Constitutional Provisions related to Governor

• The appointment and powers of government can be derived from Part VI of the Indian constitution. Article 153 says that there shall be a Governor for each State. One person can be appointed as Governor for two or more States.
• The governor acts in ‘Dual Capacity’ as the Constitutional head of the state and as the representative.
• He is the part of federal system of Indian polity and acts as a bridge between union and state governments.
• Article 157 and Article 158 of the Constitution of India specify eligibility requirements for the post of governor. They are as follows:
• A governor must:
  1. Be a citizen of India.
  2. Be at least 35 years of age.
  3. Not be a member of the either house of the parliament or house of the state legislature.
  4. Not hold any office of profit.
• The term of governor’s office is normally 5 years but it can be terminated earlier by:
  1. Dismissal by the president on the advice of the council of minister headed by the prime minister of the country.
  2. Dismissal of governors without a valid reason is not permitted. However, it is the duty of the President to dismiss a governor whose acts are upheld by courts as unconstitutional and malafide.
  3. Resignation by the governor.

Constitutional provisions

• Article 163: It talks about the discretionary power of governor.
• Article 256: The executive power of the Union shall extend to the giving of such directions to a State as may appear to the Government of India to be necessary for that purpose.
• Article 257: The executive power of the Union shall also extend to the giving of directions to a State as to the construction and maintenance of means of communication declared in the direction to be of national or military importance:
• Article 355: It entrusts the duty upon Union to protect the states against “external aggression” and “internal disturbance” to ensure that the government of every State is carried on in accordance with the provisions of Constitution.
• Article 356: In the event that a state government is unable to function according to constitutional provisions, the Central government can take direct control of the state machinery. The state’s governor issues the proclamation, after obtaining the consent of the President of India.
• Article 357: It deals with Exercise of legislative powers under Proclamation issued under Article 356 by the central government.

Appointment of Governor

• The Governor is neither directly elected by the people nor indirectly elected by a specially constituted electoral college as is the case with the President.
• He is appointed by the President by warrant under his hand and seal. He is a nominee of the Central government.
• Supreme Court in 1979, held that the office of Governor of a state is not an employment under the Central government. It is an independent constitutional office and is not under the control of or subordinate to the Central government.
• The Draft Constitution provided for the direct election of the Governor on the basis of universal adult suffrage. However, Constituent Assembly opted for the present system of appointment of Governor by the President.

Conditions

• The Governor shall not be a member of either House of Parliament or of a House of the Legislature of any State specified in the First Schedule, and if a member of either House of Parliament or of a House of the Legislature of any such State be appointed Governor, he shall be deemed to have vacated his seat in that House on the date on which he enters upon his office as Governor.
• The Governor shall not hold any other office of profit.
• The Governor shall be entitled an official residence and shall be also entitled to such emoluments, allowances and privileges as may be determined by Parliament by law.
• Where the same person is appointed as Governor of two or more States, the emoluments and allowances payable to the Governor shall be allocated among the States in such proportion as the President may by order determine.
• The emoluments and allowances of the Governor shall not be diminished during his term of office – charged upon Consolidated Fund of India

Terms of Office of the Govenor

• The Governor shall hold office during the pleasure of the President.
• The term of the Governor is prescribed as five years. The Governor may, under his hand resign to President.
• There is a controversy about whether the five year term is more important than the reference to the pleasure of the President of India.

Power and Functions of Governor

Executive Powers

• The executive power of the state is vested in the Governor.
• He Exercises it either directly or through officers subordinate to him.
• It has been held that ministers are, officers subordinate to him.
• The executive power of the governor extends to all matters with respect to which the State Legislature has power to make laws.
• All executive is expressed to be taken in the name of the Governor.
• All orders, instruments, etc are authenticated in the manner specified in the rules made by the Governor.
• Appoints the Chief Minister and other ministers are appointed by him on the advice of the Chief Minister.
• Appoints the Council of Ministers, Advocate General, Chairman and the members of the State Public Service Commission.
• He is the chancellor of state university.

