Discretionary Powers of The Governor

Chapter- VI
Discretionary Powers of the Governor in India
6.1 Meaning of Discretion:
Discretion means freedom to act according to one’s own judgement.
According to Law Laxicon, Discretion means a power or right conferred upon them
by law and discretionary power means a term which involves an alternative power
i.e. power to do or refrain from doing a certain thing or power of free decision or
choice with in certain legal bounds.1
According to the New International Webster’s Dictionary, discretion
means the act or liberty of deciding according to justice and propriety and one’s
idea of what is right and proper under the circumstances, without willfulness or
favor.2
According to Concise Oxford English Dictionary, discretion means
the freedom to decide on a course of action.3 So, different dictionaries defined
discretion as the liberty for doing an action without causing any embarrassment.
6.2 Discretionary Powers of the Governor:
Discretionary powers of the Governor means the powers of the
Governor which he exercises as per his own individual judgement or without the
aid and advice of the Council of Ministers. In the discharge of his responsibilities as
the Head of the State, the Governor exercises his powers similar to that of the
1
P. Ramanatha Aiyar, Law Laxicon, Wadhwa & Company, 2000, pp. 565-566.
2
Deluxe Encyclopedic Edition, Trident Press International 2005, p. 365.
3
Oxford Printing Press, 11th edition, 2006, p. 410.
168
President as the Head of the Union. Our Constitution 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 functions4.
The entire administration of the State is carried out in the name of
the Governor but practically the real authority is exercised by the Council of
Ministers. During the normal circumstances, Governor acts according to the advice
of his Council of Ministers. However, Constitution has also vested the Governor
with certain discretionary powers, which he can use without the aid and advice of
the Council of Ministers or in other words, in the discharge of these functions the
Governor concerned is not bound to seek or accept the advice of his Council of
Ministers.
About the discretionary powers granted to the Governors, Dr. B. R.
Ambedkar, the Chairman of Constituent Assembly expressed his views that,
“Because the Provincial Governments are required to work in
subordination to the Central Government and therefore, the Governor will reserve
certain things in order to give the President the opportunity to see that the rules
under which the Provincial Governments are supposed to act according to the
Constitution or in subordination to the Central Government are observed.”5
But the occasions to exercise such discretionary powers are few and
far. Madras High Court in the case of S. Dharmalingam vs Governor of Tamil
Nadu6 held that certain powers are available to the Governor under Article 1637
4
Article 163 (1), Constitution of India.
5
Vol. VIII, CAD at 502.
6
AIR 1989 Mad. 48.
169
which he would exercise in his sole discretion. The immunity of the Governor is
absolute, when he acts in his own discretion. In Pratap Singh Raojirao Rane vs
Governor of Goa,8 court held that the Governor is not answerable to the court even
in respect of charge of malafide. Discretionary powers of the Governor may be
divided into two parts:
i) Specific discretionary powers,
ii) Circumstantial discretionary power.
6.2.1 Specific Discretionary Powers:
Circumstances, which are mentioned in the Constitution, under
which the Governor may use his discretion, are called specific discretionary
powers. By specific Articles in the Constitution certain responsibilities are
conferred on the Governor and to fulfill these responsibilities Governor acts in his
discretion. In discharging these responsibilities, he is not bound to seek or accept
the advice of his Council of Ministers. In the case of Ganamani vs Governor of
Andhra9 the court observed that “All the powers exercisable by the Governor can
be exercised on the advice of the Council of Ministers except insofar as the
Constitution expressly or perhaps by necessary implication says that he can exercise
those powers in his individual discretion”
The Articles which give specific discretionary powers to the
Governor are as under:
6.2.1.1 Article 239:
7
Constitution of India.
8
AIR 1999 Bom. 53.
9
AIR 1954 A.P. 9.
170
Article 239 provides that a Union Territory shall be administered by
the President through an Administrator with such designation as he may specify or
a Governor of a State, adjoining Union Territory, may be appointed as the
Administrator of that Union Territory. Where the Governor of a State is appointed
as the Administrator of an adjoining Union Territory, he shall exercise his functions
as the Administrator without the aid and advice of his Council of Ministers. Or in
other words Governor as an Administrator can act independently without his
Council of Ministers.
6.2.1.2 Para Nine of Sixth Schedule:
Para nine of 6th schedule10 is related to the licences or leases for the
purpose of prospecting for or extraction of minerals. Part-1 of para nine of 6th
schedule provides that “such share of the royalties accruing each year from licences
or leases for the purpose of prospecting for or extraction of minerals guaranteed by
the government of the State in respect of any area within an autonomous District as
may be agreed upon between the government of the State and the District Council
of such District shall be made over to that District Council.
Part-2 of para nine of 6th schedule provides that if any dispute arises
as to the share of such royalties to be made over to a District Council, it shall be
referred to the Governor for determination and the amount determined by the
Governor in his discretion shall be deemed to the amount payable under part-1 of
para 9 of 6th schedule to the District Council and the decision of the Governor shall
be final.
10
Constitution of India.
171
6.2.1.3 Article 371:
Article 371 of the Constitution provides that the President may
confer special responsibilities upon the Governor with respect to the State of
Maharashtra and Gujarat for the establishment of separate Development Boards for
Vidarbha, Marathwada, Saurashtra, Kutch and the rest of Gujarat with the provision
that a report on the working of each of these Boards will be placed each year before
the State Legislative Assembly.
Article 371 A of the Constitution has conferred special
responsibilities on the Governor of Nagaland for certain purposes. For discharging
these responsibilities the Governor shall after consulting his Council of Ministers,
exercise his individual judgement as to the action to be taken. These responsibilities
are as follows:
i) with respect to law and order so long as internal disturbances occur in some
areas of that State.
ii) to establish a Regional Council for Tuensang District.
iii) to arrange for equitable allocation of money between Tuensang District and
the rest of Nagaland.11
Article 371 C of the Constitution12 confers special responsibilities
upon the Governor of Manipur to secure the proper functioning of a Committee of
the Members of the Legislative Assembly consisting of the members representing
the Hill Area.
11
Brij Kishore Sharma, Introduction to the Constitution of India, Second Edition, Prentice- Hall
India, 2004, p. 187.
12
Inserted in the Constitution by the ( Constitution 27th Amendment) Act, 1971
172
Article 371 F (g) of the Constitution confers special responsibilities
upon the Governor of Sikkim for peace and for an equitable arrangement for
ensuring the social and economic advancement of different sections of the
population of Sikkim.
Article 371H (a) of the Constitution confers special responsibilities
upon the Governor of Arunachal Pradesh with respect to law and order in the State
of Arunachal Pradesh.
So, in discharging the obligations mentioned above the Governor is
not bound to seek the advice of the Council of Ministers and his role is not
controversial, when he acts in his discretion to fulfill his obligations. However, the
Sarkaria Commission recommended that “before taking a final decision in the
exercise of his discretion, it is advisable that the Governor should, if feasible
consult his Ministers even in such matters, which relate essentially to the
administration of a State”. Such a practice will be conducive to the maintenance of
healthy relations between the Governor and his Council of Ministers. 13
6.2.2 Circumstantial Discretionary Powers:
Circumstantial discretionary powers are not defined by the
Constitution. These powers are implied powers, which are exercised according to
the situations which may vary. When Governor acts in such circumstances, his role
becomes controversial many a times. This raises a question that whether the
Governor is merely a figure head, who is to exercise his powers in accordance with
the advice of his ministers, responsible to the Lower House or he has some real
13
Sarkaria Commission Report on Centre-State relations, para 4.14.05.
173
power. If any question arises as to 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.14
Report of Administrative Reforms Commission, which was set up in
1960 to review the Centre-State relations, pointed out that the Governor has to face
situations in which he has to take decisions in view of his oath of his office to
preserve, protect and defend the Constitution and the law of the land.
This report insists that the Governor must be impartial and must
have a sense of fair play and he should command the respect of all parties in his
State. He must have firm faith in the constitutional set up and the democratic
institution. The circumstances, in which the he may use his discretionary powers,
arise in the following matters;
i) Appointment of the Chief Minister;
ii) Governor’s Assent to Bills;
iii) Dissolution of State Assembly;
iv) Dismissal of Ministry;
v) Summon and Prorogue the State Assembly;
vi) Recommendation of President’s Rule;
vii) Pardoning Power;
viii) Appointment of the Vice-Chancellor;
14
174
6.2.2.1 Appointment of the Chief Minister:
There is a Council of Ministers in a State with the Chief Minister at
its head. Governor appoints the Chief Minister and other Ministers are appointed by
the Governor on the advice of the Chief Minister. Chief Minister holds office
during the pleasure of the Governor.15 The total number of Ministers, including the
Chief Minister, in the Council of Ministers in a State shall not exceed fifteen
percent of the total number of Members of the Legislative Assembly of that State
and the number of ministers including the Chief Minister shall not be less than
twelve in case of smaller States.16
Our Constitution is silent about the person who should be appointed
as the Chief Minister. It does also not prescribe any qualification for the person to
be appointed by the Governor as the Chief Minister.17
A person who is not a Member of any House may be appointed as the Chief
Minister for six months. After the completion of six months if he wants to be
continued as Chief Minister, then he has to be the Member of the House.18 There
have been cases when non-members have been appointed as Chief Ministers. In
1954 Kamraj Nadar was appointed as the Chief Minister of Madras. Shri T.N.
Singh was appointed as the Chief Minister of Uttar Pradesh on October 18, 1970.
15
16
Article 164 (1-A) inserted by the (Constitution 91st Amendment) Act, 2003.
17
Harsharan Verma vs Tribhuvan Narain Singh, AIR 1971(1) SCC 616.
18
Article 164(4), Constitution of India.
175
When his appointment was challenged, the Supreme Court19 ruled that “a non-
member can be appointed as Chief Minister for a period of six consecutive
months.”
In S.R. Chaudhuri vs State of Punjab20 the Court held that the
absence of the expression ‘from amongst the Members of the Legislature’ in Article
164(1), is indicative of the position that whereas under that provision a non-
legislator can be appointed as a Chief Minister, but that appointment would be
governed by Article 164(4), which places a restriction on such a non-member to
continue as a Minister or Chief Minister as the case may be, unless he can get
himself elected to the Legislature within the period of six consecutive months.”
While appointing the Chief Minister the Governor imposes the
condition that he should have to seek a vote of confidence of the State Assembly
within a stipulated period. But there is no specific provision in the Constitution
enabling the Governor to require the Chief Minister to prove his majority on the
floor of the House. The question has been raised whether in the absence of any such
constitutional provision, can the Governor impose such a condition on Chief
Minister. The Patna High Court ruled that the Governor can impose such a
condition in his discretion.21 Sarkaria Commission also recommended that a Chief
Minister, unless he is the leader of a party which has absolute majority in the
Assembly, should seek a vote of confidence in the Assembly within 30 days of
19
Harsharan Verma vs Tribhuvan Narain Singh, AIR 1971 SC 1331. The Supreme Court also
reiterated the ruling in Harsharan Verma vs UOI, AIR 1987 SC 1969, that a non- member can be
appointed as the Chief Minister.
20
AIR 2001 SC 2707.
21
M.P. Jain, Indian Constitutional Law, Fifth Edition, Wadhwa and Company 2003, p. 391.
176
taking over.22 In the appointment of the Chief Minister of a State, generally
Governor adopts such convention which is prevalent in India for the appointment of
the Prime Minister. The Governor shall perform the constitutional duty of
appointing the Chief Minister in the following circumstances:
a) After the General Assembly Elections.
b) When the Chief Minister resigns after losing confidence motion in the
House.
c) When the Chief Minister dies or resigns on any personal or political
ground.
d) When the Governor dismisses the ministry due to any reason.
6.2.2.1.1 Discretion of the Governor in the Appointment the Chief
Minister:
In the appointment of the Chief Minister, the Governor can use his
discretion. The extent of use of discretion in the appointment of the Chief Minister
depends upon the situation that arises. When a single party or group has the
majority, the leader of the majority party is invited to form the government. At this
time, Governor has not much say in the appointment of the Chief Minister. But he
can use his discretion in this situation also and refuse to appoint the leader of the
majority party as the Chief Minister, if the majority party in the Legislature asks to
appoint such a person as the Chief Minister, who is not qualified to be a member of
the Legislature or who is disqualified to be such.23
22
Supra note 13 para 4.16.10 (c).
23
B.R Kapur vs State of Tamil Nadu, AIR 2001 SC 3435.
177
In the appointment of the Chief Minister, the problem arises, when
no party has a clear-cut majority in the Legislature and in such situation the role of
the Governor becomes very important. Governor uses his discretion in the
appointment of the Chief Minister, where after the General Assembly elections, no
single party or group commands absolute majority. In such circumstances, the
Governor plays a very important role and uses his discretion. He may call such
person to form the government to whom he thinks fit to form the government.
Similarly, if after the death or resignation of the Chief Minister on any political
ground or after the defeat of the Chief Minister in the House, any party or group is
not in majority, the Governor may appoint such person as the Chief Minister to
whom he thinks fit.
Constitution does not provide any specific guidelines to the
Governor for the appointment of Chief Minister in such circumstances. That’s why
the Governors are not using any uniform practice in such circumstances. Some
times Governors have invited the leader of single largest party to form the
government and some times he invited the leader of the United Front, whether it
was formed prior to election or after the election. About the discretion of the
Governor in the appointment of the Chief Minister, Justice Mitra24 observed that
“the Governor in making the appointment of the Chief Minister under Article 164
(1) of the Constitution gets in his sole discretion. The exercise of this discretion by
the Governor cannot be called in question in High Court. There is no warrant in the
Constitution itself to read in Article 164 (1), a condition or restriction that the
Governor must act on the advice of Council of Ministers as provided in Article 163
24
Mahabir Prasad vs Prafulla Chandra, AIR 1969 Cal 198.
178
(1), in the matter of appointment of Chief Minister. It is for him to make such
enquiries as he thinks proper, to ascertain who among the Members of the
Legislature ought to be appointed as the Chief Minister and would be in a position
to enjoy the confidence of the majority in the Legislative Assembly of the State.”
By using his discretion, the role of the Governor comes many a
times in controversy. A.K. Sarkar former Chief Justice of India says that “the
Governor should make endeavors to appoint a person who has been found by him
as result of his soundings to be most likely to command a stable majority in the
Legislature”.25 On the Governor’s discretion, the Committee of the Governors
observed that right from the commencement of the Constitution, it has been
recognized that in the choice of the Chief Minister, the Governor’s decision under
Article 164 (1) is final and based entirely on his unfettered judgement26
6.2.2.1.2 Judicious use of Discretion in the Appointment of the Chief
Minister:
It is judicious use of the discretion in the appointment of the Chief
Minister, if Governor makes all attempts to form a stable government in the State
and appoints the Chief Minister in accordance with the following order:
i) The leader of the majority party in the Legislature;
ii) In case there is no majority party in the Legislature, then the leader of the
pre-poll alliance parties, who is in a position to form the government;
25
J.R. Siwach, Office of the Governor – A Critical Study, Sterling Publishers Pvt. Ltd., New Delhi,
1977, p. 35.
26
Dr. J.N. Pandey, Constitutional Law of India, Central Law Agency, 2007, p. 535.
179
iii) In case there is no majority of the pre-poll alliance in the Legislature then
the leader of the single largest party having position to form the
government;
iv) In case, single largest party is not in a position to form the government,
then the leader of the post-poll alliance parties may be called to form the
government.
v) In case the leader of the post-poll alliance parties is not in a position to
form the government, then he should invite another who is in the position
to form the government and this process may go on till the formation of
the government.
vi) Re-poll or the imposition of the President’s rule should be the last attempt.
There are many examples when the Governor used his discretion in
judicious manner. In 1952, in Madras all the opposition parties formed United
Democratic Front under the leadership of Shri T. Prakasham had the strength of 166
members and the Congress had the strength of 155 members out of 321 members,
the Governor Shri Sri Prakasa appointed Mr. C. Rajagopalachari, the leader of
Congress Party as a Chief Minister.
In 1967, in Kerala and in 1969, in West Bengal after the mid-term
elections the Governors judiciously appointed the Chief Ministers.27 On November
22, 1967 the Governor of West Bengal Mr. Dharam Vira appointed Dr. P.C. Ghose
27
R.C.S. Sarkar, “The Office of the Governor”, Parliamentary Studies, Vol. III Part- I, 1969, p. 25.
180
as the Chief Minister28, when the then Chief Minister Mr. Ajoy Mukherjee refused
to face the Assembly.
In Rajasthan, in Fourth General Assembly Elections in 1967, the
Congress Party won 88 seats and became single largest party. There were also non-
congress parties who claimed majority support of 93 members in the House of 183
members but the Governor, Dr. Sampurnanand invited the leader of Congress Party,
Mr. M.L. Sukhadia to form the government.29
After the General Assembly Elections in May 1982 in Kerala, the
Governor called the leader of United Democratic Front (pre-electoral group of Non-
Communist Parties) to form the ministry. It was the judicious use of discretionary
power by the Governor, Sh. Syed Sibte Razi to appoint Sh. Arjun Munda, leader of
the BJP-JDU alliance, as the Chief Minister of Jharkhand on March 12, 2005, when
Shibu Soren failed to prove his majority on the floor of the House on March 11,
2005.
After the sudden demise of Andhra Pradesh Chief Minister, Sh. Y.S.
Rajasekhara, Governor appointed Sh. K. Rosaiah as caretaker Chief Minister of
Andhra Pradesh on 3.09.2009.30
After the Vidhan Sabha Elections, 2009 in Haryana, Congress Party
got 40 seats and Indian National Lok Dal got 31 seats out of 90 seats.31 Being the
head of the largest single party, Sh. Bhupinder Singh Hooda was administered oath
28
The Hindustan Times, Nov. 23, 1967, p. 1.
29
The Statesman, March 5, 1967.
30
The Tribune, Sept. 4, 2009, p. 1.
31
The Tribune, Oct. 23, 2009, p. 1.
181
as the Chief Minister of Haryana by the Governor, Sh. Jagannath Pahadia on
October 25, 2009.32
After the Vidhan Sabha Elections, 2009 in Maharashtra,
Congress Party and Nationalists Congress Party alliance got 144 seats and
Bharatiya Janta Party and Shiv Sena alliance got 90 seats in a 288 members
Assembly.33 Governor of Maharashtra invited, Sh. Ashok Chauhan on November 7,
2009 to swear-in as the Chief Minister.
After the Vidhan Sabha Elections, 2009 in Arunachal Pradesh,
Congress Party got 42 seats in a 60 members Assembly.34 Being the head of the
largest single party, Sh. Dorjee Khandu was sworn-in as the Chief Minister of
Arunachal Pradesh by the Governor, Lieutenant General Retd. JJ Singh on October
25, 2009.35 After the Vidhan Sabha Election in the Jharkhand, result delivered a
fractured mandate. Since, no single party or the pre-poll alliance group got majority
in the House, the Governor, K. Sankaranarayanan, called Shibu Soren of Jharkhand
Mukti Morcha (JMM) to form the government on December 27, 2009. He was
supported after poll by Bharatiya Janta Party (BJP) and All-Jharkhand Students’
Union (AJSU).36
32
Id. Oct. 26, 2009, p. 3.
33
Supra note 31.
34
Ibid.
35
Supra note 32 at 2.
36
India News Online, Dec. 28, 2009.
182
6.2.2.1.3 Misuse of Discretion in the Appointment of the Chief
Minister:
Many a times Governors misuse their discretionary power in
appointing a Chief Minister. In some instances, he did not give a chance to form the
government to the claimant. Even guidelines are provided time to time by different
endeavors but the Governors continue to misuse their discretion and the check on
this power could not be imposed. Sometimes the Governors do not even follow the
report of the Governors’ Committee according to which the majority of the party
must be tested on the floor of the House.
In Orissa, Nandini Satpathi formed the government on June 14,
1974. Since she had no political base in the State and certain members of the House
were also opposing her, on March 1, 1973, she lost majority in the House and
resigned. Biju Patnaik, who formed Pragati Front, claimed to form the government
with strength of 72 members. But the Governor did not give him a chance to form
the government without assigning any reason.
In 1982, in General Assembly Elections in Haryana, Lok Dal –BJP
pre-electoral alliance got 36 seats and Congress got 35 seats out of 90 seats. The
Governor, Mr. G.D. Tappasse invited the leader of Lok Dal – BJP group to form the
government but suddenly he changed his decision and invited the leader of
Congress Party to form the government by saying that Congress is the single largest
party. This manner of the Governor that he first invited the leader of alliance and
then suddenly changed his decision, created a lot of controversy because Governor
did it on the direction of the Centre.
183
On May 11, 1984, Shri Homi Taleyar Khan, the Governor of Sikkim
appointed Shri B.B. Gurung as new Chief Minister after dismissing Shri Nar
Bahadur Bhandari in spite of the fact that he enjoyed the majority support. The
Governor dismissed him because of the difference between him and the Governor.
This was the misuse of discretionary power.
When 12 MLA’s of National Conference Party withdrew their
support to it and joined Real National Conference, the Chief Minister Dr. Farooq
Abdullah requested the Governor of Jammu & Kashmir, Shri Jagmohan to summon
the Assembly to test the majority on the floor of the House. But the Governor on
the evening of 2nd July, 1984 dismissed Dr. Farooq Abdullah and appointed Shri
G.M. Shah as the new Chief Minister on the same evening. This action of the
Governor was the misuse of his power in the appointment of the Chief Minister
because he acted arbitrarily and in haste. The opposition parties criticized the
dismissal of Dr. Farooq Abdullah’s ministry and the installation of G.M. Shah’s
government with in few hours.
In 1984, in Andhra Pradesh, when N.T. Rama Rao was the Chief
Minister of Andhra Pradesh, Shri Bhaskara Rao, the Finance Minister revolted
against him. Shri Bhaskara Rao with some defected members joined hand with
Congress-I and claimed to form the government. The Governor, Shri Ram Lal
without verifying the strength of Shri Bhaskara Rao asked the Chief Minister N.T.
Rama Rao to tender his resignation by saying that he had lost the majority. Shri N.T
Rama Rao refused to resign and advised the Governor to convene the emergency
session of the House and to give him a chance to prove his majority on the floor of
184
the House. But on August 16, 1984, the Governor dismissed the Chief Minister
N.T. Rama Rao and appointed Shri Bhaskara Rao as the Chief Minister in spite of
the fact that N.T. Rama Rao paraded with his supporters before the Governor. The
Governor should have accepted the advice of Shri N.T. Rama Rao to give him a
chance to prove his majority on the floor of the House. The Governor exercised his
discretionary power in an arbitrary and dictatorial manner.
In General Assembly Elections of October 1997, in UP, in a 425
members House, no party got majority. BJP got 176 seats, Samajwadi Party got 134
seats and BSP and its combine got 100 seats. In such circumstance, the Governor,
Mr. Romesh Bhandari did not call any leader of any party to form the government,
which was not reasonable. Governor should have tried his best to form the
government. He should call the leader of the single largest party i.e. B.J.P. to form
the government.
On Feb. 21, 1998, in U.P., the Governor dismissed the Kalyan Singh
Government without giving him an opportunity to face the confidence motion and
invited the leader of Loktantrik Party, Mr. Jagdamba Pal to form the ministry at
10.30 P.M. It shows the malafide intention of the Governor. The then President of
India, Mr. K.R. Narayanan had also advised the Governor not to act in haste.
Allahabad High Court restored the Kalyan Singh Government and quashed the
appointment of Jagdambika Pal. Jagdambika Pal moved the Supreme Court against
the Allahabad High Court order reinstating the Kalyan Singh Government.37
37
Jagdambika Pal vs State of U.P., AIR 1998 SC 998.
185
On May 14, 2001 the Governor of Tamil Nadu, Fatima Beevi vowed
Jayalalitha as Chief Minister in spite of the fact that she stood convicted by the
judiciary for corruption. It was the misuse of discretionary power in the
appointment of the Chief Minister. The Governor should have refused to vow
Jayalalitha as the Chief Minister. The Supreme Court38 ordered for dismissal of
convicted Tamil Nadu Chief Minister, Ms. Jayalalitha and ruled that it was beyond
the discretion of Governor to appoint as Chief Minister an ineligible person
disqualified to contest election or a lunatic or a foreigner.39
In General Assembly Election of October 2002, in Jammu &
Kashmir in 87 members House, National Conference Party got 28 seats, Congress
Party got 21 seats and People Democratic Party got 15 seats. Hence, National
Conference Party was the single largest party. But the Governor, Mr. G.C. Sexena
invited the leader of PDP to form the government.
After the General Assembly Elections in Jharkhand, in Jan. 2005,
BJP-JDU pre-poll alliance got 36 seats and JMM-Congress alliance got 26 seats out
of 81 members Assembly. BJP-JDU alliance claimed to form the government but
Governor, Mr. Sibte Razi ignored their claim and appointed Mr. Shibu Soren as the
Chief Minister. This was the clear misuse of the discretionary power of in the
appointment of the Chief Minister.
38
Supra note 23.
39
Times of India, Sept. 21, 2001.
186
6.2.2.1.4 Guidelines Suggested by the Committee of Governors:
Committee of Governors suggested the following guidelines to the
Governors for the appointment of the Chief Minister;40
i) Where a single party commands a majority in the assembly, the Governor
is to call upon its leader to form the government.
ii) It is not incumbent on the Governor to invite the leader of the largest party
(not in majority) to form the government. The ultimate test for the purpose
is not the size of a party but its ability to command a majority in the
House.
iii) If before the election, some parties combine and produce an agreed
programme and the combination gets a majority after the election, the
commonly chosen leader of the combination should be invited to form the
government.
iv) If no party is returned in a majority at the election and thereafter two or
more parties come together to form the government, the leader of the
combination may be invited to form the government.
v) The leader of the minority party may be invited to form the government, if
the Governor is satisfied that the leader will be able to muster majority
support in the House.
vi) Ordinarily, an elected member of the Legislature should be chosen as the
Chief Minister. A non-member or a nominated member of the Legislature
40
President appointed a Committee of Governors on November 26, 1970 to study the role of
Governors.
187
ought not to be appointed as the Chief Minister except in exceptional
circumstances. In any case, he should become an elected member of the
Legislature as soon as possible.41
6.2.2.1.5 Recommendations of Sarkaria Commission for the
Appointment of the Chief Minister:
In the appointment of the Chief Minister the Commission provides
the following guidelines:42
i) The leader of the single largest party having absolute majority in the
Assembly should be asked to form the Government.
ii) If no party has the majority, then the leader of an alliance of parties that was
formed prior to the elections should be called to form the Government.
iii) In case there is no coalition prior to the elections, then the leader of single
largest party who claims to form the Government with others should be
called to form the Government.
iv) In case no Government is formed, then the leader of the post electoral
coalition parties should be called to form the Government.
6.2.2.1.6 Guidelines provided by the M.M. Punchhi Commission
regarding Appointment of the Chief Minister:
Punchhi Commission laid down significant guidelines for the
appointment of Chief Ministers.43 And uphold the view that a pre-poll alliance
41
Supra note 21 at 409.
42
Supra note 13 para 4.16.10.
188
should be treated as one political party; it lays down the order of precedence that
ought to be followed by the Governor in case of a hung House:
i) Call the group with the largest pre-poll alliance commanding the largest
number;
ii) the single largest party with support of others;
iii) the post-electoral coalition with all parties joining the government; and last
iv) the post-electoral alliance with some parties joining the government and
remaining including Independents supporting from outside.
6.2.2.2 Governor’s Assent to Bills:
Governor is the part of the State Legislature. Article 168 (1) of the
Constitution itself provides that for every State there shall be a Legislature, which
shall consist of the Governor and the Houses one or two as the case may be.
According to the Article 200, when a Bill has been passed by the Legislative
Assembly of the State or in the case of a State having a Legislative Council too, has
been passed by both Houses, it shall be presented to Governor for his assent. This
Article is the reproduction of Section 75 of the Government of India Act, 1935 with
two small modifications. First, Article 200 of the Constitution does not fix any time
limit for granting the assent to the Bill and second is that, he is withholding his
assent or that he is reserving it for the assent of the President. When a Bill is
43
www.civil services times. com. Punchhi Commission was set up in April 2007 under the
chairmanship of the Justice Madan Mohan Punchhi, to take a fresh look at the relative roles and
responsibilities of the various levels of government and their inter-relations. The members of the
Commission are Dhirendra Singh, V. K. Duggal, Dr. N. R. Madhava Menon and Vijay Shankar.
Commission submitted its report on April 19, 2010.
189
produced for the assent of the Governor, he may take any one of the following
actions:
i) He may assent to the Bill,
ii) He may withhold his assent,
iii) He may reserve the Bill for the consideration of the President,
iv) He may return the Bill to the House for re-consideration, if it is not a Money
Bill, with a request that the Bill or any specified provision of it may be
considered again and emphasize, in particular, the desirability of introducing
any such amendments as he may recommend.
First Proviso to Article 200 of the Constitution provides that when a
Bill is returned by the Governor to the House for its re-consideration and the House
or Houses passed it again after the re-consideration with or without amendments
and presented to the Governor for his assent, he shall not withhold the assent
therefrom. He must either give his assent or reserve the Bill for the sanction of the
President. Article 200 does not contemplate the Governor giving his assent and
thereafter, when the Bill has become a full fledged law, reserving it for the
consideration of the President. Only Bills passed by the House or Houses of
Legislature may be reserved for the consideration of the President and not laws to
which the Governor or the President, if reserved for his consideration, has already
given his assent.44 Except second proviso45 to Article 200 of the Constitution, it
44
V.N. Shukla, Constitution of India, 10th edition, Eastern Book Company, 2006, p. 520.
45
