in certain fields. It stands
characterized as a Unitary State with subsidiary federal features rather
than Federal State with subsidiary unitary features.
2
Similarly it has
been characterized as a federal with strong centralized tendencies.
3


The above narrated set up was the need of the day. Hence
Indias federal system originated in terms of its constitutional
provisions, in the British Government of India of 1935 and in terms of
its political thrust in the demand of Indian National movement for a
pan Indian Central Government capable of reconciling regional pulls
and pressures. The urgent need for national unity was further
underlined by trauma of the partition of the Country. Therefore,
deliberately the Constitution of India has inbuilt bias in favor of a
greater centralization of power and allocation of larger jurisdiction to
Central Government. Despite the facts that Article 1 of the
Constitution speaks of dual polity, but due to provisions of single
citizenship, single integrated judiciary, uniform civil and criminal law

1
Narender Kumar, Constitutional Law of India, Allahabad Law Agency, Faridabad, 2007, P-36.
2
Pandey, J.N :Constitutional Law of India, Central Law Agency, Allahabad, 2oo7, P-18.
3
Ibid, Note-2.
for all the federating states and unified All India services, (Article
5,11,14,131,141, 312) India remains a unified polity.
4


5.1 Unitary Spirit vis--vis Governors Institution
In pursuance of this unitary spirit, our constitutional entities are
devised and framed by the framers of the Constitution and the entity
of Governor has been devised and framed on the same tone and
temper. There have been hectic discussions in regards to institution of
Governor in the Constituent Assembly. All the pros and cons
pertaining to its provisions as well as the nature of appointment were
elebroately discussed in the Constituent Assembly before giving it a
final touch. It is pertinent to deal with those deliberations of
Constituent Assembly here.

Far from it, the history of the constitutional provisions relating
to Governor in the Constituent Assembly is so enlightening. In the
beginning the constitutional advisor, B.N.Rau, proposed that the
Governor should be elected by the provincial legislation by secret
ballot according to system of proportional representation by the single
transferable vote.

After considerable discussion, Sardar Patel, the chairman of the
Provincial Constitutional Committee, stated in the report to the
Constituent Assembly that both the Union Constitution Committee
and the Provincial Constitution Committee were in favor of adopting
the Parliamentary system of the Constitution, the British type of

4
Khan, Rasheeduddin: Fedral India: A Design for Change, Vikas Publiction, New Delhi, P. 21-22.
Constitution with which we are familiar. The report also
recommended that Governor of each Province be elected directly by
the people on the basis of adult suffrage.

In its deliberations, the Constituent Assembly also adopted a
Model Provincial Constitution. Its main feature were that the
Governor should be elected directly by the people on the basis of adult
suffrage, should hold office for a term of 4 years and would be liable
to be removed from his office by impeachment on the basis of stated
misbehavior.
5


Draft Constitution prepared by the Drafting Committee and
submitted to the President, suggested two alternatives: one was for the
appointment of the Governor by the President from a panel of four
candidates to be elected by the members of the State Legislature, by
means of single transferable vote and by secret ballot; the other
alternative was direct election by the people of the Province.

Hence, the phenomenon of elected Governor was confronted
with a very hot debate in the deliberations of Constituent Assembly.
Doubts were also expressed in the Assembly that the elected Governor
might join hands with the Chief Minister of the Province and defy the
Centre. Nehru was of the view that by joining the hands with the
Chief Minister, Governor may encourage separatist tendencies.


5
Sorbjee, Soli, J: The Governor: Sage or Saboteur, Roli Books International, New Delhi, 1985, P-14.
But, the subsequent political events in the Country led to a
sharp second thought on the subject. The outbreak of communal riots,
partitions and its ghastly after math, Gandhijis assassination, the
communist upsurge in Telangana, all affected the mood and thinking
of the founding fathers and There was a deep seated fear that if the
Centre was not sufficiently strong and could not hold the constituent
units together, things would fall apart and anarchy would be loosed
upon the Country.

Ultimately the framers of the Constitution resolved that under
the new constitutional scheme, the Governor was to be formal
constitutional head with strictly limited powers that in the discharge of
almost all his functions would be required to follow the advice of his
Ministry. The Chairman of the Drafting Committee was vigilant
enough to infuse the unitary spirit in the Constitution as well as in the
infrastructure of Indian legal and political system. He expressed his
apprehension that it was not necessary to have such a functionary at so
much cost and so much trouble.

Ultimately, in the Constitution which the people of India gave
unto themselves on 26
th
Nov 1949, the Governor emerged as a
constitutional head appointed by the President of India for a term of
five years but holding office during pleasure of the President.
6
The
Constitution of India which the people of India gave unto themselves,
is the collection of principles or body of fundamental rules which is
usually provided for the establishment, constitution and organization

6
Ibid, Note-5, P.15-16.
of the organs of the Government, their powers and functions manner
in which the said powers and functions are to be exercised, their
interrelationships, the relation between these organs of the
Government and people of the Country.

5.2 Organic spiri in the Constitution
Before we consider the provisions of the Constitution
governing the appointment and removal of the Governor, a resume of
the thinking and discussions that preceded the framing of those
provisions would be worth while. Our Constitution, establishing a
parliamentary system with a Cabinet Government, does not make
explicit provisions for dealing with every situation; there are things
that implicit in the Article of the Constitution and there are matters
left to be regulated by the conventions of parliamentary Government.

There are interstices between the Articles of the Constitution
which can be filled only by viewing the Constitution as an organic
whole and by observance of generally expected principles of
constitutional ethics and norms. Some of the words and phrases used
in the Constitution have followed the wording of Government of India
Act of 1935, or of the Constitutions of other countries of the British
Commonwealth; they have a meaning given them historically, or has
been used as words of art and should not be read literally. For instance
the words in Article 163 that there shall be Council of Ministers to
advise the Governor in the exercise of his functions really means that
the Governor shall act on the advise of the Council of Ministers.

The words in Article 164 of the Constitution that the Ministers
shall hold office during pleasure of the Governor are not intended to
give the Governor the unlimited and untrammeled power over the
tenure of the Ministers. They are not being read in isolation, or
construct without reference to the scheme of Government, established
by the Constitution; a Constitution requires a broader approach than
an act of Parliament. The thinking of the framers of the Constitution
can provide valuable aid in understanding the Constitution and can
remind us of the conventions they wanted and expected to be
followed.
7


5.3 - Constitutional provisions vis--vis institution of Governor
Provisions relating to Governor with nomenclature of State
Executive reflect on the intention of the framers of the Constitution.
The provisions enshrined in the Constitution in regards to the
appointment and removal of the Governor depicts the powers and
functions as well as the relationship with other organs of the
Government.

