OFFICE OF THE GOVERNOR AND ITS MISUSE

Whenever an institution doesn’t uphold the neutrality and integrity expected of it by the
Constitution it becomes a matter of debate and usually, the Supreme Court intervenes to
correct it. This makes a good constitutional debate which can be formulated into a good
question. Particularly in a year of the election when most of the institutions are coming
under enormous stress, this becomes very important.

Role of governor according to the constitution

In his speech on the constitutional role of Governors, Dr. B.R. Ambedkar described

how a Governor should use his discretion not as “representative of a party” but as
“the representative of the people as a whole
Following are the role/ functions of The Governor mentioned in the constitution;
 According to article 154 of the constitution, the executive power of the state shall
be vested in the Governor and shall be exercised by him either directly or through
officers subordinates to him in accordance with the Constitution of India.
 Article 161 states that The Governor shall have the power to grant pardons,
reprieves, etc.
 According to article 163, there shall be a council of Ministers with the Chief
Minister at the head to aid and advise the Governor in the exercise of his functions
except in so far as he is by or under the Constitution required to exercise his
functions or any of them in his discretion.
 Article 164 mentions that it is the Chief Ministers and other ministers are
appointed by him.
 Article 165 states that the Advocate General of the State is appointed by Governor.
 Article 166 states that all executive actions, of the Governor of a State shall be
expressed to be taken in the name of Governor.
 Article 174 mentions that the Governor shall from time to time summon and
prorogue the House and dissolve the Legislative Assembly.
 Article 175 mentions that The Governor may address the Legislative Assembly;
The Governor may send messages to the House.
 Article 176 mentions that Special Address to the House by the Governor.
 According to article 200, the Governor assents , withholds assent or reserves for
the consideration of the Bill passed by the Legislative Assembly.
 Article 202 mentions that the Governor shall in respect of every financial year
cause to be laid before the House a statement of the estimated receipts and
expenditure.
  According to article 203, No demand for a grant shall be made except on the
recommendation of the Governor.
 According to article 213, The Governor may promulgate the ordinances under
certain circumstances.
 Article 217 mentions that The Governor is consulted for appointment of Judges of
High Court.
 The Governor is expected to advance the cause of federalism and democracy in the
contemporary constitutional landscape, which form a part of the basic structure of
the constitution.

Doctrine of Pleasure

 The ‘Pleasure Doctrine’ is a principle of the common law, the origins of which may be
traced back to the development of the concept in the United Kingdom. Similar provisions
have been included in the Constitution of India to protect the interest of civil servants
along with the protection of national security and public interest. This power to dismiss a
Government servant at pleasure is subject to only those exceptions which are specified in
the Constitution itself. It must be ensured that civil servants can’t make mockery of law if
they are guilty and it is precisely for that reason, that the continued use of Doctrine of
Pleasure is required in India.

Article 156 postulates that the Governor shall hold office during the pleasure of the
President. The explanation is below:-
Introduction

The doctrine of pleasure owes its origin to common law. The rule in England was that a
civil servant can hold his office during the pleasure of the crown and the service will be
terminated any time the crown wishes the same rule is applied in India.

Public servants have got a special relationship with their employer, viz. the Government
which is in some aspects different from the relationship under the ordinary law, between
the master and servant. It will, therefore, be appropriate to describe briefly the basic
provisions of the Constitution pertaining to services. The Chief Vigilance Officers and
officers handling vigilance cases will need to bear them in mind while processing
disciplinary cases against Government servants. The member of Defence services or civil
services of the union or All-India services hold their office during the pleasure of
president. Similarly member of state services holds the office during the pleasure of
governor.
Civil Servants are considered as the back bone of the administration. In order to ensure
the progress of the country it is essential to strengthen the administration by protecting
civil servants from political and personal influence. So provisions have been included in
the Constitution of India to protect the interest of civil servants along with the protection
of national security and public interest. The provisions related to services under Union
and State is contained under part XIV of the Indian Constitution.
Doctrine Of Pleasure
Historical Context

The ‘Pleasure Doctrine’ is a principle of the common law, the origins of which may be
traced back to the development of the concept in the United Kingdom. It is a historical
rule of common law that a public servant under the British Crown had no fixed tenure,
but held his/her position at the absolute discretion of the Crown. Such rule had its origin
in the Latin phrase “durante bene placito” (“during good pleasure”), or “durante bene
placito regis” (“during good pleasure of the King”). It was thus affirmed by the Court of
Appeal in Dunn v. R (1896):

“… I take it that persons employed as the petitioner was in the service of the Crown
except in cases where there is some statutory provision for a higher tenure of office, are
ordinarily engaged in the understanding that they hold their employment at the pleasure
of the Crown. So I think that there must be imported into the contract for the employment
of the petitioner, the term which is applicable to civil servants in general, namely that the
Crown may put an end to the employment at its pleasure.