The Governor has been directed by this proviso not to assent to, but to reserve for consideration by
the President, any Bill which would, in the opinion of the Governor, if passed into law, so
derogate from the powers of the High Court as to endanger the role which it is designed to fulfill
under the Constitution.
190
does not lay down any guidelines in which matters should the Governor reserve the
Bill for the consideration of the President. The Supreme Court held that the
Governor’s power to reserve the Bill for the consideration of the President cannot
be questioned in court.46 So, the Governor may use his discretion by reserving the
Bills for the consideration of the President.
6.2.2.2.1 Extent of Governor’s Discretion to Assent the Bills:
In the form of government set up under the Indian Constitution, it
would be politically impossible for a Governor to refuse his assent to a Bill, after it
has been passed by the Legislature because he acts in this matter, as in all other
public matters, on the advice of his Cabinet and no Bill could pass through both the
Houses and come before the Governor for his assent, if it was opposed by the
Cabinet. However, the power vested in the Governor to reserve a Bill for the
consideration of the President is discretionary.47 It is general provision of Article
200 of the Constitution that enables the Governor to reserve a Bill passed by the
State Legislature for Presidential consideration and assent. It is his discretion
whether the Bill should be reserved for the consideration of the President and in this
respect the Governor becomes an important link between the Union and the States,
thereby enabling the Union to exercise some kind of control over the legislative
activities of the State.
But Article 200 of the Constitution does not make clear that in which
situations and circumstances the Governor may reserve the Bill for the
consideration of the President. Or in other words, no norms have been laid down in
46
Hoechst Pharmaceuticals v. State of Bihar, AIR 1983 SC 1019.
47
191
the Constitution as to when the Governor can exercise this power or when the
President can refuse to give his assent to a State Bill. On its face, it appears to give
a blank cheque to the Governor and he would exercise this power in his sole
discretion.48 Some situations when the Governor may be justified in reserving a
State Bill are:
a) When the State Bill suffers from patent unconstitutionality.
b) When a State Bill derogates from the scheme and frame work of the
Constitution so as to endanger the sovereignty, unity and integrity of the
Country.
c) When the State Bill ex-facie comes in conflict with a central law.
d) When the legitimate interests of another State or its people are being
adversely affected.
Mere policy differences between the Governor and the State
Government do not justify reservation of the State Bills by the Governor for
President’s assent. It may be stated that in several situations, the State Legislature
may exceed its Legislative competence. The Punjab Legislative Assembly passed
the Temporary Tax Bill, which levied a surcharge of 1% on sales tax. Centre
refused its assent to the Bill as its effect was to levy 8% tax on luxury goods instead
of 7% as fixed in the Chief Ministers Conference. Secondly, it levied 3% tax on
declared essential goods instead of 2% tax as permissible under Central Sales Tax
Act, 1956. Centre assented to it after the removal of all lacunae.
The Kerala Education Bill of 1957, the Kerala Agrarian Reform Bill
of 1957 and the Madhya Pradesh Panchayat Raj Bill in 1961 were reserved by the
48
192
Governor for the consideration of the President. When the Kerala Education Bill of
1957 was passed by the Kerala State Legislature, it led to wide spread agitation in
the State. Governor reserved it for the consideration of the President. The President
with a view to avoid the involvement of the Centre in any controversy referred it to
the Supreme Court for an advisory opinion. The Supreme Court held that some of
the provisions of the Bill offended Article 30 (1) of the Constitution pertaining to
the rights of minorities to establish and administer educational institutions. The
President sent the Bill back to the State for necessary amendments in the Bill by
State Legislature in the light of the Supreme Court’s opinion.49
Centre refused to assent the Madhya Pradesh Panchayat Raj Bill of
1960, because it provided for nominated village panchayats to be set up for a year
and the Centre took the view that the system of nominations was a negation of the
concept of Panchayats. The Governor of Haryana Babu Parmanand did not give his
assent to the amendment to the Central Statute, the Public Gambling Act, 1867,
which would enable the State to allow betting and gambling as they were part of the
State subject. The Casino Bill related to grant of licenses for opening Casinos in the
State. The Governor by not giving assent to the Bills was reported to have upset the
Chief Minister and his Council of Ministers. Opposition parties had alleged that the
government passed the Bills in great haste. Opening of Casinos was also being
opposed by social and non-government organizations.50 When, the Rajasthan
Dharam Swatantrya Vidheyak, 2008, was passed again by the State Legislature, the
Governor, S.K. Singh reserved it and sent it for the consideration of the President.
49
Bharat Sevashram Sangh vs State of Gujarat, AIR 1987 SC 494.
50
The Tribune, Feb. 14, 2003.
193
The proposed law prohibits conversions by force, allurement, or fraudulent means
and provides for a prison term of a maximum of five years and/or fine of Rs. 50,000
for anyone convicted of the offence. It was against the Articles 24 (1), 25 and 26 of
the Constitution. The Union Law Ministry wrote and advised the President to
withhold assent to the Bill as “the Constitution states that there can be no
restrictions on willful conversion from one religion to another.”51
The Resettlement (of J&K State Subjects who left the State before
1954 and are now living in Pakistan) Bill passed by the State Legislature in 1982
and sent it to the then Governor, B.K. Nehru, for his assent. He, however, returned
it for re-consideration. A presidential reference to this Act was made to the
Supreme Court seeking the opinion “as to whether the Bill or any of the provisions
thereof, if enacted would be constitutionally invalid''. The Supreme Court returned
the Bill unanswered after 18 years, thus accepting the Legislature's competence to
pass it.52 Rajasthan Religious Freedom Bill was reserved for the consideration of
the President by Governor Pratibha Patil.53
Further; the Second Proviso to Article 200 of the Constitution is
intended to preserve the independence, dignity and status of a High Court. Under
the Constitution the State Legislatures have exclusive law making power on matters
touching the jurisdiction and powers of all courts within the State in respect of
matters within their exclusive competence. The powers might be used by a State
Legislature to deprive the High Court of much of its jurisdiction and power and to
51
Chhibber Maneesh, Indian Express. Com, posted on Jan. 5, 2009.
52
The Hindu, Nov. 16, 2001.
53
The Hindu, May 23, 2006.
194
transfer the same to inferior courts and thus to lower the prestige and influence of
the High Court. As a safeguard the Governor has been directed by this proviso not
to assent to, but to reserve for consideration by the President, any Bill which would,
in the opinion of the Governor, if passed into law, so derogate from the powers of
the High Court as to endanger the role which it is designed to fulfill under the
Constitution. So, it is a safeguard against a State passing any law which may
adversely affect the powers, jurisdiction or status of the High Court. The Centre can
intervene in a fit case and preserve the High Court’s constitutional status. Many
examples of this nature can be found from time to time.
By reserving a Bill for the consideration of the President, some
Governors had used this power to delay the implementation of legislations. What is
happening in fact is that Governors generally act according to the instructions of the
Cabinet at the Centre. If the party/group in power at the Centre is a different from
the one in the State (whose Legislature has passed the particular Bill) and more
particularly where the party in power at the Centre is in opposition in the State
Legislature and had opposed the said Bill, or for any other reason, the Cabinet may
instruct the Governor either to withhold his assent or reserve it for the
consideration of the President or return the Bill in case the party position in the
Legislature has, in the meanwhile, undergone a change. If any such instructions are
received by the Governor, most likely, he would act according to them,
notwithstanding the advice of his Council of Ministers to the contrary. This is
clearly an undemocratic exercise of power by the Governor. The Legislature has no
remedy against any arbitrary withholding of assent, inordinate delay in granting
195
assent or unwarranted and unjustified reservation of a Bill for the consideration of
the President.54
On the question that whether a Bill should have been reserved for the
consideration of the President or not, the Supreme Court held that it is for the
Governor to exercise his individual judgement to decide whether he should assent
to the Bill or should reserve it for the consideration of the President.55 And on the
question that in case if the reservation of a Bill for the consideration of the
President is necessary and Governor gave his assent, can it be reserved for the
consideration of the President after it became full-fledged law, the Supreme Court
held that the Governor is prohibited from giving his assent before the
recommendations of the President.56
According to Article 255 of the Constitution, no Act of Parliament or
of a State Legislature is to be invalidated by reason only that the recommendation
or previous sanction of the President required by the Constitution was not given, if
assent is given to it by the President subsequently. A law levying a tax was passed
by the Rajasthan State Legislature, but it did not secure the assent of the President.
Later on State Legislature enacted another law declaring that the earlier law would
not be deemed to be invalid by reason of the fact that the earlier law had not
secured the assent of the President. But the Supreme Court in the case Jawaharmal
vs State of Rajasthan57 declared that the later law which secured the assent of the
54
Report of National Commission to Review the Working of the Constitution, May 11, 2001, p. 894.
55
56
State of Bihar vs Maharajadhiraj Sri Kameswar Singh of Darbhanga and others, AIR 1952 SC
252.
57
AIR 1966 SC 764.
196
President could not cure the infirmity of the earlier law. That infirmity could be
cured only by Presidential assent.
6.2.2.2.2 Specific Situations which Compulsorily Require Central
Assent:
The circumstances in which a Bill is reserved by the Governor for
presidential assent are as under:
i) The second Proviso to Article 200 of the Constitution as discussed earlier
provides a safeguard against a State passing any law which may adversely
affect the powers, jurisdiction or status of the High Court.
ii) Article 31A (1) of the Constitution provides that a law regarding acquisition
of estates will not be invalid even if it is inconsistent with Articles 14 or 19
of the Constitution. However, under the First Proviso to Article 31A (1), the
exemption granted to some categories of acquisitorial law from Articles 14
and 19, cannot be available unless the relevant State Law has been reserved
for the consideration of the President and has received his assent. In this
way, the Centre can ensure that the States make only justifiable use of their
power to deviate from the fundamental rights.
The proviso enables the Central Executive to keep some check on
State Laws falling under Article 31A (1), so that there is some uniformity
among the State Laws and that there is no undue curtailment of the
fundamental rights guaranteed by Article 14 and 19. The Centre can also
ensure that the State does not use its legislative power for a purpose
extraneous or collateral to the purposes mentioned in Article 31A (1). This
197
is a safeguard against undue, excessive and indiscriminate abridgement of
fundamental rights by State legislation.
iii) Article 31(C) of the Constitution gives overriding effect to the directive
principles over fundamental rights guaranteed by Articles 14 & 19 of the
Constitution, but a State law can claim this effect only if the President gives
his assent to it. This is also a safeguard against undue abridgment of
fundamental rights in the name of implementation of directive principles. It
may be appreciated that Article 31 (C) confers very drastic power on State
Legislatures and so some safeguard is necessary against unwise and
inappropriate laws being enacted and claiming exemption from fundamental
rights guaranteed by Articles 14 or 19.
iv) Under Article 288 (2) of the Constitution, a State legislation imposing or
authorizing imposing of a tax in respect of any water or electricity stored,
generated, consumed, distributed or sold by an authority established by law
made by Parliament for regulating or developing any interstate river or river
valley, has no effect unless it has received the assent of the President.
v) Article 301 of the Constitution declare that trade, commerce and intercourse
shall be free throughout India. However, under Article 304 (b), a State
Legislature may impose reasonable restriction in public interest on the
freedom of trade; commerce or intercourse with or within that State as may
be required in the public interest but no such Bill is to be moved in the State
Legislature without the previous sanction of the President. This Proviso is
also a safeguard to ensure that State laws do not unduly disrupt the
198
economic unity of the Country. The Centre can ensure that States do not
make laws to unnecessarily curtail freedom of trade and commerce. It may
however be mentioned that in the absence of prior sanction of the President,
the defect can be cured under Article 255 by subsequent assent of the
President to the State law in question.
vi) Under Article 254 (2) of the Constitution, repugnancy or inconsistency
between a State law and a Central law with respect to a matter in the
Concurrent List may be cured by the assent of the President to State
legislation.
vii) When a proclamation of financial emergency is in operation under Article
360 (1) of the Constitution, the President can direct the States to reserve all
Money Bills or Financial Bills for the President’s consideration, after they
are passed by the State Legislature.
6.2.2.2.3 President’s Assent to State Bills:
When a Bill is reserved for the consideration of the President, he
may take one of three courses:
i) He may assent to the Bill,
ii) He may withhold the Bill, or
iii) He may, where the Bill is not a Money Bill, direct the Governor to return
the Bill to the Houses of the Legislature of the State together with such a
message as is referred to in the First Proviso to Article 200 of the
Constitution. It shall be the duty of the Houses to reconsider the Bill within
a period of six months from the date of receipt of such message. If it is again
199
passed by the House, it shall be presented again to the President for his
consideration.58
When a Bill is again presented to the President for his assent after its
reconsideration by the House, nothing is said as to what the President may do
thereafter, but presumably, he may follow the same course as explained above. It
does not appear that there is any obligation on the President to give his assent to the
Bill. But an Act, which has been passed by the Governor, cannot be disallowed by
the President. Article 201 of the Constitution does not prescribe any time limit
within which, the President has to come to his decision on a Bill referred to him for
his assent. It shows that a Bill reserved by the Governor for the consideration of the
President does not lapse as a result of the dissolution of the State Assembly.
In the case of Jamalpur Gram Panchayat vs Malwinder Singh59,
the Supreme Court held that if the assent of the President were sought to the law for
a specific purpose, the efficacy of the assent would be limited to that purpose and
cannot be extended beyond it.
Article 201 of the Constitution confers an unrestricted power on the
Central Government to examine the reserved State Laws. However, the Central
control over the State laws is justified in some situations. There are considerations
of uniformity of law and uniformity of approach in certain basic matters. If, for
instance, a State Government were to embark on a large scale indiscriminate
nationalisation, its impact may be felt not merely within the State but the national
economic interest as a whole may be affected, it may drive away foreign investors
58
Article 201, Constitution of India.
59
AIR 1985 SC 1394
200
from the Country and so, the Centre may not remain a passive spectator for long.
This is a matter which the Centre can decide keeping in view the consideration of
uniformity as against local exigencies. Some of the grounds on which the assent of
the President has been refused are as under;
a) there was already a Central law in existence.
b) the matter lies within the exclusive jurisdiction of the Centre.
c) the Centre is contemplating action itself.
d) exclusion of Union property from State taxation; non-conformity with the
policies of Central Government.
e) unconstitutionality.
f) lack of procedural safeguards etc.
So, the Central Executive is entitled to examine the State law from
all angles, such as, whether or not, it is in conformity with the Constitution or the
Central policies, whether it is inconsistent with any Central law.60 The Kerala
Agrarian Reforms Bill was passed by the Kerala Legislature in 1959, but Governor
reserved it for the consideration of the President’s assent. Meanwhile, Kerala
Legislature was dissolved and fresh elections held. Thereafter, the President sent
back the Bill for re-consideration in the light of the amendments suggested by him.
The Assembly passed it after incorporating the suggested modifications and
thereafter, it received the President’s assent. Legislature can re-consider and amend
a Bill passed by a predecessor Legislature.61
60
Supra note 21 at 651- 652.
61
P. Nambudiri vs State of Kerala, AIR 1962 SC 694.
201
In 1983, the then Governor of Karnataka had reserved the State's
Comprehensive Education Bill for the assent of the President of India. The
President gave his assent after a long time.62 The Gujarat Control of Organised
Crime Bill, 2003, which was modeled on the MCOCA63, adopted the special
procedure for interception of electronic communication. This procedure was struck
down by Bombay High Court from the MCOCA in Bharat Shantilal Shah vs State
of Maharashtra and held that a State could not legislate on a subject that was
enumerated in the Union List. In view of this, the President, under Article 201 of
the Constitution, directed the Gujarat Governor to return the Bill to the State
Assembly for reconsideration and necessary amendments. The Gujarat Assembly
re-considered the Bill and passed it again, on June 2, 2004, after deleting Sections
14, 15 and 16.64 Governor sent it again for the assent of the President. The Union
Government has retuned it again with the three recommendations on June 19, 2009
after keeping it with them for the last five years.65
6.2.2.2.4 Rajamanar Committee Recommendations:
Under the Chairmanship of Dr. P.V. Rajamanar a Committee was set
up by the then DMK Government of Tamil Nadu on 2nd September, 1969 to
consider the question regarding relationship that should subsist between the Centre
and the States in a federal set up.
62
The Hindu, Sept. 11, 2001.
63
Maharashtra Control of Organised Crime Act.
64
Front Line, Vol. 25, Issue 17, Aug. 16-29, 2008.
65
The Tribune, Jun. 20, 2009.
202
The Committee in its report recommended that the Inter-State
Council should be constituted and no decision of national importance or which may
affect one or more States should be taken by the Union Government except after
consultation with the Inter-State Council.
The Committee further recommended that every Bill of national
importance or which is likely to affect the interests of one or more States should,
before its introduction in Parliament, be referred to the Inter-State Council and its
views thereon should be submitted to Parliament at the time of introduction of the
Bill.
6.2.2.2.5 Recommendations of Sarkaria Commission regarding
Assent to Bills:
The Sarkaria Commission examined the scope of the discretion of
the Governor in relation to assent to the Bills under Article 200 of the
Constitution.66 The Commission viewed that Article 200 does not provide
discretion to the Governor either expressly or by implication. However,
Commission also observed that there may be occasions, which make it necessary
for the Governor to use his discretion to assent a Bill. But, the scope of Governor’s
discretion is very limited as is obvious by the fact that the Governor cannot
66
On March 24, 1983 Smt. India Gandhi announced in the Parliament the proposal to appoint a
commission under the Chairmanship of R.S Sarkaria, a retire judge of Supreme Court. She
enunciated that the Commission would examine the working of the existing arrangements between
Centre and States and recommend such changes in the said arrangements as might be appropriate
within the present constitutional framework. The Commission submitted its report to the Union
Government in 1987. The report of the Commission made public on January 30, 1988.
203
withhold assent to a reconsidered Bill. The Sarkaria Commission made the
following recommendations:
i) Normally, in the discharge of the functions under Article 200, the Governor
must abide by the advice of his Council of Ministers. Article 200 does not
invest in the Governor, expressly or by necessary implication, with a general
discretion in the performance of his functions there-under, including
reservation of a Bill for the consideration of the President. However, in rare
and exceptional cases, he may act in the exercise of his discretion, where he
is of opinion that the provisions of the Bill are patently unconstitutional,
such as, where the subject matter of the Bill is ex-facie beyond the
legislative competence of the State Legislature or where its provisions
manifestly derogate from the scheme and framework of the Constitution so
as to endanger the sovereignty, unity and integrity of the Nation or clearly
violate fundamental rights or transgress other constitutional limitations and
provisions.67
ii) In dealing with a State Bill presented to him under Article 200, the
Governor should not act contrary to the advice of his Council of Ministers
merely because personally he does not like the policy embodied in the
Bill.68
iii) Needless reservation of Bills for the consideration of the President should be
avoided and should be reserved only if required for specific purpose such as:
67
Supra note 13 paras 5.6.06 & 5.6.13 (i).
68
Id. paras 5.6.09 & 5.6.13(ii).
204
i) to secure immunity from the operation of Article 14 and 19 of the
Constitution vide First Proviso to Articles 31 (1) and 31 (C).
ii) to ensure validity and effect for a State legislation imposing tax on water
or electricity stored, generated, consumed, distributed or sold by an
authority established under Union law vide Article 288 (2).
iii) to save a Bill on Concurrent List subject from being invalidated on the
ground of repugnancy to the provisions of a law made by Parliament
or/and existing law vide Article 254 (2).
iv) a Bill imposing restrictions on trade or commerce in respect of which
previous sanction of the President had not been obtained vide Article
304 (b) read with Article 255.69
The Commission accepted that the discretion of the Governor in
relation with assent to Bills is limited but the President could withhold a State Bill
reserved for his assent for an indefinite period. So the Commission recommended
that;
i) as a matter of salutary convention, a Bill reserved for consideration of the
President should be disposed of by the President within a period of 4 months
from the date on which it is received by the Union Government.
ii) if, however, it is considered necessary to seek clarification from the State
Government or to return the Bill for consideration by the State Legislature
under the Proviso to Article 201, this should be done within two months of
the date on which the original reference was received by the Union
Government.
69
Id. para 5.14.05.
205
iii) any communication for seeking clarification should be self-contained.
Seeking clarification piece-meal should be avoided.
iv) a receipt of the clarification or the reconsidered Bill from the State under the
Proviso to Article 201, the matter should be disposed of by the President
within 4 months of the date of receipt of the clarification or the back
reference on the reconsidered Bill, as the case may be, from the State
Government.70
6.2.2.3 Dissolution of State Assembly:
The Governor has the power to dissolve the Legislative Assembly.71
But there is neither explicit provision in the Constitution, which regulates this
power of the Governor nor has any convention developed in this regard.72 Article
174(2) (b) of the Constitution merely says that the Governor may from time to time
dissolve the Legislative Assembly. The Constitution is silent as to when and in what
circumstances the Governor may dissolve the House. During the debate in the
Constituent Assembly, Mohammed Tahir (member of the Constituent Assembly)
wanted to amend the draft Article 153 to incorporate the reasons for the dissolution
of the Assembly, but his amendment was not incorporated in the final Article 174
of the Constitution.73 Generally, the Legislative Assembly is not dissolved till the
expiry of normal period of 5 years,74 but in exceptional circumstances, it can be
70
Id. para 5.16.03 & 5.7.09.
71
Article 174(2) (b), Constitution of India.
72
P.L. Mathur, Role of Governor in Non-Congress States, Rawat Publication, Jaipur, 1988, p. 137.
73
74
Article 172 (1) of the Constitution of India provides that Every Legislative Assembly of every
State, unless sooner dissolved shall continue for five years from the date appointed for its first
206
dissolved by the Governor before the expiry of the normal period. About the
exceptional circumstances, M.V. Pylee opined that “it is not a normal practice to
dissolve a Legislature before it has completed its prescribed period of life.
Dissolution at an earlier date with a view to appealing to the electorates and seeking
to solve a situation of political instability is an accepted principle of Parliamentary
System of Government.”75 Exceptional circumstances, when the Governor may
dissolve the Legislative Assembly are as under:
i) Chief Minister enjoys the majority support and advises the Governor to
dissolve the Legislative Assembly.
ii) Due to the defection of the members of ruling party or by another reason,
the ruling party comes in minority.
iii) Other party or coalition of parties is not in a position to form the
government.
iv) On the basis of the report sent by the Governor that the constitutional
machinery of the State has been failed, the President may dissolve the
Legislative Assembly on the recommendations of the Union Cabinet.
6.2.2.3.1 Discretion of the Governor in Dissolution of the State
Legislative Assembly:
In the normal circumstances, when the State Government is in the
majority, the Governor as the constitutional head is bound to accept the advice of
the Council of Ministers to dissolve the State Assembly. A Chief Minister having a
meeting and no longer and the expiration of the said period of five years shall operate as the
dissolution of the Assembly.
75
M.V. Pylee, Constitutional Government in India, 1960, p. 113.
207
majority support can get dissolution of the Legislative Assembly as and when he
wants.
The Andhra Pradesh Governor, Surjit Singh Barnala dissolved the
State Assembly on the recommendation of the Council of Ministers headed by
Chief Minister, N. Chandrababu Naidu having majority in the House and asked
Chief Minister, N Chandrababu Naidu to head a caretaker government.76
On August 21, 2009, Haryana Cabinet headed by Mr. Bhupinder
Singh Hooda recommended the dissolution of the State Assembly nearly six months
before the expiry of its term.77 And on the recommendations of the Chief Minister,
the Governor, Jagan Nath Pahadia dissolved the Legislative Assembly just hours
after the Haryana Cabinet recommended its dissolution. In this way the Governor
obliged the Chief Minister to dissolve the Legislative Assembly at the time when
the situations in the State were in the favour of his party.
On certain occasions, the Governor can use his discretion regarding
dissolution of State Assembly and can refuse to accept the advice of the Council of
Ministers to dissolve the Legislative Assembly. When the State Government is in
majority, the Governor can refuse to accept the advice of the Chief Minister to
dissolve the Legislative Assembly, if the Chief Minister having majority in the
Assembly advises the Governor to dissolve the House a few days before the
beginning of the Budget Session. In such situation, the Governor will have no
alternative but to reject the advice because the acceptance of this advice would
mean that the ministry would stay in office till the elections are held without getting
76
Indian Express, Nov. 15, 2003.
77
The Tribune, Aug. 22, 2009.
208
the Budget passed and the Budget cannot be passed through an ordinance. For this
reason, the dissolution was not granted to Hitendra Desai in Gujarat in spite of the
fact that he claimed the support of 87 members in a House of 163 members. 78
When the ruling party has lost the majority in the Assembly or has a
doubtful majority, the Governor can use his discretion and may accept or refuse to
accept the advice of the Chief Minister to dissolve the Legislative Assembly. It is
also clear from the language of the Constitution itself which provides that the
Governor may from time to time dissolve the Legislative Assembly.79 The use of
the expression “may” in Article 174(2) shows that the advice of the Council of
Ministers is not binding on the Governor for the dissolution of the State Assembly.
In 1997, Sh. Krishna Pal Singh, the Governor of Gujarat, dissolved
the State Assembly on the advice of the Chief Minister, Sh. Dilip Parikh who had
lost no-confidence motion in the House, in spite of the fact that BJP was ready to
form the government. In April, 1992, the Governor of Nagaland dissolved the State
Legislative Assembly on the advice of the defeated Chief Minister.
There are many examples, where Governors refused to accept the
advice given by the defeated Chief Ministers to dissolve the House. In 1965 in
Travancore-Cochin defeated Chief Minister advised the Governor to dissolve the
Assembly but Governor refused to accept his advice and did not dissolve the
Assembly.80
78
79
Article 174 (2) (b), Constitution of India.
80
209
In 1967, in Punjab, when the ministry of Jan Sangh and Akali Dal
lost its majority, the Governor refused to accept the advice of the defeated Chief
Minister to dissolve the Legislative Assembly and invited the leader of the defector
group to form the government as he claimed assured support by the Congress Party
and thus had a majority support in the Assembly. The Governor publicly asserted
that he was not bound to accept the advice of the outgoing Chief Minister because it
was tendered after he had lost majority support in the Assembly.81
There are many examples in which Governor recommended to the
Centre for the dissolution of the State Assemblies on the basis that the State
Government is not being carried on in accordance with the constitutional
provisions. In 1974, the Gujarat Legislative Assembly was dissolved following the
resignation of the ministry. Though the ministry was in a majority, yet it left office
because there was a wide spread public agitation against it.82
In 1976, in Tamil Nadu, D.M.K. Ministry was in majority in the
House. The Governor sent his report to the Centre that the ministry was charged
with maladministration and corruption and recommended for the dissolution of the
House. On the basis of the report of the Governor, the State Legislature was
dissolved.
In 1977, in the Parliamentary General Elections, the people gave
their verdict in favour of Janta Party. The Congress Party was badly routed. At that
time Congress Party was in command in nine States. The Legislative Assemblies of
these States were dissolved in spite of the fact that there was no breakdown of
81
82
Id. at 805.
210
constitutional machinery in these States. The only reason was that the party
commanding at the Centre was different from the parties commanding in these
States. Similarly, when after the Parliamentary General Elections in 1980, Congress
secured the tremendous majority. The Congress Party after forming the government
in the Centre under the leadership of Smt Indira Gandhi dissolved the State
Legislative Assemblies of nine States on same pattern as of the Janta Party by
taking the plea that the existing State Governments did no longer reflect the wishes
of the electorate. These States were Uttar Pradesh, Bihar, Tamil Nadu, Rajasthan,
Madhya Pradesh, Maharashtra, Punjab, Orissa and Gujarat.
On August 7, 1988 the Legislative Assembly of Nagaland was
dissolved on the basis of the Governor’s report that the “horse-trading was going on
in the State”.
In Bihar, when election result was announced on March 4, 2005, it
was known that both major groups had the support of 92 MLA’s, 30 short of the
number required to cross the majority mark. And when the Presidential
proclamation on March 7, 2005 kept the Assembly under suspended animation, the
purpose was to allow the political parties to work out a majority group in
accordance with the law.83 The then Governor Mr. Buta Singh sent his report to the
President, in which he had stated that some horse-trading was going on and some
MLA’s were being won over by allurements. On the basis of the report Prime
Minister Manmohan Singh convened a Cabinet meeting on the night of May 22,
2005 to review the law and order situation in Bihar and decided to dissolve the
State Assembly. The President on the recommendations of the Union Cabinet

