GOVERNOR

GOVERNOR

To prepare for Indian Polity for any competitive exam, aspirants have to know about GOVERNOR. It gives an idea of all the important topics for the IAS Exam and the polity syllabus (GS-II.). This is an essential portion of the polity.  As IAS aspirants, you should be thorough with the Governor. In this article, you can read all about the
Governor for the Polity and Governance segments of the UPSC syllabus.

INTRODUCTION
  • 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.
Q. Which one of the following is correct in respect of the commencement of the election process in India? (CSE-1995)

 

  1. The recommendation for election is made by the government and the notification for election is issued by the Election Commission
  2. The recommendation for election is made by the Election Commission and the notification for election is issued by the Home Ministry at the Centre and Home Departments in the States
  3. The recommendation for election is made by the Election Commission and the notification for election is issued by the President and Governors of the States concerned
  4. Both the exercises of making a recommendation for election and that of issuing a notification in respect of it are done by the Election Commission

 

HISTORICAL BACKGROUND OF INSTITUTION OF GOVERNOR
  • 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.

 

IMPORTANT ARTICLES
Articles 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 as to ministers like appointments, term, salaries, and others
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, and so on
174 Sessions of the state legislature, prorogation and dissolution
200 Assent to bills (i.e. assent of the Governor to the bills passed by the state legislature)
201 Bills reserved by the Governor for consideration of the President
213 Power of Governor to promulgate ordinances
217 Governor being consulted by the President in the matter of the appointments of the judges of the High Courts
233 Appointment of district judges by the Governor
234 Appointments of persons (other than district judges) to the judicial service of the state by the Governor.

 

 

CONSTITUTIONAL POSITION OF GOVERNOR

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.

 

Constitutional position of the Governor differs from that of the PRESIDENT OF INDIA in the following two respects:
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.

 

GOVERNORS OF STATE (Art. 153)
  • 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 (7th 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.

 

APPOINTMENT OF GOVERNOR (Article 155)
  • 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.
American model à the Governor of a state is directly elected.

Canadian model à the Governor of a province (state) is appointed by the Governor-General (Centre)

 

CATEGORY OF PEOPLE APPOINTED AS GOVERNOR
  • 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.

 

MODES OF APPOINTMENT OF GOVERNOR

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

 

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

 

REASONS FOR APPOINTMENT OF GOVERNOR BY NOMINATION

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.
Sarkaria Commission observations

  1. Consultation was not done in majority of cases.
  2. In some cases Governors appointed before formation of state governments.
  3. In some cases governors appointed even when the CM out rightly rejected the nominee.
  4. 155 should be amended to codify the requirement of effective consultation

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.

 

TERM OF OFFICE OF GOVERNOR (Art. 156)
  • 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 person to be appointed as a Governor (1987 Sarkaria Commission)
1. Should be an eminent person;
2 Must be a person from outside the state
3 Must not have participated in active politics at least for some time before his appointment;
4 He should be a detached person and not too intimately connected with the local politics of the state

 

Article 156 of the Constitution of India provides that a Governor shall hold office for a term of five year from the date on which he enters upon his office. Which of the following can be deduced from this? [CSE-1995]

  1. No Governor can be removed from office till completion of his term
  2. No Governor can continue in office beyond five years

Codes:

  1. 1 only
  2. 2 only
  3. Both 1 and 2z
  4. Neither 1 nor 2

 

QUALIFICATION (ART. 157)
The Constitution lays down only two qualifications
1. He should be a citizen of India
2. Has completed the age of thirty-five years.
Two additional conventions –
1. He should not belong to the state (outsider) where he is appointed, so that he is free from the local politics.
2. While appointing the governor, the president is required to consult the chief minister of the state concerned, so that the smooth functioning of the constitutional machinery in the state is ensured.
Other qualifications
1 Not be a member of the either house of the Parliament or house of the state legislature.
2 Not hold any office of profit

 

CONDITION OF OFFICE OF GOVERNOR (ART. 158)
  • 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

 

PRIVILEGES AND IMMUNITIES TO THE GOVERNOR

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.

 

OATH AND AFFIRMATION (ART.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, an oath or affirmation.

 

REMOVAL OF GOVERNOR BY CENTRAL GOVERNMENT
  • 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.

 

SHOULD GOVERNOR BE IMPEACHED LIKE JUDGES?

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.

 

IMPORTANCE OF POST OF GOVERNOR
  • 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.

