Governors in India

Topics Discussed: -

·       Introduction

·       Appointment of a Governor

·       Reasons for an Appointed Governor

·       Qualifications of a Governor

·       Conditions to the Office of Governor

·       Term of a Governor

·       Powers and Functions of a Governor

·       Recommendations

·       President v/s Governor

·       Introduction

Ø The Governor’s appointment, his powers and everything related to the office of Governor have been discussed under Article 153 to Article 162 of the Indian Constitution.

Ø The role of the Governor is quite similar to that of the President of India. The Governor performs the same duties as of President, but for the State. Governor stands as executive head of a State and the working remains the same as of the office of President of India. Under the Constitution of India, the governing machinery is the same as that of the Central Government.

Ø It is stated that the Governor has a dual role.

ü He is the constitutional head of the state, bound by the advice of his council of ministers.

ü He functions as a vital link between the Union Government and the State Government.

·       Appointment of a Governor

ü The Governor of a State is appointed by the President by warrant under his hand and seal.

ü Articles 153 says that three should be a should be a Governor for each state.

ü But under the 7th Amendment Act, 1956, the same person can be appointed as Governor of one or more States. When he discharges the responsibilities of more than one state, he acts on the advice of the Council of Ministers of the respective states.

·       Reasons for an Appointed Governor

1.    It would save the country from the evil consequences of still another election, run on personal issues.

2.   

3.    To sink every province into the vortex of an election with millions of primary voters but with no possible issue other than personal, would be highly detrimental to the country’s progress.

4.   

5.    The Governor were to be elected by direct vote, then he might consider himself to be superior to the Chief Minister, who was merely returned from a single constituency, and this might lead to frequent friction between the Governor and the Chief Minister.

6.   

7.    The expenses involved and the elaborate machinery of election would be out of proportion to the powers vested in this Governor who was to act as a mere constitutional head.

8.   

9.    A Governor elected by adult franchise to be at the top of the political life in the State would soon prefer to be the Chief Minister or a Minister with effective powers.

10.                      

11.                       The party in power during the election would naturally put up for Governorship a person who was not as outstanding as the future Chief Minister with the result that the State would not be able to get the best man of the party.

12.                       All the process of election would have to be gone through only to get a second rate man of the party elected as Governor.

13.                       Through the procedure of appointment by the President, the Union Government would be able to maintain intact Its control over the States.

14.                       The method of election would encourage separatist tendencies. The Governor would then be the nominee of the Government of that particular province to stand for the Governorship.

15.                      

16.                       The stability and unity of the Governmental machinery of the country as a whole could be achieved only by adopting the system of nomination.

·       Qualifications of a Governor

In order to be appointed as Governor, a person:

1.must be a citizen of India; and
2.must have completed the age of 35 years.

In addition, three are two conventions that have come to develop with regard to appointment of the Governor. They are:
1.Must not belong to the state where he is appointed and
2.Consult the Chief Minister of the state where to be appointed.

·       Conditions to the Office of a Governor

1.    He cannot be a member of Lok Sabha and Rajya Sabha. If he has been a member of either of the house, he should vacate the seat on his first day as Governor in the office.

2.    He should not hold any office of profit.

3.    For his residence, Raj Bhavan is provided to him without the payment of rent.

4.    Parliament decides his emoluments, allowances and privileges.

5.    When a governor is responsible for two or more states, the emoluments and allowances payable to him are shared by the states in such proportion as the President may determine.

6.    Parliament cannot diminish his emoluments and allowances during his term of office.

7.    He is given immunity from any criminal proceedings, even in respect of his personal acts

8.    Arrest or imprisonment of Governor cannot take place. Only civil proceedings can be initiated for his personal acts that too after giving two months’ of prior notice.

·       Term of a Governor

ü He normally holds office for five years but can be removed at any time before that by the President i.e. the Governors remain in office during the pleasure of the President. Thus he is a Nominee of the Union Government.

ü He may be asked to continue beyond the normal five years, until his successors enters upon his office.

ü The Governor can also be transferred from one state to another by the President.

ü The Governor may resign at any time by writing to the President. In a contingency for which the constitution makes no provision, such as death of the Governor, the President may make such provisions as he thinks fit for discharge the functions of the Governor of a State (Article 160).

ü The Rajasthan High Court has held that the Chief Justice of the High Court can be asked temporarily to discharge the functions of the Governor of the State, where he can act as the Acting Governor of the State.

·       Conditions of a Governor’s Office

1.The Governor cannot be a member of Parliament or of a State Legislature and if a person is such a member at the time of the appointment as Governor, his seat in Parliament or the State Legislature, as the case may be, will become vacant on the date on which he assumes office as governor

2. The Governor cannot hold any other office of profit during the term of his offices.

3.He is entitled without payment of rent to the use of his official residence.