83
The Tribune, Feb. 2, 2006.
211
dissolved the Legislative Assembly of Bihar on May 23, 2005. The unexpected
dissolution generated much heat. The BJP has called this dissolution of assembly a
'murder of democracy'. The NDA called it a fraud on the Constitution and said that
it had exposed the unscrupulous, anti-democratic and fascist character of the
Congress-led alliance.
6.2.2.3.2 Recommendations of the Sarkaria Commission regarding
Dissolution of the State Assembly:
The Commission has recommended the following guidelines
for the Governor regarding dissolution of the State Assembly:
i) When the advice for dissolving the State Legislative Assembly is made by a
ministry, which has lost or is likely to lose majority support, the Governor
should summon the Assembly so that the majority can be tested on the floor
of the House.84
ii) If ultimately a viable ministry fails to emerge, the Governor should first
consider dissolving the State Legislative Assembly and arrange for a fresh
election after consulting the leaders of the political parties concerned and
the Chief Election Commissioner.85
iii) In a situation of political breakdown, the Governor should explore all
possibilities of having a government enjoying majority support in the
Assembly. If it is not possible for such a government to be installed and if
fresh elections can be held without avoidable delay, he should ask the
84
Supra note 13 para 4.16.17 (a).
85
Id. para 4.16.17 (b).
212
outgoing ministry, if there is one, to continue as a caretaker government,
provided the ministry was defeated solely on a major policy issue,
unconnected with any allegations of maladministration or corruption and is
agreeable to continue. The Governor should then dissolve the Legislative
Assembly, leaving the resolution of the constitutional crisis to the electorate.
During the interim period, the caretaker government should be allowed to
function. As a matter of convention, the caretaker government should
merely carry on the day-to-day governance and desist from taking any major
policy decision.86
iv) The State Legislative Assembly should not be dissolved either by the
Governor or the President before the Proclamation issued under Article
356(1) has been laid before Parliament and it has had an opportunity to
consider it.87
6.2.2.4 Dismissal of Ministry;
Article 164 (1) of the Constitution provides that ministers in a State
hold office during the pleasure of the Governor. It means that the Constitution itself
gives the power to the Governor to dismiss the ministry, when the Governor thinks
it necessary. But the Governor cannot dismiss it at his sweet will. In the
Parliamentary form of government, the expression ‘during the pleasure’ used in the
Constitution means the confidence of the majority in the House. It has also been
cleared during the debate in the Constituent Assembly by Dr. B.R. Ambedkar, the
Chairman of the Constituent Assembly, when he told about the word ‘pleasure’ that
86
Id. para 6.8.04 (a).
87
Id. para 6.8.06.
213
I have no doubt about it that it is the intention of this Constitution that the ministry
shall hold office during such time as it holds the confidence of the majority. It is on
that principle, the Constitution will work. During pleasure is always understood to
mean that the ‘pleasure’ shall not continue notwithstanding the fact that the ministry
has lost the confidence of the majority. The moment the ministry has lost the
confidence of the majority, it is presumed that the president (Governor in case of
State) will exercise his pleasure in dismissing the ministry.88
Generally, Governor is to exercise his pleasure according to the
Council of Ministers. This follows from the provision in Article 164 (2) which
makes the Council of Ministers collectively responsible to the Legislative Assembly
of the State. This means that so long as a ministry enjoys the confidence of the
majority in the Lower House, the Governor cannot dismiss it89 and refuse to accept
the advice of the Council of Ministers in this regard. But the Governor has some
discretion in this area and he may refuse to accept the advice of the ministry which
has lost the majority in the House and can dismiss the ministry if he believes that
the ministry is in minority. The Committee of Governors appointed by the President
in November 1970 recommended that the Governor should compel the Chief
Minister to face the Legislature if he is reduced to a minority through defections. It
is also recommended by the Sarkaria Commission that the Governor should not
dismiss a Council of Ministers, unless the Legislative Assembly has expressed on
the floor of the House its want of confidence in it. He should advise the Chief
Minister to summon the Assembly as early as possible. If the Chief Minister does
88
89
214
not accept the Governor's advice, the Governor may summon the Assembly for the
specific purpose of testing the majority of the ministry.90
In the circumstances of political instability Governor may use his
discretion relating to the dismissal of the ministry and may or may not ask the Chief
Minister to face the Assembly immediately. Mr. B.N. Chakravarti, the Governor of
Haryana did not ask the Chief Minister, Rao Birender Singh to face the Assembly
when Rao had a doubtful majority. The Governor said that it was not necessary for
Rao to resign until he ceased to be the leader of the largest single party in the
Assembly.91 Similarly, the Chief Minister of Punjab, Sh. Parkash Singh Badal was
not asked by the Governor, Dr. D.C. Pavate to face the Assembly immediately,
when due to the defection of three members, the majority of Parkash Singh Badal
was reduced from 54 to 51 in the House of 104 members. There are many cases of
similar nature, when Governor used his discretion and did not ask the Chief
Minister to face the Assembly in the case of doubtful majority.
Governor is to preserve, protect and defend the Constitution and the
law of the Country.92 He is the only person on the spot who can take stock of the
situation and initiate appropriate action including the dismissal of the ministry and
if he has the reason to believe that the ministry of the State is involved in anti-
national or solidarity activities, which undermine the unity of the Nation, he may
justifiably dismiss such a ministry, even if it enjoys a majority in the Legislature.
The same was happened in Jammu and Kashmir, in 1953 and the government
90
91
The Tribune, Nov. 1, 1967, p. 1.
92
215
headed by Sheikh Abdullah was dismissed. It was reported that the Chief Minister
was engaged in subversive activities against the security and integrity of the State
which was ultimately detrimental to security of India.
Similarly in Kerala, in July 1959, Namboodripad ministry was
dislodged from power due to anti-communist movement. This movement popularly
known as mass-upsurge was organized by congress-led front to oust the communist
from power.93
The Governor can dismiss the ministry, if it refuses to resign after a
vote of no-confidence has been passed against it. It should, however, be noted that
when government is defeated even on a major issue, the pleasure may not always be
withdrawn. In April 1967, when the Punjab Government was defeated by 53 votes
to 49 on the issue of an opposition amendment to the Governor’s address, the
pleasure was not withdrawn by the Governor. The Governor was of the opinion that
the situation was not so clear as to justify the dismissal of the government on that
day when congress opposition amendment to the motion of thanks to the
Governor’s address was carried.94 But the ministry will loose the confidence, if a
Money Bill or any other Bill dealing with important policy matter introduced by the
government is defeated, but even then it is not necessary that the government may
resign or the Governor may dismiss the ministry. In such circumstances, generally
Governor uses his discretion.
93
94
J.R. Siwach, Appointment and Dismissal of the Chief Ministers, Journal of Constitutional and
Parliamentary Studies, Vol. II, 1968, p. 81.
216
6.2.2.4.1 Extent of Discretion of Governor to Dismiss the Ministry:
Governor has the discretion to dismiss the ministry. This power has
been given to the Governor by the Constitution itself, when it says that ministers
hold office during the pleasure of the Governor.95 Generally, Governor cannot use
his sweet will to dissolve the ministry; there must be some ground to dissolve it. In
the following circumstances Governors may use his discretion and dissolve the
ministry.
i) When the no confidence motion has been passed against the government
and the ministry refuses to resign.
ii) When Governor has a reasonable ground to believe that the Chief Minister
no longer enjoys the confidence of the Legislative Assembly and he is not
prepared to face the Assembly immediately, on one pretext or the other.96
iii) When Governor believes that the ministry is trying to maintain its majority
in the Legislative Assembly by practicing corruption.97
iv) When Governor believes that the ministry is violating the law of the land.98
6.2.2.4.2 Use and Misuse of the Discretionary Power to Dismiss the
Ministry:
There are many instances when Governors have used their discretion
to dismiss the ministry. The first instance of a controversial dismissal of ministry
occurred in the West Bengal, when Dr. P.C. Ghose resigned and formed a new
95
96
97
Ibid.
98
217
party with 17 members of the Legislative Assembly. The opposition then claimed
that the government had lost the majority. The Governor asked the Chief Minister
Ajoy Mukherjee to call the Assembly Session by the end of the November so that
the government could prove the majority on the floor of the House. But the Chief
Minister instead of calling the Assembly Session, advised the Governor to convene
the meeting of the Assembly on 18th December. The Governor was not satisfied
with the reason given by the Chief Minister and believed that he was knowingly
avoiding to face the House. With this reason Governor, Dharam Vira dismissed the
ministry on November 21, 1967. The Calcutta High Court99 also upheld the action
of the Governor on the ground that no condition or restriction has been imposed
upon the power of the Governor with regard to dismissal of the ministry under
Article 164 (1) of the Constitution.
On 17 February 1970, Sh. Charan Singh formed the government in
U.P. with the help of The New Congress Party. When the Congress (R) withdrew
its support, the Governor, Sh. B. Gopala Reddy asked the Chief Minister to resign
even though he was ready to face the Assembly to prove his majority. The
Governor wrote a letter to the President on Sept. 29, 1970 and demanded for the
invocation of Article 356. The President rule was imposed on Oct. 3, 1970 and the
ministry was dismissed.
In this case Governor used his discretion and dismissed the ministry
without giving a chance to Sh. Charan Singh to prove his majority inspite of the fact
that he was also ready to face the Assembly. The President appointed a Committee
99
Mahabir Prasad Sharma vs Prafulla Chandra Ghose, AIR 1969 Calcutta 189.
218
of Governors on the role of Governors under the Chairmanship of Sh. Bhagvan
Sahai to study and formulate the guidelines for the Governors. But even after the
norms or the recommendations of the Committee, many a times, Governors misuse
this august office and have continued to exercise their discretion in an arbitrary
manner.
In 1984, in Andhra Pradesh, when N.T. Rama Rao was the Chief
Minister of Andhra Pradesh, Shri Bhaskara Rao, his Finance Minister revolted
against him. Shri Bhaskara Rao with some defected members joined hand with
Congress-I and claimed to form the government. The Governor, Shri Ram Lal
without verifying the strength of Shri Bhaskara Rao asked the Chief Minister, N.T.
Rama Rao to tender his resignation by saying that he had lost the majority.
Shri N.T Rama Rao refused to resign and advised the Governor to
convene the emergency session of the House and to give him a chance to prove his
majority on the floor of the House. But on August 16, 1984, the Governor
dismissed the Chief Minister, N.T. Rama Rao and N.T. Rama Rao also paraded
with his supporters before the Governor.
The Governor should have accepted the advice of Shri N.T. Rama
Rao to give him a chance to prove his majority. The Governor exercised his
discretionary power to dismiss the ministry in an arbitrary and dictatorial manner.
And Governor’s hasty and politically motivated action to dismiss the ministry
devalued the prestige of this august office.
When 12 MLA’s of National Conference Party withdrew their
support to it and joined Real National Conference, the Chief Minister, Dr. Farooq
219
Abdullah requested the Governor of Jammu & Kashmir, Shri Jagmohan to summon
the Assembly to test the majority on the floor of the House. But the Governor on
the evening of 2nd July 1984 dismissed, Dr. Farooq Abdullah. This action of the
Governor was the misuse of his power in dismissing the ministry as he acted
arbitrarily and in haste. The opposition parties criticized the dismissal of Dr. Farooq
Abdullah’s ministry and the installation of G.M. Shah’s government with in few
hours.
On Feb. 21, 1998, in U.P., Governor, Mr. Romesh Bhandari
dismissed the Kalyan Singh ministry without giving him an opportunity to face the
confidence motion in the House. The Governor at that time took the plea that the
ministry had lost the majority in Assembly due to the defection of some members.
The action of the Governor was widely criticized as he did not even ask him to seek
the vote of confidence. A writ petition was filed in the Allahabad High Court
against the action of the Governor and on 23 February 1998, a two-member Bench
of the Allahabad High Court ordered for the restoration of the Kalyan Singh
government in the State as it existed.
When the order of the High Court was challenged in the Supreme
Court,100 it ordered that a Special Session of the Assembly be summoned, which
would have the only agenda to have a composite floor test between the two
contending parties to ascertain who out of two (Sh. Kalyan Singh and Sh.
Jagdambika Pal) enjoyed the majority in the Assembly.
100
Jagdambika Pal vs State of U.P., AIR 1998 SC 998.
220
6.2.2.4.3 Recommendations of the Committee of Governors regarding
Dismissal the Ministry:
The Committee of Governors101 gave the following
recommendations relating to the discretionary powers of the Governor to dissolve
the ministry;
i) A Governor has the right to dismiss a ministry, if the Chief Minister shirks
his primary responsibility of facing the Assembly within the shortest time to
test the confidence of the Legislature in him.
ii) The test of confidence in the ministry should normally be left to a vote in
the Assembly. A Chief Minister’s refusal to test his strength on the floor of
Assembly can well be interpreted as a prima-facie proof of his no longer
enjoying the confidence of the Legislature.
iii) If an alternative ministry can be formed, which in the Governor’s view can
command a majority in the Assembly; he must dismiss the ministry in
power and install an alternative ministry in office.
iv) The Chief Minister in a coalition, the Committee feels, deprives his pre-
eminence solely from the agreement among the partner. When the Chief
Minister heads a single party government his pre-eminence is unquestioned.
A Chief Minister is the key stone of the arch of the Cabinet but this can
101
It was appointed by the President in the year 1970 after the constitutional crisis in Uttar Pradesh.
221
apply only when he heads a team which collectively has a majority support
in the Legislature. Thus the Chief Minister in a coalition cannot claim the
right of advising the Governor in matter of dismissal of ministers in such a
manner as to break the arch yet claim the right to continue as Chief
Minister.102
6.2.2.5 Summon and Prorogue the State Assembly:
The Governor under the Constitution has the power to summon and
prorogue the House of the Legislature. Governor acts regarding summoning and
proroguing the House on the advice of the Council of Ministers. Sarkaria
Commission also recommended that so long as the Council of Ministers enjoys the
confidence of the Legislative Assembly, the advice of the Council of Ministers in
regard to summoning and proroguing a House of the Legislature, if such advice is
not patently unconstitutional, should be deemed as binding on the Governor.103
Constitution of India empowers the Governor of a State to convene
each House of the Legislature. It provides that the Governor shall from time to time
summon the House or each House of the Legislature of the State to meet at such
time and place as he thinks fit, but six months shall not intervene between its last
sitting in one session and the date appointed for its first sitting in the next session.104
Generally, the Governor has nothing much to do with the summoning of the State
Assembly except for making an opening address at the commencement of the first
session after each General Assembly Elections of the House as well as at the
102
Supra note 26 at 534-535.
103
104
222
commencement of the first session of each year and to inform the Legislature of the
causes of its summons.105 The Governor may address the Legislative Assembly or
in the case of a State having a Legislative Council, either House of the Legislature
of the State or both Houses assembled together.106
Governor is also empowered to prorogue the House. Constitution of
India provides that the Governor may from time to time prorogue the House or
either House of the Legislature.107
6.2.2.5.1 Discretion of the Governor in Summoning the House:
In general, it is expected that the Governor of the State shall
summon the Legislature on the aid and advice of the Council of Ministers and he
will not convene the Assembly suo-motu. The reason for this convention is that it is
the Chief Minister alone, who can provide the Assembly with business to
transact.108 Dr. B. R. Ambedkar also pointed out during the debate in Constituent
Assembly that neither the Speaker nor the Chairman of either House would be
entitled to summon the meeting of the Legislature. The business had to be provided
by the executive that is to say the Prime Minister who would advise the President to
summon the Parliament.109 And in the parliamentary form of government, the
pattern of formation of the government at the State is same as that at the Centre, so
the Governor would convene the Assembly on the advice of the Chief Minister.
105
Article 176 (1), ibid.
106
107
Article 174 (2) (a), ibid.
108
109
Vol. VII, CAD at 106.
223
But the instances show that the Governor used his discretion for
summoning the House several times. When, the Chief Minister has the fear of
defeat in the Assembly and intentionally bypasses the Assembly session or avoids
to advice the Governor to summon the House, in such circumstances, the Governor
can use his discretion and ask the Chief Minister to summon the House. Or, if it
appears to the Governor that the ministry has lost the majority support, then the
Governor in order to remove the clouds of doubts on the majority support of the
ministry impressed on the Chief Minister the imperative need of calling of an
earliest session of the House.
It is also recommended by the Committee of the Governors
appointed by the President on 26th November 1970 that where the Governor has
reason to believe that the Ministry no longer enjoys the majority, he may ask the
Chief Minister to face the Assembly.110
The Administrative Reform Commission has also suggested that
when a question arises as to whether the Council of Ministers enjoys majority
support in the Assembly, the Governor may suo-motu summon the Assembly to
obtain the verdict, if the Chief Minister does not advice him to convene the
Assembly.111
There are many examples, where the Governor in order to remove
the clouds of doubts of majority support of the House asked the Chief Minister to
summon the Assembly. In Orissa, the Governor asked the Swatantra Party Chief
Minister, R. N. Singh Deo, to call the session of the House to test the majority
110
Committee was headed by Sh. Bhagawan Sahay of Jammu and Kashmir.
111
Report of Administrative Reforms Commission’s on Centre-State Relations, p. 25.
224
behind him after the withdrawal of the cooperation of the Jan Congress led by Dr.
Harekrishna Mehtab in December, 1970 and the date of January 15, 1971 was fixed
for the purpose.112
In order to clear the clouds of doubt regarding majority of the
ministry, it is the discretion of the Governor to ask the Chief Minister to summon
the earlier session of the House or he may refuse the request of opposition parties to
ask the Chief Minister to call earlier session of the House. For instance, in
December 1968, when Bansi Lal’s government in Haryana was reduced to a
minority due to defections and even 41 MLA’s paraded before the Governor and
demanded early session of the Assembly to prove the majority of the House, he did
not concede the request. Rather, he said that there was no need of convening the
Assembly.113
When the Governor believes that the ministry is intentionally
avoiding to follow his direction to convene the Assembly, he can even dismiss the
ministry. On November 2, 1967, some members defected from the United Front
government in West Bengal and formed a new party. The Governor, Dharam Vira
due to this happening asked the Chief Minister to convene an early session of the
Assembly, but the Chief Minister, Ajoy Mukherjee wanted to delay the convening
of the Assembly by six weeks or in other words, he was not agree to follow the
directions of the Governor. The Governor then dismissed the ministry and installed
new ministry. But this may be the action in haste. In such circumstances, the
112
113
Id. at 125-126.
225
Governor may convene the session of the House, so that the majority of the House
can be tested on the floor of the House.
6.2.2.5.2 Discretion of the Governor in Proroguing the House:
Governor has the power to prorogue the House and generally, he
exercises this power on the advice of the Council of Ministers. On March 12, 1968,
the Governor of Punjab, Mr. D.C. Pavate prorogued the House on the advice of the
Chief Minister for passing the Appropriation Bill. When it was challenged, the
Supreme Court held that where the Assembly was in session but it was put in a state
of inaction for two months by the adjournment by the Speaker under Rule 105,
which the Governor had no power to rescind and the time was running out and the
Budget Session of the Assembly had to reach a conclusion before 31 March,
because after that date no money could be drawn from the Consolidated Fund. The
Governor had to act quickly to put back the legislative machinery of State into life.
In such a case only two courses are open. One is for the ministers to ask the Speaker
under Rule 16 to recall the Assembly and the other is to prorogue the Assembly to
get rid of the adjournment and then to resummon the Assembly. The second was
not only a reasonable solution but the one most properly adapted to achieve a
constitutional result and it was followed.114
In the normal circumstances, Governor prorogues the House on the
advice of the Chief Minister. But it does not mean that Governor cannot use his
discretion in proroguing the House. Constitution of India itself enables the
Governor to prorogue the Assembly in his discretion. It uses the word ‘may’ in
114
State of Punjab vs Satya Pal, AIR 1969 SC 903.
226
Article 174 (2)(a), which means that the Governor in his discretion may prorogue
the State Legislature or may refuse the request of the Chief Minister for proroguing
the Assembly. When the Governor feels that ministry is not in majority in such
circumstances the Governor may refuse the advice of the Chief Minister to
prorogue the Assembly.
Many times the Governor uses his discretion in partisan manner and
prorogues the Assembly in order to enable the Chief Minister to manage the
majority support. When in 1967, 40 congress members of Madhya Pradesh
Legislative Assembly, under the leadership of Mr. G. N. Singh defected from the
ministry; the Governor K.C. Reddy prorogued the Legislative Assembly on the
advice of the Chief Minister, D.P. Mishra. This action of the Governor was
criticised.
In 1970, when 15 MLAs of the Congress Party in Haryana, left the
party, the Bansi Lal government came in minority and the special session of the
Assembly for no-confidence motion was called to be held on March 3, 1970. But
the Governor, B. N. Chakravarty prorogued the House instead of compelling him to
face the Assembly. The opposition criticised this action of the Governor.
In Uttar Pradesh the Governor, B. Gopala Reddy prorogued the
Assembly on the advice of the Chief Minister, Charan Singh on January 9, 1968,
when the Samyouta Vidhayak Dal was reduced to a minority as the C.P.I (M) and
S.S.P. withdrew their support and alleged that the government had failed to carry
out the 19 points programme.115
115
227
Goa incident is the latest example of use of power to prorogue the
Assembly for providing the benefits to the ministry. Governor of Goa, S.C. Jamir
prorogued the Goa Assembly on January 17, 2008, even as senior leaders of the
Congress began a fire-fighting operation to save the seven-month-old Digambar
Kamat government in this politically volatile state as Independent MLA Vishwajeet
Rane and three MLAs from the Nationalist Congress Party (NCP) hold the key to
the survival of the Congress-led government in Goa. The opposition BJP with 14
members and the two-member Maharashtrawadi Gomantak Party were egging on
Rane and the NCP legislators to form the government with outside support. As the
Congress-led government in Goa plunged into minority, the BJP demanded
convening of a special session of the Assembly for a trial of strength to “call the
bluff” of the ruling alliance. The Congress rushed AICC general secretaries Mabel
Rebello and Siddarth Patel to negotiate with Kamat and the Congress leaders were
unable to make any headway and the Governor prorogued the Assembly just before
it was to convene at 2.30 p.m. The BJP, which air-dashed senior leader Rajiv
Pratap Rudy to Goa to assess the situation there, was angry at the way the Assembly
was prorogued. Ravi Shankar Prasad116 said the decision to prorogue the Assembly
was taken in haste to save the government which was on the verge of collapse and
called it constitutional deceit.117 Governor prorogued the Assembly to facilitate the
government. Rather, he should have used his discretion and not prorogued the
House.
116
Spokesperson of BJP at that time.
117
The Tribune Chandigarh, Jan. 18, 2008.
228
Summoning and Proroguing the State Assembly:
Regarding the discretion of the Governor for summoning and
proroguing the Assembly, the Commission recommended that:
i) If the Chief Minister neglects or refuses to summon the Assembly for
holding a “Floor Test”, the Governor should summon the Assembly for the
purpose.118
ii) The Governor may in the exigencies of certain situations, exercise his
discretion to summon the Assembly, only in order to ensure that the system
of responsible government in the State works in accordance with the norms
envisaged in the Constitution.119
iii) When the Chief Minister designedly fails to advise the summoning of the
Assembly within six months of its last sitting or advises it’s summoning for
a date falling beyond this period, the Governor can summon the Assembly
within the period of six months specified in Article 174(1).120
iv) When a Chief Minister (who is not the leader of the party which has
absolute majority in the Assembly), is not prepared to summon the
Legislative Assembly within 30 days of the taking over or 60 days, as the
case may be or when the Governor finds that the Chief Minister no longer
enjoys the confidence of the Assembly the Governor would be within his
constitutional right to summon the Assembly for holding the “Floor
118
119
Id. para 4.16.15 (a).
120
Id. para 4.16.15 (b).
229
Test”.121 Generally, a period of 30 days will be reasonable for summoning
the assembly, unless there is very urgent business to be transacted, such as
passing the Budget, in which case, a shorter period may be indicated. In
special circumstances, it may even exceed this period and go up to 60
days.122
v) If a notice of a no-confidence motion against a ministry is pending in a
House of the Legislature and the motion represents a legitimate challenge
from the Opposition, but the Chief Minister advises that the House should
be prorogued, the Governor should not straightaway accept the advice. He
should advise the Chief Minister to postpone the prorogation and face the
motion. 123
6.2.2.6 Recommendation of President’s Rule:
If the Governor finds that it is impossible to carry on the
administration of the State according to the provisions of the Constitution, he
reports about the failure of the constitutional machinery in the State to the
President.124 The Governor makes his report to the President in his discretion and he
is under no constitutional obligation to act in this matter on the aid and advice of the
Council of Ministers. Because, such report may be against a ministry in power so, it
cannot be made in accordance with the ministerial advice. Further when the
ministry has resigned the possibility of getting their advice is too remote. Governor
121
Id. para 4.16.15 (c).
122
Id. para 4.11.13.
123
Id. para 4.16.16.
124
R.N. Mishra, the President of the Indian Republic, Vora & Company Publishers Pvt. Ltd.
Bombay, 1965, p. 163.
230
has to exercise his discretion in sending the report under Article 356. Article 356(1)
of the Constitution provides that if the President on receipt of report from the
Governor of a State or otherwise is satisfied that a situation has arisen in which the
Government of the State cannot be carried on in accordance with the provisions of
this Constitution, the President may proclaimed the President’s rule in that State. In
making a report to the President the Governor acts not only as the head of the State
but also as representative of the Centre, who is under an oath to preserve, protect
and defend the Constitution and the law.125
The Governor, therefore, has a requisite discretion to judge the
situation of the State while making a report to the President. Such a report is a veto
of censure on the ministry in power and it will be absurd to imagine that the
Governor is expected to send such a report with the advice of the Council of
Ministers as no ministry can be asked to recommend self-annihilation. In other
words, the assessment of the situation that necessitates presidential intervention is
primarily the task of the Governor.126 During the President’s rule since, there is no
ministry in the State, so, the Governor acts not only as the head of the State but also
as the de facto ministry.
6.2.2.6.1 Need and Scope of Article 356:
The Union has the obligation to protect the constitutional form of
government in the State. It has to protect the State against invasion. It has also to
protect the State against domestic violence. To discharge these constitutional
obligations of the Union, the Constitution provides a sort of control over the State
125
126
Supra note 124.
231
through the executive power of the President. The main aim of the founding fathers
of our Constitution was to make the Centre strong, which is the approach to make
the parliamentary system successful. They were highly influenced by the factors
like national unity, integrity and security of the Country. Article 355 of the
Constitution imposes a duty on the Centre to ensure that the Government of every
State is carried on in accordance with the provisions of the Constitution. It implies
that the Centre Government is entitled to receive the reports about the situations of
the State from the Governor, who will act while making this report in his discretion.
The Office of the Governor is the connecting link between the Centre and the States
in administrative matters.
The scope of Article 356 to impose President’s Rule in a State is
very wide. Article 356 prescribes that President can proclaim Presidential rule in a
State on the satisfaction that the government of the State cannot be carried on in
accordance with the provisions of the Constitution. But it is a very wide ground.
This Article gives wide powers in the hands of the Centre. If the commanding party
in the State is different from the commanding party in the Centre then Centre can
misuse this Article and may impose the President’s rule by taking the plea that
government of the State cannot be carried on in accordance with the provisions of
the Constitution. Although the Constitution does not mention any particular
situation for imposition of President’s rule, but some situations may be covered
under the following heads:
i) Breakdown of constitutional machinery;
ii) Political instability;
232
iii) No party is in a position to form the Government;
i) Breakdown of Constitutional Machinery:
Breakdown of constitutional machinery is a very wide term. It may
include in its ambit a number of situations. When in a State law and order
machinery has failed, it may be said that the constitutional machinery has failed.
Failure of law and order machinery means the government of the State is
incompetent to maintain the peace in the State or in other words, the State
government has failed to discharge its constitutional obligations. But the term law
and order is very extensive which in itself includes from the most trivial to the
worst of the situations.
The popular agitations, corruption and maladministration may be
covered in the ambit of breakdown of the constitutional machinery of the State.
When the State Government commits the acts amounting to abrogation of the
provisions of the Constitution, there is breakdown of the constitutional machinery.
The Union Government is empowered to give directions to the State Government127
and Governor is to watch that the State Government is following those directions. If
the State Government refuses to follow the directions of the Union, then the
Governor may send the report to the Centre in this regard and it may be the failure
of the constitutional machinery. The Governor is the sole judge, who sends the
report to the Centre, about the failure of the constitutional machinery in the State.
ii) Political Instability:
Political instability means when the members of the ruling party
withdraw their support to it and commanding party comes in minority. It may be a

