The Hindu Editorial Analysis- 1st July 2023 | Current Affairs & Hindu Analysis: Daily, Weekly & Monthly - UPSC PDF Download

The Governor’s move is dangerous, unconstitutional

Why in News?

The Governor of Tamil Nadu, R.N. Ravi, has dismissed V. Senthilbalaji, a Minister in the Council of Ministers of Tamil Nadu — as in the communication issued by the Raj Bhavan on June 29, 2023. (The Governor later backtracked on his decision late in the night, keeping the “dismissal” order in abeyance.) 

The Governor is the state's chief executive officer. He acts as a representative of the union government. The Governor has executive power over the state, and all executive actions must be made in his or her name. The constitution's Seventh Amendment, passed in 1956, allowed for the appointment of the same individual as Governor of two or more states.

Constitutional Provisions

• The constitution states that the executive power of the state shall be vested in the Governor, who shall execute it either directly or through officers subordinate to him (Article 154).
• There shall be a Council of Ministers, led by the Chief Minister, to assist and advise the Governor in the discharge of his functions, except when he is obliged by or under this Constitution to do all or any of them at his discretion. (Article 163).
• Part VI of the Constitution deals with the State Executive and includes Articles 153 to 167.

The Governor - Appointment

• The Indian Constitution, in Article 165, enables and authorizes the President of India to appoint the Governor of State by warrant under his hand and seal for a five-year term.
• The Governor is not directly elected by the people, and neither is he elected indirectly by a special electoral college.
• The Governor is appointed by the President and serves at his pleasure.
• The chief justice or the senior-most judge of the concerned High Court administers the Governor's oath of office (if the chief justice is unavailable).

The Governor - Qualifications

The Indian Constitution specifies two basic qualities for the selection of a Governor.

1. He should be an Indian citizen.
2. He must be at least 35 years old.

Over time, the following conventions have emerged:

1. He should be an outsider who does not reside in the state where he will be appointed.
2. When appointing the Governor of a state, the President must consult with the state's Chief Minister.

However, in some cases, both conventions have been violated.

Appointment of Lieutenant Governor

• A union territory in India is administered by a lieutenant governor.
• The Governor and Lieutenant Governor of India have the same duties and functions as the President of India under the Indian Constitution.
• The office of Lieutenant Governor is now held by three Indian Union Territories: the National Capital Territory of Delhi, the Andaman and Nicobar Islands, and Puducherry.
• The functions, powers, and duties of the Lieutenant Governor are defined under Articles 239 and 239 AA of the Indian Constitution.
• The Lieutenant Governor serves an important constitutional function.
• He is appointed by the President of India and functions as the President's representative, with the aid and advice of the Council of Ministers.

Under the President's rule, the Lieutenant Governor becomes the government's full-fledged executive head, with the authority to create a council of ministers of advisors. The length of the President's rule is also up to the Lieutenant Governor's discretion.

The Governor - Terms of Office

• The Governor serves for a term of five years from the date he assumed office, subject to the President's pleasure.
• Governors whose terms have expired may be reappointed in the same or a different state.
• The President has the authority to transfer a Governor from one state to another for the remainder of his tenure. Governor can serve over his five-year term until the next appointment is made.

Conditions of Office of Governor

The Governor's office follows the procedures and conditions provided forth in the Indian Constitution.

• He should not occupy any office of profit.
• He should not be a member of the House of Parliament or any state legislature.
• He is entitled to such allowances, emoluments, and privileges as Parliament determines.
• During his tenure of office, his emoluments and allowances cannot be reduced.
• If he is appointed as Governor of two or more states, the Governor's allowances and emoluments are divided among the states in a proportion specified by the President.
• He has the right to utilise Raj Bhawan as his official residence without having to pay rent.

Removal

• A Governor of a state is an appointee of the President, according to Articles 155 and 156 of the Constitution, and he or she serves "at the pleasure of the President."
• If a Governor continues to have the "pleasure of the President," he or she can serve another five years.
• The grounds for a Governor's removal by the President are not specified in the constitution.
• The Governor's office has no fixed term and no security of tenure because the President can remove him at any time.
• After submitting his resignation letter to the President, the Governor can resign from his office.

Constitutional Position

• Article 153 of the Indian Constitution mandates the appointment of a Governor in each state. The 7th Amendment to the Constitution however, allows for the appointment of the same person as Governor of two or more states.
• The provisions of Articles 154, 163, and 164 of the Constitution empower the constitutional post of Governor.
• Article 154: The Governor shall have executive power over the state, which he shall exercise either directly or through officers subordinate to him in conformity with this Constitution.
• Article 163: There shall be a council of ministers, led by the Chief Minister, to assist and advise the Governor in the exercise of his powers, except when he is compelled to execute his functions at his discretion.
• Article 164: The council of ministers is collectively responsible to the state's legislative assembly. This provision is the cornerstone of the state's parliamentary system of governance.