4.He is also entitled to such emoluments, allowances and privileges as may be determined by the Parliament.

5.Where the same person is appointed Governor of two or more States, his emoluments are allocated amongst the States in such proportion as the President may determine.

6.His emoluments and allowances should not be diminished during his term of office.

7.Before entering upon his office, the Governor has to make and subscribe to an oath or affirmation by the Chief justice of the concerned state High Court and in his absence, the senior-most judge of that court available.

·       Powers and Functions of a Governor

A.   Executive Powers of the Governor

The following comes under his executive powers:

ü Every executive action that the state government takes, is to be taken in his name.

ü How an order that has been taken up his name is to be authenticated, the rules for the same can be specified by the Governor.

ü He may/may not make rules to simplify the transaction of business of the state government.

ü Chief Ministers and other ministers of the states are appointed by him.

ü It is his responsibility to appoint Tribal Welfare Minister in the states of:

ü Chhattisgarh

ü Jharkhand

ü Madhya Pradesh

ü Odisha

ü He appoints the advocate general of states and determines their remuneration

ü He appoints the following people:

ü State Election Commissioner

ü Chairman and Members of the State Public Service Commission

ü Vice-Chancellors of the universities in the state

ü He seeks information from the state government

ü A constitutional emergency in the state is recommended to the President by him.

ü The governor enjoys extensive executive powers as an agent of the President during the President’s rule in the state.

Legislative Powers of the Governor

The following are the legislative powers of the governor:

Ø It’s in his power to prorogue the state legislature and dissolve the state legislative assemblies

Ø He addresses the state legislature at first session of every year

Ø If any bill is pending in the state legislature, Governor may/may not send a bill to the state legislature concerning the same

Ø If the speaker of the legislative assembly is absent and same is Deputy Speaker, then Governor appoints a person to preside over the session

Ø As President nominates 12 members in Rajya Sabha, Governor appoints ⅙ of the total members of the legislative council from the fields of:

1.    Literature

2.    Science

3.    Art

4.    Cooperative Movement

5.    Social Service

Ø As President nominates 2 members in the Lok Sabha, Governor nominates 1 member in state legislative assembly from Anglo-Indian Community.

Ø He can consult Election Commission for the disqualification of members

Ø With respect to the bill introduced in the state legislature, he can:

1.    Give his assent

2.    Withhold his assent

3.    Return the bill

4.    Reserve the bill for the President’s consideration (In instances where the bill introduced in the state legislature endangers the position of state High Court.)

·       Note: Governor can reserve the bill for the President’s consideration in the following cases:

§  When provisions mentioned in the bill violates the constitution (Ultra-Vires)

§  When provisions mentioned in the bill oppose Directive Principles of State Policy

§  When provisions mentioned in the bill hinders the larger interests of the country

§  When provisions mentioned in the bill concern the national importance

§  When provisions mentioned in the bill mention the acquisition of property that is dealt with Article 31A in the constitution.

1.    An ordinance can be promulgated by him when either Legislative Assembly or Council (Unicameral/Bicameral) are not in session. The following reports are laid by him:

§  State Finance Commission

§  State Public Service Commission

§  Comptroller and Auditor General (Concerning the state finance)

Financial Powers of the Governor

The following are the financial powers and functions of the Governor:

§  He looks over the state budget being laid in the state legislature

§  His recommendation is a prerequisite for the introduction of money bill in the state legislature

§  He recommends for demand for grants which otherwise cannot be given

§  Contingency Fund of State is under him and he makes advances out that to meet unforeseen expenditure

§  State Finance Commission is constituted every five years by him.

Judicial Powers of the Governor

The following are the judicial powers and functions of the Governor:

1.    He has following pardoning powers against punishment:

§  Pardon

§  Reprieve

§  Respite

§  Remit

§  Commute

2.    President consults the Governor while appointing judges of High Court

3.    In consultation with state High Court, Governor makes appointments, postings and promotions of the district judges

4.    In consultation with the state high court and state public service commission, he also appoints persons to the judicial services.

Recommendations

Ø S.R. Bommai Judgment

1.    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 analyzed 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.

2.    The Supreme Court classified the instances of failure of constitutional machinery into four heads:

§  Political crises.

§  Internal subversion.

§  Physical breakdown.

§  Non-compliance with constitutional directions of the Union Executive.

3.    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.

4.    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.

5.    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 emphasized that the governor of the state should not consider himself as an agent of the center but play his role as the constitutional head of the State.

1.    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.

2.    "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.

3.    The "Punchhi commission" recommended that this Articles 355 & 356 be amended. It sought to protect the interests of the States by trying to curb their misuse by the Centre.

·       President v/s Governor