GOVERNOR (INDIAN POLITY)

GOVERNOR

·      The pattern of Government provided for the states is similar to that of the Central Government

·      The reason for the similarity is that at both the levels of government, there is parliamentary system of Government in which a ceremonial head and a real head constitute the executive.

·      For the Union Government, Presidency is ceremonial head and the effective head of the government is the Prime Minister heading the Council of Ministers.

·      For the State Government, Governor is the counterpart of the President of India and the Chief Minister heading the Council of Ministers is the mirror image of the Prime Minister.

Historical background

·      The Government of India Act 1858 transferred the responsibility of administration of India from the East India Company to the British Crown.

·      It made the Governor of the province an agent of the Crown working through the Governor General.

·      The Montague-Chelmsford reforms (1919) made small changes in the provincial government with insignificant level of responsible government being introduced the Government of India Act 1935 gave provincial autonomy with the Governor being required to act on the advice of the Council of Ministers.

·      However, the Governor continued to exercise substantial discretion for which he was accountable only to the Governor General.

·      After India achieved Independence, The GOI Act 1935 was adapted and enforced till the new Constitution was drafted and adopted.

·      The Adaptation Order 1947 dropped all references to the discretionary powers and made the Governor function completely according to the advice of the Council of Ministers.

Constituent Assembly (1947-49) debated various aspects related to the institution of Governor which essentially can be grouped under two heads

·       Whether the Governor should be elected, or nominated and

·       Discretionary powers of the Governor.

The idea of elected Governor is discarded for the following reasons:-

·       It defeats the-very purpose of the institution of Governor as it should be an independent and impartial Constitutional office which is not possible if the Governor is a political office

·       Political deadlock between the offices of the Governor and that of the Chief Minister may arise and can paralyse the Government.

·       In case the Governor and the Chief Minister belong to the same political party, Governor can not perform his discretionary powers objectively.

·       Governor can develop his own populist vested interest which can us compromise the duties involving security of the state from internal and external threats.

·       Jawaharlal Nehru explained to the Constituent Assembly that two more reasons can be cited to ignore the idea of a elected Governor: it may lead to provincial Separatist tendencies; and there will be fewer common Links with the centre.

Ø  Art, 153 to 167 of Part VI deal with the State executive of which Governor is the titular head and the Chief Minister heading the Council of Ministers is the political and real head.

Ø  Article 153 of the Constitution requires that there shall be a Governor for each State. It means that there shall not be a vacancy in the office of the Governor.

Ø  Thus incumbent Governor of the State continues even after the five year tenure over till a new Governor is appointed by the President as the Art.156 mandates.

Ø  The Constitution (Seventh Amendment) Act, 1956 made a change in the Art. 153 to the effect that one person can be appointed as Governor for two more States.

Ø  The need for it was felt in the wake of the reorganization of states in 1956.

Ø  Article 154 vests the executive power of the State in the Governor.

Ø  Article 155 says that the Governor of a State shall be appointed by the President by warrant under his hand and seal.

Ø  Article 156 provides that ―The Governor shall hold office during the pleasure of the President‖.

Ø  The term of the Governor is prescribed as five years.

Ø  There is a controversy about whether the five year term is more important that the reference to the pleasure of the President of India.

Ø  In order to understand the debate clear the contents of Art. 156 are to be clearly followed as they are available in the Constitution:

Ø  Art.156. Term of office of Governor.—(l) The Governor shall hold office during the pleasure of the President.

Ø  (2)The Governor may, by writing under his hand addressed to the President, resign his office.

Ø  (3) Subject to the foregoing provisions of this article, a Governor shall hold office for a term of five years from the date on which he enters upon his office: Provided that a Governor shall, notwithstanding expiration of his term, continue to hold office until his successor enters upon his office.

Ø  As can be seen from above conflicts of Art. 156, the meaning of the sequence of the above provisions is that President‘s pleasure is more important that-the five year term

Art. 157 lay down two qualifications for the office of the Governor:

·       he should be a citizen of India and

·       must have completed the age of thirty five years.

Art. 158 stipulate the conditions of Governor’s office as the following:

·       shall not be a member of either House of Parliament or State Legislature, and if such a member is appointed Governor, he shall be deemed to have vacated his seat in that House on the date on which he enters upon his office as Governor.

·       shall not hold any other office of profit.

·       shall be entitled without payment of rent to the use of his official residences and shall be also entitled to such emoluments, allowances and privileges as may be determined by Parliament by law and, until provision in that behalf is so made, such emoluments, allowances and privileges as are specified in the Second Schedule.

