Governor Power, Tenure, Qualifications, Appointment- 1 - Indian Polity

Introduction

The state executive consists of the Governor, the Chief Minister, the Council of Ministers and the Advocate-General of the state. Articles 153-167 of the Constitution of India contain provisions relating to state governments. The Governor is the constitutional or nominal head of the state executive. Although the Governor is the head of the state, the office is not an elected one; the Union Government (through the President) appoints the Governor for each state, so the Governor often acts as an agent of the Centre while also performing duties as the state's constitutional head.

Who is a Governor?

The Governor is the nominal executive head of a state. In constitutional terms, the Governor is the state's chief executive in whom certain powers are vested and by whose name the executive actions of the state are taken. The Governor performs constitutional, legislative, executive and judicial functions at the state level, usually acting on the aid and advice of the Council of Ministers headed by the Chief Minister, except in those situations where the Constitution permits the Governor to act in his or her discretion.

How is a Governor appointed?

The President of India appoints the Governor for each state by warrant under the President's hand and seal. In practice, the Union Government recommends or nominates the person to be appointed, and the President appoints the nominee. There is no direct or indirect election for the post of Governor.

Note:

• The office of Governor is an independent constitutional office and not a part of the Union Executive; the Governor does not serve under or as a member of the Union Executive.
• The practice of appointment of Governors in India is influenced by the Canadian model of federal practice.

Term of office and removal

The Governor holds office at the pleasure of the President. The Constitution also recognises a normal tenure of five years, but because the Governor serves at the President's pleasure, that tenure does not create an absolute right to remain in office for five years. The Governor may be removed by the President at any time and may be transferred from one state to another. A Governor may also be re-appointed.

When a Governor's term expires, an interregnum is not permitted: the outgoing Governor may continue in office until a successor assumes charge. The President may appoint the Chief Justice of the State High Court or another person temporarily to discharge the functions of the Governor when the office is vacant or the Governor is unable to perform duties.

Constitutional and judicial context: The power of the President to remove a Governor is largely unfettered, but the Supreme Court of India has accepted that such removal could be examined where mala fides or arbitrariness is alleged (for example, in judicial review under recognised principles). A leading example in constitutional jurisprudence is the Supreme Court's treatment of Governor-related removals and the limits of executive power.

Qualifications for appointment

1. The person must be a citizen of India.
2. The person must have completed 35 years of age or more.

Conventions followed in practice:

• As a convention (not a constitutional requirement), an appointee is usually an outsider to the state to which he or she is posted; the person is often not from the same state.
• Governments usually consult the Chief Minister of the concerned state before finalising the nomination of a person as Governor. These are conventions and may not always be strictly followed.

Conditions of office

• The Governor cannot simultaneously be a member of either House of Parliament (Lok Sabha or Rajya Sabha) or of the State Legislature. If the Governor had been a member of any such House, they must vacate their seat on assuming the office of Governor.
• The Governor must not hold any office of profit.
• The Governor is provided an official residence, the Raj Bhavan, normally rent-free.
• Parliament determines and fixes the Governor's emoluments, allowances and privileges.
• While the Governor is in office, Parliament cannot reduce the emoluments and allowances payable to him or her.
• If a Governor is given charge of two or more states, the emoluments and allowances payable to the Governor are shared by the states in such proportion as the President may determine.
• Under the Constitution, the Governor enjoys certain immunities and protections: the Governor is immune from criminal proceedings in respect of acts done in the exercise of the Governor's functions, and cannot be arrested or imprisoned while in office. Civil proceedings for personal acts of the Governor may be instituted only after a prior notice period prescribed by the Constitution.

Powers and functions of the Governor

The Governor's powers and functions are broad and may be grouped into the following categories: executive, legislative, financial, and judicial. In addition, the Governor possesses certain discretionary powers and special roles during constitutional crises or emergency situations.

Executive powers

• All executive actions of the state are formally taken in the name of the Governor.
• The Governor lays down rules for authentication of orders and instruments executed in the Governor's name.
• The Governor may make rules to regulate the transaction of business of the state government.
• The Governor appoints the Chief Minister and, on the Chief Minister's advice, appoints the other ministers.
• The Governor appoints the Advocate-General of the state and determines the Advocate-General's remuneration.
• The Governor appoints certain constitutional and statutory office-holders in the state, such as the State Election Commissioner, the Chairman and Members of the State Public Service Commission, and the Vice-Chancellors of state universities, subject to the relevant statutory provisions and conventions in each case.
• In states with significant tribal populations, the Governor plays a role in ensuring attention to tribal welfare. States such as Chhattisgarh, Jharkhand, Madhya Pradesh and Odisha are often mentioned in this context where Tribal Welfare is an important portfolio.
• The Governor can require information from the state government about administrative and legislative affairs and is the channel of communication between the state and the Centre on matters affecting the state.
• During President's Rule (when the state government is suspended), the Governor acts as an agent of the Centre and exercises greater executive authority on behalf of the President.

Legislative powers

• The Governor has the power to summon, prorogue and dissolve the State Legislature (Legislative Assembly or, where present, Legislative Council).
• The Governor addresses the State Legislature at the commencement of the first session each year and may address at other times.
• The Governor can recommend to the legislature the inclusion of items of business and can send messages suggesting reconsideration of matters.
• The Governor may nominate members to the Legislative Council from fields such as literature, science, art, the cooperative movement and social service, up to one-sixth of the total membership where a Legislative Council exists.
• The Governor may nominate one member to the Legislative Assembly to represent the Anglo-Indian community, where the Governor is satisfied that the community is not adequately represented (this is an exceptional provision and its application depends on constitutional and statutory position at any time).
• With regard to bills passed by the State Legislature, the Governor may:

• give his or her assent to the bill;
• withhold assent;
• return the bill (if it is not a money bill) for reconsideration by the Legislature; or
• reserve the bill for the consideration of the President of India (where the Governor believes the bill raises substantial questions of law or fact or concerns the interests of the Union or the powers of the High Court).

