: Governor

Overview

• Part VI of the Constitution deals with the government in the states (Articles 153-167).
• The state executive consists of the governor, chief minister, council of ministers, and advocate general.
• The governor is the chief executive head of the state but acts as a nominal head and as an agent of the central government.
• The 7th Constitutional Amendment Act of 1956 allows the same person to be governor for two or more states.

Appointment of Governor

• The governor is appointed by the President by warrant under his/her hand and seal.
• He/she is a nominee of the Central government.
• The Supreme Court held in the Hargovind Pant case (1979) that the governor's office is an independent constitutional office, not employment under the Central government.
• The Constituent Assembly opted for the present system (appointment by the President) instead of direct election due to:
  • Incompatibility with the parliamentary system.
  • Likelihood of conflicts between the governor and the chief minister.
  • The governor being a nominal head.

Qualifications, Oath and Conditions

• Qualifications:

  • Citizen of India.
  • Completed 35 years of age.

• Sarkaria Commission Recommendations (1983-88):

  • Eminent in some walk of life.
  • From outside the state.
  • Detached from local politics.
  • Not too involved in recent politics.
  • A politician from the ruling party at the Centre should not be appointed as governor in a state run by another party or a combination of parties.
  • Consultation with the state chief minister in the selection of a governor should be prescribed in the constitution itself by suitably amending Article 155.
  • The Vice-President of India and the speaker of the Lok Sabha may be consulted by the Prime Minister in selecting a Governor. This consultation should be confidential and informal and should not be a matter of constitutional obligation.

• Oath:

  • To faithfully execute the office.
  • To preserve, protect, and defend the Constitution and the law.
  • To devote himself/herself to the service and well-being of the people of the state.
  • Administered by the chief justice of the state high court (or the senior-most judge available).

• Conditions of Office:

  • Not a member of either House of Parliament or a House of the state legislature.
  • Not hold any other office of profit.
  • Entitled to use of official residence (Raj Bhavan) without rent.
  • Entitled to emoluments, allowances, and privileges as determined by Parliament.
  • Emoluments and allowances shared by states if the same person is governor of two or more states (proportion determined by the President).
  • Emoluments and allowances cannot be diminished during the term of office.
  • Governor's salary was increased to ₹3.50 lakh per month in 2018.
  • Personal immunity from legal liability for official acts.
  • Immune from criminal proceedings during the term of office.
  • Civil proceedings can be instituted after giving two months' notice.

Term of Governor's Office

• Five years from the date of entering office, subject to the pleasure of the President.
• Can resign at any time by addressing a resignation letter to the President.
• The Supreme Court held in the Surya Narain case (1981) that the pleasure of the President is not justifiable.
• No security of tenure or fixed term; may be removed by the President at any time.
• No grounds for removal are specified in the Constitution.
• The President may transfer a governor to another state for the rest of the term or reappoint them in the same or another state.
• Can hold office beyond five years until a successor assumes charge.
• The President can make provisions for the discharge of functions in any contingency, such as the death of a sitting governor.

Powers and Functions of Governor

• Executive, legislative, financial, and judicial powers analogous to the President of India, but no diplomatic, military, or emergency powers.

Executive Powers

• All executive actions are formally taken in his/her name.
• Can make rules specifying the manner in which orders are authenticated.
• Can make rules for convenient transaction of government business.
• Appoints the chief minister and other ministers (who hold office during his/her pleasure).
• Appoints a Tribal Welfare minister in the states of Chattisgarh, Jharkhand, Madhya Pradesh and Odisha.
• Appoints the advocate general of the state.
• Appoints the state election commissioner.
• Appoints the chairman and members of the state public service commission (but removal is by the President).
• Can seek information from the chief minister.
• Can require the chief minister to submit matters for consideration of the council of ministers.
• Can recommend the imposition of constitutional emergency in a state to the President.
• Acts as the chancellor of universities in the state.

Legislative Powers

• Can summon or prorogue the state legislature and dissolve the state legislative assembly.
• Can address the state legislature at the commencement of the first session after each general election and the first session of each year.
• Can send messages to the house or houses of the state legislature.
• Can appoint any member to preside over proceedings when the Speaker and Deputy Speaker positions are vacant.
• Nominates one-sixth of the members of the state legislative council.
• Nominated (before 2020) one member to the State Legislative Assembly from the Anglo-Indian community (discontinued by the 104th Constitutional Amendment Act of 2019).
• Decides on the disqualification of members in consultation with the Election Commission.
• Can give assent to a bill, withhold assent, or return the bill for reconsideration.
• Can reserve the bill for the consideration of the President.
• Can promulgate ordinances when the state legislature is not in session.
• Lays the reports of the State Finance Commission, the State Public Service Commission and the Comptroller and Auditor-General relating to the accounts of the state before the state legislature.

Financial Powers

• Ensures that the Annual Financial Statement (state budget) is laid before the state legislature.
• Money bills can be introduced only with his/her prior recommendation.
• No demand for a grant can be made except on his/her recommendation.
• Can make advances out of the Contingency Fund of the state.
• Constitutes a finance commission every five years to review the financial position of the panchayats and the municipalities.

