Rostrum’s Law Review | ISSN: 2321-3787



We know various kinds of government prevalent in the world. Democratic form of Government considered as one of the best types of Government, albeit democratic forms of governments in Vogue in the world by two ways one is parliamentary and another is presidential form both have their own merit and demerits. Presidential form of democracy power vested with president, where as in parliamentary system power exercise by prime minister. Governor plays his role in state as a lieutenant of president. Governor is not only nominal head of the state but have certain powers like president in center like judicially legislative, financial, armed forces, amnesty, prorogation, and addressing of the house/house’s. The Governor is sole responsible as a peculiar utopian embodiment of transparent flourishing of true and exact, systematic constitutionalism government in the state. Governor has power to prepare and forward report of state government regarding arbitrariness, improper implementations of parliamentary policies.

The Governor of a State is the constitutional head of that State. In the framework of the Cabinet system of Government delineated in our Constitution, the Governor serves as the constitutional or official leader of the State. The Governor is entrusted with executing all powers and duties specified by or under the Constitution, relying on the guidance and recommendations of the council of Ministers, except in areas where the Constitution mandates the Governor to exercise discretion in performing functions.[1]

The role of the Governor of a State is to function as a vital link or bridge between the Union Government and the State Government. He is required to discharge the functions related to his different roles harmoniously, assessing the scope and ambit of each role properly[2].

Keywords: The Chancellor, the Governor, Constituent Assembly Debates, Provincial Governor


Revisiting the Constituent Assembly Debates on this matter would provide valuable insights into any deliberation about the Governor’s role and duties. An examination of these debates reveals the Chamber’s deep-seated disagreements on a range of issues, spanning from the Governor’s appointment to the extent of its discretionary powers. Additionally, they emphasize the Assembly’s rationale for maintaining this role, despite criticisms that it represented a vestige of colonial history. Moreover, the members delineated the distinctions between the President’s and the Governor’s roles and responsibilities, which may appear similar upon a cursory examination of the final adopted Constitution text.

The Constituent Assembly witnessed heated debates regarding the Governor’s role, with notable legislators actively participating in the discussion, which received substantial attention and scrutiny. At the core of these deliberations was the method for selecting the Provincial Governor, whether it should be through an election or appointment. While a faction argued that appointing an ‘elected’ Head would align with the democratic principles the Constitution aims to uphold, the prevailing opinion leaned towards maintaining a clear distinction between the Governor’s role and that of the Chief Minister. The Chief Minister, as the leader of the elected state government, would bear responsibility for its administration.

The Governor, appointed by the Central government, was intended to facilitate collaboration between the Center and the state. As outlined in Draft Article 130, although he would possess executive authority, he would maintain a hands-off approach to the day-to-day administration of the state, deferring to the elected representatives of the respective legislative assembly and Council of Ministers as the ultimate decision-makers on policy matters.

Addressing these questions, particularly in light of the proposed amendment, T.T. Krishnamachari from the Drafting Committee clarified that the extent of the Governor’s discretionary powers was confined to particular situations, all of which were explicitly outlined in other sections of the Draft Constitution, notably Articles 175 and 188. Furthermore, he drew a clear distinction between the President’s and the Governor’s roles, highlighting that the Governor’s duties, as the representative of the Central government in the state, played a more integral part in ensuring the efficient operation of the federal government. Alladi Krishnaswamy Ayyar, another distinguished member of the Drafting Committee, proposed that Draft Article 143[3] be adopted without alteration. He argued that there were several instances where the Governor’s role became crucial, particularly during government transitions and in the event of a breakdown in the constitutional machinery within a state.

In this context, it’s noteworthy that the Draft Article granting discretionary authority to the Governor remained unchanged and was directly replicated from the former Government of India Act, 1935[4]. The duties expected of the Governor, as outlined in the 1935 Act, were significantly different from what the Draft Article stipulated. Brajeshwar Prasad pointed out this apparent inconsistency, contending that the verbatim inclusion of this provision unnecessarily honored remnants of a colonial history. Ironically, he, along with several other members like Mahavir Tyagi, advocated for extending even greater authority to the Governor. These Constituent Assembly members believed that given the absence of any debate about the creation of the position itself, inadequate powers for this office would make the role of the Governor obsolete. Nonetheless, as Krishnamachari emphasized in his justification of these provisions, the Governor’s role was to ensure the consistent flow of governance and serve as a vital bridge between the Central and provincial governments within the federal framework. Therefore, the Governor was conceived to serve as the representative of the Central government in the states, responsible for supervising the execution of the Center’s policy goals within their specific geographical domain[5].

