Governor

Governor of States

• The Governor is the chief executive officer of the state. He serves as the union government's representative. The Governor exercises executive authority over the state, and all executive actions must be taken in his or her name. The Seventh Amendment to the Constitution, ratified in 1956, permitted the appointment of the same person as Governor of two or more states. According to the constitution, the state's executive power is vested in the Governor, who may exercise it directly or through officers subordinate to him (Article 154).
• There shall be a Council of Ministers, led by the Chief Minister, to assist and advise the Governor in the discharge of his functions, except when he is required by or under this Constitution to do all or any of them at his discretion—article 163.

Constitutional Provisions

• Part VI of the Constitution, which includes Articles 153 to 167, is concerned with the State Executive.
• The Indian Constitution envisions the same pattern of government for the states as it does for the Centre, namely a Parliamentary system.
• The governor is the state's constitutionally mandated leader. Articles 153 to 167 of Part VI (State) deal with the State Executive, of which the Governor is the titular head and the Chief Minister, who heads the Council of Ministers, is the real head.
• The Governor also represents the central government. As a result, the governor's office serves a dual purpose.
• At the Centre, there is no position of deputy or vice governor comparable to that of Vice-President.

The History Of The Governor's Institution

• The GoI Act of 1858 transferred the administration of India from the East India Company to the British Crown. It made the Governor of the province a Crown agent acting through the Governor General.
• Montague-Chelmsford reforms (1919) enacted minor changes in the provincial government, introducing a minor level of responsible government.
• The GoI Act of 1935 established provincial autonomy, with the Governor required to follow the advice of the Council of Ministers.
• Following 1947, the Adaptation Order of 1947 mandated that Governors function with the assistance and advice of the Council of Ministers.

Important Articles

• GOVERNOR'S CONSTITUTIONAL POSITION
• Except in matters where he is required to act at his discretion, the Governor must exercise his powers and functions with the assistance and advice of the council of ministers led by the chief minister (i.e., without the advice of ministers).
• 154th Article - The Governor shall have executive power over the state, which he shall exercise either directly or through officers subordinate to him in accordance with this Constitution.
• Nothing in this article shall be construed as transferring to the Governor any functions conferred on any other authority by any existing law; or preventing Parliament or the Legislature of the State from conferring by law functions on any authority subordinate to the Governor.
• Article 163 - There shall be a CoM, headed by the Chief Minister, to assist and advise the Governor in the discharge of his functions, except where he is required to exercise his functions at his discretion.
• Article 164 - The CoM is collectively accountable to the state's legislative assembly. This provision is the cornerstone of the state's parliamentary government.

State Governors (Art. 153)

• Each state shall have a governor; provided, however, that nothing in this article shall preclude the appointment of the same person as Governor of two or more states (7th CAA 1956).
• 153 specifies that there shall be no vacancy in the office of the Governor.
• The Constitution (Seventh Amendment) Act of 1956 amended Article 153 to allow one person to be appointed as Governor of two additional states.

Governor Appointment (Article 155)

• The Governor is not directly elected by the people, nor is he indirectly elected by a specially formed electoral college, as the President is.
• He is appointed by warrant under the President's hand and seal. He is a Central Government nominee.
• The Supreme Court ruled in 1979 that the office of Governor of a state is not a federal government job. It is a separate constitutional office that is not controlled or subordinate to the central government.
• The Draft Constitution called for the Governor to be elected directly by universal adult suffrage. However, the Constituent Assembly chose the current system of Governor appointment by the President.
• The Governor of a state is directly elected under the American model.
• The Governor-General of Canada appoints the Governor of a province (state) (Centre)

Classification Of People Appointed As Governor

• Political figures - Active/Non-active
• Bureaucrats who have retired
• Chief (defence) (defence)
• Activists for social change
• Academicians
• Former judges
• Men from the ruling party and unsuccessful candidates have typically been appointed.
• People known for their arrogance and collaboration have been appointed.

Modes Of Governor Appointment

• The constituent assembly considered four methods: Assembly Election
• Appointment from a list of names compiled by the Assembly Central Nominations Committee

Consultation With The Chief Minister During The Direct Election

• Until 1967, CMs were simply informed, but after 1967, non-congress CMs demanded consultation.

