APPOINTMENT OF GOVERNORS WHAT COULD HAVE BEEN

Sudipto Sircar
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The post election months this year saw another round of Governor Switches according to party
affiliations. Some chose to resign voluntarily while others chose to resist, resulting in their
transfer. We saw the resignation of B. L. Joshi from Uttar Pradesh, M. K. Narayanan from West
Bengal, Shekhar Dutt from Chhatisgarh, Vakkom Purushothaman from Tripura (who was also
officiating as the Governor of Nagaland). Kamla Beniwal, who managed a transfer from Gujarat
to Mizoram, too was ultimately sacked on allegations of impropriety. Kateekal Sankaranarayana,
former Governor of Maharashtra, also chose to resign after his unceremonious transfer to
Mizoram and will probably be replaced by a Bharatiya Janta Party veteran, most probably just
before or after the Maharashtra Assembly elections. Shiela Dikshit, erstwhile three times Chief
Minister of Delhi, who we thought would come out unscathed, also decided to resign as
Governor of Kerala just two days after Sankaranarayanas resignation.
Seasoned Political Pundits show little interest in such transfers and removals in todays political
scenario, considering it a standard convention against which even the opposition parties choose
to remain reticent and not raise a furore. What further dilutes general public interest in this
superfluous change is the irrelevance the post of the Governor has been subordinated to, with
Governors in most states considered as well connected retired bureaucrats or senior politicians
who have managed to secure the patronage of the Central Government of the day.
But did it have to be so? Did the Governor of a state really have to become so politically and
socially irrelevant? It is noteworthy that the Cabinet Mission Plan of 16
th
May, 1946 did not
concede the right to appoint Governors of the provinces to the Central Government. Article 155
of the Constitution provides that the Governor of a state shall be appointed by the President by
warrant under his hand and seal. Article 156(1) provides that the Governor of a state shall hold
Office during the pleasure of the President. But if you believe in the multiverse theory of parallel
universes, there is a chance that in one, if not more of them, the text of these Articles is
considerably different and the Governors in the various states of India are in a significant
position of power and have substantial, if not universal control, over the states affairs.
The source of such speculative questions and conjecture lies in the Constituent Assembly
Debates, and in the advice of the Late Sir B. N. Rau to the Constituent Assembly. For those who
are not aware, the Late Sir Benegal Narsinga Rau was appointed as an Adviser to the Constituent
Assembly in the year 1946. A Legal Counsellor, Law Reformer, Judge, International Lawyer

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Advocate, Supreme Court of India. He can be contacted at sudiptosircar@outlook.com
(and later on the first Indian Judge in the International Court of Justice) and even the former
Prime Minister of Jammu and Kashmir before it was formally fully merged into the Indian
Union, the versatility of his achievements may probably make some of his modern day
counterparts (if any) a tad envious. Yet what stands out is his foresight on the practical
application of the Constitution. He has been aptly classified as one of the Constitution framers
India forgot.
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B. N. Rau was not a member of the Assembly, but was perhaps as important in
the framing of the Constitution as Dr. B. R. Ambedkar himself. It was B. N. Rau who proposed
an alternate system to the presidential system of the appointment of Governors we follow today.
Rau suggested that the Governor of a province/state should be a person elected by the provincial
Legislature/State Assembly by a secret vote, according to the system of proportional
representation by the single transferable vote. He was against the appointment of a Governor by
the Central Government through the President. He believed that either the method of direct
election of the Governor by the public or the method of indirect election by the Provincial
legislature would be feasible. Of these two methods, he preferred the indirect election of the
Governor, since as per the Constitution, the Governor was intended, for the most part, to be a
responsible head, acting on the advice of the ministry. Rau suggested that for each province/state
there should be a Governor elected by the Provincial Legislature by secret vote according to the
system of proportional representation by the single transferable vote, i.e., the method adopted in
the election of the President.
Rau also went so far as to also recommend that the ministers at the provinces/states may be
appointed by the Governor, if he so preferred, by the method of election by the lower house of
the respective state Assembly according to the system of proportional representation. This was
possibly inspired by the elections in the Swiss executive and if implemented would have
contributed to better stability of positions of individual cabinet ministers in various state
Governments.

