Governor: Power, Tenure, Qualifications, Appointment- 2 | Indian Polity for UPSC CSE PDF Download

Constitutional Position of the Governor

The Governor is the constitutional head of a state in India. The Governor's office, powers and functions are governed by provisions in the Constitution of India. Several Articles of the Constitution define the position, powers, duties and limitations of the Governor; these may be studied together to understand the Governor's constitutional position.

Important Constitutional Articles related to the Governor

Key constitutional provisions that govern the Governor's appointment, tenure, powers and functions include (but are not limited to) Articles dealing with:

• The office of Governor, executive power and duties.
• Appointment and removal of the Governor.
• Qualifications, oath, and conditions of office.
• Governor's relationship with the Council of Ministers and State Legislature.
• Powers relating to legislation, assent to bills, reservation of bills for the President, ordinance-making power, and pardon/remission powers.

Appointment and Qualifications

• Appointment: The Governor of a State is appointed by the President of India.
• De facto advising authority: In practice the appointment is made by the President on the advice of the Union Council of Ministers (the central government).
• Qualifications: A Governor must be a citizen of India and must have completed the age of 35 years.
• Ineligibilities: A person holding office of profit under the Government of India or a State Government is normally considered ineligible unless such office is permitted; the Constitution also bars a person from being a Governor of a State while he/she is a member of either House of Parliament or of a State Legislature.

Tenure and Removal

• Term: The Governor's normal term is five years from the date on which he/she enters upon his/her office. However, the Governor holds office during the pleasure of the President and may be removed earlier.
• Continuation till successor appointed: Even after the expiry of five years, a Governor continues in office until his successor enters upon office.
• Removal: The Governor can be removed by the President at any time; there is no constitutional provision for an impeachment procedure for Governors (removal is by presidential order and is not subject to a prescribed cause).
• Protection of remuneration: The Governor's salary and allowances are charged on the Consolidated Fund of the State and cannot be varied to his/her disadvantage during the term of office.

Categories of Powers

The Governor's powers are commonly classified under several heads. These categories help in systematic study and examination of the Governor's role.

• Executive powers: Powers to appoint the Chief Minister and other ministers, the Advocate General of the State, and certain state officials; to make regulations for state government functioning; to exercise administrative control over state services as per constitutional provisions.
• Legislative powers: Summoning and proroguing the State Legislature, addressing the legislature, nominating members to the Legislative Council (where applicable), assenting to bills, reserving bills for the consideration of the President, and promulgating ordinances when the legislature is not in session.
• Judicial and clemency powers: Power to grant pardons, reprieves, respites or remissions of punishment, or to commute sentences in matters concerning offences against state laws.
• Discretionary powers: Powers exercisable by the Governor in his/her own discretion in specified situations where he/she need not (and may not) act on the aid and advice of the Council of Ministers.
• Financial powers: Recommending or withholding sanction for certain financial proposals, ensuring appropriation bills, and other finance-related functions connected with the State Legislature.

Governor's Discretionary Powers

The Governor normally acts on the aid and advice of the Council of Ministers of the State; however, the Constitution and constitutional practice recognise limited areas where the Governor may exercise independent judgment. These are often referred to as the Governor's discretionary powers. Two broad categories are useful for understanding the nature of discretion:

• Constitutional discretion: Situations in which the Constitution explicitly allows the Governor to act without ministerial advice, or empowers the Governor to reserve matters for the President. Examples include reserving a bill for the consideration of the President and promulgating ordinances when the State Legislature is not in session under the provisions governing ordinances.
• Situational discretion: Situations that arise in practice where the Governor must form an independent view because no clear ministerial advice is available or the normal constitutional process has broken down. Typical situations include:
• Appointment of Chief Minister in cases of a hung assembly or where no single party has a clear majority.
• Deciding whether to dissolve the State Legislative Assembly or to ask a Council of Ministers to resign when confidence is doubtful.
• Deciding whether to reserve a bill for the President rather than give assent or return it for reconsideration.

Judicial pronouncements, most notably the Supreme Court's judgments (for example S. R. Bommai v. Union of India), have laid down guidelines restricting arbitrary exercise of such discretionary powers and emphasised constitutional norms like majority rule, collective responsibility and the need to act in a manner consistent with constitutional morality.

Legislative Powers - Veto, Money Bills and Reservation of Bills

The Governor's legislative role includes assent to bills passed by the State Legislature, the power to return certain bills for reconsideration, and the power to reserve certain bills for the President's consideration. The comparative position of the Governor and the President differs in a few important respects; these differences are relevant to the legislative process.

