The Powers of the Governor as the Head of the State

The author in this article discusses the powers of the Governor as a head of the state and the related constitutional provisions. It further discusses that the Governor is the executive head of the State, is a part of the State Legislature and the State administration is carried on in his name.

Background

There shall be a Governor for every State.[1]The Governor is the executive head of the State, is a part of the State Legislature and the State administration is carried on in his name. The President of India on the advice of the Council of Ministers with the Prime Minister appoints the Governor as the head of the State and he/she holds the office during the pleasure of the President.[2] The eligibility criteria for a Governor is that he/she must be a citizen of India and must have completed the age of thirty-five years.[3] The Governor holds his/her office for a term of five years from the date on which he /she enters upon his/her office.[4] The Indian Constitution further provides for the Governor’s powers, functions, special provisions, etc. But this article exclusively focuses on “The Powers of the Governor as the Head of the State”.

Introduction

On 12th November 2019, Maharashtra Governor Bhagat Singh Koshyari recommended Presidential rule in the State of Maharashtra. His office tweeted, “He is satisfied that the government cannot be carried on in accordance with the Constitution, and therefore has submitted a report as contemplated by the provision of Article 356 of the Indian Constitution”.[5] Recommending the President’s rule in the State could be seen as one of the Governor’s discretionary powers. Under the Indian Constitution, the Governor retains various powers, some to be exercised on the advice of the Council of Ministers with the Chief Minister or some other authorities of the State and some to be exercised upon his/her discretion.

Regulatory Powers of the Governor

The Governor is the nominal head of the State and has to function and exercise his powers on the advice of the Council of Ministers headed by the Chief Minister of the State. The executive power of the State vests in the Governor and he/she may exercise it either directly or through officers subordinate to him/her as per the Indian Constitution.[6]Here, the word subordinate includes all the Ministers as well as the Chief Minister of the State.[7] The Governor can exercise his/her executive powers on all those subjects on which the State legislature has the power toenact laws.[8] In case there is no law of the legislature relating to a particular subject, the Governor can exercise his executive powers by issuing administrative rules, orders, circulars, instructions so long as the legislature does not make any law on that subject.[9]  Most of the Governor’s powers are to be exercised in consultation with the Council of Ministers, the Chief Minister of the State, or any other authorities. A few of them are:

  • Framing rules for allocation of work to different ministries

The Governor of the State is empowered to frame rules for allocating business work to different ministries. He/she can exercise this power of allocating various subjects amongst particular ministries, on the advice of the Council of Ministers.

  • Appointing officials

The Governor is empowered to appoint officials in the State with the consultation of the Council of Ministers and the Chief Minister of the State. He/she has the power to appoint the Council of Ministers of the State on the advice of the Chief Minister. The Governor shall appoint a person who is qualified to be appointed as the Advocate-General for the State.[10]The Governor holds the power to appoint persons other than district judges to the judicial service of a State after consultation with the State Public Service Commission and with the High Court of the State.[11]The Governor holds the powers to appoint the Chairman and other members of a Public Service Commission of a State Commission.[12]The Governor of the State, if he/she believes that the Anglo-Indian Community needs representation in the State Legislative Assembly, may nominate and/or appoint one member of that community to the Assembly.[13] The Governor on being the ex-officio Chancellor in some Universities has statutory powers to appoint the Vice-Chancellor or nominate members to the Universities. He/she must consult with the Education Minister while appointing the Vice-Chancellor.[14]

  • Issuing ordinances

One of the most important Legislative powers of the Governor is that of issuing ordinances. The Governor issues the month advice of the President or the Chief Minister and the Council of Ministers of the State. He/she can promulgate an ordinance anytime except when the State Legislative Assembly is in session, there is a Legislative Council in the State, or when both the Houses of Legislatures are in session.[15] The ordinance shall be issued only to meet an emergency which requires immediate action. The Governor may withdraw an ordinance at any time.[16]

  • Granting pardon, reprieves, respites or remissions
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The Governor of the State has 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 a to which the executive power of the State extends, in consultation with Chief minister along with the Council of Ministers of the State.[17]

Discretionary Powers of the Governor

The governor need not always act on the advice of the Council of Ministers and the Chief Minister, or any other authority while exercising his powers. The Governor may exercise his powers in his/her discretion as well wherever and whenever allowed to by the Indian Constitution. If any question arises related to whether the Governor is required to act in his discretion, the decision of the Governor in his/her discretion shall be final.[18]The Governor may exercise the following powers as per his/her discretion:

  • Appointing Chief Minister

It completely is upon the Governor of the State to decide which party’s leader to invite to form the Government and become the Chief Minister in case of a Hung Parliament. A hung parliament is a parliament (in this case the State Legislature) where no single political party has won enough seats to form the government. The Governor after a lot of thought decides to call upon a party and its leader based on their capacity and stability to prove their support in the State Legislature within a given time and form the State Government.

