Constitutional Governance II Project

An analysis of Politicization of gubernatorial appointments in India

Date: 19th March, 2016

Submitted to: - Submitted by: -

Ms. Aakanksha Kumar Aditya Prakash

(Assistant Professor, Roll No. - 1296

Faculty of Law) II Semester

B.A.LL.B(hons.)

NATIONAL LAW UNIVERSITY

JODHPUR

WINTER SEMESTER (JANUARY 2016 MAY 2016)

 Table of Contents

Acknowledgement......................................................................................................................2

Index of Authorities....................................................................................................................4

Introduction................................................................................................................................5

Governor....................................................................................................................................6

I. Constitutional provision for the appointment of the Governor.......................................7

II. Is Governor an Agent of the Centre................................................................................7

Governors liability towards President and the Parliament........................................................8

I. Governor acts as an upholder of the sovereignty of the constitution, but the

intervention of Political parties in such matters hamper the governors job.......................10

Various Commissions set up for analyzing the current problem of politicization of

Gubernatorial Appointments....................................................................................................11

I. Recommendations of the Governor's Committee on Appointment of Governor..........11

III. Venkatchalliah Commission:.....................................................................................13

IV. Puncchi Commission:.................................................................................................14

scenario during the regimes of both UPA and BJP..................................................................14

how should politicization of Gubernatorial appointments be curbed ?....................................16

Supreme Courts stand on Gubernatorial Appointments.........................................................18

Individual Analysis...................................................................................................................19

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 ACKNOWLEDGEMENT

As I pen down the final words of my project I take this opportunity to express my gratitude
and personal regards to Ms. Aakanksha Kumar for helping and guiding me during the course
of this project work.

I also owe sincere thanks to the Library staff, National Law University for the
cooperation and facilities extended from time to time during the progress of my project
work.

Last but not the least my sincere thanks are extended to my parents for their
inspiration and guidance given to me from time to time during the progress of this project
work.

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 INDEX OF AUTHORITIES

Cases

Article 153 Constitution of India...............................................................................................5

Article 156, Constitution of India..............................................................................................8

B.P. Singhal vs Union Of India & Anr.....................................................................................19

B.P. Singhal vs Union Of India & Anr on 7 May, 2010............................................................5

Dr M N Buch, Centre for Governance and Political Studies, VIF...........................................11

Essay on the Governor and the President's Rule Dnyanesh Kumar.......................................7, 9

http://www.dnaindia.com/pune/report-kissa-kursi-ka-should-we-do-away-with-governor-s-

post-and-get-out-of-this-raj-era-complex-1996814..............................................................12

http://www.importantindia.com/2120/appointment-of-governor-of-state-in-india/................11

http://www.vifindia.org/article/2014/september/23/need-to-appoint-impartial-

governors#sthash.r4z73ZGQ.dpuf.........................................................................................9

https://en.wikipedia.org/wiki/Sarkaria_Commission...............................................................13

lawmin.nic.in/ncrwc/finalreport/v2b2-9.htm...........................................................................16

supremecourtofindia.nic.in.......................................................................................................19

www.govtofindia.nic.in............................................................................................................15

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 INTRODUCTION

This project deals with the analysis of how the Governors of a State are appointed,

and in recent time times how has there been a politicization of such appointments, how the

parties in power leave no stone unturned to get a person of their will to be the Head Of The

State.

Article 153 of the Constitution of India talks about the Governor of States and it says

that: Governors of States There shall be Governor for each State : Provided that nothing in

this article shall prevent the appointment of the same person as Governor for two or more

States1

There have been recent examples where the Governors of various states have been

removed by the Parliament or the Union Government, this project provides an overview of

such malpractices being all pervasive in todays Constitutional System of Governance.

It also deals with various examples, cases, commissions set to probe into this and

other such important matters pertaining to the appointments. Though the position of the

governor is a constitutional Provision, he still enjoys his tenure at the will and accord of the

president of India, who works on the advice of the Council of Ministers aided and advised by

the Council of Ministers, and this does not make the Governor a servant or an employee of

the Government of India.2

1 Article 153 Constitution of India

2 B.P. Singhal vs Union Of India & Anr on 7 May, 2010

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 RESEARCH QUESTIONS

Governors liability towards President and the Parliament ?