…It seems to me that it is the public interest, which has led to the term, which I have
mentioned being imported into contracts for employment in service of the Crown. The
cases cited show that, such employment should be capable of being determined at the
pleasure of the Crown, except in certain exceptional cases where it has been deemed to
be more for the public good that some restriction should be imposed on the power of the
Crown to dismiss its servants.”

The scope of the doctrine was further expanded upon in Shenton v. Smith (1895), where
the Privy Council went as far as observing that the pleasure doctrine was a ‘necessity’
because:

“The difficulty of dismissing servants whose continuance in office is detrimental to the

State would, if it were necessary to prove some offence to the satisfaction of a jury, be
such as to seriously impede the working of the public service.”
It is thus not surprising that the doctrine was imported into the legal system of pre-
partition Indian subcontinent, by virtue of the Government of India Act, 1935.
Recognition of such may be found in pronouncements of the Apex Courts of both India
and Pakistan, to that effect.
Rule In England

In England a civil servant holds his office during the pleasure of the Crown. His services
can be terminated at any time by the Crown without giving any reasons.

In England, the normal rule is that a civil servant of the Crown holds his office during the
pleasure of the Crown. This means that his services can be terminated at any time by the
Crown, without assigning any reason. Even if there is a contract of employment between
the Crowns, the Crown is not bound by it. In other words, if a civil servant is dismissed
from service he cannot claim arrears of salary or damages for premature termination of
his service. The doctrine of pleasure is based on the public policy.
Rule In India

In a constitutional democracy which is governed by the rule of law, the doctrine of

pleasure has limited application. Therefore, Article 156 (1) is made subjected to the
tenure of the office of the Governor (Article 156 (3). In India, we have the supremacy of
the Constitution and the rule of law where else in England; the doctrine is applicable in
full swing because they do not have a written Constitution.

Misuse of office by Governors

There have been numerous instances of the powers vested in the Governor being misused
usually at the behest of the ruling party at the Centre. Following are some of them;
 The root lies in the process of appointment itself. The post has been reduced to
becoming a retirement package for politicians for being politically faithful to the
government of the day.
 One of the more famous examples was the dismissal of the SR Bommai (Janata
Dal) government in Karnataka in 1989. The then Governor refused to allow the
democratically elected chief minister to prove his majority on the floor of the
Assembly.
 Andhra Pradesh and Goa’s governors, who dismissed the governments led by NT
Rama Rao and Wilfred D’Souza, respectively, showed the same partisan attitude.
  Uttar Pradesh Governor Romesh Bhandari’s actions were so blatantly partisan that
he had to endure the Supreme Court’s disgrace of being censored.
 The most recent one(2018) is action taken by the governor while forming a
government in Karnataka, Governor called a party to form the government, though
it was not having a simple majority and gave some time to prove majority. But the
Governor did not give the first preference to other two parties with a post-poll
alliance. Later this has been solved with the intervention of the court.

Supreme Court decisions

 In Hargovind Pant v. Raghukul Tilak (1979), the Supreme Court affirmed that

the “office of the Governor was not subordinate or subservient to the Government
of India”.
 In S.R. Bommai vs Union of India case (1994), the Supreme Court said, “The
office of the Governor is intended to ensure protection and sustenance of the
constitutional process of the working of the Constitution by the elected executive.”
 One must consider the Supreme Court’s verdict in B.P. Singhal v. Union of
India on the interpretation of Article 156 of the Constitution and the arbitrary
removal of Governors before the expiration of their tenure. This judgment is crucial
as a fixed tenure for Governors could go quite a long way in promoting neutrality
and fairness in fulfilling their duties, unmindful of the dispensation at the Centre.
 In 2010, in B. P. Singhal v. Union of India, a constitutional bench of the Supreme
Court had interpreted these provisions and laid down some binding principles:-

