Why is there no Provision in the Indian Constitution for the Impeachment of the Governor?

The author discusses why is there no Provision in the Indian Constitution for the Impeachment of the Governor? It further discusses the reports of the various committees and the commission regarding the same.

There shall be a Governor for each State of India.[1] A Governor is an executive head of the State, who exercises powers like that of the President at the Centre. The President appoints the Governor on the advice of the Prime Minister with his/her Council of Ministers.[2]Although the Governor is the executive head of the State and is a part of the State Legislature, the State Legislature has no say in his/her appoint or removal. Two or more States can have one Governor. The Governor holds his/her office during the pleasure of the President, and he/she may write his/her resignation addressed to the President to resign.[3] However, the term of tenure of the Governor is five years.[4] Unlike, the President and many other officials and authorities, the Governor cannot be removed with the process of impeachment of the governor. The President can remove the Governor without allowing him/her to produce his/her case and without informing about the termination as well. But the reasons for removal should not be arbitral, capricious, or unreasonable.[5] To understand why the Governor cannot be impeached but only the President can remove him/her from the post, it is fundamental to know the reasonings and arguments of the Indian Constitution Drafting Committee members while drafting this provision

Debates of the Drafting Committee

The Drafting Committee or the Constituent Assembly adopted a Model Provincial Constitution with the main feature that:

  • The Governor should be elected directly by the people based on adult suffrage.
  • He/she Should hold office for a term of four years.
  • He/she can be removed from his/her office by impeachment based on stated misbehaviour.

The President of the Drafting Committee, Rajendra Prasad suggested two alternatives for the Draft Constitution of India prepared:

  • The appointment of the Governor by the President from a panel of four candidates to be elected by the members of the State Legislature, through the single transferable vote and by secret ballot.
  • The direct election of the Governor by the people of the State.

The Drafting Committee finally decided upon the Presidential nominations. The Drafting Committee’s reasons for the Presidential nominations of the Governor rather than direct elections were as follows:

  • A nominated Governor would encourage centripetal tendencies and would promote all India unity. The elected Governor may to some extent encourage the separatist provincial tendencies more.
  • A Governor elected by the direct vote of people would have to be a party man/woman. But he/she should be a more detached figure acceptable to the State, otherwise, he/she could not function and may not be a part of the party machinery of the State.
  • If both, the Chief Minister and the Governor are elected by the people, it may cause conflicts between them.  The Governor might claim to arrogate power to himself/herself on the plea of his/her having been elected by the whole State as against the Chief Minister who would be elected only in a constituency which would be a small part of the State.[6]

Further, the former Prime Minister of India, Jawaharlal Nehru opined that the elected Governor might join hands with the Chief Minister of the State and disobey the Centre which may lead to separatist tendencies. He also stated that it would be better if the Governor was not so intimately connected with the local politics of the State and it would be better to have a more detached figure acceptable by the State, yet not known to be part of the party machinery of the State.[7]

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A member of the Drafting Committee, Professor K.T. Shah in the course of the debate in Constituent Assembly specifically pointed, “We must not leave the Governor to be entirely at the mercy or pleasure of the President and so long he/she acts by the advice of the constitutional advisers of the State, he/she should, I think, be irremovable during the term of office, that is, five years”. Further, Professor K T Shah moved an amendment proposing that the Governor could be removed from office not only on the ground of violation of the Constitution but also on the other grounds, such as treason or any offence against the safety, security or integrity of the Union, bribery or corruption, or on account of physical and mental incapacity duly certified.[8]

The intentions of the framers of the Constitution can be inferred from the above propositions that though they were in favour of the Presidential nomination of the Governor at the cost of an elected Governor.[9]After all the deliberations, the framers of the Indian Constitution finally agreed upon the decision that the Governor was to be formal constitutional head with strictly limited powers that in the discharge of almost all his functions would be required to follow the advice of the Council of Ministers and the Chief Minister. Ultimately, the Governor emerged as a constitutional head appointed by the President of India for a term of five years and holding office during the pleasure of the President.

Like the appointment process of the Governor has been vested in the hands of President on the advice of the Council of Ministers and the Prime Minister, the removal process also was led into the hands of the President. Unlike the process of impeachment provided for the President and many other authorities, the Governor is removed through by the President. The central Government enjoys the power for the removal of the State Governor at any time, even without giving any reasoning for the removal. There is no effective check on the powers of the Governor by the State which can prevent him from misusing his authority. The state legislature, thus, has been deprived of the right of removing a Governor.[10] As seen in the reasonings for the provision of appointing the Governor by the President, the same can be understood as the reasons for vesting the powers of his/her removal in the hands of the President rather than the process of impeachment. As the President has the power to appoint and remove the Governor, it automatically causes the Governor to work per the President, that is to work in favour of the Central Government. In a case where the State and Centre have two different political parties, their decisions clash and cause disruptions and may even lead to misuse of power by the Governor.