Is Governor an Agent of the Centre ?
Various Commissions set up for analyzing the current problem of politicization of

Gubernatorial Appointments ?
Scenario during the regimes of both UPA and BJP ?
How should politicization of Gubernatorial appointments be curbed ?
Supreme Courts stand on Gubernatorial Appointments ?

RESEARCH METHODOLOGY

In this project I started with the identification of the problem, firstly I researched about the

Politicization of Gubernatorial Appointments in India, after its identification I then researched

about the prevalence in the current scenario under the BJP Government and drew a

comparison with the scenario under the UPA government.

The project has been backed by relevant cases and opinions of bureaucrats, and other

important dignitaries to provide a holistic view about it.

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 GOVERNOR

The office of governor has faced much ire since the time India gained independence, with the

abrupt removal and resignations of various governors during the past decades it has now

become the cynosure of all the political discrepancies arisen in our nation post-independence.

Due to the unclear procedure of appointment and removal of governor, as mentioned in the

constitution, the ruling parties over time have used the office as a way to reward loyalists, by

removing the person appointed to the post, by the previous ruling party.

About the appointment of the Governor of a State, it has only been mentioned that he shall

enjoy the term of his office at the pleasure of the President. As mentioned under the

Constitution of India, the President has to work on the aid and advice given to him by the

council of Ministers headed by the Prime Minister.

This is somewhere the process of politicization of the chair of the Governor begins, owing to

the hidden interests of the political parties which lay vested in the person who sits on the

position of the Head of the State. For instance there have been cases where Governors have

completely ignored the stature and importance of the role of their position and have acted in

complete wayward manner - . Governor Gulsher Ahmed of Himachal Pradesh quit from the

office after a row over his involvement in an affair where he made his intentions clear that he

wanted to return to active politics. And, more recently, former U.P. Governor, Moti Lai Vora

had been accused of acting at the behest of his 'erstwhile' party's top leadership.3

3 Essay on the Governor and the President's Rule Dnyanesh Kumar

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 I. Constitutional provision for the appointment of the Governor

"156. Term of office of Governor.--(1) The Governor shall hold office during the pleasure of

the President.

(2) The Governor may, by writing under his hand addressed to the President, resign his office.

(3) Subject to the foregoing provisions of this article, a Governor shall hold office for a term

of five years from the date on which he enters upon his office:

Provided that a Governor shall, notwithstanding the expiration of his term, continue to hold

office until his successor enters upon his office."4

II. Is Governor an Agent of the Centre

There are a few articles in the Constitution which make the Governor an important link in the

chain of relationship between the Union and the states. Article 160 says that the President

may confer on Governor Functions in any contingency not provided in the Constitution.

Under Article 200, the Governor can reserve a bill for the reconsideration of the President.

Under Article 356, emergency is proclaimed by the President Ori the basis of the Governor's

report or otherwise. Article 167 puts an obligation on the Chief Minister to keep the Governor

informed about the state affairs and the latter informs the President.

4 Article 156, Constitution of India

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Article 257 provides that the executive power of the state shall be so exercised as not to

prejudice the exercise of the executive power of the Union, meaning that the Governor should

follow the advice and instructions of the President.5

Keeping these Articles in mind, what exactly is the role of the Governor vis-a-vis the Centre?

This clearly states that the Governor is someone who has to do both keep the decision

making upto himself during the times of necessity but he can have this privilege only till the

pleasure of the President and the Prime Minister headed by the Council of Ministers .

Leaving aside the discussion as to what an ideal situation should be, the post-1967 period

shows that the Governor is today more an agent of the Centre than of the state. S.C. Dash has

an interesting comment to make in this regard. He says, "A split personality is at times an

encumbrance and a Governor is expected to display such a personality.6

GOVERNORS LIABILITY TOWARDS PRESIDENT AND THE

PARLIAMENT
Parts V and VI of the Constitution provide for a parallel Executive, Legislature and Judiciary

for the Union and the States. In the case of the Union, Article 53 vests executive power in the

President and in the case of the States, Article 154 vests executive power in the Governor.