Legislative Powers

• Governor is the integral part of the state legislature
• He summons, dissolve and prorogues the state assemblies
• He gives assent to the bills.
• Right to address the state legislature
• He also nominates 1/6 of the members of the Legislative Council (Art.171).
• He disqualifies MLAs on the opinion of the election commission
• Governor lays down various reports in the state legislatures – for example state finance commission reports.
• He can also nominate one member from Anglo Indian community in the Legislative Assembly

Financial Powers

• A money bill cannot be introduced in the Legislative Assembly of the state without the recommendation of the Governor.
• No demand of grants can be made except on the recommendation of the Governor (Art.203).
• The Governor ensures that the annual financial statements (known as budget) is laid before the house or houses of the Legislature (Art. 202).
• He appoints members of State Finance Commission

Judicial Powers

• He appoints and transfers District Court Judges (Article 233)
• As per Art.217, he is entitled to be consulted in appointments of judges in the state high courts.
• Governor also administers the Oath of office to the High Court Judges
• 234 – bats for Appointments of persons (other than district judges) to the judicial service of the state by the Governor.

Veto Powers of President and Governor

With Regard to Ordinary Bills

President ·         He may give his assent to the bill; the bill then becomes an act. ·         He may withhold his assent to the bill, the bill then ends and does not become an act ·         He may return the bill for reconsideration of the Houses. If the bill is passed by both the Houses again with or without amendments and presented to the President for his assent, the president must give his assent to the bill. Thus, the president enjoys only a ‘suspensive veto’.

Governor ·         He may give his assent to the bill, the bill then becomes an act. ·         He may withhold his assent to the bill, the bill then ends and does not become an act. ·         He may return the bill for reconsideration of the House or Houses. If the bill is passed by the House or Houses again with or without amendments and presented to the governor for his assent, the governor must give his assent to the bill. Thus, the governor enjoys only a ‘suspensive veto’. ·         He may reserve the bill for the consideration of the President.

When a state bill is reserved by the governor for the consideration of the President, the President has three alternatives: ·         He may give his assent to the bill, the bill then becomes an act. ·         He may withhold his assent to the bill, the bill then ends and does not become an Act. ·         He may return the bill for reconsideration of the House or Houses of the state legislature. When a bill is so returned, the House or Houses have to reconsider it within six months. If the bill is passed by the House or Houses again with or without amendments and presented to the president for his assent, the president is not bound to give his assent to the bill. He may give his assent to such a bill or withhold his assent.

·         When the governor reserves a bill for the consideration of the President, he will not have any further role in the enactment of the bill. ·         If the bill is returned by the President for the reconsideration of the House or Houses and is passed again, the bill must be presented again for the presidential assent only.  ·         If the President gives his assent to the bill, it becomes an act. This means that the assent of the Governor is no longer required.

With Regard to Money Bills

President Every money bill after it is passed by the Parliament, is presented to the President for his assent. He has two alternatives: 1.       He may give his assent to the bill, the bill then becomes an act. 2.       He may withhold his assent to the bill, the bill then ends and does not become an act. ·         The President cannot return a money bill for the reconsideration of the Parliament. ·         Normally, the president gives his assent to a money bill as it is introduced in the Parliament with his previous permission. When a Money Bill is reserved by the Governor for the consideration of the President, the President has two alternatives: ·         He may give his assent to the bill, the bill then becomes an Act. ·         He may withhold his assent to the bill, the bill then ends and does not become an act. ·         The President cannot return a money bill for the reconsideration of the state legislature (as in the case of the Parliament).

Governor Every money bill, after it is passed by the state legislature (unicameral or bicameral), is presented to the governor for his assent. He has three alternatives: 1.       He may give his assent to the bill, the bill then becomes an act. 2.       He may withhold his assent to the bill, the bill then ends and does not become an act. 3.       He may reserve the bill for the consideration of the President. ·         When the governor reserves a money bill for the consideration of the President, he will not have any further role in the enactment of the bill. ·         If the President gives his assent to the bill, it becomes an Act. This means that the assent of the governor is no longer required.

