The Governor

Introduction

• Governor is a nominal executive head of the state and represents the unitary spirit of the government.

• The governor is not elected, either directly or indirectly, rather he is appointed by the President.

• The state executive consists of the Governor, the chief Minister, the Council of Minister and the Advocate General of the state

Article 153 to 167 of Part VI deal with the State executive of which Governor is nominal head and the Chief Minister heading the Council of Ministers is the political and real head.

Article 153 mentions about Governor and it states that-

• There shall be a Governor for each State.

• Provided that nothing in this article shall prevent the appointment of the same person as Governor for two or more States.

The 7th Amendment Act, 1956-

• It made a provision that 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

Appointment of Governor-

• The Governor of a State is appointed by the President by warrant under his hand and seal –Article 155.

• There is no bar on reappointment of a Governor either in the same State or in different States

Conditions,Appointment and qualifications of Governor

Qualification for appointment as Governor-

This qualification is mentioned in Article 157

Article 157 says that-

In order to be appointed as Governor, a person-

• Must be a citizen of India.

• Must have completed the age of 35 years.

In addition, there are two conventions that have come to develop with regard to appointment of the Governor. They are:

• She/he Must not belong to the state where he is appointed.

• President should consult the Chief Minister of the state where Governor is to to be appointed

Conditions of Governor office-

These conditions are clearly mentioned in Article 158 which says that-

• 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 without payment of rent to the use of his official residences and shall be also entitled to such emoluments, allowances and privileges as may be determined by Parliament by law and, until provision in that behalf is so made, such emoluments, allowances and privileges as are specified in Second Schedule.

• 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.

Term of Office of Governor-

 Article 156 : Term of office of Governor

(1)The Governor shall hold office during the pleasure of the President

(2) The Governor may, by writing under his hand addressed to the President, resign his office

(3)Subject to the foregoing provisions of this article, a Governor shall hold for a term of five years from the date on which he enters upon his office

(4) Provided that a Governor shall, notwithstanding the expiration of his term, continue to hold office until his successor enters upon his office

It means that-

• Governor holds office for five year but can be removed at any time before that by the President

Transfer-

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

Oath or Affirmation by Governor-

It is mentioned in Article 159

• Every Governor and every person discharging the functions of the Governor shall, before entering upon his office, make and subscribe in the presence of the chief Justice of the High Court exercising jurisdiction in relation to the State, or, in his absence, the senior most Judge of that court available

Immunities to Governor-

• Article 361 says that a Governor shall not be answerable to any Court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of the power and duties.

• No criminal proceedings can be instituted or continued in any court against a Governor during his term of office. Similarly, no process for the arrest or imprisonment of a Governor can be issued from any court during his term of office.

• Civil proceedings against a Governor in which relief is claimed, can be instituted in a court while the Governor is in his office, only after two months from the date on which due notice has been given to him in writing regarding full details of the said proceedings.

Powers and Functions of the Governor-

1.The Executive Powers –

• All the executive functions in the State are carried on in the name of the Governor and he can make use of this power either directly or through the officer subordinate to him Article 154(1).

• On the advice of the Chief Minister she/ he allocates portfolios among the ministers.

• She/he appoints the Advocate- General and Chairman and members of the State Public Service Commission.

• The Governor makes rules and regulations about the distribution of portfolios among the ministers.

• All orders, instruments, etc. are authenticated in the manner specified in the rules made by the Governor.

2.The Legislative Powers-

• The Governor has the right to summon and prorogue the State Legislature.

• The first session of the state legislature after the general election and its first session of a new year begins with the inaugural address delivered by the governor.

• Under-Article 213 of the constitution, Governor has ordinance making power and , the ordinance has to be placed before the State Legislature when it reassembles for the next session. It ceases to operate after six weeks, unless earlier rejected by the Legislature.

• Governor has the power to nominate one member from the Anglo-Indian Community, if he is of the opinion that the immunity needs representation in the Assembly.

• She/He nominates one-sixth members of the total strength of the Legislative Council if the same is existing in a State. Such nominated members are those who possess special knowledge in the field of literature, science, cooperative movement and social service

The assent of the Governor is necessary for a bill to become a law

In this regard, the Governor has the following options :

(a) He may give assent to the bill; in that case the bill becomes a law

(b) He may withhold the assent; in which case the bill fails to become a law

(c) He may return the bill with his message

(d) He may reserve the bill for the consideration of the President.

In case if bill is reserved for the consideration of the President than president have following options-

President has three options-

1.He may give Assent to the bill

2.He may withhold the assent to the bill (in case of money bill)

3.He may return Bill back for reconsideration

Some Facts-

• The president is not bound to give his assent to a state bill reserved by the governor for the Consideration of the President and he can return the bill to the houses for reconsideration for any number of times.

