The State Governor

BY PROF. M. VENKATARANGAIYA, M.A.

Under the Draft Constitution, India is to be a (federal) Union of States, and the States which constitute the Units of the Union are divided into four categories. In the first are included the territories now known as the Governors’ Provinces–Madras, Bombay, West Bengal, The United Provinces, Bihar, East Punjab, The Central Provinces and Berar, Assam and Orissa. In the second are the Chief Commissioners’ Provinces of Delhi, Ajmer-Merwara and Coorg. In the third are the Indian States like Mysore, Gwalior, Baroda etc., which have acceded to the Union, and in the fourth are the Andaman and Nicobar Islands. From a constitutional point of view, there is not much to be said regarding the second and the fourth categories. They form only a small part of the Union. The Draft Constitution has recognised a distinction between the States included in the first category and those in the third. To the latter the principle of self-determination has been conceded and each State in the category is free to determine for itself what kind of Constitution it should have in future. And it is because of this principle that, in States like Travancore and Mysore, Constituent Assemblies are already at work, framing their Constitutions. States like Madras and Bombay included in the first category have Constitutions framed for them by the Indian Constituent Assembly. This distinction is based purely on historical grounds–on the ground that Indian States like Mysore enjoyed sovereignty in the past and that they should consequently have the right to frame their future Constitutions, while the Governors’ Provinces, out of which the States in the first category have now been formed, possessed no such sovereignty. Though there is some validity in this historical view, it would have been far better if the Indian Constituent Assembly had framed Constitutions for the States in the third category also on some uniform basis. No one has taken objection to representatives from Indian States on the Indian Constituent Assembly participating in the discussions for determining the Constitution of the States in the first category, and there ought to be no objection whatever to members from Governors’ Provinces taking part in deciding what the Constitution of the States in the third category should be. But this course was not taken, and the result is that while the Draft Constitution gives details of the way in which the States in the first category are to be governed in future, no such details are forthcoming regarding those in the third category.

Each one of the States in the first category–Madras, Bombay, etc., will have a Governor at its head. Two alternative methods are suggested in the Draft Constitution for choosing the Governor. According to the first method he is to be elected directly by all the qualified voters in the State. According to the second he is to be appointed by the President of the Union out of a panel of four candidates to be elected by the State Legislature. The first method was already recommended by one of the committees of the Constituent Assembly and agreed to by the Assembly itself. But it is felt that the co-existence of a Governor elected by the people and a Prime Minister responsible to the Legislature–and therefore deriving his authority ultimately from the people themselves–might lead to friction and consequent weakness in administration; and the Drafting Committee of experts therefore recommended the alternative method. It is true that in the States of the United States of America the Governor is elected by the people, but he is the real Head of the Executive there. Not so is the case in the States here. Real power will be in the hands of the Council of Ministers presided over by the Chief Minister. Under these circumstances that alternative method is certainly preferable. It secures two or three additional advantages. It will be strictly in harmony with the spirit of federalism as envisaged in the Draft Constitution–federalism which attempts to maintain an intimate connection between the Centre and the Units. Moreover, under a parliamentary system, it is best to have as the nominal Head of the Executive a non-party man. He will be a better symbol of the unity of the State than an elected person who is bound to belong to some political party or other. And the appointment of a State Governor by the Union President is not something that is novel. This is the method followed in the Dominion of Canada, and it has been working there quite satisfactorily. For these reasons it is better that the alternative method is agreed to by the Constituent Assembly with one modification. There is no need to have a panel of four candidates elected by the State Legislature. The President may be given a free hand in selecting the person to be appointed Governor. Any election will introduce a party element into the whole affair. The objection that the President will thrust on a State a Governor disliked by the people does not hold good. He will sound the State Cabinet before making his choice.

There is one ambiguity in the Draft Constitution which has to be cleared. Whether he is elected by the people or appointed by the President, the Draft lays down that he should be a person not disqualified for being chosen as a member of the Legislative Assembly of the State, and it also says that it shall not be necessary for any such person to be a resident of the State. The object seems to be that even one who does not belong to the State should be given a chance to become its Governor. But how can this be secured if he is also to be qualified for being chosen as a member of the State Assembly? For, we cannot conceive of non-residents becoming qualified for choice as members. Every State insists on residential qualification for this purpose. This ambiguity has to be removed and the position clarified.

The Governor holds his office for a period of five years. He is eligible for re-election or reappointment only once. This is a wholesome provision and prevents a single person from remaining perpetually in officee.

Within the period of five years a Governor may be removed from office by impeachment, if it is proved that he violated the Constitution. There is no other charge on which he may be impeached. When he is to be impeached for a violation of the Constitution, the charge should be preferred by the Legislative Assembly of the State and disposed of by the Council of States which is the Second Chamber in the Union Legislature. This is another example of the attempt made in the Draft Constitution to keep up a connection between the Centre and the Units. It may be incidentally noted that the same feature is found in another provision of the Constitution, under which all doubts and disputes relating to the election of a Governor (if the process of election is finally agreed to) are to be enquired into and decided, not by the State High Court but by the Supreme Court.

