CHAPTER I

INTRODUCTION

(A) Nature of the Indian Federation*

(B) Development of State Executive ( A Historical

back-ground).

(C) President and Governors in the Indian

Constitution
 CHAPTER - I

INTRODUCTION

(A) NATURE OF INDIAN FEDERALISM

Part I of the Indian constitution deals with the

Union and its territories. Article 1(i) of the Constitution

says, " India, that is Bharat, shall be a Union of States. "

The expression "Union of India" should be distinguished

from the expression 'territory of India*. While the 'Union*

includes only the States which enjoy the status of being

members of the federal system and share a distribution of

powers with the Union, the 'territory of India' includes the

entire territory, over which the sovereignty of India, for

the time being, extends* Thus, beside the States, there are

two other classes of territories, which are included in the

'territoryof India*, viz: (i) Union territories, and (ii)such

other territories as ma^Le acquired by India.*

At present there are 25 States and 7 Union territories

in India. The Union territories are centrally administered

areas, to be governed by the President, acting through an

'Administrator' appointed by him, and issuing Regulations for

their good government ( Articles 239 - 240).

1* D.D,Basu# Introduction to the constitution of India,

11th Edn. (1935) p. 65.
 The origin and development of the States of the

Indian Union can be traced back to the "accident and

circumstances attending the growth of the British power

2
in India " and partly to " the historic process of the
3
integration of Indian States '*. At the time of the

British first entry to India and their subsequent career

of conquest and annexation, India was divided into a

number of small and large independent States mostly hostile

to each other. India at that time was for all practical

purposes nothing more than a geographical expression. The

Britishers continued the process of conquest and annexation

and slowly and gradually as more and more territory came

under their occupation, they created provinces. The creation

of provinces by the Britishers was based on administrative

4
convenience, economy, military strategy and security.

The provinces thus created by the Britishers were

intended to serve the British imperialist designs and had

nothing to do with the interests of the local people. With

the development of national awakening and consciousness,the

people of these provinces raised their voice for the reorg­

anization of provinces keeping in view their needs wishes

and affinities. The authors of the Government of India acfct

1935 while providing for a federal organization relied more

2. The States Reorganization Commission Report, 1956,Para 14

3• Ibid.
4. Ibid, Para 20.
 4

on administrative needs in the creation of the provinces

than on linguistic and racial considerations. This did not

satisfy the popular aspirations of the people. The framers

of the present Indian Constitution, as they were aware of

the intricacies of the problem, had to make a balance

between the administrative and economic needs on the one

hand and the popular linguistic and racial principle on the

other.

The States under the Indian Union are the creation

of the Central Government and not that the Central Government

is the creation of the States as it happens in most of the

federal States. Naturally therefore the position of the

States in the Indian Union is not of a co-equal and co­

ordinate status with the Central Government but of subordinate

status."*

Article 1 of the Constitution of India uses two

phrases namely *' Union of States " and " Union territories”.

The word "Union” in the phrase "Union of States", does not

indicate either unitary or federal relationship. Since the

phrase is used along witA^he clause "Union territories" in

the same article, a reasonable inference may be that the

"Union" in the phrase "Union of States" must of necessity

carry a meaning different from the connotation of the clause

" Union territories ". Moreover, the word "Union" has been

5. L.B.Pandey, State Executive, 1985, p. 40.

used invariably in almost all the federal constitutions of

the world. These facts, therefore help us to conclude that

the word "Union" in the phrase "Union of States" was intended

to convey a federal relationship between the Union Government

6
and the Constituent units, namely States.

Nowhere, in the Indian Constitution does the word

•federalism' appear; yet the substance of federalism received

considerable discussion at the Constituent Assembly. The

nature of the Indian Union has been the subject of deep

controversy among Constitutional lawyers and writers. Prof.

K. C. Wheare, an accepted authority, takes the view that, as

the Indian Constitution has a number of features inconsistent

with a true federation, it can be classified only as " quasi

federal." Other distinguished writers have followed Wheare

in taking this view. Some have gone so far as to describe it

7
as " a definitely unfederal or unitary Constitution." On

ther other hand, India has been described by the noted scholar

Alexandrowicz as being " undoubtedly a federation, in which

the attributes of sovereignty are shared between th^entre
8
and the States. And Appleby, an experienced administrator,
9
thinks that the Indian Constitution is "extremely federal".

6. K.P.Krishna Shetty, The Law of Union - State relations

and Indian Federalism, 1981, p. 25.
6a. K.C.Wheare, Federal Government, p.28.
7. Krishna P. Mukerji, "Is India a Federation ?" Indian
Journal of Political Science, Vol.XV. No.3 July-Sept.
1954, p.177.
8. C.H.Alexandrowicz,constitutional Development in India,
Madras, 1957, p. 169.
9. Paul H.Appleby, Public Administration in India,Report of
a Survey, 1953, p.Si : quoted from the foundations of '
Indian Federalism by K.R.Bombwall, 1967, p. 3.
 6

Dr. Ambedkar, Chairman of the Drafting Committee,

while clarifying the position of the Centre and the States

in the Indian federal polity# made the point clear by observ­

ing that the ** Constitution establishes a dual polity with

the Union at the Centre and the States at the periphery# each

endowed with sovereign powers to be exercised in the fields

assigned to them respectively by the Constitution.1,1 ^ He

further asserted that " the States are not administrative

11
units or agents of the Union Government.* This assertion

of Dr. Ambedkar was supported by other prominent members of

the Drafting Committee. Mr. K.Sorathanam argued that we have

got a Constitution which is federal and is protected by an

independent judiciary. Dr. Ambedkar clarified how Indian

Constitution is federal s

M The basic principle of federation is that the legis­

lative and executive authority is partitioned between the

Centre and the States not by any law to be made by the Centre

but by the Constitution itself. This is what the Constitution

does. The States in our constitution are in no way dependent

upon the Centre for their legislative authority. The Centre

12
and the States are co-equal in this matter.®

Thus# the Assembly# in fact# accepted the establishment

of federal polity. The federal structure that emerged out

of the deliberations of the Assembly not only provided for a

10. C.A.D# Vol. VII, p. 31.

11. Ibid# p. 32.
»

12. C.A.D# Vol. IX# p. 952.

 7
strong Centre but also for a stronger executive at the

Centre itself. The values that determined the constitutional

framework of the Indian federal system had historical# polit­

ical and circumstantial contexts and were almost invariably

conducive to a centralized federation. The Assembly, in

fact# produced a new kind of federalism to meet India's

13
peculiar needs. In the words of Mr. Granville Austin#

“ the Assembly was perhaps the first constituent body to

embrace from the start what A.B. Birch and others have
14
called " cooperative federalism ".

15
Until the West Bengal decision in 1963 # the Supreme

Court of India had made many pronouncements labelling the

Indian Constitution as federal.

16
In the Automobile case# S.K. Das, J. observed that

the essential features of a 'federal or quasi-federal struct­

ure were present in the Indian Constitution s

" The evolution of a federal structure or a quasi-

federal structure necessarily involved# in the context of

the conditions then prevailing# a distribution of powers

and a basic part of our Constitution relates to that

distribution with the three legislative lists in the seventh

schedule* The Constitution itself says by Article 1 that

India is a Union of States and in interpretin^he constitution

13* Ibid. P- {86. ^ ”

14. Granville Austin# Indian Constitution - Corner stone of
the Nation# p* 187.
2.5. State of West Bengal# Vs. Union of India# A.I.R. 1963
SC 1241
16. Automobile Transport Vs. State of Rajasthan A.I.r.1962
i^—i——wm——* —■—

SC 1241.
 s

one must keep in the view the essential structure of a

federal or quasi-federal constitution, namely, that the

units of the Union have also certain powers as has the

Union itself........ **

In 1973, some of the Judges in the Full Bench case

17
of Keshavananda considered federalism as one of the

'basic features' of the Constitution of India.