127
233
ground for the imposition of President’s rule in that State, because in such
circumstances, the working of the responsible government is not possible. Under
such circumstances, Governor can find the alternate or if it is not possible to
establish stable government, then he may send the report about this situation to the
President and the President may impose President’s rule.
iii) No Party is in a Position to form the Government:
When after the general assembly elections, not even a single party
comes in majority and it is also not possible to form ministry in a coalition then the
Governor may send a report about this situation to the President and may
recommend for the imposition of the President’s rule.
So, the scope of Article 356 is very wide. The wide scope of this
article is in tune with Article 355 of the Constitution of India. The study of the use
of this Article reveals that the Centre Government has used the wide scope of this
Article many times for its political benefits.
6.2.2.6.2 Interference of the Centre:
The latter part of Article 355 imposes a duty on the Union
Government to ensure that the government of every State is carried on in
accordance with the provisions of the Constitution. Language of this Article is wide
or it would not be impossible to say that the Union Government even in resorting to
enforce a political doctrine or theory may act unconstitutionally, so long as the
doctrine or theory is covered by the purposes of the Constitution found in preamble,
which has been held to be a part of the Constitution.128 Article 356 empowers the
128
State of Rajasthan vs UOI, SCC 1977, p. 601.
234
Centre with vast powers and many a times the Centre played a controversial role in
the administration of the State with the help of the power of this Article to get rid of
the State Governments. According to this Article, if the President, on the receipt of
a report from the Governor of a State or otherwise, is satisfied that a situation has
arisen in which the government of the State cannot be carried on in accordance with
the provisions of the Constitution may impose President’s rule. The use of word
‘otherwise’ in this Article provides that President can impose Presidential rule in
the State even without the report of the Governor. At the time of debates in the
Constituent Assembly on the word ‘otherwise’, Dr. B.R. Ambedkar viewed that in
emergent situations the President should come from the very beginning and not
after the suppression of the Constitution by the Governor as envisaged under Article
188 of the Draft Constitution.”129 So, the aim of the inclusion of this word was to
empower the President to act even on his own initiative. But word “otherwise” is a
very vague term, which gives blanket powers in the hands of the Centre or in other
words Centre can interfere or impose the President’s rule in the State not only on
the report of the Governor but also “otherwise”. Justice Bhagwati130 observed that
the inclusion of the word ‘otherwise’ in Article 356 gave very drastic powers to the
President which if misused or abused, can destroy the constitutional equilibrium
between the Union and the States.
The Centre can interfere in the administration of the State to fulfill
its obligations or may be for the political purpose by the help of:
a) Satisfaction of the President.
129
Vol. IX, CAD at 134.
130
State of Rajasthan vs UOI, AIR 1977 SC 1361.
235
b) Report of the Governor.
a) Satisfaction of the President:
Article 356 (1) is invoked on the condition that the President is
satisfied that the constitutional machinery has failed to function in accordance with
the provisions of the Constitution. The satisfaction of the President under Article
356(1) does not mean the personal satisfaction of the President but it is the
satisfaction of the Cabinet.131 Whether there is breakdown of constitutional
machinery in a State is a matter of assessment of a ‘situation’ by Union
Government. And the court cannot substitute its own judgement on such a matter.132
So, Constitution provides wide powers to the Centre to interfere in the matters of
the State under Article 356, which provides that the President can issue
proclamation of President’s rule even without the Governor’s report, if he is
satisfied that such events occurred in a State which invoke the special responsibility
placed upon the Centre to maintain the State under the Constitution.
Justice Bhagwati133 emphasized that the satisfaction of the President
under Article 356 is a subjective one and cannot be tested by reference to any
objective tests, or by judicially discoverable and manageable standards. The court
cannot go into the question of correctness or adequacy of the facts and
circumstances on which the satisfaction of the Central Government is based.
131
The (Constitution 38th Amendment) Act, 1975 declared that the satisfaction of the President
mentioned in Article 356 shall be final and conclusive and shall not be questioned in any court
on any ground. But The (Constitution 44th Amendment) Act, 1978 withdrew this clause.
132
Supra note 128.
133
Supra note 130.
236
Justice Bhagwati has also conceded that the inclusion of the word
‘otherwise’ in Article 356 gave to the President very drastic powers which if
misused or abused can destroy the constitutional equilibrium between the Union
and the States. He says “indeed the usual practice is that the President acts under
Article 356 (1) of the Constitution only on Governor’s report. But the use of word
‘or otherwise’ (in Article 356) shows that President’s satisfaction could be based on
other material as well. This feature of our Constitution indicates most striking the
extent to which in-roads have been made by it on the federal principle of
Government”
Late, Shri Charan Singh, the then Union Home Minister addressed a
letter to the Chief Ministers that they should advice the Governors’ of their
respective States to dissolve the State Assembly in exercise of the power under
Article 174 (2) and seek a fresh mandate from the electorate. When a Legislature no
longer reflects the wishes of the electorate he said it should obtain a fresh mandate.
The States challenged the validity of the directives issued by the Home Minister to
Chief Ministers to dissolve their Assemblies and seek fresh mandate on the ground
that the reason for imposition of President Rule mentioned in the letter was outside
the scope of Article 356.134
The Petitioners prayed for a permanent injunction for restraining the
Centre from giving effect to the directives of the Home Minister. A Bench of seven
members of the Supreme Court rejected the petition and upheld the Centre’s action
of dissolution of three Assemblies under Article 356. The court ruled that the
134
Ibid.
237
satisfaction of the President under Article 356 could not be questioned. The
President acts not only on the report of the Governor but also otherwise. This means
that the satisfaction can be based on material other than Governor’s report.
135
Justice P.B. Sawant opined in S.R. Bommai vs UOI that the
President's satisfaction has to be based on objective material. That material may be
available in the report sent to him by the Governor or otherwise or both from the
report and other sources. Further, the objective material so available must indicate
that the government of the State cannot be carried on in accordance with the
provisions of the Constitution. Thus the existence of the objective material showing
that the government of the State cannot be carried on in accordance with the
provisions of the Constitution is a condition precedent before the President issues
the proclamation. Once such material is shown to exist, the satisfaction of the
President based on the material is not open to question. However, if there is no such
objective material before the President or the material before him cannot reasonably
suggest that the government of the State cannot be carried on in accordance with the
provisions of the Constitution, the proclamation issued is open to challenge. It is
further necessary to note that the objective material before the President must
indicate that the government of the State "cannot be carried on in accordance with
the provisions of the Constitution".
In other words, the provisions require that the material before the
President must be sufficient to indicate that unless a proclamation is issued, it is not
possible to carry on the affairs of the State as per the provisions of the Constitution.
135
AIR 1994 SC 1918.
238
It is not every situation arising in the State but a situation which shows that the
constitutional government has become an impossibility, which alone will entitle the
President to issue the proclamation. These parameters of the condition precedent to
the issuance of the proclamation indicate both the extent of and the limitations on,
the power of the judicial review of the proclamation issued."
The study reveals that the Union Government has not adopted
uniform pattern in accepting the causes and circumstances which may warrant the
invocation of Article 356.136 The word failure of constitutional machinery has been
liberally used by the Union Government justifying the grounds which were not even
anticipated by the founding fathers of our Constitution. When, in April 1992, the
Governor of Nagaland dissolved the State Assembly on the advice of the Chief
Minister under Article 174(2)(b) the Central Government did not approve this
action of the Governor. The Central Government invoked Article 356 ‘suo moto’
without any recommendations of the Governor on April 2, by taking the plea that
the Chief Minister had already lost his majority when he advised the Governor to
dissolve the House. This action shows the unnecessary interference of the Centre in
the political affairs of the State. The opposition parties at Centre described that
action as an attack on the federal character of the Constitution.
b) Report of the Governor:
Article 356 (1) may be invoked on the report of the Governor.
Governor is the bridge between the Centre and the States. It is the duty of the
Governor to protect and sustain the constitutional machinery in the State. He keeps
136
Harbir Singh Kathuria, President Rule in India (1967-89), Uppal Publications House, New Delhi,
1990, p. 342.
239
the President informed about the developments of the State. Governor prepares the
report about the situations of the State for the President in his discretion and
recommends the imposition of President’s rule. Various instances of imposition of
president’s rule on the recommendations of the Governor show that the Governor
acted for providing political benefits to the Centre. At this time Governor acts as the
true agent of the Centre or in other words the Centre may use the Office of the
Governor to interfere in the administration of the State.
6.2.2.6.3 Effects of the President’s Rule:
When the President after the acceptance of the Governor’s report
imposes the President’s rule and declares that the powers of the State Legislature
are to be exercised by or under the authority of the Parliament, then the entire
Legislative field of the States comes under the control of the Union. And Central
Government gets the power to make laws for any matters enumerated in the State
List. The President may be authorized by Parliament to delegate the power so
conferred on him to any other authority with subject to such conditions as he may
impose.137 The executive power of the Union also extends to the giving of
directions to any State Government as to manner in which its executive power is to
be exercised. And if the Lok Sabha is not in session the President may be
authorized the expenditure from the consolidated fund of State, pending sanction of
such expenditure by Parliament.138
In that context the position of the Governor is not that of the head of
the State but of a mere deputy of the President and all his actions in this connection
137
Article 357 (1) (a), Constitution of India.
138
Article 357 (1) (c), ibid.
240
are performed in the capacity as a representative of the President and in the very
nature of being a representative, he exercises only those powers which are
delegated to him by the President.139 When the President’s rule is imposed in a
State, the President may assume to himself all or any of the functions of the
government of the State and all or any of the powers vested in or exercisable by the
Governor.140
The President may suspend the State Legislature or dissolve it and
ask the Cabinet in power to continue in office till a new Legislature has been
elected. When under the proclamation of President’s rule the Cabinet continues in
the office after the dissolution, till the election of the new Legislature, the interim
government cannot initiate anything which might require legislative sanction. But
in routine matters it would exercise the same powers as it did prior to the
dissolution of the House. When President decides to take over the administration of
a State, the ministry ceases to function and he may do the followings;
i) assume to himself all or any of the functions of the government of the State
and all or any of the powers vested in or exercisable by the Governor or any
body or authority in the State other than the Legislature of the State.141
ii) declare that the powers of the Legislature of the State shall be exercisable by
or under the authority of Parliament.142
139
140
Annual Survey of Indian Law, by Indian Law Institute, New Delhi, 2006, p. 120.
141
Article 356 (1) (a), Constitution of India.
142
Article 356 (1) (b), Ibid.
241
iii) make such incidental and consequential provisions as appear to the
President to be necessary or desirable for giving effect to the objects of the
proclamation including provisions for suspending in whole or in part the
operation of any provisions of the Constitution relating to anybody or
authority in the State.143
However, the President is not authorized to assume the powers of the
High Court or to suspend any constitutional provision relating to it.144 During the
President’s rule the problems of bringing in legislation is resolved either by the
issue of ordinances by the President or by legislation in Parliament. All proposals
involving legislation are sent to the Central Government. The Central Government
is answerable to Parliament for the government of the State. The life of the law
made by Parliament or the President during the operation of Article 356 is not co-
terminus with the subsistence of the proclamation. The law does not come to an end
automatically as soon as the proclamation is revoked, it remains in force until it is
altered or repealed by the State Legislature.
6.2.2.6.4 Duration of Proclamation of President’s Rule:
A proclamation issued under Article 356 shall be laid before each
House of Parliament and shall remain in operation for two months unless before the
expiry of that period it has been approved by both Houses of Parliament.145 When
the President’s rule is invoked at the time when Parliament is dissolved or
dissolution takes place during the period of two months and the proclamation is
143
Article 356 (1) (c), Ibid.
144
Proviso to Article 356, Ibid.
145
Clause (3) of Article 356, Constitution of India.
242
passed by the Rajya Sabha but not passed by the Lok Sabha, the proclamation shall
cease to operate at expiry of 30 days from the date on which the new Lok Sabha
first meets after reconstitution unless before the expiry of 30 days it has also been
passed by the Lok Sabha.146 When the Parliament approves the imposition of
President’s rule, it remains in operation for six months. It may be revoked or varied
by a subsequent proclamation of emergency.147
The normal operative period for the proclamation is six months,148
which will count from the day on which the Houses pass the resolution approving
the proclamation. The Centre has the wide powers to extend the duration of
imposition of President’s rule for six months at a time149 but in any case the
President’s rule will not remain continue for more than three years150 or in other
words the constitutional machinery must be restored to the State.
146
Proviso to Article 356(3), ibid.
147
148
The (Constitution 42nd Amendment) Act, 1976 had risen the period of six months to one year. But
the (Constitution 44th Amendment) Act, 1978 reduced this period to six months.
149
44th Amendment, 1978, substituted the word six months for the word one year. Thus it restores
the position as it stood before 42nd Amendment, 1976.
150
First Proviso to Article 356(4), Constitution of India.
243
The (Constitution 44th Amendment) Act, 1978 restricted the power of the Centre to
continue President’s rule and provides that the extension of the emergency beyond
the period of one year151 is possible only if the conditions mentioned in clause (5)
of Article 356 are present, which are as follows;
i) A proclamation of emergency under Article 352 is in operation at the time
of the passing of such resolution in the whole of India or in the concerned
State or in the part of the State and
ii) The Election Commission certifies that the continuance in force of the
proclamation under Article 356 during the period specified in such
resolution is necessary on account of difficulties in holding General
Elections to the Legislative Assembly of the State concerned.
The effect of this clause is that normally a proclamation under
Article 356 remains in force in a State for one year at the most but under special
circumstances mentioned above it can remain in force up to three years which is the
absolute maximum ceiling.152 However, The (Constitution 64th Amendment) Act,
1990 provided that in case of proclamation of President’s rule in Punjab on May 11,
1987, the conditions mentioned in clause (5) of Article 356 shall not apply. The
151
Due to the Akali agitation in Punjab the (Constitution 48th Amendment) Act, 1984, substituted the
words “any period beyond the expiration of two years for the words any period beyond the
expiration of one year” in clause (5) of Article 356. Again the (Constitution 64th Amendment)
Act, 1990 added a new proviso to clause (4) of Article 356 and substituted the words “three
years and six months for the words three years”. Again the (Constitution 67th Amendment) Act,
1990 due to the circumstances of Punjab, substituted the words “four years for the words three
years and six months.” Again the (Constitution 68th Amendment) Act, 1991 substituted the
words “five years for the word four years.”
152
244
idea behind periodic parliamentary ratification of continuance of the proclamation
under article 356 is to afford an opportunity to Parliament to review for itself the
situation prevailing in the concerned State, so that the central executive does not
feel free to keep the proclamation in force longer than what may be absolutely
necessary.153
6.2.2.6.5 Use and Misuse of the Power under Article 356 (1):
The President under Article 356 (1) is empowered to impose
Presidential rule in the State. This Article gives very important power in the hands
of the Centre and due to this power Centre can fulfill its obligations under the
Constitution. Generally, President uses this Article on the report of the Governor of
the State but he can also do so even without the report of the Governor. There are
many instances when Centre fulfilled its obligation to protect the States by using
this Article.154 In a number of cases Central intervention has taken place in the
States because of the instability of the Government in those States. When the
existing ministry either resigns, or is defeated on the floor of the House and no
viable alternative ministry is in sight or is possible to form, then the Centre takes
over the State’s administration by using this Article and carries it through the
Governor or as per constitutional provisions.
In 1951, when in the State of East Punjab it became impossible to
work well due to groupism within the Congress Party in the State, the Centre used
Article 356 (1) and invoked President’s rule on June 20, 1951 in the State.
153
Ibid.
154
Provided under Articles 355 & 365, Constitution of India.
245
In the State of PEPSU after the General Assembly Elections of the
State Col. Ranbir Singh formed the ministry on March 19, 1952 but due to the
defection of some members, he submitted his resignation. Sardar Gian Singh
Rarewala of United Front was called to form the government but Election Tribunal
declared the election of Sardar Gian Sing including 9 members as invalid. On this
happening the Governor sent the report to the President and the President’s rule was
invoked on March 5, 1953.
On November 15, 1954 the President’s rule was imposed in State of
Andhra Pradesh because the ruling Prakasam Ministry supported by other parties
was defeated on a crucial vote of no-confidence on the issue of the implementation
of the recommendations of Ram Murthy Committee.
On February 25, 1961 the President’s rule was imposed in the State
of Orissa. Dr. Mahatab was the Chief Minister of a coalition ministry of Congress
and Ganatantra Parishad at that time. Due to the end of the coalition, Dr. Mahatab
resigned and because of the strong opposition of prominent members of Congress
Party, the formation of an alternative ministry was not possible. So, on the
recommendation of the Governor President’s rule was imposed.
On March, 1965 the President’s rule was imposed in Kerala because
after the mid term elections, no party secured a clear majority and it became
inevitable to invoke Article 356 (1). At that time Congress got 36 seats and
Communists secured 40 seats out of which 29 members were in prison under
Defence of India Rules. Congress leaders did not want to form ministry with their
246
rebel congress members. So, it was the use of Article 356 (1) to impose President’s
rule in the State on the recommendations of the Governor.
In 1966, consequent upon the Centre’s decision to bifurcate the State
of Punjab into the State of Punjab and Haryana to smoothen the process of partition,
Shri Ram Kishan, the Chief Minister of Punjab resigned and the President’s rule
was imposed on July 5, 1966. The Legislature was not dissolved but suspended as it
was thought desirable that the Legislature of the composite State be broken into two
parts so as to constitute the Legislatures of Punjab and Haryana till new Legislature
could be elected.
In 1967, in Haryana the ministry in office was dismissed because of
large scale defections of members of the Assembly from one party to other. The
game of defection from one party to other continued for a long time. The Governor
pointed out in his report that defections had made a mockery of the Constitution and
had brought democracy to ridicule. With such large scale and frequent defections, it
was impossible to find out whether the will of the majority in the House represented
the will of the people. It was clearly a use of this Article 356 (1).
In 1973, the Congress Ministry of Andhra Pradesh resigned on the
advice of the congress high command and the President’s rule was imposed so that
the situation arising out of a public agitation for creation of a separate Telengana
State could be adequately handled. The State Legislature was not dissolved but
kept in suspended animation. It was revived when the Centre was able to find a
political solution to the demand being raised.
247
In 1974, the Gujarat Ministry was dissolved following the
resignation of the ministry. Though the ministry was in a majority in the
Legislature, yet it left office because there was a wide spread public agitation
against it.
In November, 1975, Article 356 was invoked in Uttar Pradesh when
Bahuguna Ministry resigned. Similarly in March 1976, the President’s rule was
imposed in Gujarat, when the Patel Ministry resigned after being defeated in the
House on a budget demand. These are the examples of use of Article 356 (1) and
without this Article the obligation of Centre under Article 355 could not be
fulfilled.
After the Ram Janmabhoomi-Babri Masjid dispute, the Congress
Party commanding at Centre invoked Article 356 and the President’s rule was
imposed in Uttar Pradesh on December 6, 1992.
The President’s rule was also imposed on the same ground in the
States of Madhya Pradesh, Rajasthan and Himachal Pradesh on December 15, 1992.
The President’s rule in U.P. was not challenged but in other three States it was
challenged. Even the M.P. High Court held that the imposition of President’s rule in
Madhya Pradesh was invalid and beyond the scope of Article 356. In S.R. Bommai
vs UOI155, the Supreme Court was also called upon to decide the validity of
imposition of President’s rule in Madhya Pradesh, Rajasthan and Himachal Pradesh
and held that the imposition of the President’s rule in Madhya Pradesh, Rajasthan
and Himachal Pradesh was valid. The Supreme Court also held that secularism is a
155
Supra note 135.
248
part of the basic structure of the Constitution and if a State acts in a manner to
subvert or sabotage secularism, it can lawfully be regarded that a situation has
arisen in which the State Government cannot be carried on in accordance with the
constitutional provisions. Ratnavel Pandian J. observed that “in matters of State,
religion has no place. No political party can simultaneously be a religious party and
politics and religion cannot be mixed.”
The Supreme Court also reversed the decision of the M.P. High
Court. So, a State may enjoy majority support in the Assembly, but if it subverts the
basic value of secularism, it can be dismissed under Article 356 and such
Government may be regarded as not functioning in accordance with the provisions
of the Constitution.156 It is the use of Article 356 for the protection of the
constitutional provisions.
In September, 1998 the Governor of Bihar, Shri S.S. Bhandari sent a
report to the President and mentioned therein that the government of Smt. Rabri
Devi had failed to maintain the law and order in the State. Governor recommended
the imposition of the President’s rule in the State. In October, 1998 the Central
Government recommended to the President for the dissolution of Rabri Devi
Government and for the invocation of Article 356 (1) in the State. The President
considered the Governor’s report and the recommendations of the Central
Government, after that he decided to return the recommendations for re-
consideration.157 The Central Cabinet deferred the decision for sometime but after a
few months, due to the wake of two successive massacres of Dalits on January 25
156
S.R. Bommai vs UOI, AIR 1994 SC 1918.
157
Under Article 74 (1), Constitution of India.
249
and February 10-11, 1999 in two villages in Jehanabad district in central Bihar by
the members of Ranvir Sena, the Central Government on Feb. 12, 1999 again
recommended for the imposition of President’s rule and the President imposed the
President’s rule on Feb. 12, 1999.158 When it was challenged in the Patna High
Court, the Chief Justice said that there was a Jungle Raj in Bihar and it was a fit
case for the imposition of President’s rule.159 The invocation of Article 356 (1) was
approved by Lok Sabha but in Rajya Sabha the BJP coalition party was not in
majority there and Congress Party, in majority there, decided to oppose the
proclamation. So, Central Government did not go to the Rajya Sabha and revoked
the same on March 12, 1999. This was the clear use of Article 356 (1) but could not
pass due to constitutional requirement.
On November 20, 2007, The President, Pratibha Devisingh Patil
signed the proclamation bringing Karnataka under the President’s rule following the
Cabinet accepting the recommendation of the Governor, Rameshwar Thakur.160
This action of the Centre’s came, when the BJP Chief Minister of Karnataka, B.S.
Yeddyurappa handed over his resignation to the Governor after their alliance
partner JD (S) issued a whip to vote against the government seeking a vote of
confidence in the specially convened session of the Assembly on November 19,
2007. It was the proper case for invocation of Article 356 in Karnataka as Congress,
BJP and JD (S) initially desired to go to the people to seek a fresh mandate.
158
According to Article 74 (1), this time the President had to sign the proclamation under Article
356(1) of the Constitution of India.
159
160
The Tribune, Nov. 21, 2007, p. 1.
250
On January 19, 2009, President’s rule was imposed in Jharkhand and
kept the State Assembly under suspended animation. The decision to impose direct
rule has been taken on the basis of Governor, Syed Sibte Razi’s report on the
political deadlock in the State after the Chief Minister stepped down on January 12,
when he failed to enter the State Assembly through a bye-election within six
months of taking over the reins of the State.
On February 26, 2009 justifying the imposition of President’s rule,
Minister of State for Home Shakeel Ahmad said in the Rajya Sabha that
government had no other option as no political party or group came forward to form
the government after Chief Minister Shibu Soren resigned after losing a bye-
election. He assured the House that a popular government would be installed in
Jharkhand soon.161
There are many instances, when the imposition of President’s rule
under Article 356(1) became very controversial as Centre used the discretion of the
Governor for its political goals and even ignored the guidelines provided time to
time by Rajamanar Committee, Sarkaria Commission, S.R. Bommai case and
National Commission to review the working of the Constitution. This is alleged that
the Central Government is using the Governor to destabilize the State Governments
run by parties different from that in power in the Centre to facilitate imposition of
the President’s rule. At the time of sending the report to the President for the
invocation of President’s rule, the Governor acted as the puppet in the hands of the
Centre. The study of imposition of President’s rule also reveals that the Union
Government has used this Article 356 (1) by and large as a political weapon and
161
The Hindu, Feb. 27, 2009.
251
dislodged the State Governments. The ruling party at Centre has been taking undue
advantage of the vagueness of this Article and has used it on a variety of reasons.
In Kerala, in 1959, Communist Ministry was commanding majority,
but there was a wide spread discontent and mass upsurge in the State against the
policies of the ministry. The Communist Ministry had to face a strong opposition
from all political parties. The Prime Minister advised the State Ministry to resign
but the State Ministry did not heed to this advice. In the circumstances, on receipt
of Governor’s report the Centre invoked Article 356 on July 31, 1959 and dismissed
the State Ministry in spite of the fact that the ministry enjoyed the majority in the
House. The Kerala episode brought into sharp focus the question of the scope of
Article 356 and circumstances under which it could be invoked. The Communist
characterized the Central Government’s action as political intolerance on the part of
the Congress Government at the Centre towards a Communist Government in a
State. The Centre misused the Article 356 as in reality there was no constitutional
breakdown but only the political crisis which was created by the opposition parties.
The Fourth Parliamentary Elections held in 1967, brought a new turn
in the political history of India. The Congress Party came in triumphant majority in
this general election. The different type of alliances among the different non-
congress parties was a notable feature of the political scene in India. The collapse of
the coalition governments in the States invited the frequent imposition of
President’s rule for the vested interest of the ruling party at the Centre.162 In 1967,
after the General Assembly Elections, no party got absolute majority in Rajasthan.
162
Dr. N.S. Gehlot, The Office of the Governor – its Constitutional Image and Reality, Chugh
Publications, Allahabad, 1977, p. 164.
252
However, the Governor called Shri M.L. Sukhadia to form the government being
the leader of the largest party. Due to the wide spread agitation organized by the
opposition group, Shri Sukhadia declined to form the government. He informed the
Governor that in such situation his party did not think it proper to form the
government. The Governor instead of calling the leader of the opposition group to
form the government or finding alternate government recommended the dissolution
of the Assembly. The President’ rule was imposed on March 15, 1967163 and the
Assembly was suspended. It was the misuse of Article 356 (1) because Congress at
the Centre wanted to form the Congress Government at the State also.
In West Bengal after the General Assembly Elections, no party
secured clear majority. Shri Ajoy Mukherjee, the leader of United Democratic Front
formed the Government on March, 1967. But after few months due to Naxalbari
movement and defection of some members from the ruling party, the Cabinet
decided to convene the State Assembly on December 18, 1967. The Governor asked
the Chief Minister to convene the meeting not latter than November 30, 1967.
When Cabinet expressed its inability to do so, then Governor on November 21,
1967 dismissed the Ajoy Mukherjee Government and called Dr. P.C. Ghose, leader
of Progressive Democratic Front to form the government. On February 11, 1968 a
group of 18 MLA’s of ruling party formed a new group Indian National Democratic
Front with some other members. The Governor, Dr. Dharam Vira sent a report to
the President and stated therein that the strength of various parties was very fluid
and the Speaker’s ruling had made the functioning of the Assembly impossible. The
Governor’s action was criticized as arbitrary and hasty. And on the

