Recently, some actions of Governors have triggered off a heated controversy among jurists and political leaders. Some of them  believe that as we have adopted the British model, the Governor, like the President, has to act upon the advice of the Cabinet. But others think that though, in normal times, the Governor has to abide by the advice of the Cabinet, in some situations the former can surely act of his own choice. Thus, the question ultimately veers round the actual position occupied by the Governor in our Constitution.

It is true that we have adopted the “Westminster model’ of Britain. But as WH Morris-Jones writes, ‘the system is reproduced in the units, but with some differences’ – (The Government and Politics of India, p. 80). Though the President is the Head of the State, there is, under Art. 74 (1), a cabinet to ‘aid and advise’ him and he is expected to act upon such advice. As such, he has no ‘discretionary’ power.

But the local cabinet gives the Governor aid and advice ‘except in so far as he is required to exercise his functions or any of them in his discretion.’

So for the Governor, there are two fields – in one of them, he is to act according to the will of his Ministers, but there is an undefined area where he is his own master. Significantly enough, the Constitution has not demarcated the area of his discretion. According to Art. 163 (2), if any question arises whether or not a matter actually falls within his discretionary capacity, ‘the decision of the Governor shall be final’ and its validity cannot be called in question at all.
This provision sufficiently proves that the Founding Fathers did not intend to make the Governor a puppet-ruler, because he is a functionary equipped with various discretionary powers.

DD Basu has held that the Governor can, of course, act in his discretion in some matters and they may vary ‘according to circumstances’ – (Introduction To The Constitution of India, p. 210). And Dr BC Rout opines that the Governor may claim to have discretionary power in the (i) appointment of the Chief Minister; (ii) dismissal of the Chief Minister; (iii) Summoning the Assembly; (iv) dissolution of the same; (v) reservation of a state Bill for the President; (vi) recommendation for the imposition of the President’s Rule and (vii) promulgation of Ordinance etc. – (Democratic Constitution of India, p. 220). If such powers really rest with the Governor, he can by no means be regarded as a mere figurehead.

Secondly, though the Constitution did not originally contain any Article to compel the President to act upon the ministerial advice, the 42nd Amendment to the Constitution totally changed Art. 74 (1). Now the President is legally bound to abide by the advice of his cabinet. If he flouts it, he may, under Art. 61, be impeached by the Parliament for ‘violation of the Constitution.’

But such amendment has not at all touched the gubernatorial authority and moreover there is no impeachment mechanism at the state-level. So if a Governor ignores the cabinet, it can only request the President to remove him from the province – neither the cabinet nor the state legislature can take a punitive step against the defiant Governor.
Thirdly, the President is elected by an ‘electoral college’ (Art. 54) and he cannot be removed without an impeachment. But, the Governor is nominated by the President and may be dismissed by him at any time and without any reason – (Art. 155 and Art. 156). Thus, as Dr SC Kashyap observes, ‘the Governor has no security of service’ – (Our Constitution, p. 213). In fact, he is a crucial part of our centralised federation, the Founding Fathers thought that India could not be held together without a unified mechanism and that the structural unity could be safety assisted through the gubernatorial office.

So if a state cabinet seeks to act against the national interest and organic integrity, gubernatorial powers can stem the rot. In other words, when the ministerial advice and central directives differ, the Governor would surely accept the later in order to safeguard his own job.

Fourthly, there are some gubernatorial powers which in normal conditions seem to be insignificant but in the changed situation they become immensely crucial.

For example, the Governor, under (Art. 164 (i)), nominates the Chief Minister. Thus, if a political party can secure an absolute majority in the Assembly, he has to send for its leader. But if no party can obtain such majority, the Governor can either summon the leader of the biggest party or try to form a coalition cabinet. In such a situation, much depends upon him – (Dr HH Das – India: Democratic Government and Politics, p. 273).

He can, in such case, ask the aspirant to give him the list of his probable supporters and to present them at the Raj Bhawan. But he can, of course, promptly choose his Chief Minister without any numerical test and then give him some time to prove his majority – (GS Pandey – Constitutional Law of India, p. 240). In this sense, he may become the ‘King-maker’.

Similarly, ‘the Ministers hold office during the pleasure of the Governor.’ The Chief Minister is a ‘Minister’ in terms of Art. 164 (2), and, so, he too can be ousted by withdrawing the gubernatorial ‘pleasure’ which is purely a mental phenomenon. It is in this way that Justice BC Mitra of the Calcutta High Court directly supported in 1967 the stand of Dharma Vira, the Governor of West Bengal (Ghose v. Sharma). As Dr JC Johari has opined, ‘the term of the Chief Minister depends upon the pleasure of the Governor. The word pleasure is very important’ – (Indian Government and Politics, p. 730.)

To take another example, under Art. 174 (1), the Governor summons the legislature on the advice of his Chief Minister. But, if, after a split in the ruling party or departure of an ally, he hesitates to face the Assembly for the fear of a defeat, the Governor may, of his own, summon the House in order to ascertain the actual numerical position.

Then, he normally dissolves the House on the advice of the Chief Minister. But, if a defeated CM gives him such an advice, the Governor ‘is within his inherent right to decline to grant it’ – (Dr AC Kapur – The Indian Political System, p. 355). Particularly if he has a fair chance to form an alternative cabinet, he can rightly refuse to oblige the erring Chief Minister.

He can also recommend to the President to impose President’s Rule in the province under Art. 356. In such cases, he does not require the advice of the Chief Minister – (SL Sikri – Indian Government and Politics, p. 232).

He is moreover not bound to assent to a state Bill. He can veto it or send it to the President. In 1959, the Governor of Kerala referred the Education Bill to the President and the apex court indirectly appreciated it as a wise step.

Truly, the role of the Governor has been a controversial subject ever since the creation of the Constitution. But in 1967, some non-Congress parties occupied power in several states and, hence, the Union Government under the Congress faced a political debacle. Naturally, it used the gubernatorial power to keep these states under control and thus some of the Governors came out of their slumber with their decisive powers. Thus, it has become crystal clear that the Governor is not merely a decorative emblem. As Dr MV Pylee has rightly claimed, ‘he is a functionary designed to play a vital role in the administration of the affairs of the state’ – (An Introduction To The Constitution of India, p. 204).

After independence, the Congress occupied power at the Centre and in the states and, hence, there was no Centre-state conflict. Moreover, some eminent leaders became Chief Ministers in the states. This is why the Governors had to reside behind the curtain. Sarojini Naidu, the Governor of UP, regarded herself as ‘the bird in the golden cage.’ Another Governor compared himself with a ‘dignified hotel-keeper.’

But, with the passage of time, the political scene has changed and the actual nature of the gubernatorial office has taken shape.

The writer is a Griffith Scholar, Author and Former Reader, New Alipore College.