In 1977, Bhagwati, J., described the Constitution

of India as a 'federal or quasi-federal1, Constitution. 18

In the Rajasthan case 19 of the same year 1977, Beg,

C.J., observed - " In a sense, therefore, the Indian Union

is federal, but, the extent of federalism in it is largely

watered down by the needs of progress and development of

a country which has to be nationally integrated

D.D.Basu says that " the observation made in the

Rajasthan's case does not go against the principles of

federalism. For normal times, the Indian constitution

offers a federal system. Because the 'watering down' as

his Lordship himself demonstrates, is due to particular

provisions which are intended to meet extraordinary situat­

ions, such as Articles 256, 257, 356, 365. These do not,

20
therefore, affect the normal situation."
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 D.D. Basil has expressed the view that " the Indian

Constitution was a unique type which combined the features

of both federal and unitary systems; normally it is federal,

but there are provisions for converting it into a unitary

system under specified exceptional circumstances. While

dealing with a normal situation, the court is not entitled

to borrow from the exceptional provisions any spirit of

21
paramountcy to demolish the federal scheme.11

Thus a perusal of various judicial pronouncements

reveal that the courts have by and large regarded the

Indian Constitution as a federal, though in some glamour

cases like State of West Bengal Vs. Union of India the

Supreme Court has not recognized it as a true federation.

In this connection it is enough to quote Mr. Bailey who

said, M If there is such a thing as a strict, pure or

unqualified federal principle, then the hard fact is that

22
there are no federations and no federal Constitution."
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 PECULIAR FEATURES OF INDIAN FEDERALISM AND THE

POSITION OF STATES IN THE FEDERATION

The idea of federalism in the goverance of countr­

ies was introduced almost all over the world as a matter

of expediency. Each country adopts the federal formula

which is most expedient to solve its own problems. It is

therefore, found that none of the two federal systems are

identical. The founding fathers of the Indian Constitution

also did not adhere to any theory or dogma about federalism.

Gaining from the experiences of functioning the <ffld feder­

ations such as of the United States, Australia, Canada and

Swiss, they adopted the policy of pick and choose what was

in the best interest of our country. Thus the Constitution

of India modifies the traditional principle of federalism to

make a working formula to solve the peculiar problems of the

country. In this way it becomes clear that " the nature of

federation differs from country to country according to the

prevailing circumstances and peculiar socio-economic lingui­

stic and cultural conditions of a country to which it has to

serve."„23

A federal union may be formed in either of two

principal ways, having regard to the pre-existing condition.

of the component units, (i) it may be formed by a coluntary

agreement between a number of sovereign and independent

23. Chandra Pal, State autonomy in Indian Federation, 1984,

p. 36.
states, for the administration of certain affairs of general
24
concern, as in the case of the U.S.A. or Australia. or

(ii) the provinces of a unitary state may be trans­

formed into a federal union, as happened in the case of

Canada. The provinces of Canada had no separate or indepe­

ndent existence apart from the colonial Government of

Canada, and the Union was not formed by any agreement

bbtween them but was imposed by a British Statute, which

withdrew from the Provinces all their former rights and

25
then re-divided them between the Dominion and the Provinces.

India had a thoroughly unitary constitution until the

Government of India Act 1935. The Provincial Governments

were virtually the agents of the Central Government, deriving

powers by delegation from the latter. Neither before nor

under the Act of 1935, the Provinces were in any sense

'Sovereign* States like the States of the American Union.

The Constitution, too, has been framed by the ‘people of

India* assembled in the Constituent Assembly, and the Union

24. In both the countries (U.S.A. and Australia), the

Federation was formed by the Union of several colonies
which had autonomous powers, some of which only were
parted by them in favour of the Federal government,
retaining the rest to themselves. The powers conferred
upon the federal government related to matters of
national concern, for the better control of which the
colonies entered into a federal Union. In both, the
Federal government has therefore, only limited or
enumerated powers while the residue belongs to the
States; as the colonies are called in the Federal
Constitution.
25. Clokie, Canadian Government and Politics, 1944, p. 205.
 1
2

of India can not be said to be the result of any compact or

agreement between autonomous States. So far as the provinces

are concerned, the progress has been from a unitary to a

federal organisation. The provinces, as just seen, had been

artificially made autonomous, within a defined sphere, by

the Government of India Act, 1935. What the makers of the

Constitution did was to associate the Indian states with

these autonomous Provinces into a federal Union, which the

Indian States had refused to accede to, in 1935.

In the United States, since the States had a sovereign

and independent existence prior to the formation of the

federation, they were reluctant to give up that sovereignty

any further than what was necessary for forming a national

government for the purpose of conducting their common

purposes. As a result, the Constitution of the federation

contains a number of safeguards for the protection of

'State rights', for which there was no need in India, as the

States were not 'Sovereign' entities before. While the

residuary powers are reserved to the States by the American

Constitution, these are assigned to the Union by the Indian

Constitution ( Article 248 ).

The States, under the Indian Constitution, have no

right to determine their own constitution. While the

Constitution of the United states simply drew up the Consti­

tution of the national government, leaving it " in the main

( to the States ) to continue to preserve their original

Constitution", the Constitution of India lays down the

 13

Constitution for the States as well, and no State has a

right to determine its own constitution, (excepting the

State of Jammu and Kashmir, which was given the right to

frame its own State Constitution, owing to historical

reasons, which was reserved by Article, 370(2),

In the matter of amendment of the Constitution, the

part assigned to the States is minor, as compared with thac

of the Union. Except in a few specified matters affecting

the federal structure, the States need not even be consult­

ed in the matter of amendment of the bulk of the Constitu­

tion, which may be effected by a Bill in the Union Parliam­

ent, passed by a special majority.

Though there is a division of poxvers between the

Union and the States, there is provision in the Constitution

for the exercise of control by the Union both over the

administration and legislation of the States. Legislation

by a State shall be subj ect to disallowance by the President

when reserved by the Governor for his consideration(Article

201). Again the Governor of a State shall be appointed by

the President of th^taion and shall hold office * during
the pleasure* of th^resident (Article 155-156). These

ideas are repugnant to the Constitution of the United States

or of Australia, but are to be founc^n th^anadian Consti­

tution
 The American federation has been described by its

Supreme Court as " an indestructible Union composed of

26
indestructible States'*. But under the Indian Constituti­

on, it is possible for the Union Parliament to reorganise

the States or to alter their boundaries ( Article 3) or to

27
eliminate a State altogether by a simple majority in

the ordinary process of legislation (Article 4(2). The

Constitution does not require that the consent of the

Legislatures of the States is necessary for enabling

Parliament to make such laws; only the President has to

' ascertain * the views of the Legislature of the State or

States concerned before recommending a Bill for this purpose

to Parliament, and if any State Legislature does not express

its view within the period fixed b^.he President, the Bill

may be introduced in Parliament even without obtaining the

views of that States.

" Parliament is therefore........ ...invested with

authority to alter the boundaries of any State and to

diminish its area so as even to destroy the boundaries of

28
a State with all its powers and authority.**

26. Texas Vs. White (1869) 7 Wall. 700 quoted by D.D.Basu

in his Introduction to th§ Constitution of India,p.54.
27. State of West Bengal Vs. Union of India, A.I.r. 1963
SC 1241 (Para 36).
28. Ibid.
 15

Ram Jethmalani, one of the eminent advocates of the Supreme

Court says that# M India, therefore, is an indestructible

Union of destructible States. There is only one nationality

and are one domicile that is of India. In the comity of

nations it is only India that has recognition and jural

29
existence. This is a basic feature of India’s Constitution."

Under the Constitution of India, there is no equality

of representation of States in the council of States. As

given in the fourth schedule, the number of members for the

several states varies from 1 to 34. Such being the

composition of the upper chamber in the Constitution, the

federal safeguard against the interests of the lesser States

being over ridden by the interests of the larger or more

populated States is absent under our Constitution."^

An American is a citizen not only of the State in

which he resides but also of the United States, i.e. of

the federation; and both the federal and State Governments,

each independent of the other, operate directly upon the

citizen who is thus subject to two Governments, and owes

allegiance to both. But the Indian Constitution, like the

Canadian, does not introduce any double citizenship but

provides for one citizenship, viz, - the citizenship of

India (Article 5). While the federal system is prescribed

for normal times, the Indian constitution enables the federal

29. Ram Jethmalani, "Centre-State Relations* some Reflec­

tions", Indian Bar Review Vol.II(1) 1984, p.17.
30. D.D.Basu, comparative federalism, 1987, p. 152.
 18

government to acquire the strength of a unitary system in

emergencies. While in normal times the Union Executive is

entitled to give directions to the State Governments in

respect of specified matters, when a proclamation of

emergency is made, the power to give directions extends

to all matters and the legislative power of the Union

extends to State subjects ( Articles 353, 354, 357). Sven

in its normal working, the federal system is given the

strength of a unitary system. By endowing the Union with

as much exclusive powers of legislation as has been found

necessary in other countries to meet the ever-growing

national exigencies, and over and above that, by enabling

the Union Legislature to take up some subject of state

competence, if required 'in the national interest*. Thus,

even apart from emergencies, the Union Parliament may

assume legislative power (though temporarily) over any

subject included in the State list, if the council of

States (second chamber of the Union Parliament) resolves,

by a two-thirds vote, that such legislation is necessary

in the 'national interest'.