The President is Head of State for the whole of India and the Governor is Head of State for

that particular State. No doubt that the Governor is appointed by the President under Article

155, whereas the President is elected under Article 54. This has been interpreted to mean that

5 Essay on the Governor and the President's Rule Dnyanesh Kumar

6 http://www.vifindia.org/article/2014/september/23/need-to-appoint-impartial-
governors#sthash.r4z73ZGQ.dpuf

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the Governor is the agent of the President and not an independent entity. Constitutionally that

is a completely wrong interpretation, because in the matter of exercise of executive power,

summoning of the Legislature, its prorogation and its dissolution, the Governor is totally

independent of the President. Convergence only comes under Article 254 when both

Parliament and the State Legislature have enacted laws on the same subject in a matter

enumerated in the Concurrent List and there is a repugnancy between the two laws. Here the

law of Parliament will prevail. However, the Governor may reserve a Bill passed by the State

Legislature for the Presidents approval in a matter under the Concurrent List so that either

there is no repugnancy or the President approves the changes made in the State law, in which

case the State law will prevail within the territory of the State. Otherwise, the Governor,

under Article 163, functions according to the aid and advice of his Council of Ministers, not

that of the President. In legislative matters, it is the Governor who gives assent to Bills passed

by the State Legislature, unless he reserves any for the prior approval of the President. Just as

the President functions according to the aid and advice of his Council of Ministers, the

Governor is in exactly the same position vis--vis the State and, therefore, the two offices of

President and Governor are in parallel and not in a position of superiority or subordination.

It is under Article 356, however, that the Governor reports to the President and that, too, only

in matters in which the Governor is of the opinion that the government of a State cannot be

conducted in accordance with the provisions of the Constitution and, therefore, the Governor

advises the President to take over all or any of the functions of the State. If the President is

convinced that such a situation has arisen and he decides to issue a proclamation in this

behalf then, of course, the Governor will perform his functions in accordance with the

directions issued by the President, in whom the government of the State will vest during the

period of the proclamation. Here the Governor would become directly subordinate to the

President. However, the Supreme Court has laid down stringent guidelines about the use of

10
Article 356 of the Constitution and, therefore, a proclamation under this Article would be an

exception rather than the rule and that, too, on very rare occasions.7

I. Governor acts as an upholder of the sovereignty of the constitution, but the

intervention of Political parties in such matters hamper the governors job

Because the Governor is required to protect the Constitution, he has to be nonpartisan

because the Constitution itself, through the Fundamental Rights, mandates the freedom of

speech and expression, that is, the right of opposition and dissent. The Governor can defend

this right only if he is politically neutral. Under Article 167, not only is the Chief Minister

required to keep the Governor fully informed about the decisions of the Council of Ministers,

but he is also required to furnish information relating to the administration of the State and

proposals for legislation. The right of the Governor to ask the Chief Minister to obtain the

views of the Council of Ministers on a matter decided by a minister alone is included in

Article 167. Just as the Governor is required to act on the aid and advice of the Council of

Ministers, in the discharge of his duties as per the oath sworn by him, the Governor has the

right to advise the Chief Minister on matters relating to the well being of the people. Though

this advice may not be binding on the Chief Minister, nevertheless the Chief Minister would

be bound to at least heed the advice and react to it. A Governor with a capacity to understand

issues and analyse would be in a position to give proper advice to the Chief Minister.8

Therefore, none of the four considerations which have hitherto led to the appointment of

Governors really has any bearing on what the Governor should actually be liked in terms of

7 Dr M N Buch, Centre for Governance and Political Studies, VIF

8 http://www.importantindia.com/2120/appointment-of-governor-of-state-in-india/

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qualifications, ability to understand and analyse, project the well being of the people and

generally act as a person who, through interaction with the Council of Ministers, is able to

assist in good governance.