Veto Power in case of Ordinary Bills

• President (Parliamentary bills): When an ordinary bill passed by both Houses of Parliament is presented to the President, the President has three options: give assent; withhold assent (absolute veto); or return the bill for reconsideration. If Parliament passes the bill again, with or without amendments, and presents it to the President, the President must give assent. Thus, the President's power is essentially a suspensive veto (except the absolute withholding of assent before reconsideration).
• Governor (State bills): When an ordinary bill is passed by the State Legislature and presented to the Governor, the Governor has four alternatives: give assent (bill becomes law); withhold assent (absolute veto); return the bill for reconsideration (suspensive veto); or reserve the bill for the consideration of the President. If the State Legislature passes the bill again and presents it, the Governor must give assent (suspensive veto).
• Reservation: If the Governor reserves a bill for the President's consideration, the decision about that bill shifts to the President; once reserved, the Governor has no further role in its enactment.

President's Options when a State Bill is Reserved

• When a Governor reserves a state bill for the President's consideration, the President may give assent, withhold assent, or return the bill for reconsideration of the State Legislature.
• If the bill is returned and the State Legislature again passes it within the prescribed time, and the bill is presented again to the President, the President is not bound to give assent; he/she may still withhold or give assent. The President's position in relation to a reserved state bill is therefore more independent than the President's role vis-à-vis parliamentary bills presented to him after reconsideration.

Veto Power in case of Money Bills

• President (Parliamentary money bills): The President's power is limited in respect of money bills passed by Parliament. The President may either give assent or withhold assent. The President cannot return a money bill for reconsideration of Parliament.
• Governor (State money bills): When a money bill is passed by the State Legislature and presented to the Governor, the Governor may give assent, withhold assent, or reserve the money bill for the President's consideration.
• President's power on a reserved state money bill: If the Governor reserves a state money bill for the President, the President may either give assent or withhold assent; the President cannot return the money bill for reconsideration of the State Legislature. Thus, in the case of money bills, the possibilities of reconsideration are much more limited.

Ordinance-making Power - Governor and President Compared

The Governor has power to promulgate ordinances when the State Legislature is not in session; this power is analogous to the President's ordinance-making power at the Union level. The constitutional provisions permit temporary legislation by ordinance but subject it to legislative approval within a specified time once the legislature reconvenes.

Executive and Appointment Powers

• Appointment of State Council of Ministers: The Governor appoints as Chief Minister the leader who, in the Governor's opinion, is best able to command a majority in the State Legislative Assembly and, on the Chief Minister's advice, appoints other ministers. Ministerial advice normally binds the Governor in exercise of most executive functions.
• Other appointments: The Governor appoints other state-level functionaries as provided by the Constitution or law-these include the Advocate General of the State and, in some cases, members to the State Legislative Council (where the council exists).
• Discretion in appointments: In exceptional situations (for example, a hung assembly), the Governor may exercise discretion while appointing the Chief Minister and allocating portfolios.

Judicial and Clemency Powers

• Pardoning power: The Governor has power to grant pardons, reprieves, respites or remissions of punishment, and to suspend, remit or commute sentences in relation to offences against state law. These powers are exercised under constitutional provision that specifically empowers the Governor in state matters.
• Assistance to judiciary: The Governor does not exercise judicial power in the manner of courts, but certain functions (such as appointment or transfer of certain state judicial officers in accordance with law) involve administrative interaction with the judiciary.

Control, Conventions and Judicial Review

• Aid and advice convention: The Governor normally acts on the aid and advice of the Council of Ministers. The aid-and-advice doctrine is fundamental to the working of the executive in a parliamentary system.
• Judicial review: The Governor's actions, including exercise of discretionary powers, are subject to judicial review. Courts have clarified the limits and conditions for the Governor's independent action and have struck down arbitrary or unconstitutional use of power.
• Parliamentary/Constitutional safeguards: Several constitutional checks (for example, the Centre's role, judicial review, legislative scrutiny) operate to limit misuse of gubernatorial powers.

Practical Examples and Applications

• In a state election with no party having a clear majority, the Governor must decide whom to invite to form the government; the Governor's decision should be guided by objective criteria-ability to prove majority on the floor of the Assembly is a primary test.
• When a state bill appears to conflict with national interest or constitutional provisions, the Governor may reserve it for the President's consideration instead of giving assent.
• Ordinances: When a state legislature is not in session and immediate legislation is necessary, the Governor may promulgate an ordinance; however, such ordinances must be laid before the state legislature and cease to operate unless approved within the constitutionally specified period.

Summary

The Governor is the constitutional head of a State whose functions span executive, legislative and limited judicial/clemency domains. Though the Governor generally acts on the advice of the Council of Ministers, the Constitution and constitutional practice confer certain discretionary powers on the Governor-both explicit (constitutional) and situational. The Governor's legislative powers (assent, return, reserve), ordinance-making power, and role in forming governments are important in state politics and administration. Judicial pronouncements and constitutional principles constrain arbitrary exercise of gubernatorial discretion, ensuring that the Governor's office functions within the bounds of the Constitution.