 

POWERS AND FUNCTIONS OF GOVERNOR

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.
SC in Ram Jawaya Kapoor vs State of Punjab (1955) held that President and Governors are constitutional heads and real executive powers are with council of Ministers

In Sham Sher Singh vs State of Punjab (1974) SC held that the President and Governors are constitutional heads and real executive powers are with council of Ministers

 

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.
There is a difference between pardoning Power of the President of India given under Art.72 and that of the Governor.
1. The President’s power is wider than that of the Governors of States
2. The President has exclusive power to grant pardon in cases where the sentence is a death sentence but the Governor cannot grant pardon in case of death penalty.
3. The President can pardon punishments of sentences inflicted by court martial. The Governor has no such power.

 

Comparing Pardoning Powers of President and Governor

President (Article 72) Governor (Article 161)
He can pardon, reprieve, respite, remit, suspend or commute the punishment or sentence of any person convicted of any offence against a central law He can pardon, reprieve, respite, remit, suspend or commute the punishment or sentence of any person convicted of any offence against a state law.
He can pardon, reprieve, respite, remit, suspend or commute a death sentence. He is the only authority to pardon a death sentence. He cannot pardon a death sentence. Even if a state law prescribes for death sentence, the power to grant pardon lies with the President and not the governor. But the governor can suspend, remit or commute a death sentence.
He can grant pardon, reprieve, respite, suspension, remission or commutation in respect to punishment or sentence by a court- martial (military court). He does not possess any such power.

 

 

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

 

  1. 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).
If any question arises whether a matter falls within the Governor’s discretion or not, the decision of the Governor is final and the validity of anything done by him cannot be called in question on the ground that he ought or ought not to have acted in his discretion.
    • 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.
The Governors of Arunachal Pradesh, Assam, Meghalaya, Mizoram, Nagaland, Sikkim, and Tripura have been entrusted with some specific functions to be exercised by them in their discretion (Articles 371A, Articles 371F and Articles 371H and in Sixth Schedule).
    • 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).
Q.Which of the following are the discretionary powers given to the Governor of a State? [CSE – 2014]

  1. Sending a report to the President of India for imposing the President’s rule
  2. Appointing the Ministers
  3. Reserving certain bills passed by the State Legislature for consideration of the President of India
  4. Making the rules to conduct the business of the State Government

Select the correct answer using the code given below.

  1. 1 and 2 only
  2. 1 and 3 only
  3. 2, 3 and 4 only
  4. 1, 2, 3 and 4

 

    • Ordinance making powers – The ordinance making power of the Governor given under Art. 213 (similar to that of the President given under Art.123).
The Governor can issue Ordinance only when two conditions are fulfilled:

 

1
2 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 the ordinance by the Governor.  In Upendra Lal versus Narayani Devi All India reporter 1968, Madhya Pradesh high court had held that the existence of such ground or necessity is not a justiciable issue.

 

 

ORDINANCE-MAKING POWER OF PRESIDENT AND GOVERNOR
President Governor
He can promulgate an ordinance only when both the Houses of Parliament are not in session or when either of the two Houses of Parliament is not in session. He can promulgate an ordinance only when the legislative assembly (in case of a unicameral legislature) is not in session or (in case of a bi- cameral legislature) when both the Houses of the state legislature are not in session or when either of the two Houses of the state legislature is not in session.
He can promulgate an ordinance only when he is satisfied that circumstances exist which render it necessary for him to take immediate action. He can promulgate an ordinance only when he is satisfied that circumstances exist which render it necessary for him to take immediate action.
His ordinance-making power is co-extensive with the legislative power of the Parliament. This means that he can issue ordinances only on those subjects on which the Parliament can make laws. His ordinance-making power is co-extensive with the legislative power of the state legislature. This means that he can issue ordinances only on those subjects on which the state legislature can make laws.
An ordinance issued by him has the same force and effect as an act of the Parliament. An ordinance issued by him has the same force and effect as an act of the state legislature.
An ordinance issued by him is subject to the same limitations as an act of Parliament. An ordinance issued by him is subject to the same limitations as an act of the state legislature.
He can withdraw an ordinance at any time. He can withdraw an ordinance at any time.
His ordinance-making power is not a discretionary power. He can promulgate or withdraw an ordinance only on the advice of the council of ministers headed by the prime minister. His ordinance-making power is not a discretionary power. He can promulgate or withdraw an ordinance only on the advice of the council of ministers headed by the chief minister.
An ordinance issued by him should be laid before both the Houses of Parliament when it reassembles. An ordinance issued by him should be laid before the legislative assembly or both the Houses of the state legislature (in case of a bicameral legislature) when it reassembles.
An ordinance issued by him ceases to operate on the expiry of six weeks from the reassembly of Parliament. It may cease to operate even earlier than the prescribed six weeks, if both the Houses of Parliament passes resolutions disapproving it.

