- Part VI of the Constitution of India deals with the state executive. The state executive consists of the governor, the chief minister, the council of ministers and the advocate-general of the state
- Governor is the nominal head at the state level
Appointment of governors
- The governor is appointed by the president under his hand and seal
- The SC in 1979 said that the office of governor is not an employment under the central government. It is an independent constitutional office and is not under the control of or subordinate to the central government
Reason for adopting this system of appointment of governor
- Direction elections would be incompatible with the parliamentary system established in the states
- Direction election could create conflicts
- Direction election would be a costly affair
- An elected governor could be a non-neutral person
- The system of presidential nomination enables the centre to maintain its control over the states
- Keeping in mind, the above mentioned reasons, the appointment form of appointing the governor was taken (This model is followed in Canada)
- He should be a citizen of India
- He should have completed the age of 35 years
Conventions that have developed while appointing a governor
- He should be not from a state where he is appointed
- While appointing the governor, the president is required to consult the CM of the state concerned
Conditions of the governor’s office
- He should not be member of either house of Parliament or a house of the state legislature. If any such person is elected as governor, he is deemed to have vacated his seat in that house on the date which he enters upon his office
- He should not hold an office of profit
- He is entitled, without payment of rent, to the use of his official residence
- He is entitled to such emoluments, allowances and privileges as may be determined by Parliament
- His emoluments and allowances cannot be diminished during his term of office
- If he is appointed as the governor of two or more states, his salary and allowances payable to him are shared by the states in such proportion as determined by the president
- He enjoys personal immunity from legal liability for his official acts
- During his term of office, he is immune from any criminal proceedings, even in respect of his personal acts. He cannot be arrested or imprisoned
- However, after giving two months’ notice civil proceedings can be instituted against him during his term of office in respect of his personal acts
- The oath of office to the governor is administered by the Chief Justice of the concerned High Court
Term of governor’s office
- He holds the office for a term of five years
- However, his term is subjected to the pleasure of the President
- The constitution has not laid down any grounds for the removal of the governor by president
- A governor can also hold office beyond his term until his successor assumes charge
Powers of a governor
Constitutional position of the governor differs from the President in the following ways:
- While the constitution envisages the possibility of the governor (Art 163) acting at times in his discretion, no such possibility has been envisages for the President
- After the 42nd constitutional amendment act, ministerial advice was made binding on the President, no such provision has been made with respect to governor so far
The governor has constitutional discretions in the following cases:
- Can dissolve the legislative assemblyif the chief minister advices him to do following a vote of no confidence. Following which, it is up to the Governor what he/ she would like to do.
- Can recommend the president about the failure of the constitutional machineryin the state.
- Can reserve a billpassed by the state legislature for president’s assent.
- Can appoint anybody as chief ministerIf there is no political party with a clear-cut majority in the assembly.
- Determines the amount payable by the Government of Assam, Meghalaya, Tripura and Mizoramto an autonomous Tribal District Council as royalty accruing from licenses for mineral exploration.
- Can seek information from the chief ministerwith regard to the administrative and legislative matters of the state.
- Can refuse to sign to an ordinary billpassed by the state legislature.
Concerns related to office of governor
- Appointment of Governor: Article 155 says that governor should be appointed (not elected) from amongst persons of high status with eminence in public. The elected government at the state is not even consulted while making appointment of the Governors. Further successive governments have reduced this important constitutional office to a sinecure and resting place for loyal and retired / about to retired / about to retire politicians apart from docile bureaucrats.
- Appointment and dismissal of the Chief Minister: Governor appoints Chief Minister, other ministers, Advocate General, Chairmen and members of the State Public Service Commission in the state. After elections in the state, there is a convention to invite the largest party to form government in the state. This convention has been flouted many times at the whim of the governor. E.g.: the recent episode of Karnataka after 2018 hung assembly elections.
- Reservation of Bills for Consideration of President: As per Article 200 of the Constitution, the governor can reserve certain types of bills passed by the State Legislature for the President’s consideration. The President can either give assent to it or ask the governor to send it back for the state legislature to reconsider it, along with his comments. The chief intent of this provision is for the centre to keep a tab on the legislation in the interest of the nation. However, the central government, through the office of the governor, has used this provision to serve partisan interests.
- Misuse of Article 356: Article 356 is the most controversial article of the Constitution. It provides for State emergency or President’s rule in State if the President, on receipt of report from the Governor of a State or otherwise, is satisfied that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution. The duration of such emergency is six months and it can be extended further. In the Constituent Assembly, Ambedkar had made it clear that the Article 356 would be applied as a last resort. He also hoped that” such articles will never be called into operation and that they would remain a dead letter.”
- Removal of the Governor: Article 156 says that the governor will hold office during the pleasure of the President for five years. President works on aid and advice of the Council of Ministers under Article 74. In effect it is the central government that appoints and removes the Governors. The governor has no security of tenure and no fixed term of office. E.g.: The mass changing of the governors of state whenever a new government comes to power at Centre.
Major recommendations to improve Governor’s office in federal polity of India:
- On Appointment of CM during hung assembly: Recent Karnataka case, 2018: SC observed that Governor’s discretion cannot be arbitrary or fanciful.
- SR Bommai vs. Union of India, 1994: The case was about the limits to the Governor’s powers in dismissing a state government under Article 356 of the Constitution. The floor of the Assembly is the only forum that should test the majority of the government of the day, and not the subjective opinion of the Governor.
- Rameshwar Prasad Case, 2006: Supreme Court was called upon to pronounce its verdict on the validity of the proclamation of President’s Rule and the dissolution of the Assembly in Bihar in 2005. The SC held that the Governor could not decide based on his subjective assessments.
- On removal of governor: BP Singhal vs Union of India: The Supreme Court ruled that even though the President could dismiss a Governor without having to provide reasons for doing so, this power could not be exercised in an “arbitrary, capricious or unreasonable manner”
- Sarkaria Commission Report (1988): Important recommendations- Governor should be a detached figure without intense political links or should not have taken part in politics in recent past, Governors must not be removed before completion of their five-year tenure, except in rare and compelling circumstances
- Venkatachaliah Commission (2002): Important recommendations: Governor’s appointment should be entrusted to a committee comprising the prime minister, the home minister, the speaker of the Lok Sabha and the chief minister of the concerned state, if governor to be removed before completion of term, the central government should do so only after consultation with the Chief Minister.
- Punchhi Commission (2010): The phrase “during the pleasure of the President” should be deleted from the Constitution; Governor should be removed only by a resolution of the state legislature.
- The recommendations of the Sarkaria Commission and the Punchhi Commission report need to be examined closely to make proper amendments to the functions of the post of governor.
- The Supreme Court Judgment (BP Singhal case) which curtailed the power of the Centre to dismiss state governments arbitrarily is commendable. Further the removal of governor from office must entail impeachment proceedings in the state assembly.
- Governor’s office should be apolitical. There should be a panel involving the opposition, ruling party, civil society and the judiciary in the selection process of Governor. Governor should be appointed only after consultation with the CM of the state where he/she will work
- Discretionary powers should be curtailed. There should be proper guidelines on the appointment of CM.
- According to ex-PM Manmohan Singh, Governor’s office should facilitate in maintaining internal security, ensure communal harmony and welfare of SCs and STs and rise above partisan politics while discharging Constitutional obligations.