The Governor - Power, and Functions

The Governor has the same Executive, Legislative, Financial, and Judicial authorities as the President of India. However, the Governor's power is restricted in several ways compared to that of the President, as the Governor lacks the President's military, diplomatic, and emergency authorities.

Executive Powers of the Governor

The Governor is the chief executive of the state.

• The Governor makes all executive decisions on behalf of the state government [Article 166(1)].
• The Governor appoints the Chief Minister and other cabinet members. They serve at the pleasure of the Governor [Article 164].
• He may create rules for the efficient execution of a state government's work and its distribution among the ministers. [Article 166(3)]
• He appoints the state's advocate general and determines his tenure and conditions of service.
• He has the authority to recommend to the President the declaration of a state of constitutional emergency.
• He may request from the Chief Minister any information pertaining to the administration of the state's affairs, as well as legislative suggestions [Article 167].
• The governor appoints the state election commissioner and establishes his term of office and working conditions [Article 243K].
• He appoints the chairman of the state public service commission as well as the members of the commission. They can, however, only be dismissed by the President and not by a Governor.
• He serves as Chancellor of the state's universities and appoints Vice Chancellors.
• The Governor appoints the Chief Minister, while the Governor appoints the other ministers on the advice of the Chief Ministers.

Administration of Scheduled Areas

• The President has the authority to declare an area a Scheduled Area. The Governor of the state submits a report to the President on the administration of the state's Scheduled Areas.
• The Governor has the authority to decide whether a certain act of parliament or state legislature is applicable or not to Scheduled Areas, and if so, whether it should be applied with modifications.
• After consulting with the Tribes Advisory Council, the Governor sets rules for peace and good government in Scheduled Areas.

State Administration During President's Rule or a State Emergency

• The President's rule in the state may be declared in accordance with two articles of the constitution.
• Article 356: Give the President the authority to issue a proclamation if he believes that a situation has developed in which the state government cannot function in conformity with the provisions of the Constitution.
• Article 365: Whenever a state government fails to comply with or give effect to any instruction from the center, the President may declare that a situation has developed in which the state's administration cannot be carried on in line with the provisions of the Constitution.
• Following the proclamation of President's Rule or State Emergency, the Governor administers the state on behalf of the President, with the assistance of the state's Chief Secretary or advisors selected by the President.

Legislative Powers of the Governor

• The Governor has the authority to call or dissolve the state legislature based on the advice of the state's ministerial council, which is led by the state's Chief Minister.
• The Governor presents to the state legislature the reports of the State Finance Commission, the State Public Service Commission, and the Comptroller and Auditor General.
• He appoints one-sixth of the State Legislative Council members. Such nominees should have exceptional understanding in science, literature, social service, and cooperative movement [Article 171(5)].
• The Governor has the authority to address the state legislature at the start of its first session, as well as the first session of each year.
• The Governor addresses both Houses of the state legislature in a joint session [Article 176]. She/he has the ability to deliver messages to any or both Houses [Article 175].
• When the offices of Speaker and Deputy Speaker become empty, the Governor may designate any member of the state legislative assembly to preside over the proceedings.
• In conjunction with the Election Commission, the Governor has the authority to rule on the disqualification of a member of the state legislature [Article 192].
• When the state legislature is not in session, the Governor has the authority to issue ordinances. The ordinances must be authorised by the legislature within six weeks of their adoption [Article 213]. The Governor has the authority to revoke the ordinance at any moment.

Financial Power of the Governor

• No money measure may be tabled in the State Legislative Assembly without the Governor's prior approval.
• The Governor is in charge of the State Contingency Fund. She/he is entitled to make advances from the state contingency fund to cover any unforeseen expenses (Article 267).
• Grants may not be requested unless he recommends it [Article 203(3)].
• Under the supervision of the Governor, the annual financial statement or state budgets are submitted before the state legislative assembly [Article 202].
• The Governor appoints the state finance commission for a five-year term. In its function, the commission examines the financial circumstances of municipalities and Panchayats [Article 243(1)].

Judicial Powers of the Governor

• Article 161 grants the Governor the authority to give pardons, reprieves, respites, or remission of penalty, or to suspend, remit or commute the sentence of any person convicted by the Courts of any offence against any legislation related to a matter to which the State's executive jurisdiction extends.
• Governor cannot commute a death sentence.
• In consultation with the state high court, the Governor appoints, posts, and promotes District Judges.
• The President consults the Governor before appointing the chief justice and judges of the relevant state high court.

Pardoning Powers of Governor

Governor has the authority to pardon, reprieve, respite, remit, postpone, or commute the punishment or sentence of any person convicted of any violation of state law.

