Healthy constitutional conventions key to Governor’s role: Justice Nariman

The lecture, titled ‘The Role of the Governor of a State: Watchdog of the Centre or a Meaningful Head of State?’, was organised on September 19 at the university’s auditorium.

“When India became a sovereign democratic republic, the first thing we did was to shake off the British crown and substitute a hereditary monarch with an elected President. One would have thought that Governors, as heads of the states, would be a microcosm of the President. But that was not to be,” he said, contrasting the careful constitutional protections around the office of the President with the different treatment of Governors under Part IV of the Constitution.

Articles 53 and 54 show that the founding fathers took care to ensure the President was elected indirectly by Members of Parliament. The Lok Sabha represents the people, while the Rajya Sabha represents the states, said Justice Nariman. The electoral college includes not only members of both houses but also all elected state MLAs.

This is significant. Article 55 further ensures that around half the votes for the President come from Parliament and around half from all the states combined. Although there are now 28 states, there were fewer when this was established, and article 55 provides a mathematical formula to balance the votes accordingly, he explained.
After the lecture, Justice Nariman responded to a question about whether Governors might show bias toward the Centre, especially if a different party holds power in the state.

“According to me, all of this would require a constitutional amendment, which is impossible. Rather than a constitutional amendment, something can be done through convention, which is another source of constitutional law. Perhaps a healthy convention could grow in the future. I don’t see a constitutional amendment happening in a hurry. However, we can repeatedly refer to the oath that the Governor has to take and emphasise that their allegiance is not to the Centre… but to the Constitution and the people of the state,” he said

Nariman said that Governors have certain powers that are “beyond the President,” and they perform “important functions which even a President cannot perform sometimes.

“Under article 56, the term of office of the President is five years and importantly he can only be removed from office by way of impeachment which is an extremely difficult process and impeachment for what? For violating any provision of the constitution. His oath in fact under article 16 makes it clear that he has to abide by the constitution and that he would seek to see that the welfare of the people as a whole is again now with these provisions for the president. Why was there something different for the Governors?” he added.

There can be multiple states, each with their own Governors, and the relationship can work both ways, said Justice Nariman. The key distinction arises from Articles 154, 155, and 156, which state that governors are appointed by the president rather than elected. Although a draft article (Article 131) in the constitution initially proposed elections for Governors, it was ultimately dropped. Those who drafted the constitution were concerned that an elected Governor might clash with an elected prime minister. As a result, Governors are appointed, and Article 156 introduces an unusual provision: Governors serve at the pleasure of the president, meaning they can be hired or dismissed at any time. In practice, this allows the President to appoint a Governor one day and remove them the next, even though the official term is supposed to be five years, Nariman explained.

“And this is despite the fact that his oath, which is the Governor’s oath, actually parallels that of the president. It is very important to remember that the Governor is equally bound to preserve, protect and defend the Constitution and to serve the people of the state,” Nariman said.

He pointed out the anomaly that, while the oath mirrors the President’s duties, the appointment process for Governors remains entirely in the hands of the Centre rather than the people or the state legislature.

Nariman said he hoped political parties would evolve conventions to protect the neutrality of the governor’s office. “I would firmly wish constitutional conventions could be laid down by a party in power. It can only happen if a party in opposition becomes a party in power and vice versa,” he added. He suggested that conventions might, for example, bar the appointment of active politicians as governors so that the oath’s spirit is respected in practice.

On the contentious issue of Governors withholding assent to bills passed by state legislatures, Nariman referred to an ongoing presidential reference and said it was “obvious that a Governor cannot sit indefinitely on a bill.” He urged a pragmatic solution: either the courts should fix a time limit or declare that inaction beyond a reasonable period would permit judicial intervention to compel a governor to act.

Nariman contrasted the protections around the President’s office with those governing Governors. While the President is elected by an electoral college and enjoys a fixed term with difficult impeachment provisions, governors have long been appointed “at the pleasure” of the president, a formulation that historically allowed arbitrary removal. That, he said, underlines why conventions and safeguards are urgently needed. He recalled the Supreme Court’s 2010 ruling, often cited as a corrective to unfettered removals, which established that removals of governors could not be arbitrary or mala fide.

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