Chapter 15 : Governor

• The Constitution of India envisages the same pattern of government in the states as that for the Centre, that is, a Parliamentary system.
• Governor is the Constitutional head of the state. The Executive power of the State is vested in Governor
• Article 153 to Article 167 of Part VI (State) deal with the State Executive of which Governor is the titular head and the Chief Minister who heads the Council of Ministers is the real head.
• The Governor also acts as an agent of the central government. Therefore, the office of governor has a dual role.
• There is no post of deputy or vice Governor like that of Vice-President at the Centre.

• GoI Act 1858 – transferred the responsibility of administration of India from the East India Company to the British Crown. It made the Governor of the province an agent of the Crown working through the Governor General.
• Montague-Chelmsford reforms (1919) – made small changes in the provincial government with insignificant level of responsible government being introduced .
• GoI Act 1935 – gave provincial autonomy with the Governor being required to act on the advice of the Council of Ministers.
• After 1947, the Adaptation order of 1947 made the Governors function as per aid and advice of council of ministers.

The Governor has to exercise his powers and functions with the aid and advise of the council of ministers headed by the chief minister, except in matters in which he is required to act in his discretion (i.e., without the advice of ministers).

• 154 – The executive power of the state shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution.
• Nothing in this article shall—

1. Be deemed to transfer to the Governor any functions conferred by any existing law on any other authority; or
2. Prevent Parliament or the Legislature of the State from conferring by law functions on any authority subordinate to the Governor.

• 163 – There shall be a CoM with the chief minister as the head to aid and advise the Governor in the exercise of his functions, except in so far as he is required to exercise his functions in his discretion.
• 164 – The CoM shall be collectively responsible to the legislative assembly of the state. This provision is the foundation of the Parliamentary system of govt. in the state.

• 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 (7^th CAA 1956).
• 153 means that there shall not be a vacancy in the office of the Governor.
• The Constitution (Seventh Amendment) Act, 1956 made a change in Art. 153 to the effect that one person can be appointed as Governor for two more States.

• 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.

• Politicians – Active/Non-active
• Retired bureaucrats
• Chief (defence)
• Social activists
• Academicians
• Retired judges
• Generally men from the ruling party & candidates who have lost elections have been appointed.
• Persons known for their arrogance & partnership have been appointed.

The constitution assembly considered 4 methods-

1. Election by the Assembly
2. Appointment from a panel of names prepared by the Assembly
3. Central nomination
4. Direct election

• Till 1967 CM’s were merely informed but post 1967, non-congress CM’s demanded that there be consultation.

The Draft Constitution provided for the direct election of the Governor on the basis of universal adult suffrage. However, the Constituent Assembly opted for nominated appointment of Governor by the President.

Arguments against elected Governor

• The direct election of the Governor is incompatible with the parliamentary system established in the states.
• The mode of direct election is more likely to create conflicts between the Governor and the chief minister.
• The Governor being only a constitutional (nominal) head, there is no point in making elaborate arrangements for his election and spending huge amount of money.
• The election of a Governor would be entirely on personal issues. Hence, it is not in the national interest to involve a large number of voters in such an election.
• An elected Governor would naturally belong to a party and would not be a neutral person and an impartial head.
• The election of Governor would create separatist tendencies and thus affect the political stability and unity of the country.
• The system of Presidential nomination enables the Centre to maintain its control over the states.
• The direct election of the Governor creates a serious problem of leadership at the time of a general election in the state.
• The chief minister would like his nominee to contest for governorship. Hence, a second rate man of the ruling party is elected as Governor.

Arguments in favour of elected Governor (against nominated)

• Being an outsider he may not be aware about the culture, language and development urges of state.
• There is equal likelihood of friction in case of nominated governors.
• Nominated governors violates the true spirit of federalism.
• Mass removals can be avoided.
• Appointed governors may try to destabilize state governments under instructions from centre.
• Raj Bhavan tend to become rehabilitate centre & often used for political Accommodation.

