Role and Powers of the Governor in India

Introduction

The ceremonial head of the state, the Governor plays a crucial role in the administration by exercising powers related to the executive, legislative, and judicial spheres. While the Governor’s role is largely symbolic, they serve as an important link between the central government and the state government, ensuring the smooth functioning of governance and upholding the principles of federalism in India.

Constitutional Provisions and Roles of the State Executive in India

• Constitutional Provisions: Articles 153 to 167 in Part VI
• State Executive: Governor, CM, CoM, Advocate General of State.
• Chief executive head of the state.
• The office of the Governor has a dual role.
  • The Governor is a constitutional (nominal) head.
  • Agent of the central government.

Appointment and Role of Governors in Indian States

• Method of appointment: He is neither elected directly by the people nor indirectly elected by a specially constituted electoral college.
  • He is the central nominee, appointed by the President by warrant under his seal.
• Canadian Model: The governor of a province (state) is appointed by the Governor-General (Centre).
  • India adopted the Canadian Model of appointment of Governor by the center.
• Origins in GOI Act 1935: The Institution of Governor borrowed from GOI Act 1935.
• 7th CAA (1956): Facilitated the appointment of the same person as a governor for two or more states.
• Supreme Court (Hargovind Pant Case, 1979): Office of the governor of a state is not an employment under the Central government. 
  • It is an Independent constitutional office, not under the control of or subordinate nor an employment under the Central government.
• Draft Constitution: Provided for the direct election of the governor on the basis of universal adult suffrage.
• Limitations on Governor’s Powers: Governor has no diplomatic, military or emergency powers like the president.

Qualifications and Conditions of Office for Governors in Indian States

• Constitutional Provisions:
  • Citizen of India.
  • Completed 35 years of age.
• Two  Conventions:
  • Preferably an ‘Outsider’ and should not belong to the state where he is appointed.
  • While appointing the governor, the president is required to consult the CM of the state concerned.
  • However, both the conventions have been violated in some of the cases.
• Oath (Article 159): Oath administered by the Chief Justice of HC of the concerned state and in his absence, the senior-most judge of that court.
• Condition of Office: Not a member of either house and not hold any other office of profit.
• Emoluments, Allowances and Privileges
  • Determined by Parliament.
  • Cannot be diminished during his term of office. [UPSC 2018]
  • Immune from criminal proceedings (even if personal) [UPSC 2018]
  • Cannot be arrested or imprisoned.
  • 2 Month’s notice in civil proceedings during term of office in respect of his personal acts.
  • When appointed as Governor of two or more states, allowances shared by the states in such proportion as determined by the president. [UPSC 2013]
  • Enjoys personal immunity from legal liability for his official acts.

Governor’s Term and Contingency Provisions in Indian States

• Term: 5 years, subject to the pleasure of the President.
  • Surya Narain Case (1981): Pleasure of the President is not justifiable. 
    • So, no security of tenure and no fixed term of Office.
• Resignation: To President.
• Transfer: The President may transfer a Governor appointed to one state to another state for the rest of the term.
• Reappointed: Maybe in the same state or any other state.
• Hold office beyond his term until his successor assumes charge to prevent ‘Interregnum’
• Contingency Provision: The President can make such provision as he thinks fit for the discharge of the functions of the governor in any contingency not provided for in the Constitution.
• Removal: The Constitution does not lay down any grounds upon which a governor may be removed by the President. [UPSC 2013]

Powers and Functions of Governors in Indian States

Veto Power

• For ordinary bills, the governor has four alternatives:
  • He may give his assent to the bill.
  • He may withhold his assent to the bill, the bill then ends.
  • He may return a bill for reconsideration of the Houses. If the bill is passed by both Houses again with or without amendments and presented to the governor for his assent, the governor must give his assent to the bill. the governor enjoys only a ‘suspensive veto’.
  • He may reserve the bill for the consideration of the President.
• Governor can also reserve a bill if it is: 
  • Endangers the position of the state high court; 
  • Against provisions of the Constitution; 
  • Opposed to the DPSP; Against the larger interest of the country, and of grave national importance; Compulsory acquisition of property.
• President Consideration of Ordinary Bill: 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.
• President Consideration of Money Bill: Every money bill, after it is passed by the state legislature, is presented to the governor for his assent. He has three alternatives:
  • He may give his assent to the bill.
  • He may withhold his assent to the bill.
  • He may reserve a bill for the consideration of the president.
  • The governor cannot return a money bill for the reconsideration of the state legislature. 
• 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. 
  • The President may give his assent or may withhold his assent but he can not return the state money 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.

Executive Powers

• All executive actions of the state are formally taken in his name.
• Make rules specifying the manner in which the Orders and other instruments made and executed in his name shall be authenticated.
• Make rules for more convenient transactions of the business of the State government.
• Seek any information relating to the administration of the affairs of the state and proposals for legislation from the chief minister.
• Require the chief minister to submit for the consideration of the council of ministers any matter on which a decision has been taken by a minister but which has not been considered by the council
• Recommends the imposition of constitutional emergency in the state to the president. During the period of the President’s rule in a state, the governor enjoys extensive executive powers as an agent of the President.
• Acts as chancellor of a university in the state. He also appoints the vice-chancellors of universities in the state.
• Appoints tribal welfare minister for Chhattisgarh, Jharkhand, Madhya Pradesh and Odisha.
• Appoints: CM and other ministers, Advocate General, State Election Commissioner (removed only in like manner and on the like grounds as a judge of a high court), Chairman and members of the SPSC (removed only by the president), Vice- chancellors of universities in the state.

