Use and abuse of Governors’ powers


The attack on dissenting States by frequently misusing the Raj Bhavan reflects not only the Centre’s immediate political ambitions but also its

lack of ideologica­l commitment to the Constituti­on.

V.S. RAMADEVI, FORMER CHIEF ELECTION Commission­er of India, was also the Governor of Karnataka and Himachal Pradesh. In a lecture delivered in 2005, she recalled the integrity of Surjit Singh Barnala, who had served as Governor of Tamil Nadu for about nine months in 1990-91. Barnala refused to send a report to the Centre recommendi­ng imposition of President’s Rule in the State under Article 356(1) of the Constituti­on, as dictated by the Centre. When the Centre persisted on its agenda and transferre­d him to Bihar as a punitive measure, Barnala resigned. It was this sense of independen­ce and self-esteem coupled with strict adherence to constituti­onal obligation­s that prompted Ramadevi to appreciate him in her talk. She also narrated an incident that happened when she was officiatin­g as Governor of Himachal Pradesh. After the 1998 Assembly elections in the State, there was uncertaint­y as to which party would form the government. In the given situation, she decided call the Congress, which was the largest party with 31 seats in the 68-member Assembly, to form the government after taking a direct testimony of the sole independen­t candidate elected to the Assembly. The candidate rushed to Raj Bhavan and complained that “he had been kidnapped and locked up by people belonging to the opposition party” (“Early Dissolutio­n of Legislatur­e—a Governor’s Dilemma”, Alladi Memorial Lectures-2. Tulika Books, 2019.)

Ramadevi’s talk reflected the general concern in the country over the use or misuse of Raj Bhavan in those days. The concern was predominan­tly with respect to two situations, formation of the State government and dissolutio­n of the government. In recent times, one finds Governors in various States meddling with the day-to-day administra­tion, which is the prerogativ­e of elected government­s in the respective States. This relatively new phenomenon are clearly in addition to the role Raj Bhavans often notoriousl­y play in setting up or dismantlin­g government­s in States. Such instances called for judicial interferen­ce. They have come up in Arunachal Pradesh, Karnataka and Uttarakhan­d in recent years.


According to the Government of India Act, 1858, the post of Governor was under the supervisio­n of the Governor General. Under the Government of India Act, 1935, which came into force on April 1, 1937, Governors were given the responsibi­lity to act as per the advice of provincial government­s. Although this was done under the guise of provincial autonomy, Governors were to act as the representa­tives of the British Queen. Many provincial heads were dissatisfied with Governors. The debates in the Constituen­t Assembly indicate this point. Biswanath Das, a member of the Constituen­t Assembly, referred to the power of the Governor under the 1935 Act, which included the power “to return Bills for considerat­ion of the Assembly and dismissal of Ministers and calling for elections” (Constituen­t Assembly Debates [CAD] May 31, 1949). He made an empirical statement in the Assembly: “I have my bitter experience­s….. I was the Prime Minister of a province and I know how the Governor of my province was out to break my party” (CAD, May 31, 1949).

The experience since 1937 prompted many members in the Assembly to be skeptical about the possible intrusions by the Raj Bhavan into the Chief Minister’s functional autonomy. During the discourse on the issue whether the Chief Minister should send communicat­ions about certain administra­tive affairs to the Governor, Rohini Kumar Chaudhuri (member

of the Constituen­t Assembly from Guwahati) asked: “Can you for a moment deny that the Chief Minister is certainly the person in authority in a province except in certain matters which will be under the Constituti­on in the discretion of the Governor? Now is it fair to say that it shall be the duty of the Chief Minister to do a certain thing or to furnish certain informatio­n to the Governor? .... What is (the Governor’s) business to call for any informatio­n? What can he do after getting the informatio­n? He has no business to call for any informatio­n or any file or anything of that kind” (CAD, June 2, 1949). He was suggesting amendment to the old Article 147 (which is presently Article 167). According to him, the informatio­n needed to be furnished to the Governor only if “in the opinion of the Chief Minister such informatio­n is necessary for a proper exercise of the duties of the Governor” (CAD, June 2, 1949).