Even though there is a distribution of powers between

the Union and the States as under a federal system, the

distribution has a strong central bias and the powers of

the States are hedged in with various restrictions which

impede their sovereignty even within the sphere limited to

 7
them by the distribution of powers basically provided by

the Constitution.

According to Dr. Ambedkar, "Indian Constitution could

be federal or unitary. In the normal times it could work

as a federal Constitution and in the times of war or crises

as a unitary one. No other Constitution possesses this

flexibility. This has been done so on account of the situa­

tions peculiar to India. Federalism in India is not a mere

superstructural contrivances; facets of Indian federalism

and its sources go deep down into the foundation of Indian

31
life".

Thus, the Indian Constitution is federal in character

and provides a strong centre to control different aspects

of State administration.

31. L.M.Singhvi, Preface to Union-State Relations in

India, I.C.P.s: 1969.
(B) DEVELOPMENT OF STATE EXECUTIVE ( A HISTORICAL

BACKGROUND )

The British Empire in India was started by a trading

company known as East India Company. After the battle of

Plassy in 1757 that company became th^ominant power. It

gradually assumed sovereign authority over vast territories

conquered with the force of arras. These territories were

divided into th^residency of Bengal, Bihar and Orissa, the

Presidency of Madras and the Presidency of Bombay and other

units which came to be known as Provinces. Each Province

and each Presidency was governed by a Chief Executive known

either as the Governor or the Lieutenant Governor. By the

Regulating Act of 1773 the Governor of the Presidency of

Bengal, Bihar and Orissa came to be designated as the

Governor General, having superior authority over other

Governors. In 1858, the Government of India Act of 1858

was passed by the British Parliament soon after the supres-

sion of what was called the,' Sepoy Mutiny. This had the

effect of setting up a Government of India, which was

directly conducted in the name of the Britisft^rown acting

through a secretary of State aided by a council of Fifteen

Members. The structure of the Government in India continued

to be the same, namely, that each Province was administered

bya Governor with the Governor-General as the head. The

Act of 1858 did not affect the position of the Governor-

General as the head of the Government in British India and

 19

Governors and Lt. Governors in the Provinces, which were

regulated by earlier statutes. The position after the

Act of 1858 took different colour.

The Superintendence, direction and control of the

civil and military Government of British India was vested

32
in the Governor-General in Council. He became answerable

and subject to the orders of the Secretary of States in

council. The Governors and Lt. Governors in the Provinces

including the Presidences of Bengal, Madras and Bombay and

the Provinces of United Provinces of Agra and Oudh, the

Punjab, Burma, Bihar and Orissa were administered by

Governors and Lt. Governors respectively, who were subject

to the orders of the Governor-General in council. When,

therefore, British India passed under the direct Government

of the British Crown it was and continued to be a Unitary

Government, where the Governor-General was the Supreme head

acting under the control and direction of the Secretary of

State and forming the link between the British Crown and

the Government of British India. The Governors of the

Provinces were completely subordinate to the Governor -

General. The Government of India Act, 1919, enabled the

Central Government to delegate specific subjects of Govern­

ment to the Provinces for Provincial legislation and

Government. The Central Legislature retained the paramount

legislative authority and the Provincial Legislatures got

32. Section 9 of Regulating Act.

 «*
20

the power to make laws by delegation from the Centre.Every

law made by a Province was subject to the assent of the

Governor-General in addition to that of the Governor. The

Executive Government in the Provinces was also subordinate

to the Governor-General as before, since they could discha-

rge only those executive functions which were delegated

to them by the Central Government. The Government set up

by the Government of India Act, 1919, was not a federal

Government though it contained the rudiments of a federal

structure by providing for distribution of legislative and

executive functions by delegation from th^pentre.33 There

was no problem yet of the proper balance of power and

relationship between the Central Government and the Govern­

ment in the Provinces. A new device popularly known as

'Dyarchy' was introduced in the Provinces. The Act seeming­

ly laid down the foundation of a responsible Government

partially? but administratively, the whole mechanism wasja

big hoax because of the Centralised position of the Governors

34
of the Provinces. The Governors, in fact, had been vested

with all kinds of the powers without the Provincial legisla­

tive Council. The Governors no more were the Constitutional

35
heads in any sphere of the Provincial affairs. The range

and scope of his 'discretionary powers' was so vast that he

could do any thing without caring for the ministerial advice

33. Asoke K. Sen, Role of Governors in the _ Emerging pattern

of Centre-State Relations in India, 1994. p.10.
34. A.K.Ma1umdar, Indian Constitutional Documents.Bombay?
1967, Vol. II, p.17.
35. D.D.Basu,Constitutional Documents (Cal ,1969,Vol I) p.5,
or of the elected repressntatives in the Legislative

councils. The Governor as such was to act under the

superintendence, direction and control of the Governor-

General of India - the real agent of the British Crown in

India. The passage of the Government of India Act, 1935,

which formed the last phase in the evolution of Governor's

office and devolution of the Central Authority in pre­

independence India, also virtually did not alter any more

the position of the Governors at the Provincial levels;

although the above Act created an All India Federation

comprising the British Provinces and the native States. The

Governor remained the Head of the Provinces and he was to

be appointed by His Majesty by a Commission under the Royal

36
Sign Manual. Under the Act of 1919, he was to be appoint­

ed by His Majesty after consultation with the Governor -

General. This change was made in view of the introduction

of the Provincial autonomy under the Act of 1935.

This was the first experimental Act so as to introd­

uce some sort of Parliamentary features in a technical

sense. The most distinguished feature of this Act was that

the dyarchical system of the Act of 1919, was completely

abolished and it set into motion the Provincial autonomy at

the Provincial level, i.e, the entire field of the admini­

stration of a Province was placed under the popular Ministry

36. Section 48(1); The Government of India Act, 1935.

responsible to the Legislative Council of a Province.

Another feature of the Act was that the British Provinces

were considerably made independent of the Central control

and they were given constitutional autonomy under the

Government of India Act, 1935.

According to this Act, the executive authority of a

Province was vested in the Governor, who was to exercise

all his powers on behalf of the crown in his name on the aid

and advice of the council, except in the matters of the

British interests where he was required to ’act in his

37
discretion'. Moreover, he had the power to act in his

individual judgement. Besides, in the exercise of his fun­

ctions, he had some "special responsibilities*' to protect

the legitimate rights and interests of the British rule,

minorties, civil servants and the rulers of the princely

States. In view of this position, the Provincial autonomy

granted under the Act of 1935, was "burried in sbile or
38 '
reservations, safeguards and discretion". In other words

the Governor had two fold functions to perform, i.e. as a

constitutional head and secondly, as an agent of the Central

Government, especially when he was to act either in his

39
discretion or in his individual judgement.

Besides, all these special powers conferred on the

37. Section 50(1) and 52(1),The Government of India Act,1935.

38. Y.c.Chintamani and M.R.Mosani, India's Constitution at.
Work (Bombay, 1940) p.93.
39. A.C.Banerj ee, Indian Constitutional Documents. Calcutta
1948, Vol. I, p.282.
Governor, he was clothed with some extra-ordinary powers

of Law-making; where he was tobe satisfied himself i.e.

subjectively, which had thesame affect and force as posse­

ssed by the Legislature. He could enact the 'Governor1s

act in order to discharge his duties and special responsi­

bilities given under the Act, but he was to communicate about

it to the Secretary of State for India through the Governor-

General of India, which was to be placed by him before each

. 40
of the House of British Parliament. He was lawfully

authorised to promulgate an ordinance or issue a proclamati­

on in his discretion, if he was satisfied that the situation

had arisen in which the administration of the Province could

not be carried on in accordance with the Provisions of the
Act of 1935.41

In this way, by virtue of all executive, legislative

and financial powers conferred ton the Governor, he had the

full authority to control the entire Provincial administr­

ation, though the 'Instrument of Instructions' was there

to encourage the working of responsible Government in each

Provinc e; but practically speaking, there were no legal

checks on the powers of the Governor and there was no

authority to see that the 'instruction of Instructions'were

sincerely adhered to. In the words of Prof. P.N. Masaldon,

the Provincial Governor was just like "an autocrate" presid-

42
ing over the Provincial despotism.