Reasons For Governor Appointment By Nomination

• The Draft Constitution called for the Governor to be elected directly by universal adult suffrage. The Constituent Assembly, on the other hand, chose the nominated appointment of the Governor by the President.

Arguments for not electing a governor

• The direct election of the Governor is incompatible with the states' parliamentary system.
• The direct election method is more likely to result in disagreements between the Governor and the Chief Minister.
• Because the Governor is only a constitutional (nominal) head, there is no point in spending a lot of money on elaborate election preparations.
• The election of a Governor would be entirely based on personal considerations. As a result, involving a large number of voters in such an election is not in the national interest.
• An elected Governor would inevitably belong to a political party and would not be a neutral and impartial leader.
• The election of a governor would foster separatist sentiments, threatening the country's political stability and unity.
• The Presidential nomination system allows the Centre to maintain control over the states.
• The direct election of the Governor creates a serious leadership problem in the state during a general election.
• The chief minister wants his nominee to run for governor. As a result, a second-rate member of the ruling party is elected Governor.

Observations of the Sarkaria Commission

• The majority of cases did not involve consultation.
• Governors are sometimes appointed before state governments are formed.
• Governors have been appointed in some cases even when the CM has flatly rejected the nominee.
• 155 should be changed to include a requirement for effective consultation.
• Arguments for an Elected Governor (against nominated)
• As an outsider, he may be unaware of the state's culture, language, and development goals.
• In the case of nominated governors, there is an equal likelihood of conflict.
• Nominated governors go against the spirit of federalism.
• Mass removals are avoidable.
• Appointed governors may attempt to destabilise state governments on orders from the centre.
• Raj Bhavan is often used for political accommodation and becomes a rehabilitation centre.

Arguments in Favor of an Elected Governor (against nominated)

• As an outsider, he may be unaware of the state's culture, language, and development desires.
• There is an equal likelihood of conflict in the case of nominated governors.
• Nominated governors go against the true spirit of federalism.
• Mass removals can be avoided.
• Governors appointed by the centre may attempt to destabilise state governments.
• Raj Bhavan has become a rehabilitation centre and is frequently used for political accommodation.

Governor's Term Of Office (Art. 156)

• The Governor shall serve at the pleasure of the President.
• The Governor is appointed for a five-year term. The Governor may resign to the President with his hand.
• There is some debate about whether the five-year term is more important than the reference to the President of India's pleasure.

The person who will be appointed as Governor (1987 Sarkaria Commission)

• Must be an eminent person; 
• Must be from outside the state
• He must not have been involved in active politics for at least some time prior to his appointment; 
• He must be a detached individual who is not overly involved in state politics.

Qualification (Art. 157) 

• The Constitution specifies only two requirements.
• He must be an Indian citizen.
• Has reached the age of thirty-five.
• Two additional conventions apply: 
• He should not be a resident of the state in which he is appointed, so that he is free of local politics.
• When appointing the governor, the president must consult with the chief minister of the state in question to ensure the smooth operation of the state's constitutional machinery.
• Other requirements
• 1 Not be a member of either the House of Commons or the House of Representatives.
• 2 Not hold any profit-making office

Governor's Office Condition (Art. 158)

• The Governor shall not be a member of either House of Parliament or a House of the Legislature of any State specified in the First Schedule, and if a member of either House of Parliament or a House of the Legislature of any such State is appointed Governor, he shall be deemed to have vacated his seat in that House on the date he takes office as Governor.
• The Governor shall not hold any other profit-making office.
• The Governor is entitled to an official residence as well as such emoluments, allowances, and privileges as Parliament may determine by law.

The Governor's Privileges And Immunities

• The Governor, like the President, has the following privileges and immunities: He has personal immunity from legal liability for his official acts.
• During his term of office, he is immune from criminal prosecution, even for personal acts.
• He is not subject to arrest or imprisonment. Civil proceedings can be brought against him during his term of office for personal acts if he gives two months' notice.