Governors in the State Administration

It used to be one of the cardinal principles of politics that the Governor of a State should not involve himself in active politics. Besides cutting ribbons and swearing-in ministers and Judges, he is to keenly watch the functioning of the Government and mildly warn the deviant ministers. Since he is the constitutional head of the State he is supposed to be, like Caesar’s wife, above suspicion and constitutional in his approach to the problems. He is not expected to be biased and prejudiced as this would denigrate him and bring disrepute to his office.

But, of late, it has been found that the office of the Governor is highly politicized as well as privatized. In nature and spirit, it has turned to be more “political” than constitutional. Now the Governors do not hesitate to interfere too much with the state administration; enter into an unholy alliance with the Centre; oblige the ruling party at the Centre by faithfully executing its decisions; embarrass the State Governments; admonish the ministers; criticise and condemn the Chief Ministers; and take recourse to any kind of action that has not only strained the relationship between the Centre and the States, between them (Governors) and the State Governments but also has forced some political parties to demand for the abolition of the office.

The Governor and the Union Government

It may be recalled that the Constitution’s architects did not envision the Governor solely as a person proficient in State-level governance machinery. They also intended for him to serve as a significant connection to the Central government. The Governor’s office was anticipated to serve as a means by which the Government of India could exert effective control over the States. Furthermore, the Governor would act as a liaison officer bridging the gap between the Center and the States, ensuring that the State Governments’ policies align with the Central government’s framework[6]. In its report the Study Team of the Administrative Reforms Commission on Centre-State Relationship, observed: “The Governor operates as an integral component of the State machinery for the majority of functions; nevertheless, concurrently, he is intended to serve as a connection to the Central government. This connection and his accountability to the Central government are established by the Constitution, primarily due to the stipulations that he is appointed and can be removed by the President. Consequently, the Constitution deliberately deviates from the rigid federal principle, and it is noteworthy to recognize that this departure is neither accidental nor arbitrary.”[7] The Governors are required to play a dual role- they are the heads of the State Govern- ments, and at the same time they are the representatives of the Centre. Herein lies an important root of complication and tension in the Centre- State relationship. The Governor has constitutional obligations to the State as well as to the Centre. And there may be conflict between these two categories of obligation, particularly when the Centre and a State Government are run by parties of varying political complexions.

The Governor as Chancellor

The office of the Governor has an important role to play as Chancellor of the universities in a state. In almost all the states, the Governor is the ex-officio Chancellor of all the universities situated in that state by provisions of the Act. The practice of making Governor, ex-officio, Chancellor of the universities of the state is the legacy of the British rule and was developed with the intention to ensure that the university education was in conformity with the governments policy and that the university finance was under the supervision and control of the provincial government concerned. The governmental control was only an assurance that the money allotted was not squandered. However, the real executive power of the universities were exercised by the vice-chancellor, who happened to be the Chancellor’s nominee.

With the advent of independence and the enactment of the new Constitution, the Governors of different states were made ex-officio Chancellor of the universities in that state. Later on, during early seventies, individual university Acts were replaced and a consolidated Act was passed by different state legislatures bringing homogeneity and uniformity in the administration of higher education throughout the country. The position of the Chancellor v made more explicit and visible and instead of treating him as a nominal head, the was Acts vested in him the real executive, legislative and judicial power relating to universities. Although there is no absolute uniformity in these Acts, and several individual university Acts are still in vogue, yet the Governor-Chancellor in state has by and large vested with the following powers[8]:-

(i) Appointment of vice-chancellor, treasurer, pro-chancellor and the power to remove them and make arrangement during the temporary absence of the vice-chancellor.

(ii) Powers to nominate certain members to the senate/syndicate/executive council/court of the university.

(iii) Power to annul decisions of the various university bodies which in his view, is against the Act, statutes, ordinances and regulations.

(iv) Power to assent or withheld assent there from to the statutes and other regulations passed by the senate/executive council of the university and submitted to the Chancellor for assent.

(v) Power to cause inspection and institute inquiries in the affairs of the university.

(vi) Power to hear memorandum and representation of the employees.

(vii) Power to decide finally election disputes with regard to the representation in different bodies of the universities and managing committees of its colleges.