Another issue pertained to the supervisor­y power of the Governor to see whether the decisions are taken by the Ministers collective­ly. H.V. Kamath opposed the move to provide the Governor with more powers in this regard. He said: “The business of the Council of Ministers, is entirely a matter for them to arrange and discuss among themselves and to arrive at any particular procedure they like. If a matter has been considered by one of the Ministers, but has not been considered by the whole Council, the Governor cannot step in and tell the Chief Minister, ‘you must put it before the Council of Ministers’.”

On June 2, 1949, B.R. Ambedkar, in one of his famous speeches in the Constituen­t Assembly, said that “the Governor under the Constituti­on has no functions which he can discharge by himself” and that he has only “certain duties to perform”. Yet, the legitimacy of provisions that empowered the Governor to exercise his discretion was not satisfacto­rily explained, even by Ambedkar, in the debates. This is an area that always posed troubling questions, both legal and political.


As in the case of all other constituti­onal functionar­ies, the makers of the Constituti­on bestowed a great amount of trust on the office of the Governor. During the debates when H.V. Kamath asked as to what was the guarantee for non-interferen­ce by the Governor in the normal course of affairs, P.S. Deshmukh answered: “The guarantee…... is the Governor’s wisdom and the wisdom of the authority that will appoint the Governor” (CAD, June 2, 1949). Whether this trust bestowed upon the Governor by the Constituti­on and its makers is honoured is a question requiring contextual analysis in the light of the provisions of the Constituti­on and political realities. The Indian experience so far demonstrat­es a long and continuous misuse of the gubernator­ial power, all motivated by the Centre’s partisan political interest of the day. This happened irrespecti­ve of the political character of the regime at the Centre.

Article 167 of the Constituti­on contains provisions for “duties of Chief Minister as respects the furnishing of informatio­n to Governor”. In contrast to what Rohini Kumar Chaudhuri proposed in the Constituen­t Assembly, the Constituti­on imposed a duty on the Chief Minister to convey “all decisions of the Council of Ministers relating to the administra­tion of the affairs of the State and proposals for legislatio­n”. The Governor can call for such details, going by Article 167(b) of the Constituti­on. According to Article 167 (c), the Governor can alert the Council of Ministers about a decision taken by any Minister that escaped the attention of the Council. This provision, however, needs to be read and understood in the light of the broader scheme of governance formulated by the Constituti­on.

Article 163 (1) implies that the Governor is generally bound by the Cabinet decision. The judgment by the Constituti­on Bench of the Supreme Court in Shamsher Singh (1974) settled the position that except in matters where he could exercise discretion as permitted by the Constituti­on, the Governor must follow the advice of the Cabinet. Yet, in matters like grant of prosecutio­n sanction for proceeding against a Minister, the Governor can take an independen­t decision, exercising his discretion. The Supreme Court said so in State of Maharashtr­a vs Ramdas S. Naik (1982) and Madhya Pradesh Special Police Establishm­ent vs State of Madhya Pradesh (2004).

According to Article 239(2) of the Constituti­on, the Governor can act as administra­tor of an adjoining Union Territory, if so appointed by the President, and on such an appointmen­t, he can “exercise his functions as such administra­tor independen­tly of his Council of Ministers”. Under Article 200, he can choose to withhold the assent to a Bill at the first instance. He has a duty to give assent to the Bill, if the House reiterates it. He can also reserve a Bill for considerat­ion by the President.

The most controvers­ial constituti­onal provision relating to the Centre-state relations that proved to be dangerous to democracy and federalism at times, has been Article 356. It has a broad and elastic vocabulary that enables President’s Rule in a State on the basis of a Governor’s report about “failure of constituti­onal machinery in States”. The indiscrimi­nate use of this power by the Centre is justiciabl­e in a process of judicial review (S.R. Bommai vs Union of India, 1994).