·       Where the same person is appointed as Governor of two or more states, the emoluments and allowances payable to the Governor shall be allocated among the States in such proportion as the President may by order determine.

·       The emoluments and allowances of the Governor shall not be diminished during his term of office.

In 2008, Government raised the salary of Governor from Rs.36,000 to Rs.75,000 a month. It has also been decided to award pensions, for the first time, to former Governors.

Ø  Art.159 prescribes the oath/affirmation which a Governor has to take before entering upon his office, in the presence of the Chief Justice of the High Court exercising jurisdiction in relation to the State, or, in his absence, the senior most Judge of that Court available to faithfully discharge the functions of the Governor

of (name of the State) and will to the best of his ability preserve, protect and defend the Constitution and the law and that he will devote himself to the service and well-being of the people of (name of the State)

The Executive Powers of Governors.

Ø  The executive power of the state is vested in the Governor.

Ø  exercises it either directly or through officers subordinate to him.

Ø  It has been held that ministers are, officers subordinate to him.

Ø  The executive power of the state extends to all matters with respect to which the State Legislature has power to make laws.

Ø  All executive is expressed to be taken in the name of the Governor.

Ø  All orders, instruments, etc are authenticated in the manner specified in the rules made by the Governor.

Ø  appoints the Chief Minister and other ministers are appointed by him in the advice of the Chief Minister.

Ø  has the power to nominate one member from the Anglo-Indian Community, if he is of the opinion that the immunity needs representation in the Assembly.

Ø  appoints the Council of Ministers, Advocate General, Chairman and the members of the State Public Service Commission.

Ø  has the power to nominate one / twelfth of the members of the Legislative Council of State.

Ø  The persons to be nominated are required to have special knowledge and practical experience in respect of Literature, Science and Arts etc.

The Legislative Powers of Governors.

Ø  is the part of the legislature (Art. 168).

Ø  the legislature of a State shall consist of the Governor and the Legislative Assembly.

Ø  the Legislature consists of two Houses, the upper House too is a part of the Legislature.

Ø  has the right to address the legislature and to send messages to it.

Ø  may from time to time summon, prorogue or dissolve the Legislative Assembly.

Ø  has the power of causing to be laid before the legislature, the Annual Financial Statement (Budget) and reports of the State Finance Commission.

Ø  Without his recommendation no demand for grant can be made by the legislature.

Ø  may reserve Bills for the assent of the President made by the Legislature. In this regard, Art. 200 and 201 are very important and they are as follows:

Art. 200: Assent to Bills —

Ø  When a Bill has been passed by the Legislature of a State, it shall be presented to the Governor who may accept or reject the Bill.

Ø  In the case of Bills other than Money Bills, he may return to the legislature for reconsideration.

Ø  may also reserve the Bill for time consideration of the President.

Ø  When a Bill is returned to legislature by the Governor, it must be repassed to be accepted by the Governor.

Ø  shall not assent to, but shall reserve for the consideration of the President, any Bill which in the opinion to the Governor would, if it became law, so derogate the powers of the High Court so as to endanger the position of High Court which the Indian Constitution designed to till.

In essence as per the Article 200, when a Bill passed by the Legislature of a State is presented to the Governor, he has four options

·       he assents to the Bill when it becomes an Act

·       he withholds assent

·       he returns the Bill to the Legislature for reconsideration

·       he reserves time Bill for the consideration of the President

Art. 201 . Bills reserved for consideration

Ø  When a Bill is reserved by a Governor for the consideration of the President, the President shall declare either that he assents to the Bill or that he withholds assent in case of a Money Bill.

Ø  In other Bills, he may return the Bill for repassage— the third option for the President.

Ø  The repassed Bill need not be assented to by the President and he may return it again and again.

Ø  Thus, it is an absolute veto.

Ø  Also, there is no time limit within which the President should take a decision.

Ø  There have been instances where Bills have been pending with the President for periods up to six years or more.

Ø  The most recent Bill to be reserved by the Governor for the Presidential assent is the GUJCOC Bill- Gujarat Control of Organised Crime Bill for which the President has expressed the need for three changes and returned it. For example, the provision that the evidence tendered to the police officer is admissible in the Court is objectionable, according to the President (2009).

The differences between the ordinance making powers of Governor and the President.

