In
this article we have made a comprehensive study on Governor – appointments, eligibility,
powers, rules and responsibilities, and discretions
Introduction
In
the intricate tapestry of India's governance, the role of Governors stands as a
crucial element in the federal structure envisioned by the framers of the
Constitution. Instituted as the constitutional heads of states, Governors play
a pivotal role in maintaining the delicate balance between the Union and its
constituent units. Their powers and responsibilities, as enshrined in the
Constitution of India, reflect a nuanced blend of ceremonial duties and
constitutional prerogatives aimed at fostering cooperative federalism while
upholding democratic principles.
Constitutional
foundation
The
executive authority of state is vested in the Governor of the State who
exercise directly or through the officer’s subordinate to him Article 153 to
160 deal with the office of the Governor
Article
153: (Governor State) –
There
shall be a Governor for each State. The same person may sometimes be appointed
as Governor of two or more States (added by 7th Amendment). The
Governor is appointed by the President (Article 155). The prescribed
term of office of a Governor is five years, but he holds office at the pleasure
of the President (Article 156). The pleasure of President is not
justiciable. The Governor has no security of tenure. He may be removed by the
President at any time. No person can be appointed as Governor unless he is a
citizen of India and has completed the age of 35 years (Article 157). He
must not be member of either house of the legislature of any State specified in
the first schedule of the constitution. If a member of the legislature is
appointed as Governor, he shall be deemed to have vacated his seat. He shall
not hold any other office of profit. His salary has been fixed by the
Constitution but can be varied by the Union Parliament. However, the emoluments
and allowances of the Governor cannot be diminished during his term of office.
The Governor is entitled without payment of rent to the use of his official
residence and is also entitled to various other allowances and privileges (Article
158). Every Governor and every person discharging the function of the
Governor shall before entering upon his office, make and subscribe in the
presence of the Chief Justice of the State High Court or in his absence, the
senior-most judge of that court available an oath or affirmation in the form
given under Article 159.
Constitutional
Position of the Governor:
The
constitutional position of the Governor in relation to the legislature and
administration is the same as that of the Union President. Under Article 156,
the Governor holds office during the pleasure of the President and therefore,
owes his appointment to the President and continues to hold his office at the
discretion of the President. In this respect he occupies the position of a
representative of the Union in the States. However, Article 163(1)
states that there shall be a council of Minister with the Chief Minister at the
head to aid and advice the Governor in the exercise of his functions, except in
so far as he is by or under this constitution required to exercise his
functions or any of them in his discretion.
Article 163(2) states that if any question arises whether any matter is or is not a matter as respects which the Governor is by or under the constitution required to act in his discretion, the decision of the Governor shall be final and the validity of his decision is not open to question in a court of law. Under the Constitution where the expression “in his discretion” is used in relation to the powers and functions of the Governor the reference is to special responsibilities of the Governor, such as Article 371-A (1) (b) and (d) and 2(b) & (f) and paragraph 9(2) and 18(3) in the sixth schedule.
Article 239(2) also states that where a Governor is
appointed as an administrator of an adjoining Union Territory, he shall
exercise his functions as such administrator independent by of his council of
Ministers. Besides, it a reference may be made to Article 356 and 200.
In making a report under Article 356, the Governor will be justified in
exercising his discretion even against the aid and advice of his council of
Ministers. The reason is that the failure of the Constitutional Machinery may
be because of the conduct of the council of Ministers. Similarly, Article
200 indicates another instance where the Governor may act in reserving a
Bill for the consideration of the President irrespective of any advice from the
council of Ministers. In such matters the Governor has to discharge his duties
to the best of his judgement and pursue such course, which is not detrimental
to the state. Moreover, being an appointee of the President and holding his
office during his pleasure the Governor in the exercise of his discretion may
be guided by the Union. Except in matter which the Governor is required by or
under the constitution to exercise his function in his discretion the Governor
is the constitutional of formal head of the state and he exercises all his
powers and functions on the aid and on advice of his council of ministers. This
is so because our constitution embodies generally the Parliamentary or cabinet
system of government of the British Model at the Union and the States. Clause
(1) of Article 164 empowers the Governor to appoint the Chief Minister.
However, like the discretion of the President in the appointment of the Prime
Minister, Governor’s discretion as to appointment of the Chief Minister is
conditioned that he should enjoy the majority support however, extraordinary
situation may require the Governor to act at his discretion. For instance,
inhere is no clear-cut majority of a party or an alliance of parties in the
legislative assembly, the Governor may exercise his discretion in the
appointment of Chief Minister according to his personal assessment of the
situation at that time.
