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Appointment of the Governor

The Constituent Assembly considered various alternatives before deciding on the manner of appointment of the Governor, says Nirmalendu Bikash Rakshit

Nirmalendu Bikash Rakshit | KOLKATA |

Under Article 155 of our Constitution, the appointment of the Governor is totally a matter of presidential discretion because the provision reads, ‘The Governor of a state shall be appointed by the President by warrant under his hand and seal.’ As such, we have followed the Canadian model in which the Governor is purely a nominated functionary. Significantly, the Constitution has not mentioned the qualification of such dignitary, nor has it imposed any limitation on the presidential choice. Articles 157 and 158 only point out that he must be a citizen of India and must complete the age of thirty-five and also that he shall not be a member of any legislature or hold any office of profit. But, the Constitution has, in no other way, chosen to fix or fetter the presidential authority in such appointment.
Of course, during the making of the Constitution, the Constituent Assembly considered four alternative schemes of gubernatorial appointment –

1. election on the basis of adult suffrage;
2. election by the legislature;
3. nomination by the President out of a panel of names submitted by the provincial legislature; and
4. discretionary appointment by the President.

The first proposal was incorporated in the Draft Constitution for the consideration of the Constituent Assembly. But ultimately it was rejected. The Constitution had been modeled on the British system where the King/Queen is required to function as a nominal head. So, the makers of our Constitution felt that such a system could hardly make room for an elected Governor. If he was directly elected, he could not be above political ambition, and, in some situation, he might claim real authority. In such case, conflict with the Chief Minister would be frequent because of the Governor’s claim of popular representation.
As Dr KM Munshi observed, “Why waste money and energy in a huge election for a second-rate man in the party as the Head of the Government? It would mean also that the Governor would be subsidiary in importance to the Chief Minister as he would be his nominee. If this is going to be the case, why this force of election?” (CAD. Vol. VIII, P. 452).
Thus, the idea of an elected Governor was rejected by the makers and alternative proposals were taken up for consideration.
The second suggestion was that the Governor should be elected by the State legislature. But it too was not accepted by the Constituent Assembly for an obvious reason. In this case, it was pointed out that he would be a helpless tool at the hands of the majority-party in local politics. The members thought that such a method of appointment would seriously affect the independence of the Governor who was actually intended to take important decisions in grave circumstances.
Thirdly, the proposal of appointing the Governor by the President out of four names submitted to him either by the legislature or the Cabinet was also rejected after some deliberations. It was believed that in such a case, factions and groups would come into play and it would ultimately disrupt the cohesion of the majority-party. But, the weightiest argument against the proposed scheme was that in case a person who was second or third in the list was selected by the President, it might suggest, albeit unintentionally, that the person who topped the list was worse than the others. In that case, the Constituent Assembly felt, the proposal would fail to secure the desired purpose.
Then came the question of nominating the Governor. No doubt, in this respect, the Canadian Constitution had a marked impact upon the makers of our Constitution. While in America, the Governors are elected by the provincial electorate, the incumbents in Canada are chosen by the Governor-General and they hold office during the pleasure of the latter.
In comparing between these prevailing practices, the makers of our Constitution definitely decided in favour of the Canadian model. As Alladi Krishnaswami Ayyar observed “on the whole, in the interests of harmony, in the interests of good working, in the interests of sounder relation between the provincial cabinet and the Governor, it will be much better if we accept the Canadian model” (CAD. Vol. VIII, P. 432).
Thus, the Constituent Assembly decided that it would be totally useless to make Governor’s office an elected one. It rather favoured the system of nomination of the Governor by the President.
As Article 155 indicates, an absolute and unfettered authority was vested in the President in the matter of appointment of the Governor. The critics may now have much to say against it, but there can be no doubt that we have, ultimately, adopted the best available method of appointment of the Governor.
Of course, such a wide power may be abused by the Centre. But there are some conventions to keep it within proper restraint.
A convention has almost been established to appoint a non-resident of the state as its Governor. It was believed that a resident of another State would hardly involve himself in the political matters of the State concerned and, hence, he would act with greater integrity and impartiality. Further, it would also help to foster the lofty sentiment of unity and solidarity in a population so vast and diverse.
Another convention is the practice of consulting the Chief Minister before the appointment of the Governor of the State concerned. It actually eliminates the chance of imposition of a person who is not agreeable to the state in question.
But, it is true that on several occasions, the appointment has been an object of bitter controversy between the Centre and the State. For example, the UF Government of West Bengal urged the Central Government in 1967 to choose from one of the three names – V K Krishna Menon, Prof. Alim and Mrs. Aruna Asaf Ali. But, instead, Dharam Vira was sent to govern the State.
Similarly, Mr MP Sinha, the then Chief Minister of Bihar, strongly resented the appointment of NN Kanungo as the Governor, but the Home Minister, Mr YB Chavan, clearly stated (17 November 1967) that ‘the Chief Minister had no right to veto the appointment of the Governor for his State.’
So, it can be held that often such appointments have been a matter political tussle and, occasionally, the opinion of the relevant state has not been sought by the Centre. It is also true that the office is often treated as a ‘sinecure for mediocrities’ or even as ‘the consolation-prize for burnt-out politicians.’ Sometimes it has also been felt that the office has been used as the last refuge of retired or rejected persons, especially fallen heroes of the ruling party. In this way, the appointment of the Governor has become a part of the Centre-State conflict after the eclipse of the Congress hegemony. In the federal panorama, different political parties may be in power in some states and, consequently, they claim to have a say in the appointment issue.
It is interesting to note that different types of people have so far been selected for the job –

1. Experienced Statesmen: The Centre has often favoured men of long political experience. C Rajagopalachari, KM Munshi, KK Shah, BL Pandit, US Dixit and Sadiq Ali have been chosen at different times as reward for their long service in national politics.
2. Fallen Horses: The Centre has also sought to accommodate rejected political leaders by giving them gubernatorial assignments. In this category, the names of Dr Sampurnanand, BS Sachar, TN Singh, SS Ray etc. may be included.
3. Bureaucrats: Often bureaucrats have, after their retirement from the civil service, been picked for the office of the Governor. The names of VS Menon, Dharam Vira, BN Chakraborty etc. may be mentioned in this category.
4. Luminaries: Eminent persons such as Justice Fazal Ali, Raghukul Tilak, Justice SS Dhawan, Justice GS Pathak, Gen. Srinagesh and Dr Pavate were also chosen for the office.
5. Miscellaneous: Besides, men of different capacities and various spheres have been picked up in order to strengthen Central interests.
This means that no definite norm for filling up the vacancy has ever been formulated though the office is an exalted one in our Constitutional scheme. This is why, a definite standard has not at all been mentioned in the choice of the incumbents.
Of course, the Sarkaria Commission had suggested that only distinguished persons from ‘all walks the life’ should be chosen and, in such way, a reasonably high standard in the appointment should carefully be maintained.
But some states claim that they should be consulted in this matter. There are reasons behind such a claim. First, the Governor is not at all a puppet. According to Art. 159, he has to take an oath ‘to preserve, protect and defend the Constitution and the law’ and also to ensure the ‘well-being’ of his people. So, if he believes that the Constitution, law and public interest are being damaged by the erroneous cabinet, he can rightly intervene. Secondly, under Art. 163(1) he has undefined discretionary powers which can be used against his cabinet. Some of them have rightly exercised them on various occasions.
This is why some cabinets have demanded that they have a rightful claim on the issue of gubernatorial appointments. But, it may seriously affect public interest and disrupt our Constitutional and legal scheme. Moreover, it is necessary to retain this authority at the Centre for maintaining the organic unity of India as an authority.