The Governor is a constitutional functionary and an important
organ of the Government. He is the key actor and a bridge between
the Centre State relations. The framers of the Constitution deliberately
avoided election of the office of Governor in order to make him the
Centers representative. In order to explore the constitutional status of
Governor it is imperative here to have a scant purview of provisions

7
Singh, L.P: Guide, Philosopher and Friend, in book, The Governor: Sage of Saboteur, Roli Books
International, 1985, P. 37-38.
relating to institution of Governor enshrined in Part VI of the
Constitution.

Article 153 of the Constitution provides that there shall be
Governor for each State
8
. Further, the proviso to Article 153, inserted
by the Constitution (Seventh Amendment) Act, 1956, explains that
there shall be no prohibition as to the appointment of the same person
as Governor of two or more states. Thus the same person can be
appointed as Governor of two or more states.
9


Article 154 of the Constitution states
(1) The executive of the State shall be vested in the Governor
and shall be executed by him either directly or through officers
subordinate to him in accordance with the Constitution.
(2) Nothing in this article shall-
(a) be deemed to transfer to the Governor any function
conferred by any existing law or any other authority; or
(b) prevent Parliament or the legislature of the State from
conferring by law functions or any authority subordinate to the
Governor.

Article 155 of the Constitution provides that the Governor of
the State shall be appointed by President by warrant under his hand
and seal.
10



8
The Constitution of India, Bare Provisions, Universal Law Publishing, New Delhi, 2005, P-141.
9
Narender Kumar, Constitutional law of India, Allahabad Law Agency, Faridabad, 2007, P- 613.
10
Ibid, Note-8.
Article 74 of the Constitution provides that there shall be a
Council of Ministers with the Prime Minister at the head to aid and
advise the President who shall, in the exercise of his functions, act in
accordance with such advice.
11


Though the literal interpretation of article 155 of the
Constitutiion connotes that the Governor shall be appointed by the
President, but in effect and substance the Governor is appointed by the
President of India in accordance with the advice tendered by the
Council of Ministers to him as provided under article 74 of the
Constitution.

Thus, the President of India, who is to act on the advice of his
Council of Ministers, control the Governor through the power of
appointment. The appointment of the Governor by the President
makes Governor, the true nominee of the Centre. It is, therefore
reasonable and one can further observe that the Governor is more or
less the agent of the Centre than the head of the State to which he
presides. The practical fact is that the Presidents part in nomination
of the Governor is mere a formality. It was the complaint of Dr.
Rajinder Prasad, the first President of India, that he often read the
appointment of the Governors in the Press and was officially informed
afterwards.
12




11
Ibid, Note-8, P-102.
12
Durga Das : India from Curzon to Nehru and After, St James, London, 1969, P-337.
5.4 - Constitution framers over view of Governor
The Constituent Assembly fully debated on the merits and
demerits of an elected v/s nominated Governor and finally opted for
the system of presidential nomination, rather than direct election of
the Governor because of the several reasons for example-

(1) A nominated Governor would encourage centripetal
tendencies and, thus promote all India unity, on the
other hand it has been apprehended that the elected
Governor would to some extent encourage the
separatist provincial tendencies more than
otherwise. There would be far fewer links with the
Centre.
(2) In a Parliamentary system the head should be
impartial, but a Governor elected by the direct vote
of people would have to be party man. On this point
it was stated in the Constituent Assembly that he
should be a more detached figure acceptable to the
province, other wise he could not function and may
not be a part of the party machinery of the province.
On the whole it should probably be desirable to have
people from out side, eminent in some education
and other fields of life who would naturally
cooperate fully with the Government in carrying out
the policies of the Government and yet represent
before the public something above politics.
(3) Conflict might arise between the Governor and the
Chief Minister if both were to be elected by the
people, for the former might claim to arrogate power
to himself on the plea of his having been elected by
the whole State as against the latter who would be
elected only in a constituency which would be small
part of the State. It was stated in the Constituent
Assembly that when whole of the executive power
is vested in the Council of Ministers, if there is
another person who believes that he has got the
backing of province behind him and, therefore, at
his discretion he can come forward and can
intervene in the governance of the Province, it
would really amount to surrender of democracy.
13



It was dialected in the Constituent Assembly that the
Gubernatorial Candidate should be of such caliber whose ability
wisdom and rectitude could not be questioned. He should be a person
of undoubted ability and position in public life that at the time has not
been mixed with the public life and at the same time has not been
mixed with provincial struggle and faction.

The Observations of Pt. Jawaharlal Nehru in the deliberations
of the Constituent Assembly is worth quoting here that it would be
definitely better if the Governor was not so intimately connected with

13
Constituent Assembly Debates, V. VIII, Lok Sabha Secretariat, New Delhi, 1999, Page 455.
the local politics of the Province or with the factions in the Province
and offered the view that it would be better to have a more detached
figure, obviously a figure that is acceptable to the Province, yet he
must not be known to be part of the party machinery of the Province.
14


In the leading case of a far reaching repute the Apex Court,
after an exhaustive discussion and consideration of the relevant
materials and authorities on the subject, Justice Krishna Iyer, with
whom Justice Bhagwati concurred, pronounced that we declare the
law of this branch of our Constitution to be that the President and
Governor are custodians of all executive and other powers under
various Articles, shall by virtue of these provisions, exercise their
formal constitutional powers only upon and in accordance with the
advice of their ministers except in a few well known exceptional
situations. Without being dogmatic or exhaustive, these situations
relates to (a) the choice of Prime Minster (Chief Minster), restricted
through this choice is by the paramount consideration that he should
command a majority in the House; (b) the dismissal of the
Government which has lost its majority in House but refuses to quit
the office; (c) the dissolution of the House where an appeal to the
Country necessitous, also in this area the head of the State should
avoid getting involved in politics and must be advised by his Prime
Minister (Chief Minister) who will eventually take the responsibility
for the step.
15



14
Govind Narain, Constitutional Obligations, Roli Books International, New Delhi, 1985, P-59.
15
Shamsher Singh v/s State of Punjab, 1975 (1) SCR, P-875.
The intention of the farmer of the Constitutions was clear that
they foresighted an impartial personality for the office of the
Governor. Though at the time of framing of the Constitution,
possibility of hung legislatures was feeble because of single party
domination at national political portrait, yet the founding fathers
attempted to deliver out the Constitution which can exhaust the
changing political scenario in the coming future. In pursuance of it
they emphatically asserted that the person selected as Governor would
be a person who will hold the scale impartially as between the various
factors in the politics of the State. The forgoing pronouncement of the
Honorable Supreme Court also suggested that the Governor should
not take part in politics so far his gubernatorial affairs are concerned.
Hence, in the opinion of Apex Court the independent and impartial
Governor is the need of the day.

