Role and Evolution of the Governor
The Constitution of India envisions a Parliamentary system for the states, similar to the governmental structure at the Centre. The Governor is the Constitutional head of the state, and the Executive power of the State is vested in them.
Article 153 to Article 167 of Part VI (State) deals 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.
They also act as an agent of the central government. Thus, the office of governor serves a dual role. There is no post of deputy or vice-Governor like that of Vice-President at the Centre.
Evolution of the Governor’s Role
- GoI Act 1858: Transferred administration from the East India Company to the British Crown. Made the Governor of the province an agent of the Crown working through the Governor-General.
- Montague-Chelmsford reforms (1919): Made small changes, introducing an insignificant level of responsible government.
- GoI Act 1935: Gave provincial autonomy, with Governors required to act on the advice of the Council of Ministers.
- After 1947: The Adaptation order of 1947 made their function as per aid and advice of the council of ministers.
Key Constitutional Articles
| Article | Description |
|---|---|
| 153 | Governors of states |
| 154 | Executive power of state |
| 155 | Appointment of Governor |
| 156 | Term of office of Governor |
| 157 | Qualifications for appointment as Governor |
| 158 | Conditions of Governor’s office |
| 159 | Oath or affirmation by the Governor |
| 160 | Discharge of the functions of the Governor in certain contingencies |
| 161 | Power of the Governor to grant pardons and others |
| 162 | Extent of executive power of state |
| 163 | Council of ministers to aid and advise the Governor |
| 164 | Other provisions regarding ministers (appointments, terms, salaries) |
| 165 | Advocate-General for the state |
| 166 | Conduct of business of the government of a state |
| 167 | Duties of the Chief Minister regarding furnishing of information to the Governor |
| 174 | Sessions of the state legislature, prorogation and dissolution |
| 200 | Assent to bills |
| 201 | Bills reserved by the Governor for consideration of the President |
| 213 | Power of Governor to promulgate ordinances |
| 217 | Governor consulted by President on appointments of High Court judges |
| 233 | Appointment of district judges by the Governor |
| 234 | Appointments of persons (other than district judges) to the judicial service |
Constitutional Framework
The Governor has to exercise his powers and functions with the aid and advice of the council of ministers headed by the chief minister, except in matters in which he is required to act at his discretion (i.e., without the advice of ministers).
- Article 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.
- Article 163: There shall be a CoM with the chief minister as the head to aid and advise them in the exercise of his functions, except insofar as he is required to exercise his functions in his discretion.
- Article 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.
| Constitutional position of the Governor differs from that of the President: | |
|---|---|
| 1 | While the Constitution envisages the possibility of the Governor acting at times in his discretion, no such possibility has been envisaged for the President. |
| 2 | 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. |
Appointment, Term, and Qualifications
Appointment of Governors (Article 155)
- Article 153: There shall be a Governor for each state. The 7th CAA 1956 allows the appointment of the same person as Governor for two or more States.
- The Governor is neither directly elected nor indirectly elected by an electoral college.
- He is appointed by the President by warrant under his hand and seal. He is a nominee of the Central government.
- In 1979, the Supreme Court ruled that the position of Governor is an independent constitutional office and not subject to the control or subordination of the Central government.
- The Draft Constitution initially proposed direct election, but the Constituent Assembly chose the current system (Canadian Model) over the American Model (direct election).
Modes of Appointment Considered
The constitution assembly considered 4 methods:
- Election by the Assembly
- Appointment from a panel prepared by the Assembly
- Central nomination
- Direct election
Evolution of CM Consultation
Till 1967 CM’s were merely informed but post 1967, non-congress CM demanded that there be consultation.
Rationale for Nomination (and Concerns with Election)
Challenges with Electing Governors
- Contradicts the parliamentary system.
- Prone to conflicts between the Governor and CM.
- Serves no purpose and high cost for a nominal head.
- An elected Governor would belong to a party, not be neutral.
- Could foster separatist tendencies.
- Creates a serious problem of leadership.
Advantages of Electing (vs. Nominated)
- An outsider (nominated) may not know local culture.
- Nominated governors can also cause friction.
- Nomination can violate the true spirit of federalism.
- Mass removals of elected governors can be avoided.