 

An ordinance issued by him ceases to operate on the expiry of six weeks from the reassembly of the state legislature. It may cease to operate even earlier than the prescribed six weeks, if a resolution disapproving it is passed by the legislative assembly and is agreed to by the legislative council (in case of a bicameral legislature).
He needs no instruction for making an ordinance.

 

 

He cannot make an ordinance without the instructions from the President in three cases:

a)       If a bill containing the same provisions would have required the previous sanction of the President for its introduction into the state legislature.

b)      If he would have deemed it necessary to reserve a bill containing the same provisions for the consideration of the President.

c)       If an act of the state legislature containing the same provisions would have been invalid without receiving the President’s assent.

 

VETO POWERS OF PRESIDENT AND GOVERNOR
President Governor
With Regard to Ordinary Bills
 

Every ordinary bill, after it is passed by both the Houses of the Parliament either singly or at a joint sitting, is presented to the President for his assent. He has three alternatives:

1.       He may give his assent to the bill, the bill then becomes an act.

2.       He may withhold his assent to the bill, the bill then ends and does not become an act.

3.       He may return the bill for reconsideration of the Houses. If the bill is passed by both the Houses again with or without amendments and presented to
the President for his assent, the president must give his assent to the bill. Thus the president enjoys only a ‘suspensive veto’.

 

 

 

Every ordinary bill, after it is passed by the legislative assembly in case of a unicameral legislature or by both the Houses in case of a bicameral legislature either in the first instance or in the second instance, is presented to the governor for his assent. He has four alternatives:

1.       He may give his assent to the bill, the bill then becomes an act.

2.       He may withhold his assent to the bill, the bill then ends and does not become an act.

3.       He may return the bill for reconsideration of the House or Houses. If the bill is passed by the House or Houses again with or without amendments and presented to the governor for his assent, the governor must give his assent to the bill. Thus, the governor enjoys only a ‘suspensive veto’.

4.       He may reserve the bill for the consideration of the President.

When a state bill is reserved by the governor for the consideration of the President, the President has three alternatives:

1.       He may give his assent to the bill, the bill then becomes an act.

2.       He may withhold his assent to the bill, the bill then ends and does not become an Act.

3.       He may return the bill for reconsideration of the House or Houses of the state legislature. When a bill is so returned, the House or Houses have to reconsider it within six months. If the bill is passed by the House or Houses again with or without amendments and presented to the president for his assent, the president is not bound to give his assent to the bill. He may give his assent to such a bill or withhold his assent.

When the governor reserves a bill for the consideration of the President, he will not have any further role in the enactment of the bill. If the bill is returned by the President for the reconsideration of the House or Houses and is passed again, the bill must be presented again for the presidential assent only. If the President gives his assent to the bill, it becomes an act. This means that the assent of the Governor is no longer required.
With Regard to Money Bills
Every money bill after it is passed by the Parliament, is presented to the President for his assent. He has two alternatives:

1.       He may give his assent to the bill, the bill then becomes an act.

2.       He may withhold his assent to the bill, the bill then ends and does not become an act.

 

Every money bill, after it is passed by the state legislature (unicameral or bicameral), is presented to the governor for his assent. He has three alternatives:

1.       He may give his assent to the bill, the bill then becomes an act.

2.       He may withhold his assent to the bill, the bill then ends and does not become an act.

3.       He may reserve the bill for the consideration of the President.

 

The President cannot return a money bill for the reconsideration of the Parliament.

 

Normally, the president gives his assent to a money bill as it is introduced in the Parliament with his previous permission.

When a Money Bill is reserved by the Governor for the consideration of the President, the President has two alternatives:

1.       He may give his assent to the bill, the bill then becomes an Act.

2.       He may withhold his assent to the bill, the bill then ends and does not become an act.

 

The President cannot return a money bill for the reconsideration of the state legislature (as in the case of the Parliament).

 

The governor cannot return a money bill for the reconsideration of the state legislature.

 

Normally, the governor gives his assent to a money bill as it is introduced in the state legislature with his previous permission.

When the governor reserves a money bill for the consideration of the President, he will not have any further role in the enactment of the bill.

 

If the President gives his assent to the bill, it becomes an Act. This means that the assent of the governor is no longer required.