1. Pardon: It relieves the offender of all sentences, punishments, and disqualifications by removing both the penalty and the conviction.
2. Commutation: It refers to the exchange of one type of punishment for a less severe form of punishment. A death sentence, for example, may be reduced to harsh imprisonment.
3. Remission: This term refers to shortening the length of a sentence without changing its essence. A sentence of rigorous imprisonment for two years, for example, may be reduced to rigorous imprisonment for one year.
4. Respite: It is the awarding of a lower sentence in exchange of the original sentence owing to some particular circumstance, such as the convict's physical impairment or the pregnancy of a female offender.
5. Reprieve: It denotes a temporary suspension of execution of a sentence (e.g., death penalty). Its goal is to provide the convict enough time to seek pardon or commutation.

Limitations:

1. The governor cannot pardon a death sentence. Even if state law requires a death sentence, the President, not the Governor, has the authority to grant a pardon. However, the Governor has the authority to suspend, remit, or commute a death sentence.
2. Governor does not possess any such power to grant pardon, reprieve, respite, suspension, remission or commutation in respect to punishment or sentence by a court-martial (military court).

Discretionary Powers

The discretionary powers of the Governor in the state are far greater than those of the President in the centre.Some of the Governor's discretionary powers are as follows:

• A law passed by the state legislative assembly may be reserved for the President's assent by the Governor [Article 200].
• The governor determines the amount of money payable by the tribal government (Assam, Meghalaya, Mizoram, and Tripura) to an autonomous Tribal District Council as royalty on mineral development licenses.
• The governor may decline to sign a regular bill passed by the state legislature.
• When no political party has a clear majority in the state legislature, he has the authority to nominate anyone as Chief Minister.
• Under Article 356, he can recommend to the President the imposition of constitutional emergency in a state and the imposition of President's rule in the state.
• While performing his duties as the administrator of an adjoining Union territory, he has the authority to act at his discretion (in case of an additional charge).
• He can seek information from the chief minister on state administrative and legislative concerns.
• The governor has the authority to remove the council of ministers when it cannot prove confidence in the state legislative assembly.

Important Judgements related to Article 356

• SR Bommai vs. Union of India (1994) was a landmark judgment of the Supreme Court of India in which the Court considered at length provisions of Article 356 of the Indian Constitution and associated concerns.
• This case had a significant impact on Centre-State Relations.
• The judgment tried to put a stop to the systematic misuse of Article 356 of the Indian Constitution, which allows the President to impose his rule over state governments.

Governors are also allocated special tasks for specific sections of the country in order to improve administration

1. Article 371(2) designates the Governors of Maharashtra and Gujarat as having specific responsibility for the establishment of development boards in Vidarbha, Marathwada, Saurashtra, and Kutch, among other places.
2. Article 371A assigns the Governor of Nagaland specific responsibility for law and order –

• As long as internal disturbances prevail in any sections of the state
• to form a Tuensang district regional council
• to make arrangements for an equitable distribution of funds between Tuensang district and the rest of Nagaland.

3. Article 371C(1) assigns the Governor of Manipur the special obligation of ensuring the proper functioning of a Legislative Assembly committee composed of members from the hill areas.
4. Article 371F(g) assigns special responsibility to the Governor of Sikkim for maintaining peace and ensuring the advancement of all sections of Sikkim's population.
5. Article 371H(a) assigns the Governor of Arunachal Pradesh special responsibility for maintaining law and order in the state.

Immunities Enjoyed by the governor

• No criminal proceedings may be brought against a state's governor in any court during his full term of office [Article 361(2)].
• No court has the authority to issue an arrest warrant for the Governor.[Article 361(3)]
• During his tenure of office, the Governor is not personally accountable or answerable to any court for the exercise and performance of his power [Article 361(1)].
• Civil procedures in respect of his personal acts 361(4) can be launched against him during his term of office after giving two months' notice.

Breaches on the Governor's Constitutional Immunity

• Recently, there have been a few instances of the Governor's constitutional immunity being violated.
• The CBI questioned the governors of West Bengal and Goa over their roles in the defense deal: In the recent case of the Governors of West Bengal and Goa being questioned, the room highlighted the topic of a legal dispute over whether they are entitled to constitutional immunity from the inquiry. The Central Bureau of Investigation has questioned the Governors of West Bengal and Goa about alleged corruption in the sale of 12 helicopters to India by Agusta-Westland (an Anglo-Italian defense manufacturer).
• Madhya Pradesh's Vyapam Case On a petition seeking the removal of the Madhya Pradesh Governor for his alleged role in the Vyapam scam, the Supreme Court issued a notice to the state government and the governor of Madhya Pradesh. The role of the Governor was underlined by the Central Bureau of Investigation in the Vyapam inquiry investigation, as he enjoys constitutional immunity from arrest and criminal investigation.

Conclusion

As the Supreme Court ruled in 1979, the office of the Governor is not a position or Employment in the Central Government. The Governor's office is an independent constitutional post that is neither subordinate to nor controlled by the central government. In the B. P. Singhal case, a Supreme Court Constitutional bench ruled in 2010 that the central government has the authority to remove Governors of various states as long as it does not act arbitrarily, without reason, or in bad faith. Thus the Governor of a state serves as both the constitutional head of the state and the center's agent or representative