It is pertinent here to recall that during the deliberations of the
Constituent Assembly, some other modes of appointment of a
Governor were also considered. The Idea of election was ruled out
because it was felt that the co-existence of a Governor selected by the
people and a Chief Minster responsible to the legislature might lead to
friction and consequent weakness in the administration. On similar
grounds, the idea of Governor being appointed by the President on the
advice of the Central Government, out of a penal of four persons
chosen by the State legislature was also ruled out. It was a result of
mature deliberation that the present provisions were accepted.
16



16
Ibid, Note-14.
Since the Constitution of India came into force the appointment
of the Governor has been regulated by a set of two conventions:-

(1) First the Governor should belong to the State other than
that in which he is being posted. This convention has been evolved in
order to keep the Governor above the politics of the state.
(2) Secondly, the appointment of the Governor requires
the consultation between the state ministry and the Union
Government. This is meant to ensure the cordial relationship between
State and the Centre otherwise it is feared that without the
consultation the utility of the institution may become less or even nil
in the Indian polity.
17


However, it is a sad plight of the Indian political scenario that
no healthy conventions are being followed or observed as per vision
of the framers of the constitution.

5.5-Recommendations of Sarkaria Commision vis--vis
Appointment of Governor- Sarkaria Commission has reviewed the
30 years span of working of Constitution from the context of Centre
State relations. After reviewing the Centre-State relations, it has
recommended certain measures, the adoption of which can lead to the
meaning full cooperation in between the Centre and states altogether.
The institution of Governor performs an integral role in Centre
State relations; therefore, the Commission has made certain
recommendations in regards to appointment of state Governors. The

17
Gehlot, S.N. State Governor in India, Getanjali Publcation, New Delhi, 1985, P-223.
recommendations provide a criterion which is required to be followed
by the constitutional functionaries while making appointment of
Governors in the State in the following manner:-

Para (4.16.01) (4.6.09): A person to be appointed as a Governor
should satisfy the following criteria:

(1) He should be eminent in some walks of life.
(2) He should be a person from outside the state.
(3) He should be detached figure and not too intimately
connected with the local politics of the state.
(4) He should be a person who has not taken too great part in
politics, generally and particularly in the recent past.
(5) In selecting a Governor in accordance with above criteria,
persons belonging to the minority group should be given a
chance hitherto.

Para (4.16.02) (4.6.09) - It is desirable that the politicians from the
ruling party at the union are not appointed as Governor of a state
which is being run by the other party or a combination of other
parties.

Para (4.16.03) (4.6.25) - In order to ensure effective consultation with
the state Chief Minister in the selection of a person to be appointed as
Governor, the procedures of consultation should be prescribed in the
Constitution itself by suitably amending Article 155.

Para (4.16. 04) (4.6.33) - The Vice President of India and the speaker
of the Lok Sabha may be consulted by the Prime Minister in selecting
the Governor. The consultation should be confidential and informal
and should not be a matter of constitutional obligations.
18


Consultation in the above context means the ascertainment of
the views of the concerned Chief Minster of the State as to the
suitability of the person proposed as Governor of that State. It is
pertinent to mention here that for every successful parliamentary
system, good rapport between the Governor and the Chief Minster
must exist. This rapport is of vital significance in our constitutional as
well as political system in which the Governor, being a constitutional
head of the Sate, should act as the friend, philosopher and guide of his
Council of Ministers. Further, from this aspect of personal
relationship that consultation with the Chief Minister at the initial
stage itself, may prevent the choice of person which the Chief
Minister because of personal reasons may not be able to work
satisfactorily. In this sort of situation, the personal reasons of Chief
Minister may adversely affect the consultation process.

Sarkaria Commissions Report has made above mentioned
recommendations in regards to the appointment of Governor which
came after 3o years of the working of the constitution. Report has
repeated and underlined the same assertions regarding the

18
Markandan, K.C: Sarkaria Commission and Constitutional Perspectives, ABS Publication, Jalandhar,
1991, P. 385-386.
appointment of Governor which were earlier asserted by the members
of the Constituent Assembly.

It is pertinent to mention here that there is a tremendous change
in Indian political scenario so far as the political parties are concerned.
Particularly in eighties, the political scenario observed the
mushrooming of regional parties in the states which latter on assumed
the status of national parties. So long as there was one party rule in
the Centre as well as in the states, the consultation with the Chief
Minster prior to the appointment of Governor was merely formality
and no difficulty ever arose in this matter. During this period the
institution of Governor remained almost dormant. But after the fourth
general election held in 1967, the political scenario under went a
radical change, as different political parties came into power in the
states a well as in the Centre in the form of political alliances. The
appointment of Governor became some what a controversial issue,
particularly in those states where the political complexion of the
Government differs from that of the Centre. These states apprehended
that the Governor appointed by the Centre Government and holding
office during pleasure of the President would not function objectively
and impartially, but at the bidding of the Central Government to
destabilize the State Governments.

The states belonging to other political complexion than that of
the Centre claimed not only consultation but rather their concurrence
in the matter of appointment of Governors. The Centre has not
accepted any such proposition, while the Centre consults the Chief
Minister; it is not ready to concede a veto to him in the matter of
appointment of Governor.

The study team of the Administrative Reform Committee has
suggested that though the Chief Minster of the State should be
consulted before a Governor is appointed, yet this should not dilute
the Primary responsibility of the Centre to appoint a competent and
suitable person as Governor.
19


Recently, in 2004 an interesting controversy erupted between
the Government of United Progressive Alliance and the Chief
Minister of Tamil Nadu on the issue of prior consultation with the
Chief Minster at the time of appointment of Governor. United
Progressive Alliances Home Minister, Mr. Shiv Raj Patil, informed
the Chief Minister of Tamil Nadu, Jaya Lalitha, that the Centre
Government has decided to remove the Governor of Tamil Nadu,
Rama Mohan Rao, and to appoint Mr. Surjit Singh Barnala at his
place.