- Stops Raj Bhavan from being a "rehabilitation centre" for political accommodation.
Term, Qualifications, and Conditions
- Term of Office (Art. 156): Holds office during the pleasure of the President. The term is fixed at five years, but this is subject to the President's pleasure.
- Qualifications (Art. 157): The Constitution lays down only two qualifications: 1. Must be a citizen of India and 2. Has completed the age of 35 years.
- Conventions (not in Constitution): 1. He should be an 'outsider' (not belong to the state). 2. The President is required to consult the CM of the state (this is often violated).
- Conditions of Office (Art. 158): Not be a member of Parliament or State Legislature. Not hold any other office of profit. Emoluments are determined by Parliament, charged on the Consolidated Fund of India, and cannot be diminished during his term.
| Sarkaria Commission (1987) on Appointment | |
|---|---|
| 1 | Should be a distinguished individual. |
| 2 | Must hail from outside the state. |
| 3 | Should have refrained from active participation in politics for a certain period. |
| 4 | Should be a detached person and not too intimately connected with local politics. |
Privileges and Immunities
- Personal immunity from legal liability for official acts.
- Immune from any criminal proceedings during his term.
- Exempt from arrest or imprisonment.
- Civil proceedings for personal acts are allowed only after a two-month notice.
Oath and Affirmation (Art. 159)
Must take an oath before assuming office, administered by the Chief Justice of the relevant State’s High Court or the senior-most available Judge.
Removal and Tenure Accountability
- SC Ruling (2010): In B. P. Singhal v. Union of India, the Supreme Court ruled that Governors cannot be replaced arbitrarily. They can only be removed for compelling reasons (e.g., proven misconduct).
- Accountability: Because the role has heavy political content, it's hard to set concrete standards. Governors should have a fixed 5-year tenure. If removed, Parliament should be given a statement explaining the circumstances.
Role in Federal Relations
Under the constitutional scheme, the Governor’s mandate is substantial. His role is often that of a neutral arbiter and the moral guide of the community.
Key functions include:
- Overseeing government formation.
- Reporting on the breakdown of constitutional machinery (Art. 356).
- Maintaining effective communication between the Centre and the State.
- Reserving assent to Bills or promulgating ordinances.
- Ensuring the continuance of governance, even in times of constitutional crises.
Powers and Functions of the Governor
Executive Powers
- All executive action is taken in his name.
- Appoints the Chief Minister and other ministers.
- Appoints the Advocate General, Chairman and members of SPSC.
- Acts as the chancellor of state universities.
Legislative Powers
- Integral part of the state legislature.
- Summons, dissolves, and prorogues the state assembly.
- Gives assent to bills.
- Nominates 1/6 of the members of the Legislative Council (Art.171).
- Disqualified MLAs on the opinion of the Election Commission.
- Lays down various reports (e.g., State Finance Commission).
- (Nomination of Anglo-Indian member removed by 104th CAA).
Financial Powers
- A money bill cannot be introduced without his recommendation.
- No demand for grants can be proposed without his recommendation (Art. 203).
- Ensures the Annual Financial Statement (Budget) is laid (Art. 202).
- Appoints members of the State Finance Commission.
Judicial Powers
- Appoints and transfers District Court Judges (Art. 233).
- Consulted in appointments of state High Court judges (Art. 217).
- Administers the Oath of office to High Court Judges.
- Appoints persons (other than district judges) to the judicial service (Art. 234).
SC Rulings on Executive Power
- Ram Jawaya Kapoor vs State of Punjab (1955): SC held that President and Governors are constitutional heads and real executive powers are with council of Ministers.
- Sham Sher Singh vs State of Punjab (1974): SC reiterated that the President and Governors are constitutional heads and real executive powers are with council of Ministers.
Pardoning Powers (Article 161)
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.
| President (Article 72) | Governor (Article 161) |
|---|---|
| Can pardon offences against a central law. | Can pardon offences against a state law. |
| Can pardon a death sentence (exclusive power). | Cannot pardon a death sentence. (But can suspend, remit, or commute it). |
| Can grant pardon for punishments by a court-martial. | Does not possess any such power. |
Discretionary Powers of the Governor
Article 163 recognizes the Governor’s discretionary powers. If any question arises whether a matter falls within the Governor’s discretion, the decision of the Governor is final. There are two types of situations:
1. Circumstantial Discretion
(As per Sarkaria Commission)
- Choosing the CM
- Testing majority
- Dismissal of CM
- Dissolving the assembly
- Recommendation of president rule
- Reserving bill for president’s consideration
- Returning a bill to legislature
2. Constitutional Discretion
- Reservation of a bill for the President if it endangers the position of the High Court (Art. 200).