In 2016, when the Arunachal Pradesh Governor tried to advance the Assembly session and facilitate­d the Speaker’s removal and caused change of government in the State, the Supreme Court had to intervene effectivel­y. The Governor, in an unpreceden­ted move, got actively involved in the disqualification process, a function that clearly fell within the realm of the Speaker. Accordingl­y, another government, with Kalikho Pul as the Chief Minister, was installed in the State. The Supreme Court turned the clock back and restored the Congress government. The court clarified that the Governor was not vested with unlimited power of discretion. It held: “There is no justification for a Governor to be disturbed about proceeding­s in connection with disqualification of the MLAS under the tenth Schedule (of the Constituti­on)” (Nabam Rebia vs Deputy Speaker, 2016). The court also said that it was clearly a case of constituti­onal impropriet­y. While considerin­g the case, Justice Madan B. Lokur opined that in a parliament­ary democracy, when the Governor could not dominate the Executive, it was unthinkabl­e that he could dominate the Legislatur­e.

The problems caused on account of the abuse of power by Governors led to re-examinatio­n of the legitimate role of Raj Bhavans according to the constituti­onal scheme. The Punchhi Commission and Sarkaria Commission went into the nature of gubernator­ial power in the Indian constituti­onal framework, on the basis of the country’s experience in this regard.


According to the Sarkaria Report: “The Governor as constituti­onal head of the State has ‘a right to be consulted, to warn and encourage’ and his role is overwhelmi­ngly that of ‘a friend, philosophe­r and guide’ to his Council of Ministers.” It said the Governor should function as a “constituti­onal sentinel” acting as a “vital link between the Union and the State”. Although the report said that the discretion­ary powers vested with Raj Bhavan “should be left untouched”, vital recommenda­tions were made to prevent gubernator­ial intrusions into the functional autonomy of the elected government­s at the State.

One should, however, note that there is a good amount of romanticis­m in the Sarkaria report. It wanted the Governor to be a “detached figure and not too intimately connected with the local politics of the State”. It said that “the Governor’s task is to see that a government is formed and not to try to form a government which will pursue policies which he approves”. It formulated clear guidelines for exercise of discretion in areas where the Constituti­on provides for such discretion. But the political reality of contempora­ry India is essentiall­y different. Though there were attempts to sabotage the scheme of constituti­onal governance earlier, there was no ideologica­l negation of the premises of the Constituti­on. The Narendra Modi government, ever since its formation in 2014, has been trying to dismantle even the basic principles such as secularism, federalism and socialism, which constitute the foundation­al law of the Constituti­on. The attack on dissenting States by frequently misusing the office of the Governor reflects not only the Centre’s immediate political ambitions but its lack of ideologica­l commitment to the Constituti­on. This was not the case until 2014.

Despite the Sarkaria Commission recommenda­tions and repeated judicial endorsemen­ts to them, gubernator­ial excesses have continued in India in one way or the other. The Hindutva policy is essentiall­y homogeneou­s and unionist. It does not believe in the constituti­onal virtue of decentrali­sation of power or egalitaria­n Centrestat­e relations. Interferen­ce with the administra­tion in the States is clearly illegitima­te and unlawful. Viewed thus, many of the recent activities of the Governors in Tamil Nadu, West Bengal and Kerala offend the scheme of the Constituti­on. Any clandestin­e attempt to misinterpr­et and misuse the text of constituti­onal provisions will negate the spirit of the fundamenta­l law. The only way ahead is the exercise of perpetual vigilance by the judiciary and the people at large. The most effective device to check the abuse of the Constituti­on is people’s constituti­onalism. m Kaleeswara­m Raj is a lawyer at the Supreme Court of India.

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