In response to the information of appointment of Mr Barnala as
Governor of Tamil Nadu, Jaya lalitha pointedly asked Patil that how
he could take this decision without consulting her. Patil conceded that
the Sarkaria commission on Centre-State relations had recommended
that the Centre should consult the State Government on the
appointment of Governors. He, however, said but this is the ways

19
Jain, M.P: Indian Constitutional Law, Wadhwa & Co, Nagpur, 2005, P-330.
that we usually do these things and described Mr. Barnala as a very
good choice for Governor.
20


However there is no doubt that in public mind the office has
undergone devaluation even debasement. Some Governors have been
openly and widely accused of partisanship towards one party or
another, and allegations have been made that they had acted as an
agents of the Central Government, and not as holder of independent
constitutional office. And there is a disposition to proceed from
particular cases to the general distrust of Governors. In the wider
interest of healthy functioning of our parliamentary democracy and of
our federal system a review of the role of Governor is not only
appropriate but an urgent necessity.
21


It is worth while to evoke here the cases in which the institution
of Governor has been openly politicalised, and the Governors are
forced to be critical by the parties in power at the Centre. The recent
instances of Bihar and Jharkhand during governship of Mr. Buta
Singh and Mr. Syed Sibte Rajvi, respectively, have projected on the
national scene the controversial aspect of the gubernatorial affairs. In
this context, the Honorable Supreme Court of India indicted Bihar
Governor Buta Singh of misleading the Centre in recommending the
dissolution of Bihar Assembly in May 2005, and said that the Union
Council of Ministers should have verified his report before accepting

20
W.W.W. Hindunnet. Com, the Site visted on 16.9.2008.
21
Singh, L.P: Guide Philosopher and friend, in book, The Governor: Sage of Saboteur, Roli Books
International, New Delhi, 1985, P-37.
it as a gospel truth.
22
Media also has not lagged behind in highlighting
these controversies that following the State Assembly elections,
Governor Syed Sibte Rajvi used questionable tactics to foist a short
lived UPA Government headed by Shibu Soren.
23


A retrospective look at the deliberations of Constituent
Assembly unveils the facts that even in 1950 the framers of the
Constitution inferred that the Centre would do mischief through the
Governor in the States. The inference of members of Constituent
Assembly has proved to be absolutely true. The political parties in the
wake of its political polarization and political agendas have down
sized this institution of wisdom, sagacity and fortitude. Hence a new
look and new dimensions to the constitutional provisions containing
the appointment and removal of Governor are the need of the day.
Constitutional jurisprudence, thus, demands induction of certain
clauses in Part VI, Chapter II of the Constitution. The clauses so
inducted should actively and deliberately provide safeguards to the
Governor so that he can make best use of his discretionary powers as
per tenements and spirit of the Constitution. In this context Article
156 of the Constitution required to be interpreted as per tenements and
spirit of the Constitution because the framers of the Constitution never
intended that Governor would not complete his term of five years in
the wake of political considerations. Hence, Article 156 of the
Constitution needs a cursory look.


22
Hindustan Times, January 25, 2006, P-1.
23
Hindustan Times, September 8, 2006, P-5.

5.6 -Article 156 - Term of office of Governor
Article 156 of the Constitution provides that:

(1) The Governor shall hold office during pleasure of the
President.
(2) The Governor may, by writing under his hand addressed to
the President resign his office.
(3) Subject to the forgoing provisions of this Article a
Governor shall hold office for a term of five years from the
date on which he enters upon the office.

Provided that a Governor shall, notwithstanding the expiration
of his term continue to hold office until his successor enters
upon his office.
24


Article 156(3) provides that Governor shall notwithstanding the
expiration of the term; continue to hold office until his successor
enters upon his office. Article 160 provides the provisions for
discharge of functions of the Governor in certain contingencies which
says that the President may make such provisions as he thinks fit for
the discharge of the functions of the Governor of a State in any
contingency not provided for in this chapter. Thus Article 156(3)
contemplates that Governor is to continue to hold office not-
withstanding the expiration of the term. The effect of these words is to
exclude all questions of legality of the holding of office by the

24
The Constitution of India, Bare Provisions, Universal, New Delhi, 2005, P-141
Governor after the expiration of his term. There must be a Governor
under Article 153 and the interregnum is avoided by the proviso. A
person appointed as Governor continues to hold office till his
successor is appointed under Article 155 or an order is made under
article 160.
25
Above observation elucidates that the Governor can
continue beyond five year terms also.

The Apex Court also pronounced in another decision that the
Governor however, continue to hold office even after the lapse of his
term till his successor enters upon his office under Article 156(2).
Thus a person once appointed a Governor continue to hold that office
till his successor enters upon his office.
26


5.7 Contradictory nature of Article 156
Literally within the domain of Article 156(1) of the
Constitution, Governor is to hold office during pleasure of the
President. But within the ambit of clause 3 of this section, it is
specifically enshrined that subject to the forgoing provisions of this
section, the Governor shall hold office for a term of five years. Thus
intentionally and deliberately, clause 3 of Article 156 has been
eclipsed by clause 1 of Article 156 of the constitution. The framers of
the Constitution have locked the modus operandi of removal of the
Governor in this Article of contradictory effect.


25
S.R. Bommai, 1994 (3) SCC, P-1.
26
K. Ballabh v/s Commissioner of Inquiry, AIR 1969 SC, P-271
It is significant to mention here that Article 61 of the
Constitution provides the method of impeachment for the removal of
the President, but the Constitution nowhere does lay down the process
of removing the Governor of the State except by the central authority.
In other words the Centre Government absolutely enjoys the power
for the removal of the State Governor at any time, even without
assigning any reason. Obviously, the Centre Government is in a
position to keep the Governor, always under the influence.

In fact Article 156 of the Constitution is not in consonance with
the true spirit of the Constitution. In the United States, the Governor
of a State can be removed by the process of impeachment by the State
legislative body. Some State Constitutions provide the recalling
method of a Governor by popular vote. In Canada, the Lieutenant
Governor of the Province under Article 5 of the British North
American Act 1867 may be removed by the Governor General.