Executive
Powers of the Governor:
All
the executive power of the State is vested in the Governor and is to be
exercised by him either directly or through officer’s subordinate to him in
accordance with the constitution. He appoints the Chief Ministers. According to
the convention he can appoint only such person to the post about whom he feels
would be able to command the confidence of the majority of members of the
Legislative Assembly. The well-established convention is that he calls the
leader of the majority party or an alliance to form the Ministry. He appoints
other Ministers and distributes portfolios amongst them on the advice of the
Chief Minister. Besides, he also appoints Advocate-General, Chairman and
members of the State Public Service Commission. All the executive action of the
state is required to be taken in the name of the Governor. The Governor makes
rules for the more convenient transaction of business of the State and for
allocation of work among the Ministers. A decision of the council of Minister
does not become operative as the Governor's name and duly authentication in
accordance with the rules made by the Governor is required.
Extent
of Executive power of State: Article 152
This
article defines the extent of the executive powers of a State. This article
does not define legitimately what comes within its scope. They are concerned
primarily with the distribution of the executive power between the Union and
States. Ordinarily executive functions mean residue of governmental functions
that remain after legislative and judicial functions are taken away. The
executive function comprises of both the determination of policy as well as
carrying it into execution. Power of state extends to matters
with
respect to which the legislature of a state has authority to make laws, i.e.
the subjects enumerated in the state list and the concurrent list. But in
relation
to the subjects enumerated in the concurrent list the executive power of the
state is subject to the executive power expressly conferred by the constitution
or
by any law made by Parliament, upon the union or the authorities thereof. Thus,
where parliament by law confer duty of executing
a law upon union authorities then the executive power of state on that subject be deemed to be
abrogated.
Similarly,
where the legislative power of the state is subjected to the legislative power
of the union as for example, the power of the state legislature in Entry 23
of list II is subject to the power of Parliament in Entry 54 in list I,
and the union exercise its legislative power and confers executive power on its
officials then the legislative power of the state is denuded to that extent and
so also the execution by the State in such a case will be unconstitutional. A
limit fixed by Article 162, however, is extensible. The provisions of Article
258(2) afford a means of such extension. But the limit is extensible at the
instance of the Union Parliament alone. The state legislature cannot on its own
accord, undertake the execution of the matters falling within the exclusive
authority of the Union.
Legislative
Powers of Governor:
As
Governor is an inseparable part of the legislature, he possesses certain
legislative powers. Under Article 171(3) (c) and (5), the Governor may
nominate to the legislative council of the state-where it exists one-sixth
members from among persons having special knowledge or practical experience in
respect of literature, science, art, cooperative movement and social service.
He may also nominate to the legislative Assembly a person from the Anglo-Indian
Community, if he feels the community needs representation and is not adequately
represented in the Assembly (Article 333). Under Article 168, the
Governor is a part of the legislature of the state. He summons and prorogues
the two houses of the legislature (in case of bicameral legislature) and can
dissolve the legislative Assembly of the state (article 174). He may
address the members of the legislature and may send messages (Article
175-176). Without the Governor's assent, no Bill car become law even after
its being passed by the two houses (article 200). After a Billis passed
by the Legislative Assembly and the Legislative Council, if any, it is
presented to the Governor, presumably with the advice of the council of
ministers for his assent to the Bill as passed. The Governor may
i.
give his assent to the bill
ii.
With hold his assent
iii.
Reserve the bill for the consideration of president
iv.
Except is case of a money bill, return the bill for reconsideration with his
message as soon as possible
There
is a fifth possibility which is often not mentioned, viz that of returning the
bill to the government seeking certain clarifications or information in regard
to the Bill and in effect suggesting is regard to the Bill advice earlier given
by the Council of Ministers for assenting to the Bill (article 167). If
a Bill is returned by the Governor to the legislature with a message it will be
considered accordingly and if passed again with or without amendments, it will
be assented to except when the Bill is returned to the Government or reserved
for consideration of the President, the Governor may be said to be acting only
on the advice of the council of ministers in either of the four options. In any
case, the exercise of Govern Governor's power in this regard cannot be
questioned in a court of law. In law the Governor can refuse to give his assent
to a Bill, i.e., he can veto a Bill. If he does so, the Bill cannot
become an Act But in the form of Government set up under the constitution it
would be politically impossible for a Governor to refuse his assent to a Bill,
after it has been passed by the legislature, because he acts in this matter, on
the advice of his cabinet and no bill could be passed by both house if opposed
by the cabinet.
However,
the power vested in the Governor to reserve a bill for the consideration of the
President is discretionary. In his discretion whether, the Bill should be
reserved for the consideration of President and in this respect the Governor
becomes an important link Between the Union and the states thereby enabling the
Union to some control over the legislative activities the lates exercise Once a
Bill is reserved for the consideration of the President and the President
assents to it, it becomes an Act and nobody can question its validity on the
ground that it was not necessary to reserve the Bill for the consideration of
the President.