VARIOUS COMMISSIONS SET UP FOR ANALYZING THE CURRENT

PROBLEM OF POLITICIZATION OF GUBERNATORIAL APPOINTMENTS

I. Recommendations of the Governor's Committee on Appointment of Governor

On 30th November 1970, President V Giri appointed a committee of five Governors to study

and report on the appointment of the Council of Ministers by the Governor, for summoning,

prorogation and dissolution of State Legislature and the failure of constitutional machinery in

a State. The Committee submitted its report on 26th November 1971.

The Committee expressed the view that the guideline could be provided and in each situation,

the Governor concerned would have to take his own decision. The Committee was of the

view that the Governor was not the agent of the President. As the Head of the State, the

Governor has his functions as laid down in the Constitution itself and is in no sense an agent

of the President.9

Regarding the discretionary powers of the Governor, the Committee felt that under normal

conditions the exercise of the Governor's powers should be on the advice of the Council of

Ministers, and on occasions when the council of ministers loses the confidence of the House,

the governor can act independently.

9 http://www.dnaindia.com/pune/report-kissa-kursi-ka-should-we-do-away-with-governor-s-post-and-get-out-
of-this-raj-era-complex-1996814

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The committee also felt that the leader of the largest single party could not claim that he had

an absolute right to form the Government.

II. Recommendations of the Sarkaria Commission10

During the Nehru era, the institution of governor was free of any controversies. But it came

into prominence after 1967, and has adopted different stands and practices in various states to

suit the interest of the ruling party at the centre. The Commission observed that there was a

widespread feeling that in some cases Governors were appointed on considerations

extraneous to merit. The dignity of the office suffered when persons defeated in elections

were appointed.

Recommendations on Appointment of Governor

(1) Governor should be eminent in some walk of life.

(2) Should be a person outside from the state

(4) Should be a person who has not taken too great a part in politics generally and particularly

in the recent past.

The Commission felt that the State Government should be given prominence in appointing

the Governor. The appointment should be made

(1) From a panel to be prepared by the State Legislature; or

(2) From a panel to be prepared by the State Government or invariably by the Chief Minister;

or

10 https://en.wikipedia.org/wiki/Sarkaria_Commission

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(3) Invariably in consultation with the State Chief Minister.

The Commission felt that the Chief Minister should be consulted before appointing the

Governor. For proper working of the Parliamentary system there has to be a personal rapport

between the Governor and the Chief Minister.

Thus the main purpose of consulting the Chief Minister is to ascertain his objections, if any,

to the proposed appointment.

The Commission found that consultation with the Chief Minister has not invariably been

taking place in recent years.

The general practice, as far as the Commission has been able to ascertain, seems to be that the

Union Government merely informs the Chief Minister that a certain person is being

appointed as the Governor of the State. Sometimes even such prior intimation is not given.

The Commission recommended that the Vice President of India and the Speaker of the Lok

Sabha should be consulted by the Prime Minister in selection of Governor. Such consultation,

the Commission felt, will greatly enhance the credibility of the selection process.

III. Venkatchalliah Commission:

The Venkatchalliah Commission provided that there shall be a security of tenure of the

Governor and any transfer or removal of the governors should not be influenced by political

motivation. CM should also be consulted before removal of the Governor of that particular

state .

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 IV. Puncchi Commission:

The term Pleasure of president to be removed and the state legislature should be the

removal authority. It basically meant that the President should not be given the final authority

for the removal of a Governor, the reasoning laid down by the Puncchi Commission was that

the President has to compulsorily act on the aid and advice of the Council Of Ministers,

headed by the Prime Minister. This leads to politicization of the appointment of the governors

which could be curbed by handing over the final authority to the State Legislature, as the

governor at the state level, holds the same amount of respect, as the President at the national

level. So, the constitutional post should be given that honour and should not be made the

target to settle political scores

The Governor should play the role of the Constitutional sentinel. The Governor is

constitutional head of state, appointed for a term of 5 years by President of India. He remains

in the office during the pleasure of the President.