- Powers in "individual judgment" (e.g., law and order in Nagaland, Arunachal Pradesh under Art. 371A, 371H).
- Special functions for tribal areas (Sixth Schedule) and other regions (Art. 371F).
- Acting as Administrator of an adjoining UT (independently of CoM - Art. 239(2)).
Ordinance Making Powers (Article 213)
The Governor can issue Ordinance only when two conditions are fulfilled:
- The Governor must be satisfied that circumstances exist which render it necessary for him to take immediate action.
- The court cannot question the validity of the ordinance on the ground that there was no necessity or sufficient ground for issuing it (Upendra Lal vs. Narayani Devi, 1968).
| President (Art. 123) | Governor (Art. 213) |
|---|---|
| Can issue when either House of Parliament is not in session. | Can issue when the State Legislature is not in session. |
| Co-extensive with the legislative power of Parliament. | Co-extensive with the legislative power of the State Legislature. |
| Ceases to operate after six weeks from the reassembly of Parliament. | Ceases to operate after six weeks from the reassembly of the State Legislature. |
| Needs no instruction for making an ordinance. | Cannot make an ordinance without instructions from the President in three cases (e.g., if the bill required President's previous sanction, or if it would have been reserved for the President). |
Comparing Veto Powers
| President | Governor |
|---|---|
| With Regard to Ordinary Bills | |
| Has three alternatives: 1. Give assent, 2. Withhold assent (Absolute Veto), 3. Return for reconsideration (Suspensive Veto). | Has four alternatives: 1. Give assent, 2. Withhold assent, 3. Return for reconsideration, 4. Reserve the bill for the President. |
| If a returned bill is passed again, the President must give his assent. | If a returned bill is passed again, the Governor must give his assent. |
| When a state bill is reserved, the President can: 1. Give assent, 2. Withhold assent, 3. Return for reconsideration. If the state passes it again, the President is NOT bound to give assent. | When the governor reserves a bill, he will not have any further role in the enactment of the bill. |
| With Regard to Money Bills | |
| Has two alternatives: 1. Give assent, 2. Withhold assent. Cannot return it. | Has three alternatives: 1. Give assent, 2. Withhold assent, 3. Reserve for the President. Cannot return it. |
| When a state money bill is reserved, the President has two alternatives: 1. Give assent, 2. Withhold assent. He cannot return it. | When the governor reserves a money bill, he will not have any further role in the enactment of the bill. |
Special Responsibilities
| State (Article) | Special Responsibility of the Governor |
|---|---|
| Maharashtra (Art.371) | Development of backward regions e.g., Vidarbha, Saurashtra. |
| Nagaland (Art.371A) | With respect to law and order in the state. |
| Assam (Art. 371B) | With respect to the administration of tribal areas. |
| Manipur (Art. 371C) | Proper functioning of the committee of the LA from hill areas. |
| Sikkim (Art. 371F) | Socio-economic advancement of different sections. |
| Arunachal Pradesh (Art.371H) | Special responsibility for Law & Order. |
| Karnataka (Art. 371 J) | Development of 6 Backward Districts of Hyderabad–Karnataka region. |
| Andhra Pradesh | Special responsibility for law & order (confined to Hyderabad) under AP Reorganization Act 2014. |
Independence of the Governor's Office
In Hargovind Pant vs. Dr. Raghukul Tilak (1979) a Constitution Bench of SC observed:
- He 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.
Governor vs. Lieutenant Governor
| Governor | Lieutenant Governor (LG) |
|---|---|
| Appointed under Art. 153. (Art. 153-167 deal with state executive). | Appointed under Art. 239 as an administrator for a UT. (Art 239-241 deal with UTs). |
| Constitutional head of the state. | Administrator and not a constitutional head. |
| Works as per aid and advice of CoM. | SC (2017) said LG of Delhi has more powers; doesn’t have to listen to CoM. |
Challenges and Controversies
Key Issues with the Governor's Role
- Appointment by Center: The post is often a "retirement package" for politicians, leading to bias.