  • Dismissing Chief Minister and the Council of Ministers of the State

The Chief Minister and Council of Ministers hold office during the pleasure of the Governor.[19]Although the governor has to consult the Chief Minister in case of dismissing the Ministers, the final decision is actually upon the Governor and his/her decision cannot be challenged in any court of law.[20] The first Attorney-General of India, MC Setalvad stated, “the Governor has the power to dismiss the Ministry if he/she is satisfied that the Ministry was in a minority and it was not prepared to hold a State Legislative Assembly session within a reasonable time”.

  • Proroguing the State Legislature

From the Oxford dictionary, proroguing can be defined as to discontinue a session of a State Legislative Assembly without dissolving it. The Governor has the discretion to carefully scrutinise the situation and proceed to prorogue only when he/she is satisfied that the motion by the Chief Minister to stay in power despite losing the majority, is not frivolous but genuine.[21]The Governor also has to veto power to refuse to prorogue if advised by the Chief Minister or the Council of Ministers.

  • Summoning the State Legislature

The Governor is empowered to summon the State Legislatures jointly or individually and address them.[22] But more than six months should not elapse between the two sessions in case of summoning separately. According to Dr B.R. Ambedkar, summoning the State Legislatures were more of a duty rather than a power of the Governor.[23]

  • Dissolving the State Legislative Assembly

The Governor is empowered to order a dissolution of the State Legislative Assembly if the Ministry resigns without passing the budget.[24] He/she also has the discretion to refuse the advice of dissolution from a Ministry. Under the same process, the Governor can make a report about the failure of the constitutional machinery in the State.[25]

  • Reserving State Legislative bills

It is up to the Governor to either hold or give assent to a bill which has been passed by the State Legislatures.[26] He/she also has the power to send back the bill for reconsideration.[27]

  • Seeking information

The Governor has the power to seek information from the State’s Chief Minister. He/she can ask the Chief Minister to submit for the consideration of the Council of Ministers any matter that a Minister took a decision on without the consideration of the Council of Ministers.[28]

The Governor possess various powers and has more discretionary powers compared to the President. Apart from the powers explained above, some State Governors are granted a few exclusive powers as per the special situations in their respective States. The powers of such State Governors are provided under the special provisions in the Indian Constitution.

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Special Provisions for the Powers of the Governor

  • Governor of Arunachal Pradesh

The Governor has special responsibility concerning law and order in the State of Arunachal Pradesh. The Governor has the power to exercise his/her individual judgements as to the action to be taken after consulting the Council of Ministers in any subject matter of the State. The decision of the Arunachal Pradesh Governor in his/her discretion is final.[29]

  • Governor of Nagaland

The Governor has a special responsibility in the State of Nagaland. He/she can exercises in his/her individual judgment as to the action to be taken to maintain law and order, after consulting the Council of Ministers. The decision of the Nagaland Governor in his/her discretion is final.[30] The Governor has further powers to establish and make rules in a regional council for the Tuensang district.[31]

For a period of ten years from the date of formation of the State of Nagaland, or for a further period, the governor on the recommendation of the regional council shall exercise the powers to administrate the Tuensang district, arrange for an equitable allocation of money provided by the Government of India between Tuensang district and the rest of the State, and make regulations for the peace, progress and good Government of the Tuensang district.[32]

Criticism on the Powers of the Governor

As provided in the Indian Constitution, the President appoints the Governor on the advice of the Council of Ministers and the Prime Minister, and he can hold the office during the pleasure of the President. This makes the Governor more inclined towards the Union Government as the State Government has no role either in his/her appoint or his/her removal. This way of giving discretionary powers to the Governor is like giving the chance for the Union Government to intervene in the State matters in a manner which was not anticipated by the framer of the Constitution.[33] The appointment and removal provisions have caused a lot of debates amongst authorities and officials. It is further accused that the Governors have become the agents of the Union Government and on some occasions, they have exercised their powers in the interest of their employers, i.e. the President, the Council of Ministers, and the Prime Minister.[34] There were several instances when the governors have abused some of their powers in different States. In such cases, the interests of the Centre and the states often clashed and the Governors, in some situation, acted as the real wielders of power.[35]

Apart from this concern, there were many instances when the Governors have been accused of misusing their discretionary powers.

On 21st April 1989, the then Governor of Karnataka, P. Venkatasubbaiah officially dismissed the then Chief Minister, S.R. Bommai. Following the dismissal, President’s rule was imposed in the State. The dismissal is said to be on the grounds that the government had lost the majority in the State Legislature. The Governor was accused of refusing to allow S.R. Bommai to show his majority in the Assembly. S.R. Bommai moved to the Supreme Court after High Court dismissing his writ petition. The case came to be known as S.R. Bommai v. Union of India.[36] The Supreme Court held, “The Chief Minister of every State who has to discharge his/her constitutional functions will be in perpetual fear of the axe of a proclamation calling on him/her because he/she will not be sure whether he/she will remain power or not and consequently he/she has to stand up every time form his/her seat without properly discharging his/her constitutional obligations and achieving the desired target in the interest of the State.” The Court further stated, “The dissolution of Legislative Assembly is not a matter of course. It should be restored to only where it is found necessary for achieving the purposes of the Proclamation.”