(viii) Power to nominate experts in the appointment of teachers of various categories in the university.

(ix) Power to preside over the convocation of the university and meeting of its senate/executive council.

(x) Power to grant, curtail or withdraw the privilege of affiliation/recognition to degree/post-graduate colleges.

Failure of Constitutional Machinery in states and the role of Governors

The word “cannot” used in Article 356(1) of the Constitution emphatically connotes a situation of impasse. The term “cannot,” in this context, signifies “lacking the ability” or “not possessing the authority or capability.” Therefore, circumstances that can be resolved or do not result in a deadlock, hindrance, or disruption to the state’s governance as defined by the Constitution would not justify the issuance of a proclamation under Article 356(1).

The term “cannot be carried on” in Clause (1) of Article 356 does not imply that it is impossible to continue the State’s government. It simply indicates that a situation has arisen where the State’s administration cannot be conducted in accordance with the provisions of the Constitution.

The breach of any specific constitutional provision that is unrelated to the intent of the action under Article 356 is not pertinent in this context. The crucial term in the marginal note of Article 356, “the failure of constitutional machinery,” broadens the scope of Article 356(1) in its application. Although it’s not feasible to provide an exhaustive list of diverse situations from which a constitutional breakdown may reasonably be inferred, examples include: (i) widespread law and order or public order disturbances, (ii) severe mismanagement of state affairs by a State Government, (iii) corruption or misuse of authority, (iv) threats to national integration or the State’s security, or support for national disintegration or a demand for independent sovereignty, and (v) undermining the Constitution while purportedly adhering to it or fostering disunity or discontent among the populace, thereby eroding democratic social foundations[9].

Article 256 of the Constitution represents another instance of the Union’s executive authority, which requires the executive power of the State to be subservient to it. In the section titled “administrative relations” within Chapter II of Part XI of the Constitution, you can find Articles 256, 257, 258, and 258A. Article 257(1) outlines the State’s executive authority, emphasizing its responsibility not to hinder or undermine the exercise of the Union’s executive power, except when the Government of India deems it necessary to issue directives to the State for that purpose. Article 258 grants the President, who is the Chief Executive of the Union, the authority to delegate the Union’s executive power to the States in specific situations. Conversely, Article 258A of the Constitution contains a reciprocal provision, enabling the State’s Executive Head, the Governor, to bestow the State’s executive power upon the Centre. All of these articles are intricately linked to the safeguarding provision outlined in the proviso to Article 73(1)(a) of the Constitution. Within Part XVIII of the Constitution, Articles 352 and 353 delineate the President’s authority to declare a Proclamation of Emergency under specific circumstances and specify the consequences of such a proclamation. Meanwhile, Article 355 imposes a responsibility on the Union to safeguard each State against external threats and internal disturbances, ensuring that every State’s governance adheres to the Constitution’s provisions[10].

Constitutional machinery can malfunction in various ways[11]. Various and unpredictable factors can contribute to such a situation. Hence, providing a comprehensive list of all situations encompassed by the phrase “the government of the State cannot be carried on in accordance with the provisions of this Constitution” is challenging. Nevertheless, we can categorize and discuss certain examples of what qualifies and what doesn’t qualify as a constitutional breakdown as envisioned in Article 356(1) under the following categories:

  1. Political crisis
  2. Internal subversion
  3. Physical breakdown
  4. Non-compliance with the constitutional directions of the Union Executive

Note: It should be noted that this classification is not asserted to be exhaustive or flawless. A watertight compartmentalization is not feasible because many instances of constitutional breakdown may exhibit characteristics from multiple categories. Nevertheless, this approach will assist in assessing whether, in a particular situation, it would be appropriate to utilize this ultimate authority under Article 356[12].

Internal disturbance, sort of armed rebellion, cannot justify invoking of Article 356(A) unless it disables or prevents the carrying on the State Government in accordance with the Constitution.[13]

It cannot be asserted that the President can only invoke the power under Article 356 when the State Government fails to adhere to or implement directives issued in the exercise of the Union’s executive authority under specific provisions of the Constitution, and not in any other circumstance. Article 365 simply stipulates that in the event of non-compliance with the issued directives, “it shall be lawful” for the President to conclude that the necessary conditions envisioned by Article 356(1) have been met. It’s important to note that not every failure automatically triggers the necessary conditions. In each instance, the President must assess whether such a situation has indeed arisen. Article 365 indicates that it is within his authority to make such a determination under these circumstances. The discretion remains intact and must be employed impartially[14].