- Arbitrary Removal: Arbitrary removal before the expiration of tenure is a key issue.
- Misuse of Discretionary Powers: Often misused to favour a particular party in government formation.
- Misuse of Art. 200/201: Withholding assent or reserving bills for the President to stall state legislation.
- Misuse of Art. 356 (President's Rule): Abused by central governments for political gains over 120 times.
- Partisanship Role: Governors sometimes violate the model code of conduct, acting against the spirit of non-partisanship.
- Mere Rubber Stamp: Inversely, the office is sometimes reduced to a mere puppet bound by the CoM.
Governor’s Role in Hung Assemblies
NEWS – The role of governor came under question in recent Karnataka and Maharashtra political crises.
| Article | Constitutional Provision |
|---|---|
| Art. 164(1) | Provides for the appointment of the Chief Minister by the Governor. SC clarified the only condition is commanding a majority in the house. |
| Art. 172 | Legislative Assembly shall continue for five years, unless sooner dissolved. |
| Art. 174(2)(b) | States that the Governor may, from time to time, dissolve the Legislative Assembly. |
| Art. 356 | President's Rule: On receipt of a report from the Governor (or otherwise), the President may assume the functions of the State Government. |
Impact of Governor’s Abuse of Power
- The union government is able to control the affairs of the states via the Governor.
- Abusing discretionary powers breaks the democratic set up.
- The Governor should desist from conferring discretionary powers where there are none.
- The people will lose faith in the office of Governor if he acts as an agent of the union government.
Key Supreme Court Judgements
- S. R. Bommai Judgement (1994): Discretion of Governor does not apply to hung assembly. Laid emphasis on floor test in the house.
- Rameshwar Prasad Case (2006): A Governor cannot shut out post-poll alliances. Unsubstantiated claims of horse-trading cannot be a reason to dissolve the Assembly.
- B. P. Singhal v. Union of India (2010): Governors cannot be removed arbitrarily. Must be for "compelling reasons" (proven misconduct).
- Nabam Rebia Judgment (2016): Emphasized that the exercise of discretion under Art. 163 is limited. The choice of action should not be arbitrary or fanciful but "dictated by reason, actuated by good faith and tempered by caution."
Recommendations for Reforming the Institution of Governor
1. Second ARC & Chelliah Commission
- Sarkaria Commission (1988): Art. 356 should be used in very rare cases.
- Second ARC: Before taking action under Art. 356, a warning should be issued to the state government. The Governor's report must be objective.
- Justice V. Chelliah Commission (2002): Art. 356 must be used sparingly and only as a remedy of the last resort.
2. Rajamannar Committee (1971)
- Recommended the deletion of Art. 356 and 357.
- Governor should not consider himself an agent of the center.
- Removal only for proved misbehavior or incapacity after an inquiry by the Supreme Court.
- The provision that the ministry "holds office during the pleasure of the governor" should be omitted.
3. Sarkaria Commission (1983)
- Appoint Governor in consultation with the CM, Vice-President, and Speaker.
- Tenure must be guaranteed and not disturbed except for compelling reasons.
- After demitting office, the person should not be eligible for any other appointment.
- When the President withholds assent to state bills, the reasons should be communicated.
- The Governor cannot dismiss the CoM so long as it commands a majority.
- Order of preference for forming government in a hung assembly:
- An alliance of parties formed *prior* to the Elections.
- The Largest Single Party staking a claim to form the government with the support of others, including independents.
4. Punchhi Commission (2007)
- Suggested a provision of ‘Localized Emergency’ to tackle issues at the district level without dissolving the assembly.
- Governors should be given a fixed tenure of five years.
- The procedure for impeachment of the President should be made applicable for the impeachment of Governors.
- The convention of Governors acting as Chancellors of Universities should be done away with.
- The Governor should have the right to sanction the prosecution of a state minister against the advice of the CoM if bias is apparent.
- On Dismissal of the Chief Minister: Floor test must be mandatory.