Discretionary Powers of the Governor: Constitutional Vision and Observed Realities

Published date01 September 2017
Date01 September 2017
AuthorShashi Bhushan Kumar
Subject MatterArticles
Indian Journal of Public
63(3) 402–417
© 2017 IIPA
SAGE Publications
DOI: 10.1177/0019556117720608
1 Department of Political Science, L N College, Bhagwanpur (Vaishali), Bihar, India.
Corresponding author:
Shashi Bhushan Kumar, Department of Political Science, L N College, Bhagwanpur (Vaishali),
Bihar 844114, India.
E-mail: shashibhushan911@gmail.com
Discretionary Powers
of the Governor:
Constitutional Vision
and Observed Realities
Shashi Bhushan Kumar1
Right from the adoption of the Indian Constitution a hot debate is going on
regarding discretionary power of governors. The Office of the Governor, not
being an elected constitutional functionary, has been in the eye of a storm.
Our Constitution makers wanted a governor who would act as a friend and saga-
cious advisor of the Council of Ministers. He should be a person who is expected
to be above party and politics. But very soon these pious hopes were shattered.
Arguments and counter-arguments started generating more heat but less light
after 1967 because most of the state legislatures were captured by the non-
Congress parties. The governors came to be seen or suspected as the agents
of the union government. The present article is a brief narration of governor’s
discretionary powers as our founding fathers hoped and how governors have
actually behaved with such powers just to please the leadership of the party in
power at the centre contrary to the vision of the makers.
Government of India Act (1935), governor, discretionary powers, convention,
governor’s pleasure, collective responsibility to the Assembly
The origin of governors’ office apparently ensues from the coming of Britishers to
India purely with the trading interests who ultimately become the masters of this
Kumar 403
country over the years of territorial consolidation. In precise term, this could
happen when some of the London merchants secured a Charter (The Royal Charter
of 1600) from the Queen Elizabeth of England (1558–1603) on 31 December 1600
that permitted the London merchants to trade with the Far Eastern countries
through an established East India Company. The Charter vested the management
and control of this company in the hands of a governor and twenty-four members
(a committee or directors) who were authorised to organise and send trading expe-
dition to the East Indies (Singh, 1950, p. 1). The Body of Directors later on came
to be known as the Court of Directors, the first governor, Thomas Smythe, and all
the twenty-four directors were nominated in the Charter. Thus, the birth of gover-
nor took place in the Indian soil to protect the trading interests of the British
(Banerjee, 1948, p. 3).
The victory of the Company in the battle of Plassey in 1757 had laid down the
foundation of British Empire in India. And the grant of Diwani rights, that is, the
responsibility of the collection of revenue to the company which automatically
invited the administration of civil justice, caused a great glee in the hearts of the
proprietors of the Company (Singh, 1950, p. 10). As Illbert has said, ‘The year 1765
makes a turning point in the Anglo-Indian history and may be treated as commenc-
ing the period of territorial sovereignty by the East India Company.’ The company
henceforth threw off the mask of traders and appeared in the real garb of rulers
(Pandey, 1984, p. 3). These developments of the Company further strengthened the
position of governors. The Regulating Act of 1773 provided for a Governor-General
of Bengal and his Council of four members and for the governors in Council of
Bombay and Madras. The Charter Act of 1833 introduced important changes as the
Governor-General of Bengal was made the Governor-General of India vesting in
him the sole power of legislation for whole of the territory of the company.
The upheaval of 1857, the First War of Independence to overthrow the alien rule
from Indian soil called Sepoy Mutiny, led the British Parliament to introduce a Bill
by Lord Palmerstone on 12 February 1858, which transferred the Government of
India from the company to the British Crown. Consequently, the Court of Directors
in London liquidated and set upon Executive Council headed by a cabinet minister
(Secretary of State for India) to conduct the affairs of India on behalf of the Crown
(Singh, 1950, p. 65). The Governor-General of British Indian provinces and the
Viceroy of Indian states was the same person. Under this Act the constitutional
position of the governor remained virtually unaltered.
Based on the report of Simon Commission, the British Government introduced
the Government of India Act in August 1935. The redeeming feature of the new Act
was that it marked the beginning of provincial autonomy aimed to give a measure
of democratic government in the provinces. Under this Act, the whole executive
power of the provinces was vested in and exercised by the governor on behalf of
the Crown. Section 50(1) of the Act laid down that there was to be a Council of
Ministers to aid and advise the governor in the exercise of his functions, except in
so far as he was by or under the Act required to exercise his functions or any of
them his discretion (Chatterjee, 1992, p. 21).
According to Section 50(3), if any question arose whether any matter was or
was not a matter as respects which the governor was by or under the Act required
to act in his discretion or to exercise his individual judgement, the decision of

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