The political circus orchestrated by the Bharatiya Janata Party (BJP) post-legislative assembly elections in Goa and Manipur has once again brought the role of governors in Indian polity to media spotlight. If the overcautious approach by the Tamil Nadu governor in the recent Sasikala- Panneerselvam brawl led to a brief political unrest in Tamil Nadu, by inviting second largest parties to form governments in Goa and Manipur, the respective governors of those states opened a floodgate of constitutional issues. It is surprising to note that our Constitution is eerily silent on the manner of appointment of chief ministers by the governor when there is no clear majority by any of the contesting political parties. Equally overwhelming is its silence on the conduct of floor tests in assembly/Parliament. These deafening silences give the governors unyielding powers, the reasons for which can be found in the troubled history of colonial India, a flawed Constituent Assembly and the quasi-federal nature of the Indian Constitution.
Governors in British India and the Government of India Act, 1935
Ivor Jennings, an erstwhile vice-chancellor of the University of Cambridge and University of Ceylon, while speaking at the University of Madras in March 1952, observed that all Constitutions are the heirs of the past as well as the testators of the future. According to him, this can be best summed up by using the language of Roman-Dutch law i.e., every generation is bound by fideicommissa (an arrangement similar to a trust by which a testator gave property to a person for the benefit of another who could not, by law, inherit property). Similarly, our Constitution is primarily based on the Government of India Act, 1935 (“GoI Act, 1935”). However, the GoI Act, 1935 was a bad precedent for the Constitution of an independent country. Jennings rightly opines that the recurring motif under the GoI Act, 1935 was whether a power was to be in British or Indian hands and, if the hands were to be Indian, whether they were to be tied closely or left comparatively free.
Section 49 of the GoI Act, 1935, stated that the executive authority of a province shall be exercised on behalf of His Majesty (George V) by the governor. This is a clear example of federal principle in the constitution wherein the provinces derive their power directly from the sovereign and not from the central government as its agent or delegate. N. Rajagopala Aiyangar, who wrote a commentary on the GoI Act 1935, cites the words of Lord Watson in Liquidators of the Maritime Bank of Canada v. Receiver General of New Brunswick (1892) AC 437 to describe the division of power under the GoI Act, 1935: “A Lieutenant Governor when appointed, is as much the representative of Her Majesty for all purposes of Provincial Government, as the Governor-General himself is for all purposes of Dominion Government”. Speaking of the relationship between a governor and his ministers, Alpheus Todd, a distinguished scholar on parliamentary governments, says that in the ordinary exercise of his constitutional discretion, a governor is unquestionably competent to reject the advice of his ministers, whenever that advice seem to him to be adverse to the public welfare or of an injurious tendency. Articulating further, he states that, in such a contingency, if no compromise was possible, either the resignation or the dismissal of ministers must ensue. Thus, before the Constituent Assembly started its work on the Indian Constitution, the existing system had a well-established institution of governors in the provinces who were directly answerable to the King of UK. In other words, the British administration had provided a strong working machine in each of the provinces and it was, understandably, impossible for the Indian leaders to start afresh when the provinces became states under the Union of India.
Constituent Assembly Debates
Article 164 of the Constitution provides that the chief minister shall be appointed by the governor. It reads as follows: “The Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by the Governor on the advice of the Chief Minister, and the Ministers shall hold office during the pleasure of the Governor. …”
Article 164 was based on section 51 of the GoI Act 1935. Section 51(1) of the GoI Act 1935 reads as follows: “(1) The Governor’s ministers shall be chosen and summoned by him, shall be sworn as members of the Council, and shall hold office during his pleasure. …”
The debates on this provision happened on June 1, 1949. It is indeed surprising to note that the members of the Constituent Assembly chose to focus on two points and completely missed the elephant in the room. The debates centred around the following two topics: a)the need to include a provision mandating all ministers to disclose all or any of their interests, shares etc., in any enterprise, business, trade or industry; and b) reservation of tribal members in the cabinet.
However, Pandit Thakur Das Bhargava, the odd man out, made the following remarks:
“…Here his discretion is too wide. Now, the Governor, if he so chooses, can appoint his Ministers and the Premier may be called upon to form a ministry from any party which is not the biggest party in the House. There is no bar against this. I would have liked a provision that the Governor shall only call for the leader of the biggest party in the Assembly to form the ministry. … “
B.R. Ambedkar, while addressing all other issues raised by other members, chose to ignore the concerns raised by Bhargava.
It is also pertinent to note that the whole set of articles relating to state governments were passed in a hurry in one day. In Role of State Governor in India, K.V. Rao, an eminent political scientist, says that the whole structure of the Constitution in this regard was designed in such a way as if the Congress and its then high command would be in power for a long time. Having experienced the British administration’s federal set-up in India, the Congress party clearly knew the worth of having a strong centre with distributed legislative powers to its units. The quasi-federal nature of the Constitution allows the centre to control the constituting units: the fact that the Union can change boundaries of any state without obtaining their permission is one such example of quasi-federal nature of the Indian Constitution. As rightly pointed out by eminent scholar H.M. Seervai in Constitutional Law of India, it was only after the defeat of the Congress party in some states in the 1967 elections that problems arose as to the exercise of power of the governor in forming ministry. The problem was complicated by a large number of “independent” candidates and none of the other parties securing a clear majority.
The fact that the governor holds his office during the pleasure of the President who is bound by the advise of the council of ministers at the centre, makes the “discretion” of the governor to appoint the chief minister a mere farce. It is not a mere coincidence that we have very vague provisions with respect to the exercise of powers by the governor. The lackadaisical approach by the Constituent Assembly while discussing provisions relating to the state executive clearly shows the intent of the system—a powerful centre with weak units. When the drafters spent about three years discussing various provisions of the longest written constitution of the world while choosing to ignore a particular area, they must have undoubtedly done it after taking cues from the British rule.
The author acknowledges the assistance of Konika Mitra, a student of law.
Rahul Unnikrishnan is an advocate at Madras high court.