SCENARIO DURING THE REGIMES OF BOTH UPA AND BJP

Right from the time of Indira Gandhi, the post of Governor has been used for the parking of

people who are party loyalists and want a comfortable berth for themselves because they are

15
otherwise worthless.11 It is unfortunate that the unspoken criteria laid down by the Congress

have been adopted wholeheartedly by every government which has succeeded Indira Gandhi.

However, under Congress rule, a few nonpartisan officers, one or two eminent people, an

educationist or two found berths as Governor. The Janata Government ruthlessly sacked all

the previous Governors and increasingly politicised the post. When Indira Gandhi returned to

power, she dismissed all Janata Party appointed Governors and continued the process of

politicising the post of Governor. Every successive government does just the same, but one

had expectations from Narendra Modi that he would understand the constitutional importance

of the post of Governor and would appoint persons who could act in a nonpartisan manner.

Unfortunately, that has not happened. Nine Governors appointed by the previous government

have been removed and in their place only party hacks have been appointed. For example,

Kalyan Singh whose role in U.P. as Chief Minister when the disputed structure at Ayodhya

was demolished has been subject to strong criticism has been sent to Rajasthan. Vajubhai

Vala was Revenue Minister of Gujarat under Keshubhai Patel as Chief Minister and he did

not enjoy a reputation for pea-green incorruptibility. He is a man without sophistication, but

he has been sent as Governor to Karnataka whose capital, Bangalore, is the hub of the IT

industry, is a technologically advanced city and is known for its cultural activities. Does the

Raj Bhavan at Bangalore deserve Vajubhai Vala? Keshrinath Tripathy, who did not cover

himself with glory as Speaker of the U.P. Legislative Assembly, has been sent to West

Bengal. All the Governors appointed by the present government are politicians of no great

merit and from whom we can expect no great contribution to the State where they are posted.

In the case of Haryana, one wonders whether Kaptan Singh Solanki has been sent to replicate

what Romesh Bhandari did in U.P? Not one of the Governors appointed can be expected to

assist the State in providing good government. This is not what we expect of our government

11 www.govtofindia.nic.in

16
and by sending middle level politicians as Governors, the Prime Minister has completed the

politicisation of a post which by its very nature should be apolitical. This is a cause of

disappointment.12

HOW SHOULD POLITICIZATION OF GUBERNATORIAL

APPOINTMENTS BE CURBED ?

Governors post shouldnt be used for political vendetta...

The provision of appointment of the Governor by the Central Government instead of an

elected Governor is actually a deviation from the Federalist philosophy. The constitution had

laid down the principle of appointing a senior statesman who should be apolitical in his

conduct. Since no Government has followed this principal and the appointing or removing a

Governor became a tool of political vendetta between the ruling parties in Central

Government and the States ruled by opposition parties. In order to prevent this politicization

of the gubernatorial post, the recommendations of Sarkaria commissions needs to be

considered wherein the appointment and removal should be done with the consensus of

central-state government. The post of the Governor shouldnt be used to rehabilitate the

senior politician or to do away with an unwanted politician.

Vidyabhushan Arya, Political Analyst

The post is necessary for administrative purposes...

If we do away with the governors post at the state level, what will happen during the

presidents rule? Who will look after the administration at the state level? The Article 356

12 lawmin.nic.in/ncrwc/finalreport/v2b2-9.htm

17
about presidents rule mentions that the president can dissolve the assembly or keep it in

suspended animation. During this period there has to be somebody to rule at state level and

naturally it has to be governors. As per the principle of federation of the 35 states of India, it

is almost the replica of the central setup. The president appoints the ministers in the centre,

whereas the governor appoints the ministers at the state level. A governors administration at

state level is almost the replica of the central administration. Principle of federation has to be

maintained. The need of the presidents rule has to be conveyed by the governor to the

president and the president acts accordingly.

Bhai Vaidya, veteran socialist leader

It is a wasteful expenditure of public money...

We should do away with posts of governors as there is lot of wasteful expenditure behind

these posts. Except for cutting ribbons and giving dinners, the governors post is nearly

decorative and ornamental. We need to relieve ourselves from the hangover of the past. When

the first election in India was held in 1937, the first chief ministers started ruling the states.