Article
174(2) which enables the Governor to prorogue the
legislature does not indicate any restriction on this power. This article does
not indicate the manner which the Governor is to make his orders.
In
K.A. Mathialagas, V Governo (AIR 1973 Mad 198) a question arose whether
the Governor in exercise of his powers under Artiste 174 (2)(a) should act on
his discretion or on the advice of the council of Ministers. The Madras High
Court held that the Governor was bound by the advice of the council of Ministers
in the matter of prorogation. The Governor by virtue of Article 164(1), has
discretion to dismiss ministers, but that power is very different from the one
to prorogue the legislative Assembly under Article 174(2)(a).
Ordinance
Making Power:
Article
213:
Power of Governor to promulgate ordinance during recess of legislature.
The
ordinance making power of the state Governors, subject to certain additional
limitations, is similar to that of the President under Article 123.
The
Governor can issue ordinance only when two conditions are fulfilled:
1)
The Governor can only issue ordinances when the Legislative assembly of a state
is not in session or where there are two houses in a state both houses are not
in session.
2)
The Governor must be satisfied that circumstances exist which render it
necessary for him to take necessary action. The court cannot question the
validity of the ordinance on the ground that there was no necessity or
sufficient ground for issuing the ordinance by the Governor. The existence of
such necessity is not a justiciable issue. The exercise of ordinance making
power is not discretionary. The Governor exercises this power on the advice of
the Cabinet.
The
Governor, however, cannot promulgate an ordinance without instruction from the
President if:
(i)
A bill containing the same provision would have required previous sanction of
the President for the Introduction thereof into the state legislature.
(ii)
The Governor would have deemed it necessary to reserve a Bill containing the
same provisions for the consideration of the President or
(iii)
an act of the state legislature containing the same provisions would be invalid
unless having been reserved for the consideration of the President It had
received his assent.
Financial
Power:
Under
Article 202, the Governor is required to cause to be laid before the House or houses
of the legislature the budget or the Annual Financial Statement. A money bill
cannot be introduced or moved in the legislative Assembly except on the
recommendation of the Governor. A Bill involving expenditure from the
consolidated fund of the state cannot be passed by the legislature unless the Governor
has recommended for its consideration. No demand for a grant can be made except
on the recommendation of the Governor.
Pardoning
Power: (Article 161)
The
corresponding provision relating to the mercy jurisdiction of the president is
enacted in Article 72. Under Article 101 the Governor has the
power to grant pardons, etc, to suspend, remit or commute the sentence of any
person convicted of any offence against any law “relating to a matter, to which
the executive power of the state extends”. The executive power of the State
extends to matter with respect to which the legislature of the state has power
to make laws. The power, of course, has to be exercised on the advice of the
council of Minister. Article 72 can be reconciled with Article 161 by limiting
the power of the Governor to grant pardons to cases not covered by article 72.
The power of the Governor to grant pardons, reprieves and respites in all cases
where the sentences of death and to suspend, remit or commute the sentence of
any person is coextensive with the executive power of the state.
In
K.M. Nanawati Vs State of Bombay (AIR 1961 SC 99); The supreme Court
held that it is open to the Governor to grant a full pardon at any time even
during the pendency of the case in the Supreme Court but the Governor cannot so
exercise his power of suspension of the sentences for the period when the
Supreme Court is seized of the case. The Governor's power of suspension was
held to be subject to the rules framed by the Supreme Court.
Discretionary
function of the Governor
Article
163
expressly recognized that there are areas in which the Governor has to act
without the aid and advise of the Council of Ministers.
There
are two types of situations in which the Governor is expected to use his
discretion
(a)
Those which are implied by the nature of Parliamentary democracy and the
Constitution.
(b)
Those where the Constitution has expressly imposed special responsibility on
the Governor.
Implied
by the Constitution:
The
first type of situation covers the following:
(1)
Choice of Chief Minister.
(2)
Asking the Government to prove its strength in the Assembly.
(3)
Dismissing a Chief Minister.
(4)
Dissolving the legislative assembly.
(5)
Recommending President's Rule (Art. 356)
(6)
Reserving Bills for consideration of the President (Art. (200)
(7)
Returning a Bill for reconsideration (Art. 200).