The powers of the State Governor are of two kinds. There are the powers, which he should exercise only on the advice of his Council of Ministers. There are other powers and functions, which he is to exercise in his discretion, This is a distinction for which there is analogy in the Dominions of the British Commonwealth, but it seems to be more correct to infer that it is based much more on the provisions of the Government of India Act of 1935. It will not be far from the truth if one were to say that the framers of our Draft Constitution have, over a large part of it, slavishly copied the provisions of this Act. They not only borrowed the ideas but also adopted the very wording of the Act. In no other Constitution is found so much of this slavish imitation.

There is, however, no exhaustive enumeration of the powers to be exercised by the Governor in his discretion. Among these are included the powers of appointing and dismissing Ministers, the summoning of the Legislature, the dissolution of the Legislative Assembly, and the powers to be exercised in cases of grave emergencies. Except the last the others are powers in the exercise of which every constitutional Head of a parliamentary State should have some discretion, and there is no reason why in the Draft Constitution they should have been specially referred to. There is no such reference to the powers of the Union President, although even in his case the exercise of discretion is necessary in the appointment and dismissal of Ministers, etc. These omissions and inclusions require to be further considered by the Constituent Assembly during the discussions of the Draft Constitution.

Except in times of grave emergency the Governor is expected to be a Constitutional Head of the State like the Crown in England. During the last ten years debates have been going on in our country as to whether we should have a parliamentary or non-parliamentary form of Executive or even prefer the Swiss type of executive government. The Draft Constitution has finally set at rest all these controversies and has provided for a parliamentary form of government, under which the Governor will be a nominal Head of the Executive while the real authority will be in the hands of a Cabinet with joint responsibility and presided over by the Chief Minister.

There are however two features of the Draft Constitution which require further consideration in this connection. One is that some of the provisions for parliamentary government in the States are not included in the text itself but are relegated to the Instrument of Instructions forming part of the Fourth Schedule. It is not clear why this course has been adopted. This has not been done in the case of the Union President in relation to his Council of Ministers. The Union also is to have a parliamentary form of Executive. But the next of the Constitution itself defines in Article 62 the conditions to be observed by the President in appointing the Prime Minister and the other Ministers. An Instrument of Instructions is not binding on the Governor in the same way as the Articles of the Constitution, and the Instrument is also liable to be altered from time to time, although the Draft Constitution does not say who has the power to alter it. The Instrument of Instructions calls on the Governor to include in his Council of Ministers members of important minority communities, while there is no such demand made of the Union President in his selection of Ministers. Reference to minority communities is out of place in a Constitution which wants to create a non-communal, secular State. And insistence on representation of important communities in the State Cabinets will adversely affect the working of a system of joint responsibility. All these had a place in the Government of India Act of 1935, whose purpose was to strengthen the hands of the Governor through a policy of Divide and Rule. They should disappear in the secular State we are now bent on establishing. Without considering these matters, the Drafting Committee has incorporated into the Draft the whole of the Instrument of Instructions forming part of the Act of 1935. They should have exercised greater discrimination in determining what to borrow from the Act and what to avoid. Anyhow there is no reason why the guidance to be given to the State Governor in choosing his Ministers and in his relations with them, should be set out in the Instrument of Instructions and not included in the provisions of the Constitution itself.

The other feature which requires further consideration and clarification is the part that the State Governor has to play in the conduct of Government business and in legislation. The Chief Minister is called upon to communicate to the Governor all decisions of the Council of Minister relating to the administration of affairs and all proposals for legislation. It is not known why this is necessary when the responsibility for the good government of the State rests on the Cabinet. It should be left to the discretion of the Chief Minister what to communicate or not. Another Article (147-c) lays down that “it shall be the duty of the Chief Minister, if the Governor so requires, to submit for the consideration of the Council of Ministers any matter on which a decision has been taken by a Minister but which has not been considered by the Council.” This is possible only on the assumption that the Governor is informed of every decision taken by individual Ministers. He should, therefore keep himself in intimate touch with the administration. It will surely create friction between him, the Chief Minister, and the Council as a whole. The Council should have perfect discretion to decide its own rules of business, so long as it is responsible to the Legislature.