Case Studies

The following are a few case studies in which the Governors of the State have been removed by the president:

  • In 1977, the Janata Dal government dismissed around 15 Governors in India.[11]
  • In 1980, the Congress Party sacked the Tamil Nadu Governor, Prabhudas Patwari.
  • In 2001, The National Democratic Alliance government, removed the then Tamil Nadu Governor Justice (Retired), Fathima Beevi. She is said to be a victim to the political rivalry between Dravida Munnetra Kazhagam (DMK) political party Chief, M Karunanidhi and All India Anna Dravida Munnetra Kazhagam (AIADMK)Supremo, Jayalalitha. DMK was a part of the then National Democratic Alliance government while AIADMK ruled the state.[12]
  • In 2004, after the 14th Lok Sabha, the then Prime Minister, Dr Manmohan Singh had advised the then President, A.P.J Abdul Kalam to remove four serving Governors – Vishnu Kant Shastri of Uttar Pradesh, Kailashpati Mishra of Gujarat, Babu Parmanand of Haryana and Kidar Nath Sahni of Goa.[13]
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However, in 2010, following the decision in 2004, the  Supreme Court interpreted the provisions concerning the removal of the Governor and laid down some binding principles, a few of them are:

  1. The President has the power to remove a Governor at any time without giving him or her any reason, and without granting an opportunity to be heard. However, this power cannot be exercised in an arbitrary, capricious or unreasonable manner.  The power of removing Governors should only be exercised in rare and exceptional circumstances for valid and compelling reasons.
  2. The mere reason that a Governor is at variance with the policies and ideologies of the central government, or that the central government has lost confidence in him/her, is not sufficient to remove a Governor.  
  3. A decision to remove a Governor can be challenged in a court of law.  In such cases, first, the petitioner will have to make a prima facie case of arbitrariness or bad faith on part of the central government.  If a prima facie case is established, the court can require the central government to produce the materials based on which the decision was made to verify the presence of compelling reasons.

Forgoing expression makes it vivid that removing a Governor is much easier than removing an employee of the Central Government, while both hold office during the pleasure of the President.[14]Such a scenario has caused a lot of conflicts in the country and has led to the misuse of powers. To put an end to such actions many commissions have recommended amends o the Constitutional provisions in this matter.

Recommendations concerning the impeachment of the Governor

The Sakaria Commission made the following recommendations:

  • The Governor’s tenure of office for five years in a State should not be disturbed except in very rare cases and with too extremely compelling reasons.
  • If the President is satisfied that in the interest of the security of the State, it is not expedient to let the Governor hold his/her office until the termination of the tenure, the Governor should be informally apprised of the grounds of his/her termination and should be provided with a reasonable opportunity for presenting his/her stand against it.
  • The Governor should submit his/her reasoning to the President, and it can be examined by the advisory group consisting of the Vice-President and the Speaker of the Lok Sabha or a retired Chief Justice of India. After receiving the recommendations of this group the President may pass such orders in the case as he/she may deem fit.
  • When before the expiry of the normal term of five years, a Governor resigns or appointed as the Governor in another State, or has his/her tenure terminated, the Union Government may lay a statement before both Houses of the Parliament explaining the circumstances leading to ending of the tenure. Where a Governor has been allowed to show cause against the premature termination of his tenure, the statement may also include the explanation given by him/her, in reply.
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The National Commission made the following recommendations with respect to impeachment of the governor:

  • Entrust the selection of Governors to a committee making the five years term a fixed tenure providing the removal only by impeachment.
  • The powers of the President cannot be diluted in the matter of selection and appointment of Governors. However, the Governor of a State should be appointed by the President, after consultation with the Chief Minister of the State.
  • The Governor should be removed ortransferred on consultation with the Chief Minister of the concerned State.

The Venkatachaliah Commission recommended the following with respect to impeachment of the governor:

  • Governors should be allowed to complete their five-year term.  If they have to be removed before completion of their term, the President should do so only after consultation with the Chief Minister of the State.

The Puncchi Commission made the following suggestions:

  • The phrase, “during the pleasure of the President” should be deleted from the Indian Constitution.
  • The Governor should not be removed at the by the President on the advice of the Council of Ministers and the Prime Minister. Instead, he/she should be removed only by a resolution of the State Legislature.

Conclusion

While drafting the provision for the impeachment of the Governor, the drafting committee had decided to rest those powers in the hands of the President and not through the process of impeachment of the governor to ensure that the State government does not slip away from the Central government’s control completely. But, this provision as seen has caused a lot of conflicts in the country. To end such problems, commissions have been established by the Central and State governments, but they are still yet to implement the recommendations of such commissions.

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[1] India Const. art. 153.

[2] India Const. art. 155.

[3] India Const. art. 156, cl.1 & 2.

[4] India Const. art. 156, cl. 3.

[5] B.P. Singhal v. Union of India & Anr., (2010) 6 SCC 331.

[6] Constituent Assembly Debates, V. VIII, Lok Sabha Secretariat, 455 (1999).

[7] Govind Narain, Constitutional Obligations, Roli Books International, 59 (1985).

[8] Constituent Assembly Debates, V. VIII, Lok Sabha Secretariat, 471 (1999).

[9] Constitutional Provisions vis-à-vis Governor’s Institution in India, https://shodhganga.inflibnet.ac.in/bitstream/10603/10661/10/10_chapter%205.pdf

[10]Constitutional Provisions vis-à-vis Governor’s Institution in India, https://shodhganga.inflibnet.ac.in/bitstream/10603/10661/10/10_chapter%205.pdf

[11] Internet Desk, Timeline: Dismissal of State Governors since 1967, The Hindu (Aug. 8, 2014, 6:00 PM), https://www.thehindu.com/news/national/timeline-dismissal-of-state-governors-since-1967/article6295954.ece

[12] Arindam De, A brief history of India’s sacked governors, Daily O (Sep. 13, 2016), https://www.dailyo.in/politics/india-governors-sacked-arunachal-pradesh-jyoti-prasad-rajkhowa/story/1/12908.html

[13]Ibid.

[14]Constitutional Provisions vis-à-vis Governor’s Institution in India, https://shodhganga.inflibnet.ac.in/bitstream/10603/10661/10/10_chapter%205.pdf