Ordinance Making Power between President and Governor

President	Governor
Only when both the Houses of Parliament are not in session or when either of the two Houses of Parliament is not in session.	only when the legislative assembly (in case of a unicameral legislature) is not in session or (in case of a bi- cameral legislature) not in session
only when he is satisfied	only when he is satisfied
power is co-extensive with the legislative power of the Parliament	co-extensive with the legislative power of the state legislature
same force and effect as an act of the Parliament	same force and effect as an act of the state legislature.
subject to the same limitations as an act of Parliament.	subject to the same limitations as an act of the state legislature.
withdraw at any time.	withdraw at any time.
not a discretionary power i.e. can promulgate or withdraw only on the advice of the council of ministers headed by the prime minister.	not a discretionary power i.e. can promulgate or withdraw only on the advice of the council of ministers headed by the chief minister
should be laid before both the Houses of Parliament	should be laid before the legislative assembly
ceases to operate on the expiry of six weeks	ceases to operate on the expiry of six weeks
needs no instruction for making an ordinance.	cannot make an ordinance without the instructions from the President in three cases: a)       If a bill containing the same provisions would have required the previous sanction of the President for its introduction into the state legislature. b)      If he would have deemed it necessary to reserve a bill containing the same provisions for the consideration of the President. c)       If an act of the state legislature containing the same provisions would have been invalid without receiving the President’s assent.

Difference between Pardoning Powers of President and Governor

President (Article 72)	Governor (Article 161)
He can pardon, reprieve, respite, remit, suspend or commute the punishment or sentence of any person convicted of any offence against a central law	He can pardon, reprieve, respite, remit, suspend or commute the punishment or sentence of any person convicted of any offence against a state law.
He can pardon, reprieve, respite, remit, suspend or commute a death sentence. He is the only authority to pardon a death sentence.	He cannot pardon a death sentence. Even if a state law prescribes for death sentence, the power to grant pardon lies with the President and not the governor. But the governor can suspend, remit or commute a death sentence.
He can grant pardon, reprieve, respite, suspension, remission or commutation in respect to punishment or sentence by a court- martial (military court).	He does not possess any such power.

Constitutional position of the Governor differs from that of the President of India in the following two respects:

• While the Constitution envisages the possibility of the Governor acting at times in his discretion, no such possibility has been envisaged for the President.
• After the 42nd Constitutional Amendment (1976),ministerial advice has been made binding on the President, but no such provision has been made with respect to the Governor.

Privileges and Immunities

• He enjoys personal immunity from legal liability for his official acts.
• During his term of office, he is immune from any criminal proceedings, even in respect of his personal acts.
• He cannot be arrested or imprisoned. However, after giving two months’ notice, civil proceedings can be instituted against him during his term of office in respect of his personal acts.

Removal of Governor

• The Supreme Court in 2010 had said that the Governors of states cannot be changed in
  an arbitrary and capricious manner with the change of power.
• A five-judge Constitution bench headed by Chief Justice K G Balakrishnan held that a Governor can be replaced only under “compelling” reasons for proven misconduct or other irregularities.
• The Bench also said the Governor can be removed only under “compelling reasons” and what the compelling reasons are depends on facts and situations of a particular case.

Special Responsibilities of Governor

Moreover, the Governor has certain special responsibilities to discharge according to the directions issued by the President. In this regard, the Governor, though has to consult the council of ministers led by the chief minister, acts finally on his discretion. They are as follows:

Maharashtra (Art.371)	Special responsibility of Governor. of Maharashtra & Gujarat for development of certain backward regions Ex. Vidarbha, Saurashtra etc.
Nagaland (Art.371A)-	With respect to law and order in the state for so long as the internal disturbance in the Naga Hills-Tuensang Area continues.
Assam (Art. 371B)	With respect to the administration of tribal areas.
Manipur (Art. 371C)	Special responsibility for proper functioning of the committee of the LA consisting of members from the hill areas of the State.
Sikkim (Art. 371F)-	Governor of Sikkim – special responsibility for socio-economic advancement of different sections of Sikkim’s population.
Arunachal Pradesh (Art.371H)-	Special responsibility Law & Order
Karnataka (Art. 371J)	special responsibility of development of 6 Backward District of Hyderabad –Karnataka region.