Thus, the issue of the appointment and removal of the Governor
is the sole right of the Union Government and States have no voice on
this issue. It is very strange to note that Constitution, on the one hand,
has made the Governor representative of the Centre and has granted
him some discretionary powers, but on the other hand the Constitution
has kept him completely free from the elected representatives of the
State. There is no effective check on the powers of the Governor by
the State which can prevent him from misusing his authority. The
state legislature, thus, has been deprived of the right of removing a
Governor.
27


The verdict of the Rajasthan High Court is worth quoting here
that Article 156 provides that Governor holds office during pleasure
of the President. It further says that subject to the exercise of the
pleasure of the President, the Governor shall hold office for a term of
five years. It is, therefore, clear that the Governor has no security of
tenure and no fixed term of office. The expression Pleasure of the
President is not justifiable.
28


The Patna High Court has pronounced the verdict which can be
juxtaposed with the above mentioned verdict that five years term is
subject to the exercise of pleasure by the President and the President
of India is the best judge for the exercise of His pleasure to decide as
to when and in what circumstances the term of sitting Governor of
State should be reduced, or, instead of reducing the term, he may be
transferred from one state to another or may be asked to vacate the
office.
29


Soli, J. Sorabjee has depicted the forgoing phenomenon in the
glaring words that one of the piquant incongruities of our Constitution
is that on a literal reading of its provisions, the Governor emerges as
the least secure and the least protected of all constitutional
functionaries. He is the only such functionary without any expressed

27
Gehlot, N.S: State Governors in India Tends and Isues, Geetanjali, New Delhi, P. 224-25.
28
Surya Narain v/s Union of India, AIR 1982 Rajasthan, P-1.
29
Indian Union Muslim league, AIR 1998 Patna, P-156.
security of tenure and any specific safeguard in the matter of his
removal.
30


5.7 Politicalisation of Article 156
A constitutional authority like that of Governor in India can
enjoy the perks and a liveried status only during pleasure of the
President as per the contemplation of Article 156 of the Constitution.
Presidents displeasure and that too in absence of any safeguard, can
kick the Governor out of the palatial Raj Bhawan as and when
desired by the Central Government. In the presence of confronting
provisions of the Constitution relating to his term of office, the
Governor can remain moribund and eclipsed whereas his execution of
powers and particularly the execution of discretionary powers are
concerned. The compatibility of removal and displeasure in turn
adversely affect the decision making process of the Governor whereas
his special and discretionary powers are concerned.

In the real effect and substance, the Governor looks after as
well as nourishes the interests of the party or alliance to which he is
politically related. He is there in the State to care for the interests of
the leaders of party as well as the interests of workers of the party
which has inducted him in the State. These party leaders and party
workers are in a position to attract the vote bank of the State in favor
of the party to which the Governor is politically related.


30
Soli, J Sorabjee, The Constitution and the Governor, Roli Books International, New Delhi, 1985, P-13.
Governor in the real sense is a protem of the party in power. As
a natural corollary, he is to look after the vested interests and health of
the party in power to which he is politically related. Consequently, his
judgment is bound to affect the States decision making process by the
ideas which he already has on his slate. In this state of mind
intrinsically he will be pushed to do even apolitical act to safeguard
the health of his party, may it adversely affect the smooth functioning
of the State. While passing through this sort of affairs, off and on, he
has to act as a cross Governor. It is submitted that the contradictory
provisions relating to his tenure of office are the hurdle in his path to
be realized as a positive Governor. Thus, Article 156 of the
Constitution is used and misused to meet the partisan ends of the party
in power at the Centre.

5.8 Recommendations of Sarkaria Commission
Sarkaria commission in its report on Centre State relations has
recommended the following guidelines for the constitutional
functionaries regarding tenure of state Governors in India as follows:-

Para (4.16.05) (4.7.08) - states that the Governors tenure of office for
five year in a State should not be disturbed except very rarely and that
too for extremely compelling reasons.

Para (4.16.06) (4.8.08) - states that where the President is satisfied
that in the interest of the security of the State, it is not expedient to do
so, the Governor whose tenure is proposed to be terminated before the
expiry of the normal term of five years, should be informally apprised
of the grounds of the proposed action and afforded a reasonable
opportunity for showing cause against it. It is desirable that the
President (in effect the Union Council of Ministers) should get
explanation, if any submitted by the Governor against the proposed
removal from the office, examined by the advisory group consisting
of the Vice-President of India and the Speaker of the lok Sabha or a
retired Chief Justice of India. After receiving the recommendations of
this group the President may pass such orders in the case as he may
deem fit.

Para (4.16.07) (4.8.09) - contemplates that when, before expiry of the
normal term of five years, a Governor resigns or is appointed
Governor in another State, or has his tenure terminated, the Union
Government may lay a statement before both Houses of the
Parliament explaining the circumstances leading to ending of the
tenure. Where a Governor has been given an opportunity to show
cause against the premature termination of his tenure, the statement
may also includes the explanation given by him, in reply.

Para (4.16.08) (4.9.04) - enunciates that as a matter of convention, the
Governor should not, on demitting his office, 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 of
India or President of India. Such a convention should also require that
after quitting or laying down his office, the Governor should not
return to active party politics.
31


Sarkaria Commission in its findings have evolved the
guidelines pertaining to relations between the President, in other
words the Central Government, on the one hand and the Governors
of states on the other hand. Sarkaria Commission in its report of far
reaching import has tried to provide the safeguards to the State
Governors against their arbitrary removals. The report reflects that
Audi Alterum Palterum should be made available to this
constitutional functionary of very high repute against his arbitrary
sacking. The findings viewed that right of representation should be
made available to the Governors which is desperately needed to him.

It is pertinent to mention here that Article 311 provides
constitutional safeguards to civil servants against any arbitrary
dismissal from their posts.

Article {311(2)} states that No such person as aforesaid shall be
dismissed or removed or reduced in rank except after an inquiry in
which he has been informed of the charges against him and given a
reasonable opportunity of being heard in respect of those charges.
32


Report of Sarkaria Commission is not only in favor of
providing constitutional safeguards to the Governors in case of their

31
Ibid, Note-18, P-386.
32
Bare Provisions: the Constitution of India, Universal Publication, New Delhi, 2005, P-257
arbitrary removal, but has proposed with a sound hierarchical process
of bodies consisting of highest constitutional functionaries to look
into in, the matter of arbitrary removal of Governors.

5.9 Report of National Commission
Report of the National Commission to Review the working of
the Constitution, has also made recommendations in regards to the
affairs of Governors in India in the following segments:-

Para 8.14.1 The Commission had issued a consultation paper
with a questionnaire on the office of the Governor for eliciting public
opinion. The issues raised and the suggestions made in the
consultation paper relating to amendment of Article 155, 156, with a
view to entrusting the selection of Governors to a committee making
the five years term a fixed tenure providing the removal only by
impeachment.

Para 8.14.2 After carefully considering the public response and
after full deliberations, the Commission does not agree to dilute the
powers of the President in the matter of selection and appointment of
Governors. However, the Commission feels that the Governor of a
State should be appointed by the President, after consultation with the
Chief Minster of the State. Normally, the five years term should be
adhered to and removal and transfer of Governor should be by
following a similar procedure for appointment i.e. with the Chief
Minister of the concerned state.