Ø  Largely the powers of the Governor in the promulgation of ordinances are similar to the President. There are the following differences:

·       if the ordinance has contents which in the form of a Bill would require Presidential permission before hand for introduction or

·         if the ordinance has contents which in the form of a Bill would be compulsorily reserved for Presidential assent after passage as a matter of Constitutional requirement— for example, a Bill derogating from the powers of the High Court, or

·       if the ordinance has contents that in the form of a Bill would have inclined the Governor to reserve it for the President- for example, the GUJCOC Bill in the most recent case

In all the above cases, the Governor would take the prior consent of the President before passing the ordinance.

The Judicial or Pardoning Powers of the Governors?

Ø  Article 161 confers on the Governor the power to grant pardon, reprieve, respite or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to matters to which the executive power of the state extends.

Ø  In Nanawati V/s State of Bombay (1961), Supreme Court (SC) held that Governor‘s powers under Art. 161 are subjected to the rules made by the SC Governor has no power regarding court martial. Governor also can not pardon a sentence of death.

The discretionary power of Governor.

Following are the provisions of Art 163 which contains the discretionary powers.

Art 163. Council of Ministers to aid and advise Governor.

(1)     There shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion.

(2)     If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion.

(3)     The question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired into in any court.

Art. 163 explicitly recognizes Governor‘s discretionary powers that there are situations in which the Governor has to act without the aid and advice of the Council of Ministers. There are two types of such situations:

·         circumstances thrown up in the Functioning and process of legislative democracy

·         where the Constitution confers such powers

In the first class are the following situations as mentioned in the Sarkaria Commission report

·         choosing the Chief Minister

·         testing majority

·         dismissal of the Chief Minister

·         dissolving the Assembly

·         recommendation of the President‘s Rule (Art.356)

·         reserving the Bill for Presidential consideration (Art.200)

·         returning a Bill for re-passage to the Legislature

In the second class are the Constitutional powers where Governor‘s discretion is in the exercise of the powers. There are shades of discretion in the following forms as given in the Constitution-

·         in his discretion; or

·         in his individual judgement; or

·         independently of the State Council of Ministers or

·         in his special responsibility

1.   Discretionary powers as given in the Constitution

·       Governors of all states- Reservation for the consideration of the President of any Bill which, in the opinion of the Governor would, if it became law, so derogate from the powers of the High Court as to endanger the position which that Court is by the Constitution designed to fill (Art. 200).

·       The- Governors -of Arunachal Pradesh, Assam, Meghalaya, Mizorarn, Nagaland, Sikkim,and Tripura have been entrusted with some specific functions to be exercised by them in their discretion (Articles 371A, 371F and 371H and in Sixth Schedule).

2.   Powers in individual judgement: Explanation

·         The Governors of Arunachal Pradesh and Nagaland have been entrusted with a special responsibility with respect to law and order in their respective states. In the discharge of this responsibility, they are required to exercise ―individual judgement‖ after consulting their Council of Ministers.

3.   Powers independently of the Council of Ministers

·       Governors as Administrators of Union Territories (UT) - Any Governor, on being appointed by the President as the administrator of an adjoining UT, has to exercise his functions as administrator, independently of the State Council of Ministers { Art. 239 (2) }.

4.    Similarly, the Special Responsibility Powers of Governor are as follow:

·      Articles 371(2) and 371C(l) provide that certain special responsibilities may be entrusted by Presidential Orders to the Governors of Maharashtra and Gujarat and the Governor of Manipur, respectively.

·      Article 371(1), which has since been deleted, made a similar provision in respect of the Governors of Andhra Pradesh and the erstwhile composite state of Punjab.

·      The presidential Orders so far issued under these Articles have provided that the concerned Governors, while carrying out certain functions connected with the special responsibilities entrusted to them, may exercise their discretion.

·      It has to be noted that these Articles themselves do not expressly provide for the exercise of discretion by the concerned Governors.

·         Thus, these presidential Orders are instances of a Governor being required to act in his discretion ―under‖ the Constitution.

Art. 164

Art. 164 says the following:

(1)     The Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by the Governor on the advice of the Chief Minster, and the Ministers shall hold office during the pleasure of the Governor:

Ø  Provided that in the States of Bihar, Madhya Pradesh and Orissa, there shall be a Minister in charge of tribal welfare who may in addition be in charge of the welfare of the Scheduled Castes and backward classes or any other work.

The Nature of the Office of Governor.

Ø 

Constitutional provisions concerning the Governor and the Scope of these provisions shows that there are three main facets of Governor‘s role. The three facets so pointed out are

Ø  Governor‘s office is of vital importance having multi-faceted role.