163
The Statesman, March 16, 1967.
253
recommendations of the Governor the President’s rule was imposed on February
20, 1968.
Rajamanar Committee gave its recommendations regarding the
Article 356 (1).164 But the misuses of this Article continue by the Centre even after
its recommendations.
On June 14, 1972, Nandini Satpathi formed the government in
Orissa. But she could not work well due to opposition of some members of her
ministry. On March 1, 1973 some members of ruling party resigned and joined the
Pragati Party of Biju Patnaik. By this act the ruling party came in minority and the
Chief Minister lost the majority in the Assembly on March 1, 1973. Shri Biju
Patnaik the leader of Pragati Party claimed the majority with 72 members but the
Governor instead of giving him a chance to form the ministry, he prorogued the
Assembly and recommended the imposition of President’s rule in the State. On the
recommendations of the Governor President’s rule was imposed on March 3, 1973.
It was the misuse of Article 356(1). Shri Biju Patnaik challenged the invocation of
President’s rule in the Supreme Court and said that Governor should have called
him to form the government. The report of the Governor was actuated with mal-
intention. The petitioner averted that the proclamation was issued not because the
Pragati Party did not command the majority in the House but because a government
formed by the Pragati Party would not be stable and would not last long.
During the Emergency on June 26, 1975, Governors had forgotten
their constitutional role and obligations and began to please Mrs. Indira Gandhi, the
then Prime Minister. At that time, Governors functioned just as representatives of