 

 

Which one of the following statements about a Money Bill is not correct? [2000]

  1. A Money Bill can be tabled in either House of Parliament
  2. The Speaker of Lok Sabha is the final authority to decide whether a Bill is a Money Bill or not
  3. The Rajya Sabha must return a Money Bill passed by the Lok Sabha and send it for consideration within 14 days
  4. The President cannot return a Money Bill to the Lok Sabha for reconsideration

 

SPECIAL RESPONSIBILITIES OF GOVERNOR

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:

 

Maharashtra (Art.371)

 

Special responsibility of Governor. of Maharashtra & Gujarat for development of certain backward regions Ex. Vidarbha, Saurashtra etc.
Nagaland (Art.371A)- With respect to law and order in the state for so long as the internal disturbance in the Naga Hills-Tuensang Area continues.
Assam

(Art. 371B)

With respect to the administration of tribal areas.
Manipur (Art. 371C) Special responsibility for proper functioning of the committee of the LA consisting of members from the hill areas of the State.
Sikkim (Art. 371F)-

 

Governor of Sikkim – special responsibility for socio-economic advancement of different sections of Sikkim’s population.
Arunachal Pradesh (Art.371H)- Special responsibility Law & Order
Karnataka (Art. 371J) special responsibility of development of 6 Backward District of Hyderabad –Karnataka region.
Under the Andhra Pradesh reorganisation Act 2014, Andhra Governor has special responsibility for law & order & allocation of govt. buildings (Principally confined to Hyderabad.)

 

SPECIAL FEATURES OF OFFICE OF GOVERNOR

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.

 

GOVERNOR VIZ A VIZ LT. GOVERNOR
GOVERNOR Lt. GOVERNOR
Governor is appointed under Art. 153 As per Art. 239, every UT in India shall be administered by the President, through an administrator to be appointed by him. It is called as Lt. Governor in Andaman and Nicobar Island, Puducherry and Delhi.
Governor is constitutional head of the state. Lt. Governor is an administrator and not a constitutional head.
States have their own govt. UTs are directly governed by the Union govt.

(UTs of J&K, Delhi, Puducherry have legislatures)

Art. 153-167 of Indian constitution deals with state executive. Art 239 to 241 deals with UTs.
Governors works as per advice of CoM. In 2017, SC said that Lt. Governor Of Delhi has more powers than the Governor of any state. He doesn’t have to listen to CoM.

 

ISSUES WITH RESPECT TO GOVERNOR
  • 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.

 

 

ROLE OF GOVERNOR IN HUNG ASSEMBLY

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

Constitutional Provisions
 

Art. 164(1) – provides for the appointment of chief minister by Governor

 

Supreme Court clarified that there is no qualification mentioned in Art.164(1) and reading it with collective responsibility in 164(2), the only condition chief ministerial candidate needs to satisfy is that he/she should be commanding majority in the house.

Art. 172 Every Legislative Assembly of every State, unless sooner dissolved, shall continue for five years.
Art. 174 (2) (b) Merely states that the Governor may, from time to time, dissolve the Legislative Assembly.
Art. 356 (President’s rule) In case of failure of constitutional machinery in State the President, on receipt of report from the Governor of the State or otherwise, may assume to himself the functions of the Government of the State and declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament.

 

IMPACT OF ABUSE OF POWER BY GOVERNOR
  • 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.

 

VIEWS AND JUDGEMENTS OF SUPREME COURT
  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:

 

  1. 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.

 

  1. 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.

 

  1. 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.

 

RECOMMENDATIONS OF VARIOUS COMMISSIONS ON INSTITUTION OF GOVERNOR

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.

 

If there is no such party, the Governor should select a Chief Minister from among the following parties or groups of parties by sounding them, in turn, in the order of preference indicated below:
1 An alliance of parties that was formed prior to the Elections.
2 The Largest Single Party staking a claim to form the government with the support of others, including independents.

 

  • 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.

 

SARKARIA COMMISSION ON ISSUE OF HUNG 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 :

 

The person to be appointed as a Governor
1 Should Be An Eminent Person;
2 Must Be A Person From Outside The State;
3 Must Not Have Participated In Active Politics At Least For Some Time Before His Appointment;
4 He should be a detached person and not too intimately connected with the local politics of the State;

 

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)

 

QUESTIONS FOR PRACTICE
  • Who is eligible to be appointed Governor of a state in India?
  • How is the Governor of a State appointed in India? Does the manner of his appointment ensure his independent functioning? (150 words)
  • Examine the role and function of State Governor as set out in the Constitution of India?
  • Is there any provision to impeach the Governor of a State?
  • Explain the nature and extent of discretionary powers and special responsibilities of the governor in the Indian Constitution ?(150 words)
  • “In India, though the Governor is the constitutional head of state just as the president of the country, the former may be enjoying more powers than the latter.” Do you agree ? Give reasons. (about 250 words)
  • What were the two major considerations to have the Governor appointed and not elected ?

 

 

 

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