Observation And Affirmation (Art.159)

• Before taking office, every Governor and every person performing the functions of the Governor shall take and subscribe an oath or affirmation in the presence of the Chief Justice of the HIGH COURT exercising jurisdiction over the State, or, in his absence, the senior most Judge of that Court available.

Removal Of Governer By Central Government

• The Supreme Court ruled in 2010 that state governors cannot be changed arbitrarily and capriciously with a change in power.
• A five-judge Constitution bench led by Chief Justice K G Balakrishnan ruled that a Governor can only be removed for "compelling" reasons such as proven misconduct or other irregularities.

Should The Governor Be Impeached In The Same Manner As Judges?

• No, because the Governor's role has a high level of political content and discretion, and it is impossible to establish a set of concrete standards and norms against which a specific charge against a Governor can be evaluated.
• Governors should be appointed for a fixed term of five years, and their removal should not be at the discretion of the centre.
• In the event of such a termination or resignation, the should present to PARLIAMENT a statement outlining the circumstances that led to the removal.

The Importance Of The Governor's Position

• The Governor's mandate under the constitutional scheme is extensive, including: supervising government formation and reporting on the breakdown of constitutional machinery in a state.
• Maintaining the chain of command and effective communication between the federal government and the states
• Reserving his signature on bills passed by the State Legislature and promulgating ordinances as needed.
• As a figurehead who ensures the continuation of governance in the State, even in times of constitutional crisis, his role is frequently that of a neutral arbiter in informal disputes settled within the various strata of government, as well as the conscience keeper of the community.

Governor's Powers And Functions 

Executive Powers

• The Governor has executive authority over the state.
• He exercises it either directly or through subordinate officers.
• It has been held that ministers are subordinate officers to him.
• The governor's executive power extends to all matters over which the State Legislature has legislative authority.
• All executive actions are stated to be taken in the Governor's name.
• All orders, instruments, and so on are authenticated in accordance with the Governor's rules.
• He appoints the Chief Minister and other ministers on the advice of the Chief Minister.
• Appoints the Council of Ministers, the Advocate General, the Chairman, and the members of the State Public Service Commission.
• He is the chancellor of state university.
• In Ram Jawaya Kapoor vs. State of Punjab (1955), the Supreme Court ruled that the President and Governors are constitutional heads and that true executive powers rest with the Council of Ministers.
• The Supreme Court ruled in Sham Sher Singh vs. State of Punjab (1974) that the President and Governors are constitutional heads and that true executive powers rest with the Council of Ministers.

Legislative Powers

• The governor is an essential member of the state legislature.
• He convenes, dissolves, and prorogues state legislatures.
• He signs off on the bills.
• The ability to address the state legislature
• He also appoints one-sixth of the Legislative Council members (Art.171).
• He disqualifies MLAs based on the election commission's recommendation.
• The governor issues various reports to state legislatures, such as state finance commission reports.
• He can also nominate one Legislative Assembly member from the Anglo Indian community.

Financial Powers

• A money bill cannot be introduced in the state Legislative Assembly without the Governor's approval.
• Grants cannot be requested unless the Governor recommends it (Art.203).
• The Governor is responsible for ensuring that the annual financial statements (also known as the budget) are laid before the house or houses of the Legislature (Art. 202).
• He appoints State Finance Commission members.

Judicial Powers

• District Court Judges are appointed and transferred by him (Article 233)
• According to Art.217, he has the right to be consulted in the appointment of judges to state high courts.
• The Governor also administers the oath of office to the High Court Judges. 234 - bats for the Governor's appointment of persons (other than district judges) to the state's judicial service.
• Pardoning Powers Of Governor
• According to Article 161, the Governor has the authority to grant pardons, reprieves, respites, or remissions of punishment, as well as to suspend, remit, or commute the sentence of any person convicted of any offence against any law relating to matters to which the executive power of the state extends.
• There is a distinction between the President of India's pardoning power under Art.72 and that of the Governor.
• 1. The President has more authority than state governors.
• 2. The President has the sole authority to grant pardons in cases where the sentence is death, whereas the Governor cannot grant pardons in cases where the sentence is death.
• 3. The President has the authority to commute court martial sentences. The Governor does not have such authority.
• Comparing Pardoning Powers of President and Governor