164
Rajamanar Committee constituted in 1969.
254
Mrs. Gandhi in various States instead of the representatives of the President.
President’s rule was imposed in Tamil Nadu and the D.M.K. Ministry of
Karunanidhi was dismissed unceremoniously in December, 1975 on the fake
charges of corruption, favouritism, abuse of powers.165
In 1977, in the Parliamentary General Elections, the people gave
their verdict in favour of Janta Party. The Congress Party was badly routed. At that
time Congress Party was in command in nine States. The Janta Government
invoked Article 356 and dismissed the State Assemblies of these nine States in spite
of the fact that there was no breakdown of constitutional machinery in these States.
The only reason was that the party commanding at the Centre was different from
the parties commanding in these States. Similarly, when after the Parliamentary
General Elections in 1980, Congress secured the tremendous majority. The
Congress Party after forming the government in the Centre under the leadership of
Smt Indira Gandhi, invoked the Article 356 (1) and dissolved the State Assemblies
of nine States on same pattern as of the Janta Party by taking the plea that the
existing State Governments did no longer reflect the wishes of the electorate. These
States were Uttar Pradesh, Bihar, Tamil Nadu, Rajasthan, Madhya Pradesh,
Maharashtra, Punjab, Orissa and Gujarat. The propriety of the wholesale use of
Article 356 first in 1977 and again in 1980 has been widely questioned. It was the
misuse of power by the Centre.
After the frequent use of Article 356 (1) the Sarkaria Commission
was appointed to review the Centre-State relations. It viewed on this wholesale
misuse of Article 356 (1) that the dismissal of ministries in 18 cases is based on
165
Supra note 72 at 161-162.
255
political purposes which are unrelated to the Article 356.166 But even after its
recommendations the misuse of this Article continued for providing political
benefits to the ruling party at the Centre.
On August 7, 1988 the President’s rule was imposed in Nagaland. At
that time Shri Sema was the Chief Minister of the ruling party. On July 28, 1988, 13
members of the ruling party defected and formed their separate party. On July 31,
1988, Shri Vamuzo, leader of new party informed the Governor that he commanded
the majority in the House and was in a position to form the government. On August
3, 1988, the Chief Secretary wrote a letter to Shri Vamuzo and blamed that he had
wrongfully confined the MLA’s. But shri Vamuzo and other MLA’s denied the
allegations on their verification. On August 6, 1988, Governor sent the report to the
President about the formation of new party and also blamed that Shri Vamuzo had
confined the MLA’s forcibly. He also stated in his report that the horse-trading was
going on in the State. Meanwhile, Chief Minister submitted his resignation and
recommended for the imposition of President’s rule. Shri Vamuzo challenged the
validity of the President’s rule in Guahati High Court on the ground that he was not
called to form the ministry. The Union of India moved to the Supreme Court in this
case and Supreme Court stayed the proceedings of the High Court.167
In March 1990, in Meghalaya government was formed under the
leadership of Shri B.B. Lyngdoh by Meghalaya United Parliamentary Party. On the
request of the leader of the opposition party (United Meghalaya Parliamentary
Forum) Governor asked to Shri B.B. Lyngdoh to prove the majority on the floor of
166
167
Supra note 156.
256
the House. On August 7, 1991 the motion of confidence was moved and 30
members voted in favour of the motion and 27 members voted against it. But
Speaker declared that he had received a complaint against five MLA’s of ruling
coalition party that they were disqualifying under anti-defection law and adjourned
the House. Again on October 8, 1991 confidence motion was moved and 56 MLA’s
including four independent MLA’s voted the motion. The Speaker declared that 26
members voted in favour and 26 members voted against the motion, excluding four
independent disqualified MLA’s and in tie he voted against the confidence motion.
But in realty 30 MLA’s including four independent voted in favour of the motion
and 26 MLA’s voted against the motion. These 30 MLA’s also wrote a letter to the
Governor stating therein that they voted in favour of the ministry. The Governor
sent a report to the President and recommended the invocation of Article 356. On
October 11, 1991, the President issued the proclamation under Article 356 (1). It
was the clear case of misuse of power.
In Karnataka the leader of the Janta Party, Shri S.R. Bommai formed
the Government on August 30, 1988. On April 18, 1989, Shri K.R. Molakery
member of ruling party presented 19 signed letters of the legislators including 17
Janta Dal legislators and 1 independent legislator, to the Governor about withdrawal
of their support to the ruling party. On April 19, 1989 the Governor sent a report to
the President stating therein that due to defection the ministry came in minority. He
also added that no other party was in a position to form the government and
recommended the invocation of Article 356(1). On April 20, 1989, 7 legislators out
19 defector legislators wrote letters to the Governor, therein they alleged that in
257
earlier letters their signature were obtained by misrepresentation and affirmed their
support to the Bommai Ministry.
The Governor sent another report on April 20, 1989 and referred
therein the support letters of 7 legislators. He mis-stated therein that the support of
7 members had been obtained under pressure by the Chief Minister and he
recommended for the invocation of Article 356(1). On the report of the Governor
the President invoked the President’s rule on April 21, 1989. S.R. Bommai
challenged the proclamation in the Karnataka High Court. A special bench of three
judges of Karnataka High Court dismissed the writ petition.168 S.R. Bommai
appealed in the Supreme Court against the High Court’s judgement.169 The
Supreme Court was also called upon to decide the validity of imposition of
President’s rule in Meghalaya and Nagaland. The Supreme Court declared that the
President’s rule in Karnataka was unconstitutional. The majority of the
commanding party was not tested on the floor of the House. Moreover, the
Governor did not try to find alternate ministry. This proved that the report of the
Governor was faulty and malafide.
In his judgement delivered for himself, Kuldip Singh J., Sawant J.
commented upon the conduct of the then Governor of Karnataka, “It was improper
on the part of the Governor to have arrogated to himself the task of holding, firstly,
that the earlier 19 letters were genuine and were written by the said legislators of
their free will and volition. He had not even cared to interview the said legislators
but had merely got the authenticity of the signatures verified through the
168
S.R. Bommai vs UOI, AIR 1990 Kant. 5.
169
Supra note 156.
258
Legislature Secretariat. We are of the view that this is a case where all canons of
propriety were thrown to winds and the undue haste made by the Governor in
inviting the President to issue the proclamation under Article 356(1) smacked of
malafide. The action of the Governor was more objectionable since as a high
constitutional functionary, he was expected to conduct himself more fairly,
cautiously and circumspectly. Indeed it appears that the Governor was in a hurry to
dismiss the ministry and dissolve the Assembly.” 170
In case of Meghalaya the Supreme Court held that the material
before the President was not factual and relevant. In case of Nagaland, the Supreme
Court held that after the resignation of the Chief Minister, Shri Vamuzo claimed the
majority support but instead of allowing him to test his claim on the floor of the
House, the Governor recommended for invocation of Article 356 (1) and President
on his report issued the proclamation. The Court ruled that in such circumstances,
the proclamation was unconstitutional.
The Article 356 was discussed in the Bommai case and some
guidelines were also provided in this case. Although it has proved to be a check in
some cases but in other cases, it is clear that the Centre has misused this Article
356.
On October 18, 1995, when the President’s rule was imposed in
Uttar Pradesh, the Government was of the BSP in alliance with BJP. And in Centre
the congress party was in power under the leadership of P.V. Narsimha Rao. The
BJP party withdrew its support due to some actions of the BSP Government, which
170
Supra note 156.
259
could affect the image of BJP Party. The State Assembly was kept in suspended
animation and later on dissolved on October 27, 1995 before the approval of the
proclamation by the Parliament. The ostensible reason given for this step was that
there was a possibility of ‘horse-trading’ of MLA’s. However, the fact was that the
Congress Party at Centre wanted to kill the possibility of emergence of a BJP
Government in the State. The decision to dissolve the Assembly was purely a
political decision which was not in consonance with the guidelines provided in the
Bommai case.
In U.P. General State Assembly Elections of September 1996, no
party could get the majority. BJP was the largest party but no party except few
independent MLA’s wanted to support the BJP. Meanwhile, one year of
President’s rule in U.P. imposed on October 18, 1995 was going to complete on
October 17, 1996. In such circumstances, it would have been possible to revoke the
President’s rule and invite the largest party to form the government and if it failed
to prove the majority then the President’s rule could be re-imposed but Governor
did not do this and the earlier President’s rule imposed on October 18, 1996 was
revoked and new proclamation was issued. This was the colourable exercise of
power by the President or it is the misuse of Article 356(1) or the violation of the
judicial guidelines laid down by the Supreme Court in the Bommai case and also
against the Sarkaria Commission’s recommendations as the Governor did not take
any step to form a government in the State.171 The proclamation was challenged in
the High Court of Allahabad and a special bench of the three judges declared it
unconstitutional and based on wholly irrelevant and extraneous grounds and liable
171
260
to be quashed. Ultimately, the government was formed by a unique agreement
between BJP and BSP for sharing power.
In Gujarat, when the BJP was in power under the leadership of Shri
Suresh Mehta as Chief Minister, due to split in the party Shri Shankar Singh
Vaghela formed a separate party and claimed the majority of 42 MLA’s. Upon the
request of the Chief Minister, Governor summoned the House on September 13 and
14, 1996.172 There was violent scene in the House and opposition walked out.
Amidst such circumstances Chief Minister won the vote of confidence by 92 votes
to nil. The Governor sent a report to the President about the happenings in the
Assembly and recommended the invocation of Article 356 (1). The Central
Government under the leadership of Shri Deve Gowda acted in haste and imposed
the President’s rule and dismissed the State Assembly. It was the misuse of Article
356 (1) as the violence and the disturbance in the Assembly was not so serious that
amounting to breakdown of the constitutional machinery in the State. Home
Minister Inderjit Gupta described it as “Painful and reluctant” decision to impose
President’s rule in Gujarat.
In October, 1997 the Governor of UP asked the Chief Minister to
prove his majority on the floor and on October 21, 1997 he obtained a vote of
confidence on the floor of the House amidst pandemonium. In spite of that the
Governor recommended the imposition of President’s rule in his report to the
President. Central Government after accepting the report recommended to invoke
Article 356 but the President returned the recommendations under Article 74 (1) for
172
Times of India, Sept. 20, 1996.
261
re-consideration with a doubt about the constitutional correctness of the Governors
report. Lastly Central Government withdrew its recommendations to invoke Article
356 (1) 173 and the misuse of Article was avoided.
The President’s rule was imposed in Uttar Pradesh on March, 8,
2002 on the recommendations of the Governor. In the General Assembly Elections
no party got the majority and no party wanted to support any other party to form the
government. So, it was not possible to form a viable government. The leader of the
Samajwadi Party staked his claim as the single largest party to form the government
and claimed that he would prove his majority on the floor of the House. But the
Governor was not satisfied with his claim. Such instances may be multiplied.174
The other example of misuse of Article 356 (1) was seen in Bihar,
where General State Assembly election was held in December 17, 2004 and results
were declared on March 4, 2005 but no party gained the requisite majority in the
House of 243 members. Since no political party was in a position to form the
government, the President’s rule was imposed on March 7, 2005 and the Assembly
was kept in suspended animation. Afterwards, efforts of realignment of political
forces started and NDA reached to a position to form the government but this was
not acceptable to UPA Government at the Centre. So the Governor sent a report on
May 21, 2005 that attempts were being made to cobble a majority by illegal means
and lay claim to form the government in the State and recommended the dissolution
of the Assembly under Article 356 (1). The proclamation was issued on May 23,
2005 dissolving the Bihar State Assembly. It was challenged in Rameshwar
173
174
Id. at 805.
262
Prasad vs UOI,175 where the Supreme Court held that the presidential proclamation
dated May 23, 2005 dissolving State Assembly was unconstitutional and based on
extraneous and irrelevant grounds. The Governor acted in undue haste in sending
his report and his full motive was to prevent JDU from staking claim to form the
government. The Supreme Court order declaring as “unconstitutional” the
Presidential proclamation dissolving the Bihar Assembly is a rap on the knuckles of
the Congress-led United Progressive Alliance government at the Centre.176
On January 3, 2008 the President’s rule was imposed in the State of
Nagaland, although the Chief Minister Neiphiu Rio of BJP backed Democratic
Alliance of Nagaland survived the no-confidence in the Assembly on December 13,
2007. The President’s rule was imposed in spite of the fact that the State Assembly
Elections was due in Mach, 2008. Chief Minister Neiphiu Rio condemned the move
to impose President’s rule in the State and said "Such a move will be illegal and
unconstitutional as I have come to power only after being elected democratically
and my government has won the trust vote in Nagaland Assembly on December
13".177 Bharatiya Janta Party spokesman Rajiv Pratap Rudy accused the United
Progressive Alliance Government of imposing President's rule in Nagaland a
fortnight before the Election Commission is expected to announce the election
schedule.
In Meghalaya, the President’s rule was imposed on March 19, 2009.
The decision was taken on the basis of report sent by Meghalaya Governor
175
(2006) 2 SCC 1.
176
India News Online, Oct. 10, 2005.
177
The Tribune, Jan. 4, 2008, p. 2.
263
recommending President's rule in the State owing to the break down of
constitutional machinery in the State. He had sent the report following the dramatic
development of March 17, when Chief Minister Donkupar Roy survived the no
confidence motion after Speaker, Bindo M. Lanong exercised his vote in its favour.
The Centre's decision has come under sharp criticism from various political parties
including the BJP, Left Parties and the Nationalist Congress Party who deplored the
imposition of President's rule at a time when the Country was going for the Lok
Sabha polls. Former Lok Sabha Speaker, P.A. Sangma and three other legislators
challenged the invocation of Article 356 in the Supreme Court.178
6.2.2.6.6 Recommendations of Rajamannar Committee on Article 356;
Rajamanar Committee179 recommended the following provisions
relating to the Article 356 (1):
i) Article 356 and 357 should be totally omitted or
ii) In the alternative, sufficient safeguards should be provided in the
Constitution itself to secure the interests of the State against the arbitrary
and unilateral action of the ruling party at the Centre.
iii) The only contingency which may justify the imposition of President’s rule
in the State under Article 356 (1) is the complete breakdown of law and
order in the State, when the State Government itself is unable or unwilling
to maintain the safety, security of the people and property of the State.
178
Id. March 26, 2009, p. 20.
179
Tamil Nadu State in 1969 appointed a Committee under the Chairmanship of Rajamanar to
examine the Centre-State relations and emergency provisions.
264
iv) The words “or otherwise” occurring in clause (1) of the Article 356 should
be omitted; and
v) A proviso should be added to Article 356(1) requiring the President before
issuing the proclamation to refer the report of the Governor to the
Legislative Assembly of the concerned State for expressing its views
thereon within such period as may be specified in the reference.
vi) It recommended the omission of Article 365.
President’s Rule under Article 356:
The report of the Commission was made public on January 30,
1988.180 The Commission viewed that the words “a Government of the State cannot
be carried on in accordance with the provisions of the Constitution” are of wide
amplitude. Each and every breach of the constitutional provision irrespective of its
significance, extent and effect cannot be treated as the failure of constitutional
machinery in the state. Commission observed that the failure of the constitutional
machinery may occur in several situations namely political crisis, internal
subversions, fiscal break down and non compliance of constitutional directions of
180
On March 24, 1983 Smt. India Gandhi announced in the Parliament the proposal to appoint a
commission under the chairmanship of R.S Sarkaria, a retired judge of Supreme Court. She
enunciated that the Commission would examine the working of the existing arrangements
between Centre and States and recommend such changes in the said arrangements as might be
appropriate within the present constitutional framework. The Commission has submitted its
report to the Union Government in 1987.
265
the Union.181 The recommendations of the Commission relating to the President’s
Rule under Article 356 (1) are as follows;
i) It should be used very sparingly in extreme cases as a matter of last resort,
when all other available alternatives fail to prevent or rectify the breakdown
of constitutional machinery in a state. All attempts should be made to
resolve the crisis at the State level before taking recourse to the provisions
of Article 356. The availability and choice of these alternatives will depend
upon the nature of the constitutional crisis in the State, its causes and
exigencies of the situation. These alternatives may be dispensed with only in
cases of extreme urgency where failure on the part of the union to take
immediate action under Article 356 will lead to disastrous consequences.182
ii) A warning should be issued to errant State in specific terms that it is not
carrying the government of the State in accordance with the provisions of
the Constitution. Before action under Article 356 any explanation received
from the State should be taken into account. However, this may not be
possible in a situation when not taking immediate action would lead to
disastrous consequences.183
iii) When an external aggression or internal disturbance paralyses the State
administration creating a situation drafting towards a political break-down
of the constitutional machinery in the State all alternative courses available
181
Supra note 13 para 6.4.01
182
Id. para 6.8.01.
183
Id. para 6.8.02.
266
to the Union for discharging its paramount duty under Article 355 should be
exhausted to contain the situation.184
iv) In the situation of political breakdown the Governor should explore all
possibilities of having a government enjoying majority support in the
Assembly. If it is not possible for such a government to be installed and if
fresh elections can be held without avoidable delay he should ask the out
going ministry, if there is one to continue as caretaker government, provided
the ministry was defeated solely on a major policy issue unconnected with
any allegations of mal-administration or corruption and is agreeable to
continue. The Governor should then dissolve the Legislative Assembly,
leaving the resolution of the constitutional crisis to the electorate. During the
interim period the caretaker government should be allowed to function. As a
matter of convention the caretaker government should merely carry out day
to day work and desist from taking any major policy decisions.185
v) If the important ingredients described above are absent it would not be
proper for the Governor to dissolve the Assembly and install a caretaker
government. The Governor should recommend President’s rule without
dissolving the Assembly.186
184
Id. para 6.8.03.
185
Id. para 6.8.04 (a).
186
Id. para 6.8.04 (b).
267
vi) Every proclamation should be placed before each House of Parliament at the
earliest, in any case before the expiry of the period of two months
contemplated in clause (3) of Article 356.187
vii) The State Legislative Assembly should not be dissolved either by the
Governor or the President before the proclamation issued under Article
356(1) has been laid before the House of Parliament and it has had an
opportunity to consider it. Article 356 should be suitably amended to ensure
this.188
viii) Safeguards corresponding in principle to clauses (7) and (8) of Article 352
should be incorporated in Article 356 to enable Parliament to review
continuance in force of a proclamation.189
ix) To make the remedy of judicial review on the ground of mala fides a little
more meaningful it should be provided through an appropriate amendment.
Notwithstanding anything in clause (2) of Article 74 of the Constitution, the
facts and grounds on which Article 356 (1) is invoked should be made an
integral part of the proclamation issued under that Article. This will also
make the control of Parliament over the exercise of this power by the Union
executive more effective.190
x) Normally the President is moved to action under Article 356 on the report of
the Governor. The report of the Governor is placed before each House of
187
Id. para 6.8.05.
188
Id. para 6.8.06.
189
Id. para 6.8.07.
190
Id. para 6.8.08.
268
Parliament. Such a report should be a speaking document containing a
precise and clear statement of all material facts and grounds on the basis of
which the President may satisfy himself as to the existence or otherwise of
the situation contemplated in Article 356.191
xi) The Governor’s report on the basis of which proclamation under Article 356
is issued should be given wide publicity in all the media in full.192
xii) Normally President’s rule in a state should be proclaimed on the basis of the
report of the Governor.193
xiii) In clause (5) of Article 356 the word ‘and’ occurring between sub-clause (a)
and (b) should be substituted by ‘or’194.
M.M. Punchhi Commission recommends that there should be an
amendment in Articles 355 and 356 of the Constitution to enable the Centre to bring
specific trouble-torn areas under its rule for a limited period. It has proposed
“localizing emergency provisions” under Articles 355 and 356, contending that
localized areas either a district or parts of a district be brought under Governor’s
rule instead of the whole State. Such an emergency provision should however not
be of duration of more than three months.
6.2.2.7 Pardoning Power:
Governor has the power to grant the pardon. This power has been
conferred on the Governor with a view that the executive body of the State would
191