40. Ibid, p. 288.

41. Section 93 of the Government of India Act, 1935.
42. Prof. P.N. Masaldon; Evolution of provincial Autonomy
in India, 1858 to 1950 (Bombay, 1953) p. 28.
 It is important to make it clear that in the wake

of the constitutional deadlocks at the Provincial level

owing to the differences between the British Government

and the National Congress Party over the War issue, the

Governors put into operation section 93 of the Government

of India Act, 1935, imposing Governor's Rule in those

Provinces. Truely speaking, the Provincial autonomy as

eiivisaged under the Act of 1935 remained dormant just

after the Congress led Governments tendered their resigna­

tions. Thereafter, only centralised structure of the Act

of 1935 remained in existence which continued upto 1946,

when the Congress Governments resumed office again in

various Provinces.

With the passage of the Indian Independence Act,

1947, the British rule in India virtually ended and India

became an independent and sovereign country. T his virtua­

lly affected the position of the Governors of the Provinces.

Although India continued to be governed by the Provisions

of the Act of 1935, yet the Governor-General of India was

empowered to modify the same. In this context, it would

be worthwhile to mention that by the time the Indian Indepe­

ndence Act, 1947 became effective, the Governors in various

Provinces tendered their resignation to the Governor-General

43
to be effective from August 15, 1947. Except Madras,

Bombay and Assam, fresh appointments were made in each

43. M.S. Dahiya, Governors in the Indian Constitution

New Delhi, 1981, p. 26.
 CPU
0

Province and these appointments were approved by the

British King. In fact, these appointments were made by

the Congress High Command in consultation with the

44
Prime Ministers of Provinces.

The new political change brought some drastic

changes in the provincial structure. The position of

these newly appointed Governors was rendered to mere

Constitutional heads and these Governors were required to

go by the advice of the council of Ministers, in all

matters of the Provincial administration. The concept of

discretion or of the Governor's individual judgement

speedily began to disappear from th^iew Indian political

system. All kinds of responsibilities were devolved on the

Prime Ministers of the Provinces as the heads of Provincial

administration.

The new constitution of India came into existence

from 26th January 1950; but with a few significant

changes in the office of the Governor at the State level.

44. Purshotam Singh, 'Governor's office in Independence

India ( Bihar, Nayayug Sahitya Mandir, 1968) p. 32."
(C> PRESIDENT AND GOVERNORS IN THE INDIAN CONSTITUTION

The form of government received much less attention

then was expected, but the members of the Constituent

Assembly were morally committed to establish a democratic

Constitution for India. The foundations of parliamentary

government had been laid for over a century in India. The

leaders in the Constituent Assembly, therefore, took it for

granted that the Constitution would have a parliamentary

executive. This was a quick decision relating to a funda­

mental of the Constitution adopted with very little opposi­

tion. Most of the Indian leaders, being Western-educated,

had been trained in the principles of nineteenth century

liberal democracy and learnt the principles of British

parliamentary government. "Introduction of Parliamentary

government in the new India was thought necessary for the

strength and effectiveness of administration. A democratic

Constitution with a directly elected and responsible govern­

ment was considered desirable for independent India in the

45
rapidly moving world of the mid twentieth century.**

While introducing the Draft Constitution as settled

by the Drafting Committee in accordance with the decisions

of the Constituent Assembly and on the basis of reports <ff

various committees, appointed by it. Dr. Ambedkar said?

45. B.C.Das, The President of India ( S.Chand & Co. Ltd)

1977, p. 81.
 27

" In the Draft Constitution there is placed at the

head of the Indian Union a functionary who is called the

President of the Union. The title of this functionary

reminds one of the President of the United States. But

beyond identity of names there is nothing in common

between the forms of government prevalent in America and

the form of government proposed under the Draft Constitution.

The American form of government is called the Presidential

system of government. What the Draft proposed is the

Parliamentary system. The two are fundamentally different.

Under the Presidential system of Government, the President

is the chief Head of the Executive. The administration is

vested in him. Under the Draft Constitution, the President

occupies the same position as the King under the English

Constitution. He is the Head of the State but not of the

Executive* He represents the Nation but does not rule the

Nation. He is the symbol of the Nation. His place in the

administration is that of a ceremonial device on a seal by

46
which the Nation's decisions are made known.”

The system of Government, as provided for in the

Constitution, is neither Monarchical nor Presidential in

character. A Parliamentary form of Government with an

elected Head of States was instituted by the Constitution

of India. In the federal Republic the President was to act

46. C.A.D. Vol. VII, p. 32

as the integrating factor functioning as President of

the “Union of States". Being a Republic, India cannot

have a hereditary King. The office of the President of

India, unlike that of the British Queen, was not evolut­

ionary in character; he is rather a made executive like

47
his American counterpart. There are, practically, no

traditions, no conventions, no historical precedents and

no prerogatives to assist him in the discharge of his

48
functions and duties.

The President of India stands at the Head of a

Parliamentary democracy as distinguished from the American

49
congressional democracy. As Bagehot advocates, " there

are two elements in a Parliamentary form of government;one

is mythical or dignified part and the other, the efficient

part. Like the British Monarch, the President of India is

the dignified part of the Constitution, whereas the Prime

Minister, the efficient part. The dignified parts of the

government are the cardinal components of the essential

apparatus and great pivots of substantial utility. While

the dignified parts attract motive power, the efficient

parts only employ that power.M

Justice P.B. Mukharji in his chimanlal Setalvad

Lectures says that, " the constitutional debate, whether

the Indian constitution reflects the Presidential form of

w
Government or the parliamentary form of Government/ cannot

be answered in a theoretical and dogmatic way. It is wrong

to say that the Indian Constitution is a Presidential form

of Government. It is equally wrong to say that it is a

parliamentary Government. It is neither and it is both.

India is not only a cultural mixture but also a complex

constitutional mixture." 50

Thus, the Indian Presidency appears to be an unique

political institution. The Indian Parliamentary system

is the modified version of British system and the constit­

utional practices of last 39 years reveals that the Indian

Political system is more close to the British type than the

American Presidential system. The British model has been

followed in setting up the governmental machinery both at

the centre and in the states in India. 51

The executive power of the Union is expressly vested

in the President and is exercisable by him either directly

or through officers subordinate to him in accordance with

the Constitution. Naturally therefore the Constitution

provides that there shall be a Presidentof India. He is

the constitutional superhead of the Executive (Articles 52

and 53 of the Constitution). All executive action at the

centre is expressed to be taken in his name. TheConstitution

50. P.B. Mukharji, The Critical Problems of The Indian

Constitution/ 1968 ( University of Bombay) p. 7~.
51. M.C. Setalvad/ 1960, The common Law in India, p. 178,
London.
formally vests many functions in the President but he has

no function to discharge in his discretion or in his indiv­

idual judgement. All the powers that are vested by the

Constitution in the President# one expected to be exercised

on the advice of the Ministers responsible to the Legisla­

tures as in England. This is now expressly ensured by the

1976 amendment of Article 74(1). Therefore# the Prime

Minister and the Council of Ministers constitute the real

and effective executive.

The case for the Cabinet system of Government was

best represented in the Constituent Assembly by Sri Munshi 52 -

" The strongest government and the most elastic

executive has been found to be in England and that is because

the executive powers vest in the cabinet supported by a

majority in the Lower House which has financial powers under

the constitution. As a result# it is the rule of the major­

ity in the legislature? for it supports its leaders in the

cabinet# which advises the head of the state# namely# the

King. The King is thus placed above party. He is made

really the symbol of the impartial dignityof the Constitu­

tion. —

We must not forget a very important fact that# during

the last hundred years# Indian public life has largely drawn

upon the traditions of British constitutional law. Most cf

52. C.A.D# Vol. VII, p. 984

 p1

us have looked up to the British model as the best. For

the last thirty or forty years, some kind of responsibility

has been introduced in the governance of the country. Our

constitutional traditions have become parliamentary and we

have now all our provinces functionary more or less on the

British model ------ After this experience, why should we

go back upon this tradition that has been built for over a

hundred years and try a novel experiment ......? "

Though at the beginning there were advocates of the

Presidential system as a stable form of government ultima­

tely the Constituent Assembly decided in favour of the

parliamentary system.

Another member of the Drafting committee, T. T.