• 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.

• 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

Similar to the President, the Governor is also entitled to following 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.

• 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, an oath or affirmation.

• 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.

No –

• Because the Governor’s role has a heavy political content and discretion and it is not possible to lay down a set of concrete standards and norms with reference to which a specific charge against a Governor may be examined.
• Governors should be given a fixed tenure of 5 years and their removal should not be at the sweet will of the centre.
• In case of such termination or resignation, the should lay before PARLIAMENT a statement explaining the circumstances leading to the removal.

• Under the constitutional scheme, the Governor’s mandate is substantial such as –
  • Overseeing government formation
  • reporting on the breakdown of constitutional machinery in a State
  • Maintaining the chain of command as well as effective communication between the Centre and the State
  • Reserving his assent to Bills passed by the State Legislature or promulgating ordinances if the need arises.
• As a figurehead who ensures the continuance of governance in the State, even in times of constitutional crises, his role is often that of a neutral arbiter in disputes settled informally within the various strata of government, and as the conscience keeper of the community.

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.

PARDONING POWERS

• 161 – says that the Governor 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 matters to which the executive power of the state extends.

Comparing Pardoning Powers of President and Governor

DISCRETIONARY POWERS

• 163 recognizes Governor’s discretionary powers that there are situations in which the Governor has to act without the aid and advice of the Council of Ministers. There are 2 types of such situations:

1. CIRCUMSTANCES THROWN UP IN THE FUNCTIONING AND PROCESS OF LEGISLATIVE DEMOCRACY .

Following situations as mentioned in the Sarkaria Commission Report-

1) Choosing the CM

2) Testing majority

3) Dismissal of CM

4) Dissolving of assembly

5) Recommendation of president rule

6) Reserving bill for president’s consideration

7) Returning a bill to legislature

2. WHERE THE CONSTITUTION CONFERS SUCH POWERS –

• • Discretionary powers as given in the Constitution – Reservation for the consideration of the President of any Bill which, in the opinion of the Governor would, if it became law, so derogate from the powers of the High Court as to endanger the position which that Court is by the Constitution designed to fill (Art.200).

• • Powers in individual judgment -The Governors of Arunachal Pradesh and Nagaland have been entrusted with a special responsibility with respect to law and order in their respective states. In the discharge of this responsibility, they are required to exercise individual judgment after consulting their Council of Ministers.

• • Powers, independent of the Council of Ministers – Governors as Administrators of Union Territories (UT) – Any Governor, on being appointed by the President as the administrator of an adjoining UT, has to exercise his functions as administrator, independently of the State Council of Ministers – Art.239 (2).

• • Ordinance making powers – The ordinance making power of the Governor given under Art. 213 (similar to that of the President given under Art.123).

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:

In Hargovind Pant vs. Dr. Raghukul Tilak (1979) a Constitution Bench of SC observed:

• 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 GoI.
• He is not amenable to the directions of the GoI, nor is he accountable to them for the manner in which he carries out his functions and duties.
• He holds an independent constitutional office, which is not subject to the control of the GoI.
• He is constitutionally the head of the State in whom is vested the executive power of the State.