Key Commission’s & their Recommendations

S.R. Bommai Judgment

• In S.R. Bommai case (1994), following the Sarkaria Commission’s recommendations, the Supreme Court underlined that the breakdown of constitutional machinery implied a virtual impossibility, and not a mere difficulty, in carrying out governance in a State.
  • SC said that while the subjective satisfaction of the President regarding such a breakdown was beyond judicial scrutiny, the material on which such satisfaction was based could certainly be analysed by the judiciary, including the Governor’s report.
  • The Court reinstated the governments in Arunachal Pradesh and Uttarakhand which were suspended after the arbitrary imposition of the President’s Rule.
• The Supreme Court classified the instances of failure of constitutional machinery into four heads:
  1. Political crises.
  2. Internal subversion.
  3. Physical breakdown.
  4. Non-compliance with constitutional directions of the Union Executive.

• The Supreme Court in the Nabam Rebia judgment (2016) ruled that the exercise of Governor’s discretion Article 163 is limited and his choice of action should not be arbitrary or fanciful. It must be a choice dictated by reason, actuated by good faith and tempered by caution.
• The Administrative Reforms Commission (1968) recommended that the report of the governor regarding the president’s rule has to be objective and also the governor should exercise his own judgment in this regard.
• The Rajamannar Committee (1971) recommended the deletion of Articles 356 and 357 from the constitution of India. The necessary provisions for safeguards against arbitrary action of the ruling party at the Centre under Article 356 should be incorporated in the constitution.
• The Rajamannar Committee emphasised that the governor of the state should not consider himself as an agent of the centre but play his role as the constitutional head of the State.
• The Sarkaria Commission (1988) recommended that Article 356 should be used in very rare cases when it becomes unavoidable to restore the breakdown of constitutional machinery in the State.
• The commission recommended that before taking action under Article 356, a warning should be issued to the state government that it is not functioning according to the constitution.
• “Justice V.Chelliah Commission” (2002) recommended that Article 356 must be used sparingly and only as a remedy of the last resort after exhausting all actions under Articles 256, 257 and 355.
• The “Punchhi commission” recommended that these Articles 355 & 356 be amended. It sought to protect the interests of the States by trying to curb their misuse by the Centre.

Lt. Governor

• As per Art. 239, every UT in India shall be administered by the President, through an administrator to be appointed by him. It is called as Lt. Governor in Andaman and Nicobar Island, Puducherry and Delhi.
• Governor is an administrator and not a constitutional head.
• UTs are directly governed by the Union govt.
• Only three Union Territories i.e. Andaman & Nicobar, Delhi and Puducherry, have Lt. Governors.
• Art 239 to 241 deals with UTs.
• In 2017, SC said that Lt. Governor Of Delhi has more powers than the Governor of any state. He doesn’t have to listen to CoM.
• The Article 239AA (69th Constitutional Amendment Act of 1991) provided a special status to the Union Territory of Delhi, and re-designated it the National Capital Territory of Delhi and designated the administrator of Delhi as the lieutenant governor.

Powers of Lieutenant Governor

• A Lieutenant Governor has the same powers of Governors:
  • The governor has the power to administer the state which is equivalent to that of the President.
  • The governor can appoint Chief Ministers, Ministers, the State Election Commissioner and judges of the District Courts.
  • The governors serve as Chancellors of all the universities in the state.
  • The governor can also dissolve the state Assembly if they see the need, and if the Assembly is not in session, they can promulgate ordinances.
  • The governor can also disqualify a legislator based on the recommendation of the Election Commission.
  • The Governor holds the power to rule the state in case the ruling party loses its majority in the Assembly.

Discretionary Power of Lieutenant Governor

• The Lieutenant Governor shall act in his discretion in a matter:
  • which falls outside the purview of the powers conferred on the Legislative Assembly but in respect of which powers or functions are entrusted or delegated to him by the President; or
  • in which he is required by or under any law to act in his discretion or to exercise any judicial or quasi- judicial functions.
• If any question arises as to whether any matter is or is not a matter as respects which the Lieutenant Governor is by or under any law required to act in his discretion, the decision of the Lieutenant Governor thereon shall be final.
• If any question arises as to whether any matter is or is not a matter as respects which the Lieutenant Governor is required by any law to exercise any judicial or quasi- judicial functions, the decision of the Lieutenant Governor thereon shall be final.

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