The governor remained as a nominated person and did not hold any real power. In a

democracy the power should go an elected representative, which happens to be a chief

minister. Today we dont need governors. In an event of presidents rule being imposed the

power will lies with the chief secretariat of the state, who will report to the cabinet secretary

in the centre.

Bhanu Kale, Editor, Antarnad

Governors shouldnt be politically affiliated...

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Changes need to be made with regards to who takes up the post. According to the

constitution, the Governors post must go to a person who does not have any political

affiliation. But, in the last 60 years we have seen the post being transformed into a political

position, which is wrong. One cannot say that this has been done by Congress or BJP, all

political parties have done this to the position of the Governor and if this is to continue, I

would suggest that dissolving the position would be a better option. If the parties decide to

use it correctly then the position still holds a certain dignity that comes with it.

Madhav Godbole, Former Union Home Secretary

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 SUPREME COURTS STAND ON GUBERNATORIAL APPOINTMENTS

The Supreme Court in 2010,13 considered the recommendations of the Sarkaria Commission

and NCRWC during case in B.P.Singhal Vs. Union of India, and stated that arbitrary removal

or transfer of Governors is unconstitutional.14

The Supreme Court further said that the removal of governors has become an arbitrary

practice which should be stopped. What the Supreme Court meant was that when taking into

account the examples of recent years it can be clearly witnessed that the removal and transfer

of Governors has become the effect of the will of the Parliament.

Governor a State should be a detached person,who should not be too closely connected with

the States Politics, or the political party in Centre

Unlike the ex Chief Minister of Delhi, Mrs. Sheila Dixit who is now the Governor

of Kerala .

Mr. Kalyan Singh who happened to be the ex Chief Minister of Uttar Pradesh ut is

now the Governor of Rajasthan.

The state Chief Minister should be consulted in the choice of Governor and the procedure for

selection should be specified in the Constitution through an amendment in Article 155

13 supremecourtofindia.nic.in

14 B.P. Singhal vs Union Of India & Anr

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 INDIVIDUAL ANALYSIS

To conclude this project I would like to give an individual assessment about the appointments

of the Governors, and how can it be made free from politicization by the Union and the

President. If new amendments and changes are made in the appointment of Governors of

course there will be controversy about any suggestions made regarding the qualifications for

the post of Governor but as a starting point of debate, one should attempt some suggestions or

a few considerations which must go into the appointment of a person as Governor. First and

foremost, no active politician should be appointed as Governor. This means that for at least

five years prior to such appointment the person should not have participated in any active

politics, nor should formally be a member of any political party. The person appointed should

not be more then seventy years of age and should not be considered for more than one

additional term of reappointment. The person should have had formal education at least to the

collegiate level, with preference being given to a post graduate degree holder. The person

could be a professional such as a lawyer, doctor, etc. He could be a technocrat, an

academician, a renowned architect, a person who has earned distinction in literature, someone

who earned distinction as an administrator or diplomat, a successful farmer, environmentalist

or social activist, someone who has served the armed forces or the police and has earned a

reputation for integrity and professional competence, a businessman with a clean record or

anyone from any profession who has exhibited the ability to think and perform, whilst

earning a reputation for honesty.

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To comment on the current scenario of Politicization of Gubernatorial Appointments in India,

we can say that Several questions and problems arise regarding the role of the Governor in

state politics. They will continue to haunt us. It would be wrong to blame the Constitution-

makers in this regard as they could not have visualized all the problems that would arise.

Each Article relating to him may give rise to new controversies but, to understand his

position, we must look at the Constitution as an organic whole. The governor though has been

placed as the constitutional head of the state, but the actual power lies with the Council of

Ministers headed by the Chief Minister(at the state).

The Governor certainly does not have much to do, but that is because the Constitution-

makers intended it that way. He is not supposed to run a parallel government in the state. His

role is that of a sagacious counsellor, mediator and arbitrator rather than an active politician.

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