• Appointment by centre à The post has been reduced to becoming a retirement package for politicians for being politically faithful to the government of the day. Consequently, a candidate wedded to a political ideology could find it difficult to adjust to the requirements of a constitutionally mandated neutral seat.
• Arbitrary removal before the expiration of their tenure à The arbitrary removal of the Governor before the expiration of his tenure has also been an important issue in the recent past.
• Misuse of discretionary powers à Governor’s discretionary powers to invite the leader of the largest party/alliance, post-election, to form the government has often been misused to favour a particular political party.
  • 200 and 201: The Governor has the power to withhold the assent to a bill along with reserving the bill for the consideration of the President. States allege that this provision has often been misused by the governor who acts on behest of the union government.
  • 356: To recommend the imposition of constitutional emergency in a state. For political gains, this power has been abused by central governments more than 120 times till date.
• Rehabilitative appointments à Politicians and former bureaucrats identifying with a particular political ideology have been appointed as the Governor. This goes against the constitutionally mandated neutral seat and has resulted in bias, as appears to have happened in Karnataka and Goa.
• Abuse of position à There are numerous examples of the Governor’s position being abused, usually at the behest of the ruling party at the Centre. The process of appointment has generally been the cause behind it.
• Partisanship Role à Recently, the Governor of Rajasthan has been charged with the violation of the model code of conduct. His support of the ruling party is against the spirit of non-partisanship that is expected from the person sitting on constitutional posts.
• Misuse of power to recommend President’s rule à The Governors Committee (1971) laid down the responsibility on the governor to see that the administration of the State does not breakdown due to political instability and he must send a regular report about the political situation of the State. However, the imposition of President’s rule

(Art.356) in case of breakdown of constitutional machinery in a State has been frequently misused by the central government.

• Mere rubber stamp or puppet à Governor’s work is bound by the aid and advice of his council of ministers, this has brought down the significance of the office to a mere rubber stamp.

NEWS – The role of governor came under question in recent Karnataka legislative assembly elections, Maharashtra political crisis.

• The union government is able to control the affairs of the states with the Governor who is appointed by them and reports directly to the President.
• Abusing the discretionary powers while selecting the parties to form government will break the democratic set up as government is formed by parties who did not have majority support of people.
• Either way, to stay true to the spirit of the Constitution, the Governor should desist from conferring discretionary powers to his office where there are none.
• The people will lose faith in the office of Governor who in most cases acts like an agent of the union government and not as an independent office.

1. SR BOMMAI JUDGEMENT OF SUPREME COURT

• Discretion of Governor does not apply to hung assembly,
• Laid emphasis on floor test in the house within 48 hours (although it can be extended to 15 days) so that legislature should decide the matter and Governor’s discretion should merely be a triggering point.
• The Supreme Court classified the instances of failure of constitutional machinery into four heads:

2. RAMESHWAR PRASAD CASE (2006)

• A Governor cannot shut out post-poll alliances altogether as one of the ways in which a popular government may be formed.
• Unsubstantiated claims of horse-trading or corruption in efforts at government formation cannot be cited as reasons to dissolve the Assembly.

3. P. SINGHAL V. UNION OF INDIA

• Above judgement calling for a fixed tenure for Governors to encourage neutrality and fairness in the discharge of their duties, it is not being implemented on ground.

4. NABAM REBIA JUDGMENT (2016)

• Supreme Court gave many judgements regarding the discretionary powers of Governors like the Nabam Rebia judgment (2016) which emphasized that the exercise of Governor’s discretion Art. 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.

1.RECOMMENDATIONS OF SECOND ARC

• There is a pressing need to reassess Centre-state relations in general and the functions of the governor in specific. Many committees focused on Articles 356 and 357 like:
• Rare use of articles: The Sarkaria Commission (1988) recommended that 356 should be used in very rare cases when it becomes unavoidable to restore the breakdown of constitutional machinery in the State.
• The Second ARC commission recommended that before taking action under Art. 356, a warning should be issued to the state government that it is not functioning according to the constitution.
• Judgement on the President’s Rule: The ARC 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.
• Governor is neither a decorative emblem nor a glorified cipher. His powers are limited, but he has an important constitutional role to play in the governance of the state and in strengthening federalism.

2.RAJAMANNAR COMMITTEE (1971)

• The Rajamannar Committee (1971) recommended the deletion of Art. 356 and 357 from the constitution of India and also 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 Governor should not be removed except under proved misbehavior or incapacity after inquiry by the Supreme Court.
• The provision that the state ministry holds office during the pleasure of the governor should be omitted.