Discretionary Authority

• Article 163 recognises the Governor's discretionary powers, stating that there are times when the Governor must act without the assistance and advice of the Council of Ministers. There are two kinds of situations like this:
• Circumstances Thrown Up In The Functioning And Process Of Legislative Democracy .
• Following situations as mentioned in the Sarkaria Commission Report-
• Choosing the CM
• Testing majority
• Dismissal of CM
• Dissolving of assembly
• Recommendation of president rule
• Reserving bill for president’s consideration
• Returning a bill to legislature

Where The Constitution Gives Such Authority -

• Discretionary powers as defined in the Constitution - Reservation for consideration by the President of any Bill that, in the Governor's opinion, would so deviate from the powers of the High Court that it would jeopardise the position that the Constitution has designated for that Court (Art.200).
• If there is any doubt as to whether a matter is within the Governor's discretion or not, the Governor's decision is final, and the validity of anything he does cannot be called into question on the grounds that he ought or ought not to have acted in his discretion.

Individual judgement powers

• The Governors of Arunachal Pradesh and Nagaland have been charged with a special responsibility for maintaining law and order in their respective states. They are required to exercise individual judgement after consulting their Council of Ministers in carrying out this responsibility.
• The Governors of Arunachal Pradesh, Assam, Meghalaya, Mizoram, Nagaland, Sikkim, and Tripura have been entrusted with certain specific functions, which they may exercise at their discretion (Articles 371A, Articles 371F and Articles 371H and in Sixth Schedule).

Independent powers 

• Governors as Administrators of Union Territories (UT) - Any Governor appointed by the President as the administrator of an adjoining UT must exercise his administrative functions independently of the State Council of Ministers - Art.239 (2).

Ordinance making powers  

• The Governor's ordinance making powers are granted under Art. 213 of the Constitution (similar to that of the President given under Art.123).
• The Governor may issue an Ordinance only if two conditions are met:
• The Governor must be convinced that circumstances exist that require him to take immediate action. The court cannot call the ordinance's validity into question because there was no need or sufficient reason for the Governor to issue it. The existence of such a ground or necessity is not a justiciable issue, according to the Madhya Pradesh high court in Upendra Lal versus Narayani Devi All India reporter 1968.
• Ordinance-Making Power Of President And Governor

• Veto Powers Of President And Governor

• Governor's Special Responsibilities
• Furthermore, the Governor has specific responsibilities to carry out in accordance with the President's directives. In this regard, the Governor, while required to consult the ministerial council led by the chief minister, acts at his discretion. These are their names:

Special Features Of The Governor's Office

• A Constitution Bench of the Supreme Court observed in Hargovind Pant vs. Dr. Raghukul Tilak (1979) that the Governor is the head of the State and holds a high constitutional office; he cannot be regarded as an employee or servant of the GoI.
• His office is not subordinate or subservient to the Government of India.
• He is not subject to the GoI's orders, and he is not accountable to them for the way he performs his functions and duties.
• He holds an independent constitutional office that is not subject to the GoI's control.
• He is the constitutionally designated head of state, in whom the executive power of the state is vested.

Lt. Governor Vs. Governor

Questions Regarding The Governor

• Appointment through the centre: The post has been reduced to a retirement package for politicians who are politically loyal to the current government. As a result, a candidate committed to a political ideology may struggle to adapt to the requirements of a constitutionally mandated neutral seat.
• Removal without cause before the end of their term: The arbitrary removal of the Governor before the end of his term has also been a major issue in recent years.
• Misuse of discretionary powers: The Governor's discretionary powers to invite the leader of the largest party/alliance to form the government after an election have frequently been abused to favour a particular political party.
• Articles 200 and 201: The Governor has the authority to withhold assent to a bill while also reserving it for consideration by the President. States claim that the governor, acting on behalf of the union government, has frequently abused this provision.
• Article 356: To recommend that a state declare a state of constitutional emergency. This power has been abused more than 120 times by central governments for political gain.
• Rehabilitative appointments: Governors have been appointed by politicians and former bureaucrats who identify with a specific political ideology. This violates the constitutionally mandated neutral seat and appears to have resulted in bias, as seen in Karnataka and Goa.
• Abuse of position: There are numerous examples of the Governor's position being abused, usually at the request of the Centre's ruling party. The process of appointment has generally been the root of the problem.
• Partisanship Role: The Governor of Rajasthan has recently been charged with violating the model code of conduct. His support for the ruling party goes against the spirit of non-partisanship that is expected of those who hold constitutional positions.
• Misuse of power to recommend President's rule: The Governors Committee (1971) mandated that the governor ensure that the administration of the state does not collapse due to political instability, and that he send a regular report on the state's political situation.
• However, the imposition of President's rule (Art.356) in the event of a breakdown in a State's constitutional machinery has frequently been abused by the central government.
• Governor's work is bound by the aid and advice of his council of ministers, which has reduced the significance of the office to a mere rubber stamp.