• When the governor reserves a bill for the consideration of the President, the assent of the Governor is no longer required

3.Financial Powers-

• No money bill can be introduced in the State Legislative Assembly without the prior permission of the Governor.

• The annual and supplementary budgets are introduced in the Assembly in the name of the Governor.

• The Governor has the control over the State Contingency Fund

4.Judicial Powers-

• He decides matters relating to the appointment, posting, and promotion of district judges and other judicial officers.

• He is consulted by the president at the time of the appointment of the judges of High Court.

• The Governor enjoys the judicial immunity.

• No criminal proceedings can be initiated against the president during the term in office.

• He has the power of granting pardon, reprieve or remission of punishment or to suspend, relating to the matter to which the executive authority of the state extends.

5.Discretionary Powers-

• There are a few powers which Governor possesses as the representative of the Central or Union Government. These powers are also called discretionary powers.

• It is under special circumstance that the Governor may act without the advice of the Council of Ministers. In other words, such powers of the Governor are exercised in his/her own discretion

These powers are-

Appointment of Chief Minister -

• In case no party enjoys the majority confidence in the Legislative Assembly, then the decision about the appointment of the chief minister is made by the Governor with his discretion

President rule-

• A situation may arise when in the opinion of the Governor there is the breakdown of the constitutional machinery in the State.

• In such a case, the Governor may report the situation to the President for imposition of the President’s Rule in that State.

Reserving Bills for President-

• There may be some situation where Governor thinks that some bill in the state might affect centre state relation and then Governor may reserve a bill for the consideration of the President

To dissolve the Legislative Assembly-

• Generally, the Governor dissolves Legislative Assembly on the advice of the Chief Minister but sometimes he has to take the decision in his discretion.

The decision to dismiss the council of ministers-

• Many times the council of minister wants to remain in office, even after losing the majority confidence.

• Under such circumstances, the Governor takes the decision to dismiss the council of minister

6.Pardoning power of Governor-

• This is similar power of Governor as that of President with some minor differences

It is mentioned under Article 161

Article 161:  Power of Governor to grant pardons, etc, and to suspend, remit or commute sentences in certain cases

• The Governor of a State shall have 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 offence against any law relating to a matter to which the executive power of the State extends.

Difference between Pardoning power of Governor and President-

• Article 72 Grants this power to the President of India while Article 161 grants it to Governor.

• Governor cannot Pardon in case of court martial while President can Pardon in case of Court Martial.

• Governor cannot grant pardon in cases of death sentence while President can

7.Ordinance making power of governor-

• This Power of Governor is mentioned in Article 213

It states that-

• If at any time, except when the Legislative Assembly of a State is in session, or where there is a Legislative Council in a State, except when both Houses of the Legislature are in session, the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinance as the circumstances appear to him to require.

An Ordinance promulgated under this article shall have the same force and effect as an Act of Legislature of the State assented to by the Governor, but every such Ordinance

• Shall be laid before the legislative Assembly of the State, or where there is a Legislative Council in the State, before both the House, and shall cease to operate at the expiration of six weeks from the reassembly of the Legislature, or if before the expiration of that period a resolution disapproving it is passed by the Legislative Assembly and agreed to by the Legislative Council, if any, upon the passing of the resolution or, as the case may be, on the resolution being agreed to by the Council; and

• May be withdrawn at any time by the Governor Explanation Where the Houses of the Legislature of a State having a Legislative Council are summoned to reassemble on different dates, the period of six weeks shall be reckoned from the later of those dates for the purposes of this clause

Governor may take Instructions from President before making ordinance in some matters like-

• A Bill containing the same provisions would under this Constitution have required the previous sanction of the President for the introduction thereof into the Legislature; or

• It would have deemed it necessary to reserve a Bill containing the same provisions for the consideration of the President; or

• An Act of the Legislature of the State containing the same provisions would under this Constitution have been invalid unless, having been reserved for the consideration of the President, it had received the assent of the President

Position and Role of Governor –

• In parliamentary system the real power is not executed by governor but it is executed by Chief Minister.

• The Governor ordinarily has to act as a constitutional or ceremonial head.

• He act as an instrument of Central government in the state.

• As he works under the pleasure of President therefore there have been many instances when governor was removed after change of government at Central level.

• Also we cannot say that Governor have no real role in the state government because he have power to reserve bills presented by state legislature.

• He also has Discretionary powers in some cases in the state

There have been some Friction points between Governor and state like-

• The Governor sends a report to the centre which forms the basis of the Union cabinet’s recommendations to the President for invoking president rule in the state.

• Use of Discretionary powers by Governor.

• Withholding the assent to bills of the state
• There has been some commissions which recommended some points for smooth functioning of governor and some of these commissions were Sarkaria commission, Punchhi commission etc.

Note :

• After the 42^nd constitutional amendment act, ministerial advice was made binding on the President, no such provision has been made with respect to governor so far