Citing the Sarkaria Commission’s recommendations outlined in paragraphs 6.5.01 and 6.8.01 to 6.8.04 of its report, the Supreme Court has determined that issuing a warning to the State is the initial step the President should take before hastily invoking the authority under Article 356(1) of the Constitution. Apart from issuing a warning, the President will always retain the authority to issue the required directives. Unless urgent circumstances necessitate immediate action, and the use of the sweeping authority under Article 356(1) cannot tolerate any delay, the President should exhaust all other means to reinstate the constitutional machinery within the State. A clear and specific warning should be delivered to the non-compliant State, indicating that it is not adhering to the Constitution in the governance of the State. Before initiating proceedings under Article 356, any explanations received from the State should be duly considered. Nevertheless, this may not be feasible in a scenario where refraining from prompt action would result in catastrophic consequences..[15]

Disqualification of MLAs and MLCs

The provision for the disqualification of MLAs and MLCs is mentioned under the Articles of the Constitution of India 1950. These Articles are enumerated below:-

Disqualifications for membership[16]

(1) An individual shall be ineligible for election or membership in the Legislative Assembly or Legislative Council of a State if they hold any office that yields profit under the Government of India or any State mentioned in the First Schedule. This disqualification applies unless the office is exempted by the State Legislature through legislation. Additionally, disqualification occurs if the individual is declared mentally unsound by a competent court, is an undischarged insolvent, is not a citizen of India, has willingly acquired foreign citizenship, or is subject to any law passed by Parliament that imposes disqualification.

Explanation- For this intention, an individual shall not be considered as holding an office that generates profit under the Government of India or any State listed in the First Schedule solely because they serve as a Minister, either at the Union level or for such a State.

(2) An individual is eligible to become a member of the Legislative Assembly or Legislative Council of a State unless disqualified under the Tenth Schedule.

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Decision on questions as to disqualifications of members[17]

(1) In case there is uncertainty about whether a member of a State Legislature House has incurred any of the disqualifications outlined in clause (1) of article 191, the matter shall be submitted to the Governor for resolution, and the Governor’s decision will be conclusive.

(2) Prior to reaching a conclusion on any such inquiry, the Governor is required to seek the viewpoint of the Election Commission and must proceed in accordance with that opinion.

Person who has incurred any of the disqualifications[18] specified by the Constitution cannot continue to be a member of the Legislative Assembly of a State and the obligation to vacate[19] his sent as a result of his subsequent disqualification having been imposed by the Constitution itself, any citizen can make a complaint to the Governor alleging that such member of the Legislative Assembly has incurred one of the disqualifications mentioned in Constitution[20] and should, therefore, vacate his seat[21].

Once the Governor receives the complaint and forwards it to the Election Commission, it can be inferred that the Election Commission should proceed to investigate the complaint before offering its opinion. It would be inaccurate to suggest that the Governor should conduct the inquiry and subsequently forward all the collected materials to the Election Commission to facilitate the Election Commission in forming its opinion and conveying it back to the Governor. The Governor should transmit the complaint to the Election Commission, and only the Election Commission is authorized to conduct an inquiry into the complaint. The disqualification mentioned in Article 191(1) must be acquired after the member’s election, as indicated in Article 190(3)(a) of the Constitution[22].

The Election Commission’s investigation of the complaint received from the Governor under Article 192(2) must be conducted with utmost expediency. This is evident in Article 190(3) of the Constitution[23].

Upon receiving a complaint and a reference order from the Governor, the Election Commission exercises its authority as per Article 192(2) of the Constitution by issuing a notice to the other party. The Election Commission’s jurisdiction to conduct an inquiry is not compromised solely because copies of the complaint and the Governor’s reference order were not enclosed with this notice.[24]

Conclusion, Suggestions and the way forward

Based on the preceding discussion, it is evident that the Founding Fathers held divergent views on the matter of gubernatorial discretion. However, these debates are not prominently reflected in the final adopted text of the Constitution, which outlines the role of a nominated state Head serving as an agent of the Central government in the states. This individual is entrusted with a significant degree of discretion within specific, predefined areas. Despite the intention to limit gubernatorial discretion, one must examine the complex evolution of these provisions to discover indications that some prominent members of the Assembly had already anticipated the potential for the Governor’s powers to be misused.