Krishnamachari, observed -

" So far as the relationship of the President with

the Cabinet is concerned I must say that we have so to say,

completely copied the system of responsible government that

is functioning in Britain today; we have made no deviation

fro# it and the deviations that we have made one day such

as are necessary because our Constitution is federal in

structure. '* 53

The President of the Constituent Assembly, Dr.Rajendra

Prasad summed up thus :

M We have had to reconcile the position of an elected

53. C.A.D, Vol. X, p. 956.

President with an elected legislature, and in doing so,

we have adopted more or less, the position of the British

Monarch for the President ----- His position is that of

a constitutional President. Then we come to the Ministers.

They are, of course, responsible to the Legislature and

tender advice to the Presiden^rho is bound to a ct according

to that advice. Although there are no specific provisions,

so far as I know, in the Constitution itself making it bind­

ing on the Presiden^o accept the advice of his Ministers,

it^.s hoped that the convention under which in England the

King acts always on the advice of his Ministers will be

established in this country also and the President, not so

much on account of the written word in the Constitution but

as a result of this very healthy convention, will become a

constitutional President in all matters." 54

So, India has a constitutional President superimposed

55
on the Parliamentary system of the British type.

c/r
In Pam Jawaya Vs. State of Punjab, the Supreme

Court of India explained the position of Indian Executive

in the following words :

" Under Article 53(1) of our constitution, the

executive power of the Union is vested in the President but

54. C.A .D, Vol. X, p. 988.

55. D.D. Basu, Commentary on the constitution of India,
Six Edition, Vol. E, 1981, p. 167.
56. 1956, 2 S.C.R., 225.
 33

under Article 75 there is to be a council of Ministers with

the Prime Minister at the head to aid and advice the

President in the exercise of his functions. The President

has thus been made a formal or constitutional Head of the

executive and the real executive powers are vested in the

Ministers or the Cabinet. The same provisions obtain in

regard to the Government of States; the Governor -------

occupies the position of the Head of the executive in the

State but it is virtually the Council of Ministers in each

State that carries on the Executive Government. In the

Indian Constitution, therefore, we have the same system of

parliamentary executive as in England and the Council of

Ministers consisting, as it does, of the members of the

legislature is, like the British Cabinet-------- ".

57
The Supreme Court in Shamsheer Singh's case held

that "the Constitution embodies the parliamentary or cabinet

form of government on the British model where the sovereign

does not act on his own responsibility but on the advice of

his Ministers who accept the responsibility and command and

confidence of the House of commons. In the same way the

President as the Constitutional Head of the Union must act

with the aid and advice of the Council of Ministers where

the Constitution is silent with reference to the powers of

the President resort must be had to the conventions in the

United Kingdom.”

57. A.I.R. 1974 SC 2192

 58
In R.C. Cooper Vs, India the Supreme Court said: " under

the Constitution, the President being the constitutional

Head, normally acts in all matters including the promulg­

ation of an ordinance on the advice of his Council of

Ministers

The Supreme command of the defence forces of the

Union is vested in the President but the exercise of the

59
Supreme command is to be regulated by law. The consti­

tution provides that the President can exercise his functions

either directly or through officers subordinate to him. The

provision permits delegation of executive power by the

President to the Ministers and others. For this purpose,

"a Minister is an officer subordinate to the President,and

therefore, th^resident can exercise his executive authority
through the Ministers."^0 The formal vesting of executive

power in the President does not also invisage that he should

personally sign all the executive and administrative orders

passed by the Central Government. In actual practice, the

President signs only a few crucial orders, and all other

orders are promulgated by subordinate officers without refer­

ence to him. This result is achieved by Article 77.According

to Article 77(1), 11 all executive action of the central

Government is to be expressed to be taken in the name of the

58. A.I.R. 1970 SC 564.

59. Article 53(2), constitution of India.
60. King-Emperor Vs. Sibnath B anerji, A.I.R. 1945 PC 163.
President". Article 77(2) lays down that, " orders and

other instruments executed in the President *s name are to

be authenticated in such manner as may be specified in the

rules made b^he President, and the validity or any document

so authenticated can not be called into question on the

ground that it is not an order or instrument made or executed

by the President".

Prior to 42nd Amendment Act of 1976 Article 74(1)

provided that there shall be a Council of Ministers with the

Prime Minister at the head, to aid and advise the President

in the exercise of his functions. After this Amendment

Article 74 says "there shall be a Council of Ministers with

the prime Minister at the head to aid and advice the President

who shall in exercise of his functions act in accordance with

such advice ". This amendment makes it clear that the

President shall be bound by the advice of the Council of

Ministers. The 44th constitutional amendment introduced a

new proviso to Article 74(1) authorising the President to

require the Council of Ministers to reconsider the advice

given by it, and President shall act in accordance with the

advice tendered after such reconsideration.

In this connection, reference may also be made to

Article 78 which empowers the President to be informed

about the country's affairs. Thus, the Prime Minister is

obligated to communicate to the President all decisions of

the Council of Ministers relating to the administration of

the affairs of the Union and the proposals for legislation.

The Prime Minister is also under a duty to furnish such

information relating to the administration of the affairs

of the Union and proposals for legislation as the President

62
may call for. As the nominal Head of the Union Executive,

he has at least the right to be informed and to call for

63
any information that he may desire.

It is clear from the above discussion that the

President is bound to act with the aid and advice of the

Council of Ministers in all matters referred to in the

Constitution and he has no discretion either to act withott

the advice or to disregard the advice. The obligation

arises because the Ministers are the chosen representatives

of the people and in disregarding their advice the President

is not fighting the Ministers as individuals but the public

will to which as a constitutional head he is bound to give

effect.^

The weak position of the President does not mean

that his office is superfluous. He is the symbol of Indian

National unity. Being impartial and above party politics,

he exerts or is likely to exert his influence on the

VO
H n rn

Article 78(a).
\£>

Article 7 8(b).
VO VO

M.P. Jain, Indian Constitutional Law (1987) p.98.

^

Alladi Kup puswamy, "The President and the Prime

Minister", Indian Bar Review Vol, XIV{4),1987, p. 673.
decisions of the Prime Minister. The influence of the

President, however, will depend on his character, person­

ality and selfless devotion to the nation. Dr. M.P.Jain

observes, " it is the Council of Ministers which will

prevail and not the President. The President's role at

best may be advisory, hJ^rtay act as the guide, philosopher

and friend to Ministers, but cannot assume to himself the

role of their master ---- a role which is assigned to the

65
Prime Minister."

Governor and the State Administration

The pattern of Government in the State is the same

as that for the Union. Bach state has a parliamentary form

of Government. The Executive Head is constitutional Head,

who is to act according to the advice of the Council of

Ministers. The Constitution of India, by Article 153 creates

the office of the Governor. Thus each State shall have a

Governor. However, one person can be appointed Governor for

two or more States (Article 153 proviso). The Executive

power of the State is vested in the Governor. He shall

exercise the executive power either directly or through

officers subordinates to him. The expression " officers

subordinate to him " include a Minister of the State.

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direct vote of the people nor by an indirect vote by a

specially constituted Electoral college as in the case with

the President. He is nominee of the Central Government.

67
In Hargovind Vs. Raqhukul it has been held that

the office of Governor of a State is not an employment

under the Government of India. The office of Governor is

an independent office and is not under the control or

subordinate to the Government of India.

According to Article 157

be appointed as Governor must be (a) citizen of India,and

(b) must have completed the age of 35 years. The Governor

must not be a member of either house of Parliament or of a

House of the Legislature of any State. If a member of either

Houseof Parliament or of a House of the Legislature of any

such State is appointed as Governor, he shall be deemed to

have vacated his seat in the House on the date on which he

enters upon his office as Governor. He shall not hold any

other office of profit (Article 158).

Article 156 of the constitution says that the

Governor shall hold office during the pleasure of the

President. Subject to this rule the tenure of the office

of the Governor is fixed for five years from the date on

which he enters upon his office. Before entering upon his

67. A.I.R. 1979 SC 1109.

office, every Governor or person discharging the functions

of a Governor has to take an oath or solemnly Affirm in the

presence of the Chief Justice of the High Court of the

State (Article 159) .

Powers, functions and duties of the Governor

The Constitution confers on the Governor a large

number of powers which may be grouped under four heads.

(a) Executive,

(b) Legislative,

(c) Financial and

(d) Judicial.