Governor's Role In The Hung Assembly

The Impact Of Power Abuse By The Governor

• The union government has control over state affairs through the Governor, who is appointed by the states and reports directly to the President.
• Abusing discretionary powers in selecting parties to form government will undermine the democratic system because government will be formed by parties that do not have a majority of people's support.
• To stay true to the spirit of the Constitution, the Governor should refrain from bestowing discretionary powers on his office where none exist.
• People will lose faith in the Governor's office, which in most cases acts as an agent of the union government rather than as an independent office.

Supreme Court Opinions And Judgements

• Supreme Court Judgment On Sr Bommai
• The Governor's discretion does not apply in the case of a hung assembly.
• The emphasis is on a floor test in the house within 48 hours (although it can be extended to 15 days) so that the legislature can decide the matter and the Governor's discretion is only a triggering point.
• The Supreme Court classified instances of constitutional machinery failure into four categories:

Case Of Rameshwar Prasad (2006)

• A Governor cannot rule out post-election alliances as a possible means of forming a popular government.
• Unsubstantiated claims of horse-trading or corruption in government formation efforts cannot be used to justify dissolving the Assembly.

Singhal V. India Union

• The above-mentioned judgement, which calls for a fixed tenure for Governors in order to encourage neutrality and fairness in the discharge of their duties, is not being implemented on the ground.

Judgment Of Nabam Rebia (2016)

• The Supreme Court issued numerous decisions concerning Governors' discretionary powers, such as the Nabam Rebia decision (2016), which emphasised that the exercise of Governor's discretion under Art. 163 is limited and his choice of action should not be arbitrary or fanciful. It must be a rational decision, motivated by good faith and tempered by caution.

Recommendations Of Various Commissions On Governor's Institution

Second Arc Recommendations

• There is an urgent need to reassess Centre-state relations in general, and the governor's functions in particular. Many committees concentrated on Articles 356 and 357, such as:
• Articles are rarely used: The Sarkaria Commission (1988) recommended that 356 be used in extremely rare cases when it becomes unavoidable to restore the State's constitutional machinery.
• The Second ARC commission recommended that, before taking action under Art. 356, the state government be warned that it is not operating in accordance with the constitution.
• Judgement on the President's Rule: The ARC recommended that the Governor's report on the President's Rule be objective, and that the Governor use his own discretion in this regard.
• Governor is neither an adornment nor a glorified cypher. His powers are limited, but he plays an important constitutional role in state governance and strengthening federalism.

The Rajamannar Committee (1971)

• The Rajamannar Committee (1971) recommended that Articles 356 and 357 of the Indian Constitution be deleted, and that the governor of the state should not regard himself as an agent of the centre, but rather as the constitutional head of the state.
• The Governor should not be removed unless there is proven misbehaviour or incapacity after an investigation by the Supreme Court.
• The provision stating that the state ministry serves at the pleasure of the governor should be removed.