The Governor of the State is empowered to either give assent to a Bill passed by the State Legislature, or withhold his assent, or reserve the Bill for the consideration of the Union President. It is to be presumed that the power to give or withhold assent is only of a formal character, as is the case in every State where there is a parliamentary form of government, and that only such Bills will be reserved for the consideration of the President as come under Article 231(2)–bills relating to items included in the Concurrent List. There is however a proviso which says that the Governor of a State with only one House of Legislature may return the Bill together with a message requesting the House to reconsider the Bill, or any specific provisions in it, and recommending to it the consideration of any amendments proposed by him. Under a parliamentary form of government almost all the Bills passed by the Legislature will have the support of the Council of Ministers behind it. And for the State Governor to call on the Legislature to reconsider the Bill is to ask it to do something in opposition to the views of the Cabinet. Such a provision will also create unnecessary friction and it is best to delete it. Article 154 (2), which provides for the Governor sending messages to the State Legislature is of the same character. All this is consistent with a system of government like that in the United States (or in India under the Government of India Act of 1935) where the Executive has no direct contact with the Legislature, or opportunities of otherwise influencing its policies and programmes. But it is out of harmony under a parliamentary system of government. How is the State Legislature to decide if there is a conflict between the Governor’s messages and views and the policy of the Cabinet of the day? This complication is mostly due to a desire on the part of the Drafting Committee that India should have a Constitution which is not either purely parliamentary or non-parliamentary but which is midway between the two. The Committee, however, has not explained why such a middle course is necessary or what faults in the parliamentary system it is expected to correct. These provisions in the Constitution are sure, however, to create applications and bring friction in the relations between the Governor and his Cabinet.

It is Article 188 included in the Constitution for meeting grave emergencies that has come up for the strongest criticism from many quarters. If at any time the Governor is satisfied that a grave emergency has arisen which threatens the peace and tranquillity of the State, and that it is not possible to carry on government in accordance with the provisions of the Constitution, he may under this Article declare by proclamation that his functions shall be exercised by him in his discretion and not with the advice of his Council of Ministers, and he is farther empowered to suspend, in whole or in part, the operation of any provisions of the Constitution except those relating to the High Court. All this results in making the Governor the despotic head of the State as long as his Proclamation is in force. The whole Article is a word for word repetition of Section 93 of the Government of India Act of 1935, under which, as is well known, the so-called advisory regimes were established during the period of the Second World War after the Congress Ministries resigned office.

Before considering the nature of the objections raised to the inclusion of Article 188, it should be noted that there are certain conditions attached to the assumption of dictatorial powers by the Governor. One is that the Proclamation under this Article shall cease to operate at the expiration of two weeks–which is therefore the maximum period for the exercise of these dictatorial powers. The second is that the Governor should forthwith communicate the Proclamation to the President of the Union, who may thereupon either revoke the Proclamation or take any other appropriate action in exercise of the emergency powers vested in him under Article 278. The result therefore is that the Governor ceases to be a dictator, and whatever extraordinary powers are exercised by him during the period of emergency are exercised subject to the control of the President, just as under Section 93 of the Government of India Act the Governor became subject to the Secretary of State for India.

The effect of Article 278 is that in times of emergency the President of the Union becomes practically the Executive Head of the State concerned, and the Parliament of the Union becomes the Legislature for the State. The State thus loses its autonomy for the time being and comes to be administered directly by the Union Government. The maximum period during which this centralisation would be in operation is three years. From this it is clear that the ultimate effect of Article 188 is not the assumption of dictatorial powers by the Governor, but the assumption by the Centre of complete control over the State. The Centre, however, that exercises this control is not an autocratic one. The President of the Union discharges the executive functions with the advice of the Central Council of Ministers, while the Parliament which exercises the legislative functions is a body representative of the people of the Union and of the Units constituting it. The real objection to article 188 should therefore be, not that it confers dictatorial powers on the State Governor but that it kills State autonomy and substitutes Central control for it. Of course it may be argued that the initiative in the whole matter is taken by the Governor in the exercise of his discretionary authority, and not by the Council of Ministers who are the real representatives of the people but this argument ignores the possibility of a grave emergency arising within a State by ministerial incompetence or corruption, or Cabinet instability. In such a case the initiative cannot be left in the hands of the Council of Ministers. It should be in the hands of someone outside the Council. The President of the Union cannot be empowered to take the initiative directly and intervene in State affairs, as he will have no data on which to base his action. Leaving the initiative to the Governor appear to be the only proper course left. In his communication to the President, he will give full details of the conditions prevailing in the State necessitating the proclamation of a state of emergency, and it will then be for the President to agree or disagree with the Governor. If it is recognised–and every-body has to recognize it–that grave emergencies are bound to arise, especially because of the revolutionary times through which the country will have to pass during the coming decade or two, and that some extra-ordinary steps will have to be taken to face such emergencies, Article 188 taken along with Article 278 appears to be the most effective way of meeting emergencies consistent with a democratic system of government. The Centre which will under these Articles take over the control of the State is a democratic Centre. The so-called emergency powers of the Governor are not really his powers. They belong to the Centre.

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