Para 8.14.3 The Commission recommended that in the matter of
selection of a Governor, the recommendation of the Sarkaria
Commissions may be kept in mind.
33


The National Commission in its report has emphatically under
lined the report of Sarkaria Commission in the matter of selection of
Governor and is of the view that the five years term of the Governor
must be adhered to. The National Review Commission has touched
another vital issue of Consultation with Chief Minister of the State
not only in the case of appointment of the Governor but also in the
case of transfer of the Governor.

However, the sacking of Governors by the highest
constitutional functionary is not a new phenomenon in Indian polity.
It is a natural corollary that with the change of the party or alliance in
power at the Centre, the Governors must change.

5.10 Scenario of One Party at the Centre and State
So long as there is one party rule at the Centre as well in the
State the institution of Governor remains dormant. The first and in
some way the most interesting instance of a Governor acting wrongly
of his own against the wishes of the Prime Minster, is the installation
of the Rajagopalachari Ministry by Governor Shri Prakasha in Madras
in 1952. The Congress Party was in minority at the time of general
elections and Mr.Nehru recommended the democratic procedure of

33
Report of National Commission to Review the Working of the Constitution. V.I, Universal Publication
New Delhi, 2002, P-165.
allowing the other parties, if they could muster a majority, to form a
Ministry.

In a letter to Rajagopalachari, Nehru said that one thing we
should avoid is giving the impression that we stick to the office and
that we want to keep others out at all costs. But Sri Parkasha and
Rajagopalachari, to whom he consulted and the most congressmen
favored Executive Government presumably as an alternative to a
ministry responsible to the Legislature. They were of the view that the
communists should be kept out of office and it should be asserted as
axiom of Indian Politics that the Congress ruled India whatever the
electoral setback in certain parts of Country. Rajagopalachari wrote to
Nehru that it would not be justifiable from any point of view, even of
ideological democracy to leave patches of rebel area and go into
disorder. and that we can not work our democracy in fractions of
India. Nehru vetoed the suggestion of permanent Congress hegemony
and observed that the electoral defeat of Congress did not amount to
the failure of the Constitution. Nehru was convinced and said
categorically that others would also be given a chance to function.
Without informing Nehru the Governor nominated Rajagoplachari to
the Upper House. He was thereupon elected leader of the Congress
Party; and the Governor ignoring Nehrus specific reminder that the
Chief Minster should be a member of the Lower House invited
Rajagoplachari to form the Government. The Prime Minister and
President disapproved of the whole business but the matter had to be
left at that the Governor has acted within his constitutional discretion,
even though his action was violative of democratic morality and was
of dubious constitutional propriety.
34


The Congress party, however, in the above episode approved
the unconstitutional act of the Governor under the umbrella of
discretionary power of the Governor; obviously, the Governor was of
same complexion as that of the Centre. If there have been the
Governor sponsored by the party other than the Congress, he might
have been sacked away.

In fact the party or alliance in power at the Centre, wants to
know in clear terms whether the Centre Governments policies and
strategies are being followed in the States. The Centre Government
remains alert with the help of Governors particularly with regards to
the affairs of State Government which is not of her complexion. The
Centre Government always remains busy in finding out the ways and
means to topple the Governments of political parties which are not of
her complexion. Those Governors who do not endeavor shoulder to
shoulder with the Central Government have to go unheard. Thus, so
far there is one party rule, both at the Centre as well as in the State;
the Governors complete their normal term of five years.

Contrary to the beliefs of the framers of the Constitution the
Governors are removed for reasons not at all within their
contemplation. A change of Government at the Centre and desire to

34
Sigh, L.P: Guide, Philosopher and Friend, in book, The Governor: Sage or Saboteur, Roli Books
International, New Delhi, 1985, P-45.
reward the party men has in some cases led to the removal or transfer
of Governors before expiry of their terms.

Instances of removal of Governors by the Central Government
are not scanty. Article 156 of the Constitution whose clause 3 is
controlled by Clause 1 has been used and misused by the Central
Government for sacking the Governors not due to constitutional or
juristic reasons but in the wake of political reasons . To elucidate the
use and misuse of this Article, it is imperative to highlight some
instances of removal of Governors rather we can say the arbitrary
removal of Governors. The instances of this pedigree bring into light
the phenomenon, that the recommendations of Sarkaria commission
were given no waightage while removing the Governors from their
august offices. Recommendations of Sarkaria Commission are an
earnest attempt to fill the hiatus of constitutional provisions pertaining
to institution of Governor.

5.11 1980 Episode of removal of Governor of Tamil Nadu
The Governor of Tamil Nadu, Prabhu Patwari was appointed by
the Janta Paety Government who was in keeping of Gandhian
ideology. The moment he joined the Raj Bhawan in Tamil Nadu, he
banned drinking, smoking as well as serving nonvegetarian food in
the Governors house. In the mean time the Government at the Centre
changed and the Congress party came into power. According to his
ideology, he did not allow to serve the drinks as well as the non
vegetarian food to the VIPs of the Congress Government. This
coupled with the views of the Central Government, in other words the
Congress (I) Government that the Governor should resign the moment
a new Government came to power, led to the withdrawal of the
Presidents pleasure and consequent removal of the Governor on 26
th

of October 1980.
35
Hence, it has become a natural corollary, that party
in power at the Centre, equipped with Article 156 of the Constitution
with one pretext or the other remains busy in finding out the ways and
means to sack the Governors which are not of her party as well as
ideology.

5.12 1981 Episode of removal of Governor of Rajasthan
In a leading case, the Rajasthan High Court upheld the
dismissal of the Governor of Rajasthan, Raghukul Tilak, by the
President. Raghukul Tilak assumed office of Governor during the
regime of Janta Party. He was removed from office on August 8,
1981, by the Indira Gandhi Government.

The Court pointed out that the Governor while discharging his
functions works as a channel of communication and contact between
the State and the Centre; the Governor is an appointee of the President
and expressly holds office during his pleasure. The Governor thus has
no security of tenure and no fixed term of office. Article 156(3) is
controlled by the Article 156(1) of the Constitution. The President in
exercise of his pleasure may cut short the five years term of the
Governor. Consequently, the President can ask the Governor to resign
or may terminate him from his office. The Governor may be removed

35
Sorabjee, Soli, J : The Constitution and Governor, in Book, The Governor: Sage or Saboteur, Roli
Books International, New Delhi, P- 19.
by the expression of Presidents displeasure before the normal term of
five years and the Presidents pleasure under Article 156(1) is
unjustifiable.
36


Forgoing expression makes it vivid that removing a Governor is
much easier than removing an employee of the Central Government,
while both hold office during the pleasure of the President. A
Government servant enjoy protection of Article 311 and many other
legal remedies under Administrative Law as well as under civil
service rules while no such statutory or non statutory remedies are
available to Governor against his arbitrary removal.