Legislative Powers

• Governor is an integral part of the State legislature.
• Summons, prorogues, and dissolves the State Legislative Assembly.
• Address the state legislature at the commencement of the first session after each general election and the first session of each year.  [UPSC 2019]
• Send messages to the house or houses of the state legislature, with respect to a bill pending in the legislature or otherwise.
• Appoint any member of the State legislative assembly/council to preside over its proceedings when the offices of both the Speaker/chairman and the Deputy Speaker/deputy chairman  fall vacant. 
  • Similarly, he can appoint any member of the state legislature council to preside over its proceedings,  when the offices of both Chairman and Deputy Chairman fall vacant.
• Nominates: 1/6 members in the State Council.
• Nominate one member to the State Legislative Assembly from the Anglo-Indian Community (before 2020).
• Decides on the question of disqualification of members of the state legislature in consultation with the Election Commission.
• Lays the reports of State Finance Commission, SPSC and CAG before the state legislature. 
• Promulgate ordinances when the state legislature is not in session (must be approved by the state legislature within six weeks from its reassembly).

Financial Powers

• Prior recommendation for Money bill.
• Prior recommendation for demand for grant.
• Constitutes State Finance Commission after every five years.
• Annual Financial Statement (state budget) laid before the state legislature.
• Make advances out of the Contingency Fund of the state.

Judicial Powers

• Judges of High Court: Consulted by the president while appointments of judges of HC.
• District Judges: Makes appointments, postings and promotions of the district judges in consultation with the state high court.
• Others: Appoint persons to the judicial service of the state other than the district judge in consultation with the state high court and the SPSC.
• He/she can grant pardons, reprieves, respites and remissions of punishment or suspend, remit and commute the sentence of any person convicted of any offense against any law relating to a matter to which the executive power of the state extends.

Pardoning Power

• Art. 161: Empowers the Governor of a state so he can also grant pardons, commutes, respites, reprieves and remissions of punishment and the sentence of any person convicted of any offence against a state law.
• Differences in Pardoning Powers: The pardoning power of the governor differs from that of the President in the following two respects:
• Court Martial: The President can pardon sentences inflicted by court martial, while the governor cannot.
• Death Sentence: The President can pardon the death sentence while the governor cannot. Even if a state law prescribes a death sentence, the power to grant a pardon lies with the President and not the governor.  
  • Governors can suspend, remit or commute a death sentence.

Ordinance Making Power

• Article 213: Promulgate an ordinance when any one or both houses are not in session in the case of Bicameral legislature.
• Judicial Review: Only when the governor is satisfied that circumstances exist which render it necessary for him/her to take Immediate action to take action. According to the 44th CAA, his satisfaction is under Judicial Review.
• Approval of Ordinances: Ordinances must be approved by the state legislature within six weeks from its reassembly.
• Co-extensive with State Legislature: His ordinance-making power is co-extensive with the legislative power of the state legislature. He can issue ordinances only on those subjects on which the state legislature can make laws.
• Ordinances have the same force and effect as an act of the State Legislature, but are in the nature of temporary laws.
• An ordinance issued by him is subject to the same limitations as an act of the state legislature.
• Withdrawal: He can withdraw an ordinance at any time.
• Not a Discretionary Power: The Governor can promulgate or withdraw an ordinance only on the advice of the CoM headed CM – not a discretionary power.
• An ordinance issued by him should be laid before the legislative assembly or both Houses of the state legislature when it reassembles. 
• Requirement of Presidential Instructions: Ordinance making power of the Governor requires instructions from the President in certain cases:
• If a bill containing the same provisions would have required the previous sanction of the President for its introduction into the state legislature.
• If he would have deemed it necessary to reserve a bill containing the same provisions for the consideration of the President.
• If an act of the state legislature containing the same provisions would have been invalid without receiving the President’s assent.

The Constitutional Position of the Governor and the President

• The Constitutional Positions of the Governor and the President differ in the following aspects,
• The constitution allows for the governor to exercise discretion on occasion, but there are no such provisions for the president.
• The 42nd CA and 44th CA have made ministerial advice binding on the President, but no such provision has been made concerning the governor.

Governor’s Discretionary Power

• According to the Constitution, if there is any doubt about whether a matter falls within the governor’s discretion, the governor’s decision is final and cannot be challenged based on whether they should or should not have exercised their discretion.

Constitutional Discretion

• Reservation of Bills for the President’s consideration. [UPSC 2014]
• Recommendations for President’s Rule.[UPSC 2014]
• Administration of adjoining UT.
• Seeking information from the Chief Minister regarding administrative and legislative policies.
• Determining the amount payable by the Govt of Assam, Meghalaya, Tripura and Mizoram to an autonomous Tribal District Council (6th scheduled areas) as royalty accruing from licenses for mineral exploration.

Situational Discretion

• Appointment of the Chief Minister when no party has a clear-cut majority in the state legislative assembly or when the chief minister in office dies suddenly, and there is no obvious successor.
• Dismissal of the council of ministers when it cannot prove the confidence of the state legislative assembly.
• Dissolution of the state legislative assembly if the council of ministers has lost its majority.