This case was just was one of such cases where the Governor has misused his discretionary powers. There have been many such cases reported in the States.

Recommendations to Avoid Misuse of Powers by the Governor

Ministry of Home Affairs established the Sarkaria Commission on 9th June 1983, to examine and review the working of the existing arrangement between the Union and States about powers, functions and responsibilities in all spheres and recommend such changes or other measures as may be appropriate. The Commission made various recommendations in regards to the powers of the Governor, few of them are:

  • The Governor should be appointed after effective consultations with the State Chief Minister, Vice President and Speaker of the Lok Sabha by the Prime Minister before his/her selection.
  • The Governor’s report should be given out to the public.
  • Non-partisan persons having a long experience in public life and administration should be appointed as the Governor.
  •  The Governor should not belong to any political party, especially when the Centre and the State Governments are different political parties.
  • After resigning his/her office, the 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 the Vice-President or President of India.
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On 27th April 2007, the Government of India constituted the Puncchi Commission to look into the new issues of Centre-State relations keeping in view the changes that have taken place in the polity and economy of India since the Sarkaria Commission’s report on the same matter. The Commission made various recommendations concerning the powers of the Governor, few of them are:

  • A fixed term of five years should be given to the Governor and he/she must not be removed before the term ends except in rare cases.
  • The removal of the Governor should be by the process of impeachment by the State Legislature.
  • The Governor should be able to approve the prosecution of a minister against the advice of the Council of Ministers.
  • The provision of the doctrine of pleasure should be removed.
  • The Governor should not be removed by the President on the advice of the Council of Ministers and the Prime Minister. Instead, a resolution by State Legislature should be there to remove Governor.

Conclusion

Various reports and recommendations similar to the Sarkaria and the Puncchi commissions were provided for amending the provisions related to the powers of the Governor to reduce conflicts. But unfortunately, until today none of them were implemented, and the same old provisions are followed although they cause a lot of disruptions in the country. It is ideal to implement the suggestions for the better and smooth functioning of the government which may bring harmony to everyone.

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[1] India Const. art. 153.

[2] India Const. art. 155 & 156, cl. 1.

[3] India Const. art. 157.

[4] India Const. art. 156, cl. 3.

[5] PTI, Governor recommends President’s rule in Maharashtra, Economic Times (Nov. 12, 2019, 5:02 PM), https://government.economictimes.indiatimes.com/news/governance/governor-recommends-presidents-rule-in-maharashtra/72022498

[6] India Const. art. 154, cl. 1.

[7] Rajni Goyal, The Governor: Constitutional Position and Political Reality, 53 IPSA 505, 506 (1992).

[8] India Const. art. 162.

[9] Rajni Goyal, The Governor: Constitutional Position and Political Reality, 53 IPSA 505, 506 (1992).

[10] India Const. art. 165, cl. 1.

[11] India Const. art. 234

[12] India Const. art. 316, cl. 1.

[13] India Const. art. 333.

[14] Rajni Goyal, The Governor: Constitutional Position and Political Reality, 53 IPSA 505, 508 (1992).

[15] India Const. art. 213, cl. 1.

[16] India Const. art. 213, cl 1, sub-cl. b.

[17] India Const. art. 161.

[18] India Const. art 163, cl.2.

[19] India Const. art. 164, cl. 1.

[20] Rajni Goyal, The Governor: Constitutional Position and Political Reality, 53 IPSA 505, 513 (1992).

[21] Rajni Goyal, The Governor: Constitutional Position and Political Reality, 53 IPSA 505, 514 (1992).

[22] India Const. art. 175, cl. 1.

[23] Rajni Goyal, The Governor: Constitutional Position and Political Reality, 53 IPSA 505, 515 (1992).

[24] Ibid.

[25] India Const. art. 356, cl. 1.

[26] India Const. art. 200.

[27] India Const. art. 200.

[28] India Const. art. 167.

[29] India Const. art. 371H.

[30] India Const. art. 371A, cl. 1.

[31] India Const. art. 371A, cl. 1, sub-cl. d.

[32] India Const. art. 371A, cl. 2, sub-cl. a, b & d.

[33] S. Mohan Kumaramangalam, Governor’s Power to Dismiss a Minister, 3 Econ Polit Wkly 19, 19 (1968).

[34] Nirmalendu Bikash Rakshit, Constitution Review Committee and the Governor, 37 Econ Polit Wkly 1397, 1397 (2002).

[35] Nirmalendu Bikash Rakshit, Constitution Review Committee and the Governor, 37 Econ Polit Wkly 1397, 1398 (2002).

[36] 1994 SCC (3) 1.