The
discretion vested in the Governor is to be exercised by him in a fair and non-partisan
manner. It should be aimed to protect and preserve the Constitution and its
ideals and institutions. To further the interest of a party, a group or an
individual should be farthest from his mind. It is a discretion vested in a
Constitutional head of a State and he is expected to exercise it in a prudent
and responsible manner. The power is coupled with a duty. It is not an
unbridled power of a despot who functions according to his whims and fancy. It
is the power to protect, not the bower to destroy the Constitution and the
legacy or responsible government.
Expressly
Conferred by the Constitution:
Under
the 2nd category are discretionary powers conferred by the specific articles of
the Constitution. They are referred to in the various article as special
responsibility
(1)
Article 371(2) - special responsibility of the Governor of Maharashtra
and Gujarat (if so directed by the President) for the establishment of
development board for Vidarbha, Marathwada, Saurashtra and Kutch etc.
(2)
Article 371A - Special responsibility of the Governor of Nagaland.
(i)
with respect to law and order so long as internal disturbances occur in some
area of that state.
(ii)
to establish a regional council for Tuensang district.
(iii)
to arrange for equitable allocation of money between Tuensang district and the
rest of Nagaland.
(3)
Article 371C (1) Special responsibility of the Governor of Manipur to
secure the power functioning of a committee of the member of the Legislative
Assembly consisting of the members representing the hilly areas.
(4)
Article 371F (g) Special responsibility of the Governor of Sikkim for
the peace and for an equitable arrangement for ensuring the advancement of
different sections of the population of Sikkim.
(5)
Article 371H (a) - Special responsibility of the Governor of Arunachal
Pradesh with respect to law and order.
In
discharge of these functions, the Governor concerned is not bound to seek or
accept the advice of his Council of Minister.
Conclusion:
In
the intricate web of India's federal polity, Governors emerge as the custodians
of constitutional values, tasked with the onerous responsibility of upholding
the principles of democracy, federalism, and good governance. As the nation
strides forward on its path of progress and development, the role of Governors
remains indispensable in fostering cooperative federalism and ensuring that the
spirit of the Constitution permeates every aspect of governance at the state
level. Thus, while the powers and functions of Governors may evolve with time,
their enduring commitment to constitutional principles remains unwavering,
serving as a beacon of hope for a vibrant and resilient democracy.
Frequently
Asked Questions (FAQ)
1. What does Article 153 of
the Indian Constitution establish?
- Article 153
establishes the office of the Governor as the constitutional head of a
state in India.
2. Under Article 154, what
are the executive powers of the Governor?
- Article 154 grants
the Governor the executive powers of the state, which they exercise with
the assistance and advice of the Council of Ministers.
3. What does Article 155
specify regarding the term of office of the Governor?
- Article 155 states
that the Governor shall hold office for a term of five years, but this
term can be terminated earlier under specific circumstances.
4. Under Article 156, who
has the power to remove a Governor?
- Article 156 grants
the President of India the power to remove a Governor from office.
5. What does Article 157
address regarding the eligibility criteria for the Governor's office?
- Article 157
specifies that a person shall not be eligible for appointment as Governor
unless they are a citizen of India and have completed the age of 35 years.
6. What are the Governor's
legislative powers as outlined in Article 158?
- Article 158 grants
the Governor the power to summon and prorogue the state legislature and to
dissolve the state legislative assembly.
7. Under Article 159, what
happens if the office of the Governor falls vacant?
- Article 159 provides
for the discharge of the functions of the Governor by the Deputy Governor,
if appointed, or by another person designated by the President.
8. What is the significance
of Article 160 in the Indian Constitution?
- Article 160 empowers
the President to appoint a Governor to discharge the functions of the
Governor of another state in the absence of the Governor or when the
office is vacant.
9. What does Article 161
address regarding the power of the Governor to grant pardons?
- Article 161 grants
the Governor the power to grant pardons, reprieves, respites, or
remissions of punishment or to suspend, remit, or commute the sentence of
any person convicted of any offense against the law relating to a matter
to which the executive power of the state extends.
10. What does Article 162
specify regarding the extent of executive power of the state?
- Article 162 states
that the executive power of the state shall extend to all matters in
respect of which the state legislature has the power to make laws.
11. What is
the role of the Governor in appointing the Chief Minister?
- The Governor
appoints the Chief Minister and other members of the Council of Ministers.
12. How
does the Governor act as a link between the Union and the states?
- Governors foster
cooperation and coordination between the center and the states, promoting
harmony and resolving disputes.
13. What
challenges have Governors faced in India?
- Governors have faced
controversies over issues like political interference and partisan
behavior, raising questions about their neutrality and efficacy.
14. What is
the significance of transparency and accountability in the appointment process
of Governors?
- Transparency and
accountability are crucial to ensure that individuals appointed as
Governors possess the requisite credentials and uphold the highest
standards of integrity.
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