5.13 1989 Episode of Dismissal of Governors by N.F. Government
A glaring instance of removing the Governors from their offices
is the dismissal of all State Governors appointed by the congress (I)
Government by the National Front Government under the stewardship
of Mr. V.P. Singh as Prime Minster of India. The manner, in which
the Governors were asked to resign by the President, was to defy the
spirit of the Constitution. This unconstitutional event has deteriorated
the status and dignity of this office of high repute.

National front Government viewed that the previous Congress
Government had made political appointments of Governors which
were not proper and the present Government is committed to remove
corruption from public life. It was also argued that with the change of
the Government at the Centre, the Governors should also be changed

36
Surya Narain v/s Union of India, AIR 1982 Rajasthan, P-1.
in order to give the new Government the opportunity to tone up the
administration.
37


It is submitted that the National Front Government under the
pretext of toning up the administration of the Country removed all
the Governors appointed by the previous Congress (I) Government
with the handy available armory of Article 156 of the Constitution.
Offices, thus, vacated were filled by the party in powers by her own
party leaders. In fact, it is the only available modus operandi with the
party in power to compensate with the office of the Governor to her
party leaders who could not find berth in the Parliament.

5.14.1991 Episode of Removal of Governors by Congress
Government
When the Congress party came into power at the Centre in
1991, the position and status of the office of Governor was further
devaluated. Congress party which had at that time criticized the action
of Mr.V.P.Singhs Government did the same thing. Mr. Narsimha Rao
Government changed at least 14 Governors who were appointed by
Mr. V.P.Singh and Chander Shekher Governments and replaced them
with party leaders. This act was done merely to devaluate the
institution of Governor.

Sarkaria Commssion does not favor the summary curtailment of
5 years term of the Governors except for extremely compelling
reason. The Commission strongly recommended against the

37
Pandey, J. N: Constitutional Law of India, Central Law Agency, Allahabad, 2008, P-514.
appointment of discarded or defeated politicians to the august office
of Governor as they would try to justify their choice by acting as
agents of the centre.
38


5.15 Dismissal of Governor of Bihar in 1991
The Centre Government withdraw the pleasure of the
President and dismissed the Bihar Governor Mr. Yunus sleem on
February13, 1991 for committing the impropriety in criticizing the
imposition of Presidents rule in Tamil Nadu in course of his speech
to the joint session of the Bihar Legislature on February10, 1991. He
was dismissed after he refused to cave in to intense pressure from the
New Delhi to submit his resignation.
39


5.16. 1992 episode of dismissal of Governor of Nagaland
The removal of the State Governor was again brought in to
focus by the summary dismissal of the Governor of Nagaland, Shri
M.M. Thomas on April 11, 1992. Earlier, the Governor had dissolved
the State Legislative Assembly on the advice of then Chief Minister
retaining him as a Care Taker Chief Minister till fresh elections could
be held. The Governor had done so in the exercise of his powers under
Article 172(2) (b) without consulting the Centre Government before
taking such an action. The Centre Government did not approve the
action of the Governor. Accordingly, Centre imposed the Presidents
rule in the State under Art. 356 on April 2, 1992 and dismissed the
Governor soon after. The Centers justification for taking the action

38
Ibid, Note-37.
39
Kashap, Anirbhan: Governors Role in India Constitution, Lancer Books, New Delhi, 1993, P-146.
was that the Chief Minister had already lost his majority in the
legislature, when he advised the Governor to dissolve the House. The
opposition parties in Parliament described Centers action as an attack
on the federal character of the Constitution.

The above episode did bring to the forefront, the issue of crucial
importance to the Indian federalism that whether the Governor is a
constitutional functionary in his own right or he is bound to seek the
consent of the Centre. Theoretically speaking as per the constitutional
provisions, the Governor is entitled to decide of his own that whether
the powers vested in him by the Constitution should be exercised or
not at a particular movement. It is not necessary to seek the Centers
consent to his proposed exercise of such power. Therefore, in theory,
in the instant case, the Governor may not have done any thing wrong
or improper in exercising his power under Article 174 and dissolving
the House. But, then, hitherto, the practice has been developed in the
different manner. Governors rarely act in their own judgment
independently of the centers view. They usually act either at the
behest, or with the consent, expressed or implied of the Centre.

This practice cannot be regarded as being in conformity with
constitutional rectitude. Even politically this practice is not sound
because the Centre and the State may belong to different political
parties and the decision of the Centre Government in such a situation
may have political overtone. Therefore, it will be best to leave the
Governor who is man at the spot free to decide as to how to exercise
his constitutional powers and the situation arises.
40

5.17 Removal of Governors by U.P.A. Government in 2004
The Supreme Court referred to a five judge bench, a writ
petition challenging the removal of four Governors appointed during
former National Democratic Alliance regime, observing that the
important question of law relating to appointment and removal of
Governors requires consideration by the larger bench.

In July 2004, the United Progressive Allaince Govrnment
removed Kailash Pati, Kedar Nath Sahni, Babu Parmanand and
Vishnu Kant as Governors of Gujrat, Goa, Haryana and Uttar Pradesh,
admitting the Petition challenging their removal, the Supreme Court
has sought a response from the Centre Government.
In its reply, the Centre Government asserted that the term of
office of five years for a Governor was subject to the doctrine of
pleasure of the President embodied in Article 156(1) of the
Constitution. It said that the five years term is not absolute and can be
abridged at the pleasure of the President implying that the President
has the unfettered power to order the removal of the Governors and
that could not be questioned in the Court of law.
The Centre submitted that the exercise of a power founded on
the doctrine of pleasure even though the same was on the aid and

40
Jain M.P. Indian Constitutional Law, Wadhwa, Nagpur, 2005, P. 332-33.
advice of Council of Ministers could not be questioned by the Court
particularly in view of the bar of Article 361(1) of the Constitution
granting immunity to the President. The affidavit denied the allegation
that the four Governors were removed due to ideological difference. It
said that the allegation of the petitioners that they were removed due
to differences in ideology was based on some media reports and not in
facts, the Center said that Constitution did not specify any ground for
revoking the pleasure of the President resulting in the removal of the
Governor and added that the Constitution also did not specify any
procedure for their removal.
41

History is being repeated now, though the axe has fallen only
on four Governors so far. The assumption that the Centre which is an
appointing authority has the right to dismiss the Governor without
giving him reason for it or following any legal procedure, ignores the
basic right of every citizen in our democracy to be heard before he is
punished.
The Governor is a constitutional functionary entrusted with
solemn responsibility to preserve, protect and defend the Constitution
and the law. He takes the same oath on the assumption of the office
as that taken by the President with the difference that the Governors
oath refers to the well being of the people of the State, while the
Presidents oath refers to the well being of the whole country. His is
an independent office which is not subject to the control of Central
Government.