Ø  He is the linchpin of constitutional apparatus and assures continuity of Government.

Ø  The Committee of Governors appointed by President V.V. Giri affirmed in its report (1971): ―Under the Constitution, just as a State is a unit of the Federation and exercises its executive powers and functions through a Council of Ministers responsible to the Legislature and none else, the Governor, as the Head of the State, has his functions laid down in the Constitution itself, and is in no sense an agent of the President‖

Ø  The Rajamannar Committee Report (1971) recommended: the Governor should not be liable to he removed except under proved misbehaviour or incapacity after inquiry by the Supreme Court.‖

The Sarkaria Commission Report on Centre-State Relations (1988) noted:

Ø  ―Frequent removals and transfers of Governors before the end of their tenure have lowered the prestige of this office.

Ø  Criticism has been levelled that the Union government utilises the Governors for its own political ends.

Ø  Many Governors looking forward to further office under the Union or active role in politics after their tenure came to regard themselves as agents of the Union‖

Ø  Supreme Court went into the constitutional position of governorship. In Hargovind Pant vs. Dr. Raghukul Tilak (AIR 1979, SC), a Constitution Bench observed: ―The Governor is the head of the State and holds a high constitutional office ...he cannot be regarded as an employee or servant of the Government of India.

Ø  His office is not subordinate or subservient to the Government of India. He is not amenable to the directions of the Government of India, nor is he accountable to them for the manner in which he carries out his functions and duties.

Ø  He is an independent constitutional office, which is not subject to the control of the Government of India

Ø  He is constitutionally the head of the State in whom is vested the executive power of the State‖.

The Sarkaria Commission’s recommendations related to Governor.

Ø  A Commission headed by Justice R.S. Sarkaria, a former Judge of the Supreme Court, was constituted to

―examine and review the working of the existing arrangements between the Union and States in regard to powers, functions and responsibilities in all spheres and recommend such changes or other measures as may be appropriate‖. It gave its recommendations in 1987.

Recommendations of the Sarkaria Commission in regard to the institution of Governor are briefly the following:— The person to be appointed as a Governor

·        should be an eminent person;

·        must be a person from outside the State;

·        must not have participated in active politics at least for some time before his appointment;

·        he should be a detached person and not too intimately connected with the local politics of the State;

·        he should be appointed in consultation with the Chief Minister of the State, Vice-President of India and the Speaker of the Lok Sabha. His tenure of office must be garanteed and should not be disturbed except for extremely compelling reasons and if any action is to be taken against him he must be given a reasonable opportunity for showing cause against the grounds on which he is sought to be removed. In case of such termination or resignation by the Governor, the Government should lay before both the Houses of Parliament, a statement explaining the, circumstances leading to such removal or resignation, as the case may be;

·        After demitting his office, the person appointed as 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 Vice-President or President of India, as the case may be; and

·        At the end of his tenure, reasonable post-retirement benefits should be provided.

Sarkaria Commission further recommended that in choosing a Chief Minister, the Governor should be guided by the following principles, viz.:

·        The Party or combination of parties which commands the widest support in the Legislative Assembly should be called upon to form the government

·         The Governor‘s task is to see that a government is formed and not to try to form a government which pursue policies which he approves.

·        If there is a single party having an absolute majority in the Assembly, the leader of the party should automatically be asked to become the Chief Minster.

·        If there is no such party, the Governor should select a Chief Minister from among the following parties or groups of parties by sounding them, in turn, in the order of preference indicated below:

o     an alliance of parties that was formed prior to the Elections.

o     the largest single party staking a claim to form the government with the support of others, including

‗independents‘.

o     a post-electoral coalition of parties, with all the partners in the coalition joining the government.

o     a post-electoral alliance of parties, with some of the parties in the alliance forming a Government and the remaining parties, including ‗independents‘ supporting the government, from outside.

o     The Governor while going through the process described above should select a leader who in his (Governor‘s) judgment is most likely to command a majority in the Assembly.

Ø  It was also recommended that a Chief Minister, unless he is the leader of a party which has absolute

majority in the Assembly, should seek a vote of confidence in the Assembly within 30 day‘s of taking over.

Ø  The other recommendations made by the Sarkaria Commission are that the issue of majority support should be allowed/directed to be tested only on the floor of the House and no where else and that in the matter of summoning and proroguing the Legislative Assembly, he must normally go by the advice to Council of Ministers but where a no confidence motion is moved and the Chief Minister advises proroguing the Assembly, he should not accept it straightaway and advise him to face the House.