3.SARKARIA COMMISSION (1983)

• Governor should be appointed in consultation with the Chief Minister of the State, Vice-President of India and the Speaker of the Lok Sabha.
• His tenure of office must be guaranteed and should not be disturbed except for extremely compelling reasons and if any action is to be taken against him he must be given a reasonable opportunity for showing cause against the grounds on which he is sought to be removed
• In case of such termination or resignation by the Governor, the should lay before both the Houses of Parliament, a statement explaining the, circumstances leading to such removal or resignation, as the case may be;
• After demitting his office, the person appointed as Governor should not be eligible 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.
• Frequent removals and transfers of Governors before the end of their tenure have lowered the prestige of this office and this should be stopped.
• At the end of his tenure, reasonable post-retirement benefits should be provided
• The Party or combination of parties which commands the widest support in the Legislative Assembly should be called upon to form the government.
• The Governor’s task is to see that a government is formed and not to try to form a government which pursue policies which he approves.
• If there is a single party having an absolute majority in the Assembly, the leader of the party should automatically be asked to become the Chief Minister.

• When the President withholds his assent to the state bills, the reasons should be communicated to the state government.
• The procedure of consulting the chief minister in the appointment of the state governor should be prescribed in the Constitution
• The Governor cannot dismiss the council of ministers so long as it commands a majority in the assembly.

• The state assembly should not be dissolved unless the proclamation is approved by the Parliament.
• The party or combination of parties with widest support in the Legislative Assembly should be called upon to form the Government.
• If there is a pre-poll alliance or coalition, it should be treated as one political party and if such coalition obtains a majority, the leader of such coalition shall be called by the Governor to form the Government.
• In case no party or pre-poll coalition has a clear majority, the Governor should select the CM in the order of preference indicated below:

1.JUSTICE V. CHELLIAH COMMISSION (2002)

Last way to articles: Justice V. Chelliah Commission (2002) recommended that Art. 356 must be used sparingly and only as a remedy of the last resort after exhausting all actions under Art. 256, 257 and 355.

2.RECOMMENDATIONS OF PUNCHHI COMMISSION (2007)

• Elaborated that the Governor should follow “constitutional conventions” in a case of a hung Assembly.
• Further, it suggested a provision of ‘Localized Emergency’ by which the centre government can tackle issue at town/district level without dissolving the state legislative assembly.
• Amendment in the articles: The Punchhi commissionrecommended that 355 & 356 be amended. It sought to protect the interests of the States by trying to curb their misuse by the Centre
• Governors should be given a fixed tenure of five years and their removal should not be at the sweet will of the Government at the Centre.
• The procedure laid down for impeachment of President, mutatis mutandis can be made applicable for impeachment of Governors as well.
• 163 does not give the Governor a general discretionary power to act against or without the advice of his Council of Ministers. In fact, the area for the exercise of discretion is limited and even in this limited area, his choice of action should not be arbitrary or fanciful. It must be a choice dictated by reason, activated by good faith and tempered by caution.
• In respect of bills passed by the Legislative Assembly of a state, the Governor should take the decision within six months whether to grant assent or to reserve it for consideration of the President.
• On the question of dismissal of a Chief Minister, the Governor should invariably insist on the Chief Minister proving his majority on the floor of the House for which he should prescribe a time limit.
• The convention of Governors acting as Chancellors of Universities and holding other statutory positions should be done away with. His role should be confined to the Constitutional provisions only.
• The Governor should have the right to sanction for prosecution of a state minister 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 material.
• While selecting Governors, the Central Govt. should adopt the following strict guidelines (also recommended by the Sarkaria Commission) and follow its mandate in letter and spirit :

On dismissal of the CHIEF MINISTER

1. Floor test must be mandatory.
2. The governor can outrightly remove the CM, if he undermines the unity of the nation or tries to establish an independent state or enters into negotiations with foreign powers to break away from the republic.
3. In case of allegations of corruption the Governor can sanction his prosecution under section 19 of the PCA (i.e. prevention of corruption act, 1988)