However, it is essential to consider the volatile political circumstances in the subcontinent following the Partition of India to grasp the reasoning behind embracing a system that concentrated political authority within the Union. In fact, this apprehension is a recurring theme that runs throughout most of the Constitutional provisions. The strong desire to safeguard the nation’s unity and integrity is an extension of that very sentiment, which undoubtedly would have had an impact on many, if not all, members of the Assembly. [25]. In the words of Brajeshwar Prasad:

“Without granting substantial authority to the Governor, achieving enhancements in Provincial administration would be challenging. While such a approach might lack democratic elements, it would be entirely justified in the national interest. I believe that, at this moment, it is imperative for all powers to be concentrated in the hands of the Government of India”.

Although these concerns may have been reasonable in the context of a young republic, evolving changes in the socio-political landscape necessitate a reassessment of whether the role of the Governor, with its apparent unchecked discretionary authority to disrupt duly elected state governments, should continue to exist in contemporary Indian politics.

[1] See at (i) Nabam Rebia & Bamang Felix v. Deputy Speaker, Arunachal Pradesh Legislative Assembly & Others, (2016) 8 SCC 1 (Five-judge Bench) (para 375), (ii) B.P. Singhal v. Union of India, (2010) 6 SCC 331 (Five-judge Bench) and (iii) Pu Myllai Hlychho v. State of Mizoram, AIR 2005 SC 1537 (Five-judge Bench) (para 14).

[2] See at B.P. Singhal v. Union of India, (2010) 6 SCC 331 (Five-judge Bench).

[3] CONSTITUENT ASSEMBLY DEBATES, June 1, 1949, Vol. VIII, speech by H.V. KAMATH, available at http://parliamentofindia.nic.in/ls/debates/vol8p13a.html  (Last visited on August 7, 2023).

[4] The Government of India Act, 1935.

[5] Id.; See at Livemint, Governors in Indian States: A Colonial Imprint, March 24, 2017, available at Governors in Indian states: A colonial imprint | Mint (livemint.com) (Last visited on August 07, 2023).

[6] C.A.D. (Reprinted by Lok Sabha Secretariat, New Delhi), Vol VIII, 1949, p.537.

[7] Report of the Study Team (appointed by the Administrative Reforms Commission) on Centre-State Relationship, Vol. I, 1967, p.272.

[8] See at https://upgovernor.gov.in/en/page/chancellor-role-of-governor (Last visited on August 07, 2023).

[9] See S.R. Bommai v. Union of India, AIR 1994 SC 1918 (Nine-judge Bench) (paras 57, 153 and 154).

[10] See at Union of India v. V. Sriharan, (2016) 7 SCC 1 (Five-judge Bench) (paras 29 and 37).

[11] See the recommendations of the Sarkaria Commission (para 6.4.01).

[12] See at S.R. Bommai v. Union of India, AIR 1994 SC 1918 (Nine-judge Bench) (para 57).

[13] See at S.R. Bommai v. Union of India, AIR 1994 SC 1918 (Nine-judge Bench) (para 53).

[14] See at SR. Bommai v. Union of India, AIR 1994 SC 1918 (Nine-judge Bench) (paras 314 and 315).

[15] See at SR. Bommai v. Union of India, AIR 1994 SC 1918 (Nine-judge Bench) (paras 72 and 233).

[16] See at Article-191 of the Constitution of India 1950.

[17] See at Article-192 of the Constitution of India 1950.

[18] See at Article-191(1) of the Constitution of India 1950.

[19] See at Article-190(3)(a) of the Constitution of India 1950.

[20] See at Article-191(1) of the Constitution of India 1950.

[21] See at Brundaban Navak v. Election Commission of India & Another, AIR 1965 SC 1892 (Five-judge Bench) (para 14).

[22] See at Brundaban Nayak v. Election Commission of India & Another, AIR 1965 SC 1892 (Five-judge Bench) (paras 14 and 17).

[23] See at Brundaban Nayak v. Election Commission of India & Another, AIR 1965 SC 1892 (Five-judge Bench) (para 20).

[24] See at (1) Brundaban Nayak v. Election Commission of India &Another, AIR 1965 SC 1892 (Five Judge Bench) (para 17) and (ii) The Election Commission of India v. N.G. Ranga & Others, AIR 1978 SC 1609 (five judge Benchy (pars 5).

[25] The Government of India Act, 1935.

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