41
W.W.W. India. Org, site visited on 18.9.2008.
5.18 Summarily dismissal of Governors: a fallacious doctrine
In the wake of power politics, some highly fallacious theories
and doctrines had been propounded by certain political parties and
leaders about the right of Central Government to summarily dismiss
the Governors of the State. The explanation furnished by the Central
Government is as wrong as Mufti Doctrine of 1990 when the
V.P.Singh Government demanded resignation of all Governors
through letter addressed to the President, Mr. R.Venkatarman in
January 1990, the theory put forward by then home Minster Mufti
Mohammad Sayeed was that with the change of Government at the
Centre there should also be a change of Government in the States. The
theory was that the Governor should be the Centers own man
irrespective of the fact that the Constitution expected him to be totally
non partisan and impartial functionary.
42

The President of India, who holds office for a term of five
years, can be removed from office only by impeachment for violation
of the Constitution, after following the elaborate procedure provided
in Article 61 of the Constitution.
A Judge of the Supreme Court or a Judge of a High Court can
be removed from his office only on the ground of proved misbehavior
or incapacity and after an address by each House of Parliament,
supported by majority of total membership of the House and by a
majority of not less than two-thirds of the members of that House

42
Ibid, Note-41.
present and voting, has been presented to the President in the same
session for his removal. (Articles124 (4); 217).
The Comptroller and Auditor-General of India and Election
Commissioner can only be removed from office in the like manner
and on the like grounds as a Judge of the Supreme Court.(Article148;
324.)
The Chairman or any other member of the Public Service
Commission, in normal course, may be removed from his office on
the ground of misbehavior. (Article 317)
Any member of a civil service of the Union or a State, however
low in the hierarchy, cannot be removed without being accorded a
reasonable opportunity of being heard, barring certain exceptional
cases specified in the Constitution. Yet a Governor, the head of a
State, has no security of tenure, nor any safeguard against his
removal.
43

It is pertinent to highlight here the facts that the framers of the
Constitution did not expressively ensured security of tenure and
safeguards against the arbitrary removal of the Governors. The silence
of the founding fathers in this matter was due to the fact that the
removal would be only for violation of the Constitution or such
misbehavior as would render the person unfit to occupy the office of
Governor.

43
Sorabjee, Soli, J: The Constitution and the Governor, in book, The Governor: Sage or Saboteur, Roli
Books International, New Delhi, 1985.
Professor K.T Shah in the course of debate in Constituent
Assembly specifically raised the point that we must not leave the
Governor to be entirely at the mercy or pleasure of the President and
so long he acts in accordance with the advice of the constitutional
advisers of the Province, he should, I think, be irremovable during
term of office, that is, five years according to this Article. Shah moved
an amendment proposing that the Governor could be removed from
office not only on the ground of violation of the Constitution but also
on the other grounds, such as treason or any offence against the safety,
security or integrity of the Union, bribery or corruption, or on account
of physical or mental incapacity duly certified.
44

The intentions of the framers of the Constitution can be inferred
from the above propositions that though they were in favor of the
Presidential nomination of the Governor at the cost of an elected
Governor, but their intention can nowhere be inferred that they were
in favor of keeping the Governor insecure to this extent. (Emphasis
supplied)
The absence of safeguards was also castigated by Professor
Shiban lal Saxena in forth right terms that He will be purely a
creature of the President, that is to say the Prime Minister and party in
power at the Centre. When once a Governor has been appointed, I do
not see why he should not continue in office for his full term of five
years and why you should make him removable by the President at his
whim. It only means that he must look to the President for continuing
in office and so continue to be subservient to him. Such a Governor

44
Constituent Assembly Debates, V. VIII, Lok Sabha Secretariat, New Delhi, 1999, P-471.
will have no independence and my point is that the Centre might try to
do so some mischief through that man.
45

Futuristic contemplation of the framers of the Constitution has
been proved to be absolutely true. The Centre in the real sense is
doing mischief in the States by arbitrarily removing the Governors in
one pretext or the other.
At the same time it must be remembered that in removing the
Governor the President acts on the advice of his Council of Ministers.
His act, in truth, is the action of the executive Government and is not
immune from judicial scrutiny. In such cases it is possible to
challenge the action, not on account of breach of convention but on
the ground that the power of removal, though absolute in terms, is
subject to implied and inherent limitation, that it can be exercised only
in violation of the Constitution, or other similar acts on the part of the
Governor which render him unfit to occupy this constitutional office.
Above all, any action which is established to be arbitrary or
capricious or mala fide can be successfully challenged. In the
memorable words of justice Bhagwati, No one, however highly
placed, and no authority, however lofty, can claim that it shall be the
sole judge of the extent of its power under the Constitution or whether
its action is within the confines of such power laid down by the
Constitution. It is for this Court to uphold the constitutional values
and to enforce the constitutional limitations.
46


45
Ibid - 473.
46
State of Rajasthan v/s Union of India, SCR 1978 (1), P-31.
Conclusive Remarks
However the present scenario demands that the grounds for the
removal of the Governor be expressively castigated in the
Constitution and the removal process should be on the same grounds
and in the same manner as the removal process of a judge of the
Supreme Court or the High Court. These constitutional reforms are
necessary to strengthen the role of the Governor and to make it more
effective and meaningful. The observations of Pandit Jawaharlal
Nehru, in this context, are worth quoting here:
We have made a Constitution and we should abide by the
Constitution, nevertheless, let it not be said that that
Constitution, every part of it, every chapter and corner of it, is
some thing that is so sacrosanct that it cannot be changed even
if the needs of the Country or the Nation so required.
Undoubtedly, it can be changed whenever necessary, not lightly
but after full thought, if it is thought that the part of the
Constitution comes in the way of the nations progress.
47



----------



47
Jagdish Swarup: Constitution of India, V.2, Modern Law Pulications, New Delhi, 2006, P-V.