Judicial Powers

• Can grant pardons, reprieves, respites, and remissions of punishment.
• Consulted by the President while appointing the judges of the concerned state high court.
• Makes appointments, postings, and promotions of district judges in consultation with the state high court.
• Appoints persons to the judicial service of the state (other than district judges) in consultation with the state high court and the State Public Service Commission.

Comparing Veto Powers of President and Governor

Feature	President	Governor
Ordinary Bills	Has three alternatives: assent, withhold, or return for reconsideration. President must assent if passed again with or without amendment.	Has four alternatives: assent, withhold, return for reconsideration, or reserve for the President. Governor must assent if passed again with or without amendment.
Money Bills	Has two alternatives: assent or withhold. Cannot return for reconsideration.	Has three alternatives: assent, withhold, or reserve for the President. Cannot return for reconsideration.
Reserved Bill (Ordinary)	The President has three alternatives: He/she may give his/her assent to the bill, the bill then becomes an act. He/she may withhold his/her assent to the bill, the bill then ends and does not become an Act. He/she may return the bill for reconsideration of theHouse or Houses of the state legislature.	When the governor reserves a bill for the consideration of the President, he/she 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.
Reserved Bill (Money Bill)	The President has two alternatives: (a) He/she may give his/her assent to the bill, the bill then becomes an Act. (b) He/she may withhold his/her assent to the bill, the bill then ends and does not become an act.	When the governor reserves a money bill for the consideration of the President, he/she will not have any further role in the enactment of the bill. If the President gives his/her assent to the bill, it becomes an Act. This means that the assent of the governor is no longer required.

Comparing Ordinance-Making Powers of President and Governor

Feature	President	Governor
Session Requirement	Only when both 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) when both the Houses of the state legislature are not in session or when either of the two Houses of the state legislature is not in session.
Circumstances	Satisfied that circumstances exist which render it necessary for him/her to take immediate action.	Satisfied that circumstances exist which render it necessary for him/her to take immediate action.
Extent	Co-extensive with the legislative power of the Parliament.	Co-extensive with the legislative power of the state legislature.
Effect	Has the same force and effect as an act of the Parliament.	Has the same force and effect as an act of the state legislature.
Limitations	Subject to the same limitations as an act of Parliament.	Subject to the same limitations as an act of the state legislature.
Withdrawal	Can withdraw at any time.	Can withdraw at any time.
Nature	Not a discretionary power; can promulgate or withdraw only on the advice of the council of ministers headed by the prime minister.	Not a discretionary power; can promulgate or withdraw only on the advice of the council of ministers headed by the chief minister.
Presentation	Should be laid before both the Houses of Parliament when it reassembles.	Should be laid before the legislative assembly or both the Houses of the state legislature (in case of a bicameral legislature) when it reassembles.
Cessation	Ceases to operate on the expiry of six weeks from the reassembly of Parliament or earlier if both the Houses pass resolutions disapproving it.	Ceases to operate on the expiry of six weeks from the reassembly of the state legislature. It may cease to operate even earlier than the prescribed six weeks, if a resolution disapproving it is passed by the legislative assembly and is agreed to by the legislative council (in case of a bicameral legislature).
Instruction Needed For Making ordinance	He/she needs no instruction for making an ordinance.	He/she 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/she would have deemed it necessary toreserve a bill containing the same provisions for the consideration of the President.(c) If an act of the state legislature containing thesame provisions would have been invalid withoutreceiving the President's assent.

Comparing Pardoning Powers of President and Governor

Feature	President	Governor
Offences	Can pardon for any offence against a Central law.	Can pardon for any offence against a state law.
Death Sentence	Can pardon a death sentence; the only authority to pardon a death sentence.	Cannot pardon a death sentence; only suspend, remit, or commute.
Military Courts	Can grant pardon in respect to punishment or sentence by a court-martial (military court).	Does not possess any such power.

Constitutional Position of Governor

• Parliamentary form of government in states.

• The governor is a nominal executive.

• The governor exercises powers and functions with the aid and advice of the council of ministers headed by the chief minister, except in matters in which he/she is required to act in his/her discretion.

• Reference to Articles 154, 163, and 164.

• Differences from the President:

  • The Constitution envisages the possibility of the governor acting at times in his/her discretion.
  • 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.

• The Governor has constitutional discretion in the following cases:

  • Reservation of a bill for the consideration of the President.
  • Recommendation for the imposition of the President's Rule in the state.
  • While exercising his/her functions as the administrator of an adjoining union territory (in case of additional charge).
  • Determining the amount payable by the Government of Assam, Meghalaya, Tripura and Mizoram to an autonomous Tribal District Council as royalty accruing from licenses for mineral exploration.

• Situational discretion like the President, includes

  • Appointment of chief minister when no party has a clear-cut majority
  • Dismissal of the council of ministers
  • Dissolution of the state legislative assembly

Issues in the Governor's Functioning

• The Sarkaria Commission identified various issues:
  1. Choosing Chief Minister
  2. Testing Majority
  3. Dismissal of Chief Minister
  4. Dissolving the Legislative Assembly
  5. In Recommending President's Rule
  6. In Reserving Bills for President's Consideration
  7. Regarding Nominations to Legislative Council
  8. Regarding Exercise of Discretion as Chancellor of University