Be that as it may, the Supreme Court on 21
st
August, 2014 issued notice in the Writ Petition filed
by Aziz Qureshi
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challenging the authority of Union Home Secretary to call a Governor and ask
him to resign. Qureshis primary contention is that the Constitutional office of a Governor
cannot be undermined by a Secretary-Level Officer in the manner as claimed by him through an
informal communication on the phone. While we will now see protracted legal proceedings and
as is common in such cases, the Petitioner himself will gain little in terms of a relief, we will
hopefully in due course see a Judgment with an elaborate discussion on Article 155 and Article
156 and the facts and circumstances which are presented before the country today. This is all the
more important as the question has already once been left unanswered in the case of Ranji

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(article)
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Writ Petition (Civil) No. 763/2014

Thomas v. Union of India and Ors.
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A case which could have possibly prevented the scenario we
come across today, it was a Writ Petition filed as a Public Interest Litigation seeking the
intervention of the Supreme Court to restrain the President of India to forcibly extract
resignations from various Governors and Lt. Governors and further asked for a direction to the
President not to accept the involuntary resignations of the Governors and Lt. Governors
submitted in 1990. Unfortunately, it was disposed off in the following terms:

5. The learned Attorney General appearing for the Union of India submits that
this public interest litigation is not maintainable at the instance of the petitioner,
since none of the Governors or Lt. Governors have approached this Court or
protested against their being asked to resign and that the petitioner cannot
challenge an act which the party affected does not wish to nor intend to
challenge. He relies upon the observations made by this Court in the case of S.P.
Gupta v. Union of India1.
6. Insofar as prayers (a) and (b) in the writ petition are concerned, we find force
in the submission of the learned Attorney General. But, insofar as prayer (c) of
the writ petition is concerned, it raises an important public issue and involves the
interpretation of Article 156 of the Constitution of India, as at present advised, we
do not think that we can deny locus to the petitioner for raising that issue.
7. We, however, find that the material on the record for seeking adjudication of
that issue is absolutely scanty and wanting. What communication was sent by the
President has not even been disclosed. As a matter of fact no material, except a
couple of newspaper reports, the correction of which also has not been verified or
authenticated by the petitioner, has been placed on record by the petitioner to
provide a factual matrix for consideration of the writ petition.
8. Faced with this situation, the petitioner, who appears in person, submits that he
has been unable to procure the relevant material and place the same on record in
support of the averments made in the writ petition filed about ten years ago. He,
therefore, seeks to withdraw the writ petition. Accordingly, we dismiss the writ
petition as withdrawn. No costs.

After this came the landmark Judgement of B. P. Singhal v. Union of India
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, a Judgement which
despite its generally positive reception, is one which barks more than it bites. A muscular
observation that [A] Governor cannot be removed on the ground that he is out of sync with the

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(2000) 2 SCC 81
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(2010) 6 SCC 331
policies and ideologies of the Union Government or the party in power at the Centre. Nor can he
be removed on the ground that the Union Government has lost confidence in him. It follows
therefore that change in government at Centre is not a ground for removal of Governors holding
office to make way for others favoured by the new government is systematically weakened





(i) Under Article 156(1), the Governor holds office during the pleasure of the President.
Therefore, the President can remove the Governor from office at any time without
assigning any reason and without giving any opportunity to show cause.
(ii) Though no reason need be assigned for discontinuance of the pleasure resulting in
removal, the power under Article 156(1) cannot be exercised in an arbitrary, capricious
or unreasonable manner. The power will have to be exercised in rare and exceptional
circumstances for valid and compelling reasons. The compelling reasons are not
restricted to those enumerated by the petitioner (that is physical/mental disability,
corruption and behaviour unbecoming of a Governor) but are of a wider amplitude.
What would be compelling reasons would depend upon the facts and circumstances of
each case.
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(iii) (iv) As there is no need to assign reasons, any removal as a consequence of
withdrawal of the pleasure will be assumed to be valid and will be open to only a limited
judicial review. If the aggrieved person is able to demonstrate prima facie that his
removal was either arbitrary, malafide, capricious or whimsical, the court will call upon
the Union Government to disclose to the court, the material upon which the President
had taken the decision to withdraw the pleasure. If the Union Government does not
disclose any reason, or if the reasons disclosed are found to be irrelevant, arbitrary,
whimsical, or malafide, the court will interfere. However, the court will not interfere
merely on the ground that a different view is possible or that the material or reasons are
insufficient.




In the Constituent Assembly, despite some support, the arguments to structure the Constitution
as a Federal System with a Unitary Bias won over Raus proposals and Article 155 and Article
156(1) were adopted as they stand today. Unfortunate, as the Articles, if adopted as per Raus
Advice, would have probably kept the Central Government beyond controversy in the matter of
appointment of Governors that we see today and would have helped the Central Government to
avoid the criticisms now voiced as regard the appointment of Governors and as also regards
some of their actions. Perhaps, if it had been adopted there would have been more stability of the
ministries in the states and partisan politics would not be primary determinant over the
appointment of Governors and other executive members in the states.

(The Writer is a practicing Advocate in the Supreme Court of India. He can be contacted at
sudiptosircar@outlook.com)