When may the Governor reserve a bill for the President?

• When the bill appears to be ultra vires the Constitution;
• When the bill appears to be contrary to the Directive Principles of State Policy;
• When the bill appears to affect the larger interests of the country or questions of national importance;
• When the bill deals with matters which, in the Governor's opinion, affect the jurisdiction of the High Court or the position of the Union;
• When the bill contains provisions concerning acquisition of property or other matters specified by constitutional provisions that require special consideration.

The Governor can also promulgate ordinances when the State Legislature is not in session; such ordinances have the force of law until they are approved or disapproved by the Legislature.

The Governor lays before the State Legislature reports received from bodies such as the State Finance Commission, the State Public Service Commission, and the Comptroller and Auditor General relating to state finances and administration.

Financial powers

• The Governor causes the State Budget to be laid before the State Legislature.
• The Governor's recommendation is necessary for the introduction of money bills in the State Legislature.
• The Governor makes recommendations in respect of demands for grants and can insist on certain financial measures being referred or considered by the Legislature.
• The Governor is the custodian of the Contingency Fund of the State and makes advances from that fund to meet unforeseen expenditure, subject to later parliamentary control.
• The Governor constitutes the State Finance Commission (as required by the Constitution and by the 73rd and 74th Amendment framework) and such commissions are normally constituted once every five years to review the financial position of local bodies and make recommendations.

Judicial powers

• The Governor has certain pardon and clemency powers in respect of offences against state law; these powers include pardon, reprieve, respite, remission (remit), and commutation of sentences.
• The President ordinarily consults the Governor while making appointments to the High Court judges from the state or regarding judicial matters affecting the state.
• In consultation with the State High Court, the Governor makes appointments, postings and promotions of the district judges and, in consultation with the High Court and the State Public Service Commission, appoints persons to the state judicial services.

Discretionary powers and special responsibilities

• The Governor may exercise certain powers in his or her discretion rather than on the aid and advice of the Council of Ministers. Typical examples include: the appointment of a Chief Minister when no party has a clear majority in the Assembly; dismissal of a ministry which has lost majority support; recommending President's Rule under Article 356; and reserving certain bills for the consideration of the President.
• The Governor acts as the principal channel of communication between the State Government and the Union Government, especially on matters affecting constitutional governance in the state.

Ordinance-making power

The Governor may promulgate ordinances when the State Legislature is not in session and immediate action is considered necessary. Such ordinances have the force of law but must be laid before the Legislature and cease to operate if not approved within the time and conditions specified by the Constitution.

Immunity and legal protection

The Governor enjoys certain immunities while in office. Criminal proceedings cannot be instituted against the Governor for acts done in the exercise of official functions. Civil proceedings for personal acts are permitted only after serving a prior notice. These immunities protect the constitutional functioning of the office, though they are not absolute in cases where mala fide or extraneous considerations are alleged.

Appointments by the Governor (examples)

• Chief Minister and, on his advice, other ministers.
• Advocate-General of the State.
• State Election Commissioner.
• Chairman and Members of the State Public Service Commission.
• Vice-Chancellors of universities in the state (subject to statutes and rules of each university).

Governor's role in emergencies and President's Rule

When a Governor recommends the imposition of President's Rule in a state, the recommendation triggers central action under the relevant constitutional provisions. During President's Rule, the Governor generally acts as the representative of the President and exercises administrative functions on behalf of the Union until normal constitutional government is restored.

Constitutional safeguards, criticisms and reforms

While the Constitution lays down the legal framework for the Governor's office, practice and politics have generated several debates and judicial scrutiny. Critics have pointed to the misuse of the office for partisan ends, especially in:

• the appointment and removal of Governors;
• the exercise of discretionary powers in government formation;
• the recommendation of Article 356 and the use of reservation of bills.

Commissions and committees, including the Sarkaria Commission, have recommended that the appointment of Governors be made on a wider and more consultative basis, and that the office should be insulated from partisan considerations. The Supreme Court's jurisprudence has clarified that while the President's pleasure is the source of tenure, removals or other executive actions can be subjected to judicial scrutiny in exceptional cases of mala fides.

Practical examples and typical scenarios

• Formation of government: Where a clear majority exists after elections, the Governor invites the leader of the majority party to form the government. In a hung assembly, the Governor must use judgment and discretion to invite a leader who is most likely to command majority support.
• Reservation of bills: If a state bill appears to conflict with the Constitution or affect Union interests, the Governor may reserve it for the President's consideration instead of giving assent.
• Promulgation of ordinances: When immediate legal action is necessary and the Assembly is not in session, the Governor may promulgate an ordinance which must later be approved by the legislature to remain in force.

Summary

The Governor is the constitutional head of a state who performs executive, legislative, financial and judicial functions. Appointed by the President, the Governor normally acts on the advice of the Council of Ministers but has specified discretionary powers. The office is intended to be a non-partisan constitutional position, yet practice has at times rendered the office politically sensitive. Constitutional provisions, judicial review and administrative conventions together define the scope, limits and responsibilities of the Governor in India.