 The President, in effect the central government, has the power to remove a
Governor at any time without giving him or her any reason, and without granting
an opportunity to be heard. However, this power cannot be exercised in an
arbitrary, capricious or unreasonable manner. The power of removing Governors
should only be exercised in rare and exceptional circumstances for valid and
compelling reasons. The mere reason that a Governor is at variance with the
policies and ideologies of the central government, or that the central government
has lost confidence in him or her, is not sufficient to remove a Governor.
 Thus, a change in central government cannot be a ground for removal of
Governors, or to appoint more favorable persons to this post. A decision to remove
a Governor can be challenged in a court of law. In such cases, first the petitioner
will have to make a prima facie case of arbitrariness or bad faith on part of the
central government.  If a prima facie case is established, the court can require the
central government to produce the materials on the basis of which the decision was
made in order to verify the presence of compelling reasons. In summary, this
 means that the central government enjoys the power to remove Governors of the
different states, as long as it does not act arbitrarily, without reason, or in bad faith.
 The five-judge Constitution Bench of the Supreme Court led by then Chief
Justice J.S. Khehar in the Nabam Rebia judgment of 2016 ruled that Article 163
does not give Governors a “general discretionary power” as is often misunderstood.
“The area for the exercise of his (Governor) discretion is limited. Even this limited
area, his choice of action should not be arbitrary or fanciful. It must be a choice
dictated by reason, actuated by good faith and tempered by caution,” the
Constitution Bench, of which the current Chief Justice Dipak Misra was a part of,
held.
 In Government of NCT of Delhi v. Union of India case(2018), then Chief
Justice of India, Dipak Misra, clarified that democracy and federalism are firmly
imbibed in India’s constitutional ethos while reiterating that democracy requires the
constant affirmation of constitutional morality.

What was the issue?

Rajastan Governor, Kalayan Singh recently commented that as a Party worker he wants
the Bharatiya Janata Party(BJP) to win in the Loksabha elections. He also said that it is
important for nation and society that Narendra Modi should become Prime minister of
India again. This political endorsement by the governor is detrimental to the sanctity of
Governor’s office. This also reignited the debate on the independence and neutrality of
the constitutional post.

Solutions – Sarkaria and Punchi commission recommendations

Recommendations of Sarkaria commission

Following are the Sarkaria commission’s recommendations on Governor

 Recommendations regarding the  appointment of the Governor:
1. should be an eminent person;
2. must be a person from outside the State;
3. must not have participated in active politics at least for some time before his
appointment; it even suggested that when the state and the center are ruled by
different political parties, the governor should not belong to the ruling party at the
center.
4. he should be a detached person and not too intimately connected with the local
politics of the State;
 5. he should be appointed in consultation with the Chief Minister of the State, Vice-
President of India and the Speaker of the Lok Sabha;
6. It even recommended that the State Government should be given prominence in
appointing the Governor.
7. His tenure of office must be guaranteed.
8. After demitting his office, the person appointed as Governor should not be eligible
for any other appointment or office of profit under the Union or a State
Government except for a second term as Governor or election as Vice-President or
President of India, as the case may be;
9. At the end of his tenure, reasonable post-retirement benefits should be provided

Recommendations of M.M Punchi commission

Following are the Punchi commissions recommendations on Governor:

1. Like Sarkaria commission, it also recommended that the person who is slated to be
a Governor should not have participated in active politics.
2. It recommended that state chief minister should have a say in the appointment of
the governor.
3. It also recommended that Appointment of the governor should be entrusted to a
committee comprising the Prime Minister, Home Minister, Speaker of the Lok
Sabha and chief minister of the concerned state. The Vice- President can also be
involved in the process.
4. The commission recommended that the doctrine of pleasure should end and should
be deleted from the constitution.
5. It recommended that the Governor should not be removed at the whim of the
central government. Instead, a resolution by state legislature should be there to
remove Governor.

The SC has many times emphasized the urgent need for implementing Sarkaria
commission’s recommendations on selection and appointment of governors. In light of
this, proper implementation of these recommendations would help in protecting the
sanctity of the office of the Governor.