Discretionary Powers of Governor—III: An Interpretation from Federal Perspective
| Author | Ashok Pankaj |
| Published date | 01 March 2018 |
| Date | 01 March 2018 |
| DOI | http://doi.org/10.1177/0019556117735447 |
| Subject Matter | Articles |
Article
Indian Journal of Public
Administration
64(1) 49–72
© 2018 IIPA
SAGE Publications
sagepub.in/home.nav
DOI: 10.1177/0019556117735447
http://journals.sagepub.com/home/ipa
1 Ashok Pankaj, Professor and Director, Council for Social Development, Lodhi Estate, New Delhi,
India.
Corresponding author:
Ashok Pankaj, Professor and Director, Council for Social Development, 53, Lodhi Estate,
New Delhi 110003, India.
E-mail: ashokkpankaj@gmail.com
Discretionary Powers
of Governor—III: An
Interpretation from
Federal Perspective
Ashok Pankaj1
Abstract
This article examines the scope of discretionary powers of governor of a state
in India from federal perspective and argues that they are against the principle of
‘cabinet responsibility’, an essential feature of parliamentary form of government
that India intertwined with the federal constitution. These apparent anachronistic
constitutional provisions were inherited from the Government of India Act,
1935, and retained with some modifications in the Constitution of Independent
India as an institutional safeguard for the unity and integrity of Union of India that
was formed by the merger of more than 500 princely states and a number of
British administered provinces.
As against the intentions of the constitution makers, the use of discretionary
powers by governors has remained short of constitutional propriety, and it has
been a major source of tension in centre–state relations. This has been partly
because of the scope of powers itself and partly because of political factors.
This article adds to various attempts of defining the scope of discretionary powers
of the governor. A governor, appointed on political considerations, flippantly sets
aside norms, values and constitutional propriety, expected of him in exercise
of his/her powers. The lack of tenurial security makes him susceptible to the
pressure of the union government. Only through political consensus, a solution
can be found out to resolve this tricky issue of Indian federalism.
Keywords
Governor, discretionary powers, responsible government, Constitution of India,
federalism, centre–state relations
50 Indian Journal of Public Administration 64(1)
Introduction
The office of governor predates Independence and formed an important part of the
British colonial administration at the province level, also called the governor’s
provinces under the Government of India Acts, 1919 and 1935. Pre-Independence
governors enjoyed enormous amount of power over subjects devolved to prov-
inces and were accountable only to the governor-general and through him to the
secretary of state, that is, British Parliament. Sorabjee (1985, p. 13) describes the
all-powerful position of the governor before Independence as ‘in reality a consti-
tutional dictator, an autocrat over provincial despotism’. The Government of India
Act, 1919, known as Montagu–Chelmsford reform, was the first major attempt in
the direction of provincial autonomy, and it introduced an embryonic form of
responsible government in provinces through a system of ‘diarchy’. Legislative
subjects devolved to the provinces were divided into two categories—‘reserved’
and ‘transferred’. The reserved subjects, such as law and order, justice and natural
resources, were to be governed by the governor-in-council and transferred
subjects, such as education, health, municipal and local governance, were to be
administered by the governor with the aid and advice of the council of ministers,
although the former (governor) retained the power to override the decisions of his
council of ministers, even in the case of transferred subjects.
The Government of India Act, 1935, improved upon the 1919 Act in terms of
devolution of power to provinces. It gave them greater autonomy, more power
to elected governments in provinces and made provisions for the establishment
of a federal government at the centre. Before the 1935 Act, the governor of a
province was the real head of the executive. The 1935 Act introduced a limited
form of responsible government in governor’s provinces. It made provisions for
a council of ministers to aid and advise the governor in exercise of his func-
tions. Governor’s powers were to be exercised by him by dividing them into three
categories, which were: (a) exclusive jurisdiction of the governor, that is, special
responsibilities, (b) power to be exercised on his own discretion and (c) on the
advice of the council of ministers, with a proviso to override the decisions of the
council of ministers. Governors also enjoyed legislative and financial powers.
Although, the 1935 Act, in comparison to the 1919 Act, devolved more power to
the responsible government, yet the governor retained overall supremacy in the
constitutional arrangement.
The Constitution makers of Independent India adopted and adapted many of
the provisions of the Government of India Act, 1935, related to the office of the
governor. The initial position of the constitution makers was in favour of strong
federalism, greater autonomy to provinces and the governor as a titular head of the
state. Their position, however, changed during the course of debate and drafting
of the constitution. The tenor of debates tilted towards a unitary form of govern-
ment within a federal constitution. There was a shift in the constitutional position
of the governor too. The Draft Constitution had made provisions for an elected
governor with security of tenure and with some special responsibilities. The
provision of ‘elected’ governor was changed to that of ‘appointed’. The gover-
nor lost the security of tenure but was allowed to retain special responsibilities
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