(a) Executive power

The most important executive power of the Governor

is that of appointing a Chief Minister and on his advice a

68
Council of Ministers. The Governor's obvious choice for

Chief Ministership is the leader of the party commanding a

majority of votes in the lower House. He also, appoints

the Advocate General and the ^embers of the Public Service

Commission. He nominates a certain number of members to the

69
Legislative Council under the Constitution. The Chief
Minister is called upon under the Constitution to keep the

Governor informed about all matters of administration in the

68. Article 164.

69. Article 171.
State and about all decisions of the Council of Ministers.

The Governor can also call for information relating to

proposals for legislation. He can request his Cabinet to

reconsider any matter which has been decided by a Minister

in person and has not been considered by the council. He

is also empowered to allocate among the Ministers the

business of the Government.

(b) Legislative power

The Governor performs the following Legislative

functions.

(i) He has right to summon the State Legislature,prorogue

either House there of or dissolve the Legislative Assembly

according to the provision of the constitution.

(ii) He has right to summon joint sittings of the two

Houses and address than in person or send written messages

to them. He rnay send messages to the House or the Houses

of^:he Legislature of the State with respect to a Bill pending

in the State Legislature or any other matter.

(iii) He addresses the Legislature at the beginning of each

new session where he lays down the policy of his Government.

(iv) Every Bill passed by the State Legislature has to

72
receive the Governor s assent before it can become a law.

The Governor can give his assent to the Bill or with hold

it or refer the Bill to the President for his consideration.

70. Article 1 74.

71. Article 175.
72. Article 200.
 41

He can also return a Bill, if it is not a Money Bill, for

reconsideration of the Legislature, but if it is passed for

the second time, the Governor cannot withhold his assent

to it. 73
4- -4-

(v) No Money Bill can be introduced in the Legislative

Assembly of the State except on the recommendation of the

Governor.
(vi) The constitution also authorises the Governor to

promulgate Ordinances during the period when the State

legislature is not in session and when he is satisfied that

circumstances exist which render it necessary for him to

take action immediately. Such an Ordinance has the same

force as an act of the State legislature but it ceases to

have effect at the expiration of six weeks from the date

when the State legislature reassembles or before the expiry

of his period if a resolution is passed disapproving the

_ 74
Ordinance.

(c) Financial power

Before the commencement of every financial year,the

Governor has to see that the annual financial statement or

'Budget of the State is laid before the legislature. He

can also cause to lay before the legislature statements for
supplementary or additional expenditure or demands for

excess grants. No demand for grant i.e. the authority to

73. Article 201.

74. Article 213,
spend any portion of the State Revenue can be made except

on the recommendation of the Governor. All Money Bills

have to receive the Governor's previous sanction for

75-

introduction in the House.

(d) Judicial power

The Governor of a state has the power to grant pardons,

reprieves (suspension of punishment), respites (delay),

remission (reduction of punishment) or to suspend remit or

commute (lessen) the sentence of any person convicted of any

offence against any law relating to a matter to which the

executive power of the State extends.7 6 The Governor deter­

mines the appointment, costing and promotions of District

Judges and other Judicial officers. The Governor himself

enjoys personal immunity.

Article 163 provides that " there shall be a Council

of Ministers with the Chief Minister at the head to aid and

advice the Governor in the exercise of his functions,except

in so far as he is by or under this Constitution required

to exercise his functions or any of them in his discretion."

The corresponding Article in respect to Union Government is

Article 74 which provides: “There shall be council of

Ministers with the Prime Minister at the head to aid and

advice the ^resident who shall, in theexercise of his

75. Article 202 to 207.

76. Article 161.
functions, act in accordance with such advice." In other

words, the President is expected to act always on the advice

of the Union Council of Ministers, where as the Governor has

the scope to act on his discretion and without the aid and

advice of the State Council of Ministers. The problem of

discretion is more aggravated b'"'y the provisions of sub­

section (2) of Article 163 which says : " If any question

arises whether any matter is or is not a matter as respects

which the Governor is by or under this Constitution required

to act in his discretion, the decision of the Governor in

his discretion, shall be final, and the validity of any

thing done by the Governor shall not be called in question

on the ground that he ought or ought not to have acted in

his discretion."

Legally construed, the provisions of Article 163(1)

and (2) will mean the following :~

(1) That thejpovernor is required by or under the Consti­

tution to act in certain fields in his discretion, and also

that the aid and advice of the Council of Ministers is not

always and in all cases binding upon the Governor as is the

case in respect of the Union Government.

tf
(2) Although the provision injop or under thi s Constitu­

tion indicates that the Governor can act in his discretion

whenever and wherever it is specifically provided in the

Constitution, but if any controversy arises whether in any

field the Governor has to act in his discretion or with the

aid and advice of the Council of Ministers, the Governor’s

decision in his discretion shall be final.

(3) That the validity of an^hing done by the Governor

cannot be challenged in a Court of law on the ground that

he ought or ought not to have acted in his discretion. In

other words, it will mean, then, that the Governor may or

may not consult the Council of Ministers in the discharge

of his discretionary/ functions.

Discretionary powers of the Governor

When Article 163 was being considered by the Const­

ituent Assembly certain members insisted on the deletion of

the discretionary powers of the Governor. Through an

77
amendment Shri H.V. Kamath wanted the deletion of the

discretionary powers of the Governor. It was pointed out

by him that as nominated Governors are to be there "it

would be wrong in principle and contrary to the tenets and

principles of constitutional government.... *’

The inclusion of discretionary powers was also

criticised on the ground that the provision was an "unplesant

reminder of the old order" and reminded the humiliating

78 79
part. Giving examples, Shri R.K. Choudhury pointed out

the misuse of the power by Governors of the pa st. It was

77. C.A.d. Vol. VIII, p. 489

78. Ibid, p. 493 and 494.
79. Ibid, p. 499.
 30
maintained by Shrx T.T. Krishnamachari and Alladi
81
Krishna Swami Ayyar that as the subsequent provisions

of the Draft Constitution provides certain fields and

circumstances in which the Governors were to act in

their discretion, it was necessary to keep the provision

of the Article intact.

82
Shri Brajeswar Prasad v/ent one step further when

he insisted that the Governors should be given not only

discretionary powers but also the power to act in their

individual judgements, as according to him, there was

dearth of leadership in the provinces and unless the

Governors were vested with large powers it would be difficult

to effect improvement in the provincial administration.

83
Dr. Ambedkar while repaying to the debate maintai­

ned that "vesting the Governor with certain discretionary

powers is in no sense contrary to or in no sense a negetion

of responsible government". In order to support his conten­

tion, Dr. Ambedkar cited the ex~'ample of Canadian and

Australian Constitution. He further pointed out that the

provision "except in so far as he is lay or under this

Constitution" meant that Draft Article 143 ( presently

Article 163) will have to be read in conjuction with such

80. Ibid, p. 290.

81. Ibid, p. 495.
82. Ibid, P. 492.
83. Ibid, P* 500-501
other Articles which specifically reserve the power to the

Governor. It is not a general clause giving the Governor

power to disregard the advice of his Ministers in any

matter in which he finds he ought to disregard."

Thus, it is clear that the Constitution makers wanted

to vest the Governor with certain discretionary powers so

that through the agency of the Governor the Central govern­

ment could co-ordinate in the policies of the different

States and press for and guard its own policies. However,the

field of discretion was not to be all pervasive and all

comprehensive but specific and limited one. The makers of

the Constitution failed to foresee the dangerous implications

of the concept of discretionary power which might run counter

to their intention. There is no serious controversy in

regard to these clearly stated discretionary powers."Actually

the controversy arises in the indeterminate area where the

concept of discretionary power may be defined either in

maximum or in minimum terms'*.8^

Any recognition of maximum discretionary powers of

the Governor in a State would a"~l so have the effect of

upsetting the basic scheme provided by the Constitution.

Sardar Vallabhai Patel, theChaiunan of the Provincial

84. Amal Ray, Tension Areas in India's Federal system

(World Press, Calcutta, 1970) p. 85. ’
Constitution Committee, said that the Committee had recomm­

ended the setting up of the Cabinet system of government on

British model in the States, and this recommendation was

accepted by the Assembly. The State Constitution has certain

features which had towards the presidential system, but

these are only subsidiary features. The constitutional

scheme envisages essentially a ministerial government.

In view of these conside'"*'rations it is desirable to

spell out the Governor's discretionary powers in minimum

terms. In a democratic State and specially in a Parliament­

ary form of Government any attempt to vest the head of the

State with discretionary powers unfettered and unlimited is

untenable. It is more so when the Governor is not an

elected Governor and a nominated one.