Id. para 6.8.09.
192
Id. para 6.8.10.
193
Id. para 6.8.11.
194
Id. para 6.8.12.
269
improve the judicial errors committed by a decisive judicial authority of the
State.195 The philosophy underlying the pardon power is that “every civilized
country recognizes and has, therefore, provided for the pardoning power to be
exercised as an act of grace and humanity in proper cases. Without such a power of
clemency to be exercised by some department or functionary of a government, a
Country would be most imperfect and deficient in its political morality and in that
attribute of deity whose judgements are always tempered with mercy.”196
The power of the Governor to exercise pardon under Article 161
runs parallel to the Presidential power to grant pardon under Article 72 of the
Constitution. Article 161 of the Constitution provides that the Governor has the
power to grant pardons, reprieves, respites or remissions of punishment and to
suspend, remit or commute sentences of any person convicted of any offence
against any law relating to a matter to which the executive power of the State
extends. This Article 161 confers the Governor with the followings powers:
i) Pardon: it is an act of grace which exempts the individual, on whom it is
bestowed, from the punishment the law inflicts for a crime he has
committed.197
ii) Reprieve: it is merely the postponement of the execution of a sentence for a
definite time or to a day certain. It does not and cannot defeat the ultimate
execution of the judgement of the court, but merely delays it temporarily.198
195
S. Madhusoodan, Governor and Chief Ministers in Indian States- Conflicts and Relations, Deep
& Deep Publications, 1991, p. 186.
196
Epuru Sudhakar vs Government of A.P., AIR 2006 SC 3385.
197
P. Ramanatha Aiyar, The Law Lexicon, The Encyclopaedic Law Dictionary, 2nd Edition,
Wadhwa and Company, Nagpur, 2007, p. 1405.
270
iii) Respite: it means postponement to the future the execution of a sentence.199
iv) Remission: it means to reduce the amount of punishment without changing
the character of punishment.200
v) Commutation: it means changing a punishment to one of a different sort
than that originally proposed.201
vi) Suspend: it means to interrupt, to stay and delay.202
Exercising this power of pardon is an executive act and the Governor
can exercise this power for an offence against any law relating to a matter to which
the executive power of the State extends. Article 162 of the Constitution provides
that the executive of the State extends to matters with respect to which the
Legislature of the State has power to make laws. It means Governor can exercise
these powers with regard to crimes committed and convicted for by the State
Judiciary in relation to matters under List II and List III, provided there are no
Union Laws with respect to List III.203
Regarding the pardoning power, President has wider powers than the
Governor of a State has. Proviso to Article 162 provides that in any matter with
respect to which the Legislature of a State and Parliament have power to make
laws, the executive power of the State shall be subject to and limited by the
198
Supra note 196 at. 3391.
199
V.N. Shukla, Constitution of India, edited by Mahendra P. Singh, Eastern Book Company,
Lucknow, 2008, p. 385.
200
Ibid.
201
Ibid.
202
203
Dr. Purushottam Singh, Governor’s office in independent India, Navayug Sahitya Mandir, Bihar
1968, p. 149.
271
executive power expressly conferred by this Constitution or by any law made by
Parliament upon the Union or authorities thereof. Section 433-A204 of the Criminal
Procedure Code, 1973 lays down restrictions on provisions of remission or
commutation in certain cases mentioned therein. It provides that notwithstanding
anything contained in section 432, where a sentence of imprisonment for life is
imposed on conviction of a person for an offence for which death is one of the
punishments provided by law or where a sentence of death imposed on a person has
been commuted under section 433 into one of imprisonment for life, such person
shall not be released from prison unless he had served at least fourteen years of
imprisonment.
Section 434 of the Code confers concurrent power on the Central
Government in case of death. It provides that the power conferred, by Sections 432
and 433 of the Code, upon the State Government may in the case of sentences of
death, also be exercised by the Central Government. Section 435 of the Code
provides that the power of the State Government to remit or commute a sentence,
where the sentence is in respect of certain offences specified therein, will be
exercised by the State Government only after consultation with the Central
Government.
The President has the power to pardon a sentence of death205 but the
Governor does not have this power. The Governor can suspend, remit or commute
the death sentence. It is provided by Section 54 of the Indian Penal Code, 1860 that
in every case in which sentence of death shall have been passed (the appropriate
204
Inserted in the Code of Criminal Procedure Code, 1973 by Amendment Act of 1978.
205
Article 72(1) (c), Constitution of India.
272
government) may, without the consent of the offender, commute the punishment for
any other punishment provided by this Code. Appropriate Government means:206
a) In cases where the sentence is a sentence of death or is for an offence
against any law relating to a matter to which the executive power of the
Union extends, the Central Government.
b) In cases where the sentence (whether of death or not) is for an offence
against any law relating to a matter to which the executive power of the
State extends, the government of the State within which the offender is
sentenced.
Section 432(1) of the Criminal Procedure Code, 1973 also provides
that when any person has been sentenced to punishment for an offence, the
appropriate government may, at any time, without conditions or upon any
conditions which the person sentenced accepts, suspend the execution of his
sentence or remit the whole or any part of the punishment to which he has been
sentenced.
A pardon is an act of grace and it cannot be demanded as a matter of
right. A pardon not only removes the punishment but also places the offender in the
same position as if he had never committed the offence.207 A Pardon may be given
at any time after the commission of an offence, either before the legal proceeding is
started or after the conviction. It may be granted during the pendency of the suit. It
may be absolute or conditional. It is conditional where it does not become operative
206
Section 55 A, Indian Penal Code, 1860.
207
273
until the grantee has performed some specified act or where it becomes void when
some specified event happens.208
Section 432(3) of Criminal Procedure Code, 1973 provides that if
any condition on which a sentence has been suspended or remitted is, in the opinion
of the appropriate government, not fulfilled, the appropriate government may cancel
the suspension or remission and thereupon, the person in whose favour the sentence
has been suspended or remitted may, if at large, be arrested by any police officer,
without warrant and remanded to undergo the unexpired portion of the sentence.
6.2.2.7.1 Extent of Discretion of the Governor regarding Pardoning
Power:
“A Pardon in our days is not a private act of grace from an individual
happening to possess power. It is a part of the constitutional scheme. When granted,
it is the determination of the ultimate authority that the public welfare will be better
served by inflicting less than what the judgement fixed.”209
Pardoning power under Article 161 of the Constitution is to be
exercised by the Governor on the basis of the aid and advice of the State
Government. He cannot use his individual judgement for pardoning a sentence. He
cannot take any action under this Section suo motu. In Maru Ram vs UOI,210
Supreme Court held that the power under Article 72 and 161 of the Constitution can
be exercised by the Central and the State Governments, not by the President or
Governor on their own. The advice of the appropriate government binds the heads
208
Ibid.
209
Quoted in Epuru Sudhakar vs Government of A.P., AIR 2006 SC 3385 at 3390.
210
AIR 1980 SC 2147
274
of the State. If the Governor is found to have exercised himself without being
advised by the Government, the power is amenable to judicial review.211
The power of granting pardon is very wide and do not contain any
limitation as to the time on which and the occasion on which and the circumstances
in which the said powers could be exercised. Section 432(2) of the Criminal
Procedure Code, 1973 also says that whenever an application is made to the
appropriate government for the suspension or remission of a sentence, the
appropriate government may require the presiding judge of the court before or by
which the conviction was had or confirmed, to state his opinion as to whether the
application should be granted or refused, together with his reasons for such opinion
and also to forward with the statement of such opinion a certified copy of the record
of the trial or of such record thereof as exists.
The considerations for the use of this power are wide but should not
be irrelevant. The Supreme Court held that consideration for exercise of power
under Articles 72 and 161 may be myriad and their occasions protean and are left to
the appropriate government but no consideration or occasion can be wholly
irrelevant, irrational, discriminatory or malafide.212
When the case is before the Supreme Court under special leave
petition under Article 136 of the Constitution, the Governor cannot use the power to
suspend the sentence because under Article 142 of the Constitution, the Supreme
Court is empowered to pass such decree or make such order as is necessary for
doing complete justice in any case or matter pending before it. In K.M. Nanavati vs
211
Satpal vs State of Haryana, AIR 2000 SC 1702.
212
Maru Ram vs UOI. AIR 1980 SC 2147
275
State of Bombay,213 Supreme Court held that the power of the Governor to suspend
a sentence is subject to the rules made by the Supreme Court regarding cases which
are pending before it in appeal. The Governor may grant pardon at any time but the
suspension of sentence for the period when the matter is sub-judice in the Supreme
Court under special leave to appeal under Article 136 of the Constitution, could be
granted only by the court itself and not by the Governor. For using the pardoning
power, the Government should place all the material facts regarding the case before
the Governor, so that the governor can apply his mind fairly.214
Governor is bound by the advice of the government. But government
some times uses this power for providing benefits to the criminal politicians by not
submitting all the facts regarding the case under mercy petition. In U.P. an MLA of
the State Assembly had been convicted of the offence of murder and within a
period of less than two years he succeeded in coming out of the prison as the
Governor of U.P. granted remission of the remaining long period of his life
sentence. The son of the deceased moved the Allahabad High Court challenging the
aforesaid action of the Governor and the same having been dismissed; the matter
had been brought to the Supreme Court by grant of special leave petition. The
Supreme Court had come to the conclusion that the Governor was not told of
certain vital facts concerning the prisoner such as his earlier clemency petition and
the report of the jail authority that his conduct inside the jail was far from
satisfactory and out of two years and five months he was supposed to have been in
jail, he was in fact on parole during substantial part thereof.
213
AIR 1961 SC 112.
214
Dhananjoy Chaterjee vs State of West Bengal (2004) 9 SCC 751.
276
The court in this case held that when the Governor was not posted
with all the material facts, the Governor was apparently deprived of the opportunity
to exercise the powers in fair and just manner and the order fringes on arbitrariness.
The court, therefore, quashed the order of the Governor with a direction to
reconsider the petition of the prisoner in the light of the materials which the
Governor had no occasion to know earlier.215
Governor should have applied his mind to the record at the time of
using this power. In Sat Pal vs State of Haryana,216 the court held that when we
examine the case in hand, the conclusion is irresistible that the Governor had not
applied his mind to the material on record and has mechanically passed the order
just to allow the prisoner to overcome the conviction and sentence passed by this
court. The order dated 25 January 1999 clearly indicates that the Governor of
Haryana is pleased to remit the unexpired portion of the sentence passed on
prisoner Siriyans Kumar Jain confined in the Hissar Central Jail. When an accused
is convicted of heinous offence of murder and is sentenced to imprisonment for life,
the authority, which has been conferred with power to grant pardon and remission
of sentence under Article 161 of the Constitution, must be made aware of the period
of sentence in fact undergone by the said convict as well as his conduct and
behaviour while he has been undergoing the sentence, which would be all germane
considerations for exercise of the power. Not being aware of such material facts
tends to make an order of granting pardon arbitrary and irrational. In the instant
case, the order granting pardon remitting the unexpired period of sentence was
215
Swaran Singh vs State of UP, AIR 1998 SC 2026.
216
AIR 2000 SC 1702.
277
passed even before the accused had surrendered to serve out the sentence. But the
order mentioned that the accused was confined in jail. The Governor was not made
aware of as to what is the total period of sentence the accused has really undergone
or if at all has undergone any sentence. The record showed an uncanny haste with
which the file has been processed and the unusual interest zeal shown by the
authorities in the matter of exercise of power to grant pardon. The only irresistible
conclusion would be that the governor had not applied his mind to the material on
record and the court set aside the order granting pardon.
Exercise of executive clemency is a matter of discretion and yet
subject to certain standards. It is not a matter of privilege. It is matter of
performance of official duty. It is vested in the President or the Governor, as the
case may be, not for the benefit of the convict only, but for the welfare of the
people who may insist on the performance of the duty. This discretion, therefore,
has to be exercised on public consideration alone. The President and the Governor
are the sole judges of the sufficiency of facts and of the appropriateness of granting
the pardons and reprieves. However, this power is an enumerated power in the
Constitution and its limitations, if any, must be found in the Constitution itself. The
powers of clemency by the President or the Governor of a State cannot be exercised
for political considerations or on the basis of religion, caste or other extraneous
factors. A bench consisting of Justices Arijit Pasayat and S.H. Kapadia made it
clear that the powers of reprieve, pardon or remission of sentence cannot be done
on irrelevant materials. The exercise of the powers must be for bona fide and valid
278
reasons.217 The court can set aside the order of commutation of death sentence to
life imprisonment, if no reason is indicated, as to, why the Governor decided to
commute the death sentence to that of life imprisonment.218
6.2.2.8 Appointment of the Vice-Chancellor:
Governor has the power to appoint the Vice-Chancellors of the
Universities in the State. This power has been conferred upon him by the different
State University Acts, which provide that Governor by virtue of his office is the
Chancellor of the Universities in the State. He appoints the Vice-Chancellors from
the panel of names recommended by the Search Committee. As a Governor, he
functions with the aid and advice of the Council of Ministers. But the question
arises is whether as a Chancellor he can use his discretion in the appointment of the
Vice-Chancellor or is he bound by the advice of his Council of Ministers under
Article 163(1) of the Constitution. This power of the Governor as a Chancellor is
not a constitutional power. It is a statutory power because he does not derive it from
the Constitution, he derives it from the Statute passed by the Legislature of the
State. For instance, Chaudhary Devi Lal University Act, 2003 provides that the
Governor of Haryana by virtue of his office shall be the Chancellor of the
University.219 The Chancellor shall be the Head of the University.220 The
Chancellor shall, if present, preside over the convocation of the University for
217
Supra note 196.
218
Bani Kanta Das and Anothers vs State of Assam and others, (2009) 15 SCC 206.
219
Section 10(1), Chaudhary Devi Lal University Act, 2003.
220
Section 10(2), ibid.
279
conferring degrees and meetings of the Court.221 The Government shall constitute a
Selection Committee consisting of one nominee of the Chancellor and two
nominees of the executive council, which shall prepare a panel of at least three
names, in alphabetical order, from which the Chancellor shall appoint the Vice-
Chancellor on the advice of the government.222 The Pro Vice-Chancellor shall be
appointed by the Chancellor on the advice of the government.223 If the Vice-
Chancellor is unable to perform his duties owing to his temporary incapacity on
account of illness or any other reason, or the office of the Vice-Chancellor falls
vacant due to death, resignation or otherwise, the chancellor may make arrangement
for the performance of duties of the Vice-Chancellor until the existing Vice-
Chancellor is able to resume his office or until a regular Vice-Chancellor is
appointed, as the case may be.224
Similarly, the Jharkhand State Universities Act, 2000 provides that
the Governor of Jharkhand shall be the Chancellor and shall, by virtue of his office,
be the head of the University and the President of the Senate, and shall when
present, preside over the meetings of the Senate and any convocation of the
University.225 The Vice-Chancellor shall be appointed by the Chancellor in
consultation with the State Government and shall hold his office during the pleasure
of the Chancellor for a term not exceeding three years.226 The Chancellor shall
221
222
223
Section 11-A, ibid.
224
225
Section 9(1), Jharkhand State Universities Act, 2000.
226
Section 10 b, ibid.
280
appoint the Pro Vice-Chancellor, in consultation with the State Government, for a
period not exceeding three years during the pleasure of the Chancellor.227
The Chancellor may make such arrangements as he deems fit, for the
performance of the duties of the office of the Vice-Chancellor during the temporary
absence of the Vice-Chancellor by reason of leave, illness or for any other cause. In
case of vacancy of the post of the Vice-Chancellor caused due to death, resignation,
completion of the term or any other reason the Chancellor on the basis of the
information received from the Pro Vice-Chancellor or Registrar or any other source,
may make such arrangements for the performance of the duties of the office of the
Vice-Chancellor, as he deems fit.228
According to the State University Acts, Chancellor has the power to
remove the Vice-Chancellor. Ch. Devi Lal University Act, 2003 provides that the
Chancellor may, on the advice of the government, cause an inquiry to be held in
accordance with the principles of natural justice and remove the Vice-Chancellor
from office, if he is found on such inquiry, to be a person patently unfit to be
continued in such office.229
About the removal of the Vice-Chancellors, UGC Committee
(1991-93) headed by Dr Ram Lal Parikh recommended that:
“He/she could be removed after show cause notice and on grounds
proved by an enquiry held by a committee consisting of sitting/retired judge of the
227
Section 12, ibid.
228
Section 13, ibid.
229
Supra Note 1, Section 11(2).
281
Supreme Court/High Court in which he/she has been given an opportunity of being
heard”.230
Governor as a Chancellor is not immune under Article 361 of the
Constitution because only as a Governor, he has immunity from all suits. By virtue
of his office, he is the Chancellor and is the same person but in the capacity of
Chancellor, he is not immune to any suit.
6.2.2.8.1 Extent of Discretion in the Appointment of the Vice-
Chancellor:
Governor as the Chancellor of the State University derives his power
in the appointment of the Vice-Chancellor from the State University Act, which
generally provides that the Chancellor shall appoint the Vice-Chancellor in
consultation with the State Government. But he is not bound to accept the
recommendations of the State Government. Many a times Governor as a Chancellor
did not accept the advice of the Education Minister or the Chief Minister in making
such appointment and appointed the Vice-Chancellor of his own choice, which had
also indulged him in controversy and conflict with the State Government. For
instances:
In 1971, the Chancellor of Universities in Orissa, Sh. S.S. Ansari
appointed Chaudhary Nishamani Nanda as the Vice-Chancellor of State Agriculture
University without consulting the Government/Chief Minister of Orissa Sh.
Biswanath.231
230
University Today, Removal of a VC, Vol. XXVIII, No 13, New Delhi, July 1, 2008.
231
The Statesman, May 10, 1971.
282
Similarly, in 1981, the Chancellor of Universities in Kerala, Mrs.
Jyoti Venkatachallam, appointed A.V. Verghese as the Vice-Chancellor of Kerala
University without seeking the advice of the State Government.232 On October 28,
1977, the Chancellor of Universities in Haryana, Sh. H.S. Brar, appointed Hardwari
Lal as the Vice-Chancellor of Maharshi Dayanand University, Rohtak in
confutation with the State Government.233
In 1984, the Chancellor of Universities in Andhra Pradesh, Sh. Ram
Lal, appointed Sh. G.N. Reddy as the Vice-Chancellor of Sri Venkateswara
University, Tirupati disregarding the advice of the Government. Government had
recommended the name of I.J. Naidu.234
In 2010, a panel of three names, submitted by the Search Committee,
for the appointment of Vice-Chancellor, was forwarded to the Chancellor of the
Mangalore University, Sh. H.R. Bhardwaj by the State Government. The
Chancellor rejected the recommendations of the Government regarding Dr. Thimme
Gowda for the post of Vice-Chancellor.235
Although many a times Governor refused to appoint such person as
the Vice-Chancellor as was recommended by the State Government but generally
Governors as Chancellor appoint such person as the Vice-Chancellor, who is
recommended by the State Government. No doubt, it is not obligatory to the
Governor to accept the advice of the Government in such appointment but it is
232
The Hindu, July 21, 1981.
233
The Tribune, Oct. 29, 1977.
234
NCR Tribune, April 26, 2003.
235
The Hindu, Feb. 7, 2010.
283
helpful for the Governor to consult with the Chief Minister or the Education
Minister at the time of appointment.
6.2.2.8.2 Recommendations of the Sarkaria Commission regarding
Appointment of the Vice-Chancellor:
Where a State University Act provides that the Governor, by virtue
of this office, shall be the Chancellor of the University and confers powers and
duties on him not as Governor of the State but as Chancellor, there is no obligation
on the Governor, in his capacity as Chancellor, always to act on ministerial advice
under Article 163(1). However, there is an obvious advantage in the Governor
consulting the Chief Minister or other Ministers concerned, but he would have to
form his own individual judgement. In his capacity as Chancellor of a University,
the Governor may be required by the University's Statute to consult a Minister
mentioned in the Statute on specified matters. In such cases, the Governor may be
well advised to consult the Minister on other important matters also. In either case,
there is no legal obligation for him to necessarily act on any advice received by
him.236
236
284