The Commission Of Sarkaria (1983)

• The Governor should be appointed in consultation with the State Chief Minister, Vice President of India, and Speaker of the Lok Sabha.
• His tenure in office must be guaranteed and should not be disturbed unless there are extremely compelling reasons, and if any action is to be taken against him, he must be given a reasonable opportunity to show cause against the grounds for his removal.
• In the event of such termination or resignation by the Governor, the Governor shall lay before both Houses of Parliament a statement explaining the circumstances leading to such removal or resignation, as the case may be; After leaving office, the person appointed as Governor shall be ineligible for any other appointment or office of profit under the Union or a State Government, except for a second term as Governor or election as Vice-President or President of India.
• Governors' prestige has suffered as a result of frequent removals and transfers before the end of their terms, which should be stopped.
• Reasonable post-retirement benefits should be provided at the end of his tenure.
• The party or coalition of parties with the most votes in the Legislative Assembly should be asked to form the government.
• The Governor's job is to ensure that a government is formed, not to form a government that pursues policies that he supports.
• If a single party has an absolute majority in the Assembly, the leader of that party should be asked to become Chief Minister.
• If no such party exists, the Governor should appoint a Chief Minister from among the following parties or groups of parties, in the order of preference indicated below:
• 1 A coalition of parties formed prior to the elections.
• 2 The largest single party claiming to form the government with the backing of others, including independents.
• The reasons for the President's refusal to sign state bills should be communicated to the state government.
• The procedure for consulting the chief minister when appointing a state governor should be spelled out in the Constitution.
• So long as the council of ministers has a majority in the assembly, the Governor cannot dismiss it.

Sarkaria Commission On The Hung Assembly Issue

• The state assembly should not be dissolved unless Parliament approves the proclamation.
• The party or parties with the most votes in the Legislative Assembly should be asked to form the government.
• If there is a pre-election alliance or coalition, it should be treated as one political party, and if such coalition obtains a majority, the Governor shall call the leader of such coalition to form the Government.
• If no party or pre-poll coalition has a clear majority, the Governor should choose the CM in the following order of preference:

Justice V. Chelliah Commission (2002)

• The Justice V. Chelliah Commission (2002) recommended that Art. 356 be used sparingly and only as a last resort after exhausting all other remedies under Art. 256, 257, and 355.

Punchhi Commission Recommendations (2007)

• In the event of a hung Assembly, the Governor should follow "constitutional conventions," according to the Governor.
• It also proposed a 'Localized Emergency' provision, under which the central government could address issues at the town/district level without dissolving the state legislative assembly.
• Changes to the articles: The Punchhi commission recommended amending Articles 355 and 356. It sought to protect the interests of the states by attempting to limit their misuse by the Centre. Governors should be appointed for a fixed term of five years, and their removal should not be at the whim of the Centre's government.
• The procedure established for impeachment of the President, mutatis mutandis, can be extended to impeachment of Governors.
• Article 163 does not grant the Governor broad discretion to act against or against the advice of his Council of Ministers. In fact, the scope of his discretion is limited, and even within that scope, his actions should not be arbitrary or fanciful. It must be a rational choice, motivated by good faith and tempered by caution.
• In the case of bills passed by a state's Legislative Assembly, the Governor should decide whether to grant assent or reserve it for consideration by the President within six months.
• When it comes to dismissing a Chief Minister, the Governor should always insist on the Chief Minister proving his majority on the floor of the House, and he should set a time limit for this.
• The practise of Governors serving as Chancellors of Universities while also holding other statutory positions should be abandoned. His role should be limited to the provisions of the Constitution.
• The Governor should have the authority to sanction a state minister for prosecution against the advice of the Council of Ministers if the Cabinet decision appears to the Governor to be motivated by bias in the face of overwhelming evidence.
• The Central Government should follow the Sarkaria Commission's recommendations and follow its mandate in letter and spirit when selecting Governors:
• The person appointed as Governor should be: An Eminent Person; A Person From Outside The State; A Person Who Has Not Participated In Active Politics For At Least Some Time Before His Appointment; A detached person who is not too intimately connected with the local politics of the State.

On Dismissal Of The Chief Minister

• A mandatory floor test is required.
• The governor has the authority to remove the CM outright if he undermines national unity, attempts to establish an independent state, or enters into negotiations with foreign powers to break away from the republic.
• In the event of allegations of corruption, the Governor has the authority to order his prosecution under Section 19 of the PCA (i.e. prevention of corruption act, 1988)