" Spokesmen of the Union Government urge that these

discretionary functions (whether express or implied) are

essential in the interests of the proper working of the

federal system. In a country vPhich is beset with multitu­

dinous divisive or separatist f orces, caused by parochial,

racial, linguistic, religious or communal factors,------

a representative of the Union in the State administration

is necessary in order (a) to promote national integration

and strength; (b) to maintain national standards in the

85
public administration in the various States."

85. D.D.sasu, Comparative Federalism, p« 493.

 *8

The intensified study of the totality of the consti­

tutional scheme reveals that the framers has an idea to

confer some limited discretion upon the State Governor.They

did not insert the phrase 'in his discretion’ with the

Article 74 of the Constitution. The retention of this

phrase with Article 163(1) intensified that they ought the

necessity of th^ise of this phrase for the role of the

Governor.

The Governor’s discretion may be underlined into two

parts. Firstly, the express discretion mentioned in the

Constitution, i.e. the constitutional discretion. Secondlym

the hidden discretion whicl^.s derived from exigencies of the

political situation. It may be styled as "situational

86 - ■ ^
discretion". "The list of di scretionary*functions,

however, has been enlarged by judicial interpretation,hold­

ing that there are certain matters under the Constitution

where the function is of such a nature or the circumstances

in which it has to be exercised are such that it cannot,

possibly, be exercised according to ministerial advice,even

though there is no express provision in the Constitution

requiring him to act in his discretion, as regards these

matters. In short, in such matters, the discretion is deriv-

\ 87
ed bmmplication.

86. Prof. Iqbal Narain,"Office of the Governor; problem of

Role of Identification". T he Journal of African and
Asian studies, Delhi University Vol.I,No. 2,Spring
Issue, 1968, p. 175.
87. D.D.Basu, Comparative Fede ralism, p. 495.
 49

However a reading of the text of the Constitution will show

that in the following fields the Governor is required by

the constitution to act in his discretion.

(a) (i) The Governor of Assam as per para 9(2) of the

sixth schedule shall have the power to determine disputes

regarding the share in royalties to be made over to the

District councils in his discretion.

(ii) As per para 18 of the sixth schedule until a

modification is issued under this paragraph in respect of

any tribal area specified in part B, the administration of

such areas or part thereof as the case may be, shall be

carried on by the President through the Governor of Assam

as his agent and in his ( Governor's ) discretion.

(b) Article 239(2) authorises the President to appoint

the Governor of a State as an Administrator of an adjoining

Union Territory and provides that there a Governor is so

appointed, he shall exercise his functions of such Administ­

rator independent of his Council of Ministers.

(c) As per Article 371-A inserted by the Constitution

( Thirteenth Amendment Act 1962 " the Governor of Nagaland

shall have special responsibility with respect to law and

order in the State of Nagaland ---- and in the discharge

of his functions in relation thereto, the Governor shall

after consulting the Council of Ministers, exercise his

individual judgement as to the action to be taken."
 50

(d) Two other matters, as regards which the Governor

shall have special responsibility have been introduced by

the Constitution ( Seventh Amendment ) Act 1956(Article 371)

namely, the setting up and proper functioning of regional

committees of Legislative Assemblies of Andhra Pradesh and

Punjab and the establishment of separate development board

for certain areas in Maharashtra and Gujurat and allocation

of funds for developmental expenditure over the said areas.

Although the term " special responsibility " as used

in Articles 371 and 371-A has not been explained in the

Constitution yet the provision shall have little meaning if

it does not empower the Governor to act in his discretion

in case the ministerial advice is in conflict with his

* special responsibility'.88

There are certain functions which the Governor under

the Constitution is required to discharge as an agent and

also as per direction of the Central Government. In dischar­

ge of these functions the Governor is not always bound to

act in the aid and advice of the Council of Ministers. In

these cases, he has to exercise his discretion in deciding

whether he should act in his discretion or not. In brief

the Governor has the marginal discretion in a particular

situation. The implied exceptions to the sphere of minist-

89
erial advice have been judicially acknowledged and by

88. D.D.Basu,“commetary on the Constitution of India,

Vol. Ill, p. 268. '
89. Shamsher Vs. State of Punjab, A.I.R. 1974 SC 2192
this time, their number has reached a considerable volume.

(i) The foranost instance to the point is the making of

a report to the President under Article 356 that a situation

has arisen in which the Government of State cannot be carried

on in accordance with the provisions of the Constitution.

Such a report may possibly be made against a Ministry in

power, for instance, if it attempts to misuse its powers to

90
subvert the Constitution. It is obvious that in such a

case the report cannot be made according to ministerial

advice. No such advice, again will be available where one

Ministry has resigned and another alternative Ministry cannot

91
be formed. The making of a report under Article 356,thus

must be regarded as a function to be exercised by the

Governor in the exercise of his discretion.

(ii) Article 200 provides that the Governor can reserve a

Bill passed by the State Legislature for the consideration of

the President. Although this Article does not specifically

provide that the Governor, while reserving a Bill will act

in his discretion but the nature of the function is such

that it may not be always possible for the Governor to act on

the advice of the Council of Ministers in this regard.

(iii) Again under Article 213, the Governor has been empow­

ered not to promulgate certain Ordinance without instructions

from the President.

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(iv) The Governor is the agency through whom the Union

keep itself informed as to whether the State is complying

with the Directions issued by the Union from time to time.

In pursuance of this responsibility, the Governor sends a

fortnightly report to the President. It is to be seen

that it may not be always possible for the Governor to send

his report after consultation with the State Council of

Ministers.

Thus the responsibilities imposed upon the Governor

as a consequence of Articles 256 and 257 ( Executive power

of the State to be so exercised as to ensure the compliance

with the laws made by Parliament and not to impude or preju­

dice the exercise of the executive power of the Union)enables

him to exercise some discretion in sending reports to and

making correspondence with the Union Government. The role of

the Governor in this respect becomes all the more important

when the party in the State is not the same as the party in

power at the Centre.

(v) After a General election, the Governor's first duty

is to secure a Government. In appointing the Chief Minister

the Governor definitely does not act on the advice of the

Council of Ministers as he could find none. Thus he exercises

the Prerogative in his discretion. Again when the Governor

dismisses a Ministry then also he exercises these functions

in his discretion. These powers of the appointment of the

 53

Chief Minister and dismissal of a Ministry may politically

be conditioned by so many other factors but so far as the

exercise of these functions are concerned the Governor may

not find a Ministry at his disposal to advise him and

therefore the circumstances compel him to exercise these

functions in his discretion.

(vi) As per Article 174(2) (b), theGovernor may dissolve

the Legislative Assembly. There is a lot of controversy

regarding this power of the Governor as to whether he is

to act in the discharge of this function in his discretion

or on the advice of the Council of Ministers.

(vii) According to Article 167 it shall be the duty of

the Chief Minister -

" (a) to communicate to the Governor of the State all

decisions of the Council of Ministers relating to the

administration of the affairs of the State and proposals

for legislation.

(b) to furhish such information relating to the

administration of the affairs of the State any proposals

for legislation as the Governor may call for? and

(c) 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. 11

 Thus when the Governor as per Article 167(b) and (c)

calls for an information or asks for the consideration of

any matter by the Council of Ministers, he does so in his

discretion and without the advice of the Council of Ministers.

The very nature of the function is such that the Governor

is required to act in his discretion.

It is important to note here certain interpretation

of the discretionary powers of the Governor by the Courts in

India. First, the Andhra High Court has said that unless a

particular Article expressly says that the Governor is to

act in his discretion, he is to act on the advice of the

92
Ministers. Secondly, there is no other matter, except in

the case of the Governor of Assam, in respect of which a

Governor is required by or under the Constitution to act in

93
his discretion. Thirdly, a power to act in his discretion
94
cannot exist by mere implication. Thus it will appear

that the courts have tried to circumscribe the discretionary

powers of the Governor, but the political reality is some­

thing different. And also that " under this Constitution

imply the possibility that the Union Parliament may, if it

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 CJ1
GOVERNOR AS A CONSTITUTIONAL HEAD

The Governor of an Indian State is a constitutional

Head as in Canada or Australia barring the limited sphere

of discretionary power specified above. In the exercise

of his discretionary powers, the Governor is not bound to

act on the aid and advice of the Council of Ministers.But

it does not mean that he is required by or under the

Constitution not to consult the Council of Ministers in the

exercise of his discretionary powers. It is expected of the

Governors that in the exercise of their discretionary powers

also they will consult the Council of Ministers and decide

on the issue according to their discretion and in the best

interest of the State and country as a whole. Any use of

discretionary powers in an arbitrary way is unmaintainable

in a democratic State. The expression ' Constitutional Head'

means that the Governor cannot participate in the administ­

ration of the State, which involves the formulation of

policies and the making of laws and taking of executive

action to implement them, which belongs to the Council of

Ministers, according to the Cabinet system of Government

which has, in the main, been adopted under Article 163(1)

96
of the Constitution. The functions of the Governor as
the Constitutional Head would be to ' encourage and warn ^
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 98
the Council of Ministers and his right to be informed of

all decisions of the Council of Ministers relating to the

administration of the affiars of the State, legislative or

executive (Article 167). In short, he has a right to advise

99
his advisers, but not to dictate.