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Chapter- VI

Discretionary Powers of the Governor in India

6.1 Meaning of Discretion:

Discretion means freedom to act according to one’s own judgement.

choice with in certain legal bounds.1

According to the New International Webster’s Dictionary, discretion

According to Concise Oxford English Dictionary, discretion means

the freedom to decide on a course of action.3 So, different dictionaries defined

6.2 Discretionary Powers of the Governor:

Discretionary powers of the Governor means the powers of the

Governor in the exercise of his functions4.

The entire administration of the State is carried out in the name of

About the discretionary powers granted to the Governors, Dr. B. R.

Ambedkar, the Chairman of Constituent Assembly expressed his views that,

“Because the Provincial Governments are required to work in

Constitution or in subordination to the Central Government are observed.”5

far. Madras High Court in the case of S. Dharmalingam vs Governor of Tamil

in respect of charge of malafide. Discretionary powers of the Governor may be

divided into two parts:

i) Specific discretionary powers,

ii) Circumstantial discretionary power.

6.2.1 Specific Discretionary Powers:

Circumstances, which are mentioned in the Constitution, under

powers. By specific Articles in the Constitution certain responsibilities are

discretion. In discharging these responsibilities, he is not bound to seek or accept

the advice of his Council of Ministers. In the case of Ganamani vs Governor of

be exercised on the advice of the Council of Ministers except insofar as the

Constitution expressly or perhaps by necessary implication says that he can exercise

those powers in his individual discretion”

The Articles which give specific discretionary powers to the

Governor are as under:

6.2.1.1 Article 239:

the President through an Administrator with such designation as he may specify or

a Governor of a State, adjoining Union Territory, may be appointed as the

Administrator of that Union Territory. Where the Governor of a State is appointed

as the Administrator of an adjoining Union Territory, he shall exercise his functions

other words Governor as an Administrator can act independently without his

6.2.1.2 Para Nine of Sixth Schedule:

purpose of prospecting for or extraction of minerals. Part-1 of para nine of 6th

or leases for the purpose of prospecting for or extraction of minerals guaranteed by

of such District shall be made over to that District Council.

as to the share of such royalties to be made over to a District Council, it shall be

Article 371 of the Constitution provides that the President may

the State Legislative Assembly.

Article 371 A of the Constitution has conferred special

responsibilities on the Governor of Nagaland for certain purposes. For discharging

exercise his individual judgement as to the action to be taken. These responsibilities

areas of that State.

ii) to establish a Regional Council for Tuensang District.

the rest of Nagaland.11

Article 371 C of the Constitution12 confers special responsibilities

upon the Governor of Manipur to secure the proper functioning of a Committee of

the Members of the Legislative Assembly consisting of the members representing

the Hill Area.

ensuring the social and economic advancement of different sections of the

Article 371H (a) of the Constitution confers special responsibilities

So, in discharging the obligations mentioned above the Governor is

Sarkaria Commission recommended that “before taking a final decision in the

exercise of his discretion, it is advisable that the Governor should, if feasible