Thus, in a Cabinet system of Government, the

Constitutional Head, such as the Governor, has to play a

role according to the advice tendered by the Council of

Ministers. This is not an innovation made by the Constitu­

tion of India, but has been imported from England, the

foundation source of the Cabinet system of Government and

where the constitutional role of the crown survives even

today. " The object behind the constitutional role is to

impart continuity and impartiality to the administration

amidst the changes in the political executive caused by

each election to the legislature. in short, " the

Constitutional Head of the Executive represents the Nation

as distinguished from political parties, and the efficacy

101
of this role is hightened in times of national crisis."

It is surprising that some jurists wish to give a

literal meaning to the words M aid and advise " occuring

in the Constitution. It is forgotten that the phrase "aid

and advise" is only an euphemism implying the British

98. Hood Phillips, constitutional law (1970), p. 177.

99. D.D.Basu, Comparative Federalism, p. 486.
100. Hood Phillips (1978) p.317> Wadi and Phillies(1970)
p.179.
101. De Smith(1973),p.99,quoted in D.D.Basu,Compaative
Federalism, p.487.
 5.7

convention that the advice of the cabinet is final and

conclusive.

Dr. Jenning has in the following passage explained

the methodology in which " aid and advise " works.

" A function to be exercised on advice is not formal

and automatic. The King or the Governor-General must be

persuaded and on occasions the King or the Governor-General

may do the persuading. It is, indeed, the practice in the

United Kingdom to consult th^Cing informally?, so that he

may make his views known without rejecting or suspending

action on formal advice. In the long run he must either

accept the advice or find a new method, but his view ought
1 no
to carry weight and may modify the advice he receives".

Constitutional lawyers know that some words have a legal

meaning different from the meaning for the same word in

ordinary speech. In constitutional law, the implied meaning

103
is more significant meaning than a plain meaning.

The phrases are interpreted by the courts in the

background of the intensions of the framers of the Constitu­

tion. As Justice Sutherland of the U.3. Supreme Court said

in the famous slaughter House case :

" A provision of the Constitution, it is hardly

necessary to say, does not admit of two distinctly opposite

102. Jennings, Cabinet Government, p. 234.

103. V.K. Varadachari, Governor"In the Indian Constitution
(1980), p. 41.
interpretations. It does not mean one thing at one time

and an entirely different thing at another time .......

The whole aim of construction, as applied to a provision

of the Constitution is to discover the meaning, to ascer­

tain and give effect to the intent of its framers and the

people who adopted it. The necessities which give rise to

the provision, the controversies which preceded as well as

the conflicts of opinion which were settled by its adoption

are matters to be considered to enable us to arrive at a

correct result."

" Pleasure of the Governor " and " aid and advise "

are well known stereotyped phrases used in all responsible

Governments. " The pleasure '* is a legal fiction. The

phrase was coined in Britain when the power of the monarch

which was subplanted by that of a Parliamentary democracy

was soght to be apparently maintained. It attempted to

preserve the dignity and the high office of the monarch,

while vesting the real executive power in the cabinet. The

genesis of these terminologies, if kept in view, can give

no scope for any other interpretation. A literal inter­

pretation of these expressions divorced from the constitu­

tional background would transform the Head of the State

into a Head of the Government.

" Pleasure of the Governor ” and M discretion of the

Governor " are not overlapping expressions. They donot

mean the same thing. Their fields of operation are

different. The functions pertaining to "pleasure" have

to be discharged in the aid and advise of the Council of

Ministers. Wherever a Minister performs his functions

under the rules of Business under Article 166(3) of the

Constitution, the Governor as a constitutional Head would

be deemed to exercise his pleasure through a Minister. In

"discretion" there is a personal impact of the Governor on

Government. The power of the Council of Ministers is

usually greater than that of any other individual in a

responsible government, partly because historical circumst­

ances have so staged the office and partly because the

collective wisdom of the people as represented by an elect­

ed government, is deemed more^aliable than one man's judge­

ment. The special role of the Governor is really individual

only in extraordinary circumstances. It would do well to

remember that the powers attributed to a Governor under

" pleasure are institutional powers - powers of an insti­

tution - rather than personal powers. Unfortunately the

Governor's office is being discussed too much in personal

terms and too little in organisational terms. The

discretionary powers alone are personal powers.

The Supreme Court has pointed out in Samsher Singh

104
Vs. State of Punjab that "aid and advise" is a

104. A.I.R. 1974 SC 2192

constitutional restriction on the exercise of executive

powers, by the Governor. The Governor will not be consti-

tutionally competent to exercise executive powers without

the aid and advise of his Council of Ministers.

The Constitution contains a scheme of territorial

and functional distribution of powers. Territorial power

is divided between th^nion and the States and the functi­

onal between the legislature, the executive and the

judiciary. It provides for a responsible government

through a Parliamentary executive. Against this background

it provides for a Council of Ministers to aid and advise

the Governor in the exercise of his functions. This

introduces the well established constitutional conventions

of a Cabinet system.

Curiously enough, there is no unanimity of opinion

regarding the extent of the power of the constitutional

head. Dr. Ambedkar was the first to ascribe a figure head

note to the Constitutional Head and said, " he is without

105
any authority to interfere with the actual administration."

Dr. Alladi Krishnaswamy Iyer would, however, cast

him in the role of " sagacious counsellor, adviser to the

ministry, one who can through oil on troubled waters."1®6
Ov tn

C.A.D. Vol. VIII, p.433.

O O
•

C.A.D. Vol. VIII, p.471.

*
 Dr, Munshi said, " the Governor is not necessarily

to be ciphor. He has a political function to perform and

that political function is to be the constitutional Head,"

The term " constitutional head" has not been defined

in theConstitution and has not been explained by text book

writers. This is also one other terminology that was the

product of the British constitutional Revolution. The

British Monarch was the first to become a Constitutional

Head.

Although the Governor is a Constitutional Head like

the British Sovereign he becomes the holder of an office of

strategic importance in times of political cricis.

A study of the relevant constitutional provisions

regarding the powers and functions of the Governor reveals

the importance of the Governor's role in Centre-State

relations. The|>roblems or misunderstandings which are

frequently arising between the Centre and State are more

political than legal in nature. Though the system of

government is parliamentary at both the Union and State

levels, at the State level the Constitution itself intends

107
that the Governor shall perform a * dual role ' - viz.
that of (a) a constitutional head (like the President at

the Onion) as well as (b) a link between the State and

107. A.R.C, Report, Vol.I (1968) pp 272.Setalvad,Union-

State Relations (1974) p. 150.
the Union, acting as an agent or representative of the

Union to that extent, and having responsibility to the

Union in this behalf.

This is what leads the opposition parties to urge

that the office of the Governor under the Indian constitu­

tion is undemocratic and should, therefore be abolished

altogether. So long as the Parliamentary system of govern­

ment continues in the State, abolition of the office of the

Governor would be out of question because that would strike

at the very root of responsible government itself. " In a

parliamentary system of government, the political executive

i.e. the Council of Ministers, changes with the loss of

confidence in the legislature and with every dissolution

thereof. Hence, for maintaining the continuity of the

administration and for executing formal acts in relation to

the outside world, a constitutional Head of the executive is

necessary, whether in a shape of the President for theUnion

108
or of the Governor for a State". Like the English Crown,

The Governor may render useful service to the people by

acting as an adviser to his Ministers, through the method

of persuation, from a non-partisan point of view. His office

is also indispensable, in so far as the orders of the elected

State government, which may change with every change in the

political vicissitudes of the different parties, must be

countersigned by an authority which does not change with the

109
fortunes of a particular council of Ministers.

108. Samsher Vs. State of Punjab, AIR 1974 SC 2192

109. D.D. Basu,Comparative Federalism, ©„ 486.