Legislative Powers

The Governor enjoys vast and formidable legislative powers under the Constitution. He is an integral part of the State Legislature. The main legislative powers of the Governor may be enumerated as follows:

1. The Constitution confers upon the Governor the power to nominate one member to the Lower House and some members to the Upper House of the State. He can nominate one member from the Anglo-Indian community to the State Legislative Assembly, if in his opinion this community is not adequately represented in that House. In a State with a Legislative Council, the Governor nominates one-sixth of the total number of its members.

2. The Governor can summon the State Legislature, prorogue either House or dissolve the Legislative Assembly.

3. The Constitution gives the Governor the right to address the House or Houses of the state Legislature separately or jointly. At the beginning of each new session and immediately after a general election to the Assembly, he has to deliver an address to the Legislature in which he lays down the policy of his Government for ensuing year.

4. The Governor can also send messages to any House of the State Legislature. The Constitution lay down that a House to which any message is so sent shall consider any matter required by the message to be taken into consideration.

5. Every Bill passed by the State Legislature has to receive the Governor’s assent before it can become a law. The Governor has three alternatives before him with respect to such a Bill:
a. he can give his assent to the Bill; or
b. withholds assent; or
c. he may reserve the Bill for the consideration of the President; or
d. he can return it to the Legislature, if it is not a Money Bill, for reconsideration, suggesting alterations and modifications in part or in the whole. But such Bills when passed again by the Legislature must receive the assent of the Governor, which means that the Governor cannot withhold his assent to a bill if it is passed a second time by the State Legislature (Article 200).

6. The annual reports of various bodies like State Public Service Commission (Article 323), State Finance Commission, he may decide a matter relating to the disqualification of a member of the Legislature if that member’s election is challenged through a petition by some voter of his State (Article 192).

Ordinance making power of the Governor (Article 213)

He can issue an Ordinance when one or both Houses of the State Legislature are not in session. It has the force of a law. The Governor is authorized to promulgate Ordinance when is satisfied that circumstances. Exist which render it necessary for Ordinance when he is satisfied that circumstances, exist which render it necessary for him to take action immediately. However, the Governor is prohibited from promulgating Ordinances that contain provision, which under the Constitution require the previous sanction of the President for introduction in the State Legislature or which are to be reserved for the assent of the President. In such cases, the Governor can promulgate an Ordinance after obtaining permission from the President. An Ordinance issued by the Governor ceases to be in operation six months and six weeks, as is to the ordinance issued by the President. The Governor may withdraw an Ordinance any time before it expires.

Financial Powers

The financial powers and functions of the governor include,
1. No Money Bill and Financial Bill can be introduced in the State Legislative except on Governor’s recommendation.
2. No demand for a grant can be made in the Legislative Assembly except on his recommendation.
3. It is the duty of the Governor to get prepared and introduced in the State Legislature the annual budget showing the estimated revenue and expenditure of the State for that year and, if necessary, the supplementary budget for the State.
4. The Governor can also make advances out of the Contingency Fund of the State in case of unforeseen expenditure, pending its authorization by the Legislature.
5. He constitutes a Finance commission after every five years to review the financial position of the Panchayats and the municipalities.

Judicial Powers

1. Pardoning Power (Art. 161): Under Article 161, the Governor can grant pardons, reprieves, respites and remission of punishment or suspend, remit and commute the sentence of any person convicted of any offence, against any law relating to a matter to which the executive power of the state extends. However, the pardoning power of the Governor differs from that of the President in the manner that the President can pardon death sentence whereas the governor is deprived of this pardoning power. The Governor does not have the power that could empower him to par-don sentences inflicted by court martial as this power is entitled only to the President of India.

2. Judicial Appointments: The Governor is consulted by the President, the Governor of the State appoints the judges of the concerned State High Court. And with the consultation of the State High Court, he makes appointments, State High Court and the State High Court and the State Public Service Commission he appoints persons to the judicial service of the state other than the district judges.

Emergency Powers

The Governor has the power to make a report to the President, whenever he is satisfied that a situation has arisen in which Government of the State cannot be carried on in accordance with the provisions of the Constitution (Article 356), thereby, inviting the President to assume to himself the functions of the Government of the State or any of them. When the President’s rule is imposed in a State, an important change in the position of the Governor takes place. Instead of being a constitutional head of the State, who is guided by his Council of Ministers in the discharge of his duties, he becomes the “agent of the Union Government in the State”. He takes over the reins of administration directly into his own hands and runs the State with the aid of the civil services. Thus, during the period of emergency, the executive power of the State is exercised by the Governor in accordance with the instructions received from the President.

Discretionary Powers of the Governor

The discretionary powers of the governor have made him the lynchpin of constitutional democracy in the States. If any question arises whether any matter is a matter on which the Governor can use discretionary power, the decision of the Governor is final. The functions which are specially required by the Constitution to be exercised by the Governor in his discretion are:

1. The Governor of a State as the administrator of an adjoining Union Territory can exercise his functions as such administrator, independently of his Council of Ministers.

2. Some of the Governors may have to discharge certain special responsibilities also under the articles 371 to 371 J. In the discharge of such special responsibility, the Governor has to act according to the directions issued by the President from time to time, and subject, therefore, he is to act “in his discretion”. In such cases, the Governor shall seek the advice of his Council of Ministers, but he is not bound by the advice tendered by his Council of Ministers.

These special cases are mentioned as follows:
(1) Maharashtra: Establishment of separate development boards for Vidarbha and Marathwada and Rest of Maharashtra. (Art. 371)
(2) Gujarat: Establishment of separate development boards for Saurashtra and Kutch. (Art. 371)
(3) Nagaland: with respect to law and order in the State for so long as the internal disturbance in the Naga Hill Tuensang Area continues. (Art. 371A)
(4) Assam:With respect to the administration of the tribal areas. (Art. 371B)
(5) Manipur: With respect to the administration of the Hill areas in the state. (Art. 371C)
(6) Andhra Pradesh: with respect to regional development of Andhra Pradesh (Art. 371D)
(7) Sikkim: For peace and for ensuring social and economic advancements of the different sections of the population. (Art. 371F)
(8) Arunachal Pradesh: Regarding the law and order in the state.(Art. 371H),
(9) Goa (Art. 371 – I),
(10) Mizoram (Art. 371G)
(11) Karnataka: Regarding development of Hyderabad – Karnataka region.(Art.371J)

3. Report to the President under Article 356: When the Governor sends a report to the President that the Government of the State cannot be carried on n accordance with the provisions of the Constitution, the Governor does not act according to ministerial advice. He can make such a report to the President purely on his discretion. The report made by a Governor, under Article 356, therefore, falls under his discretionary power.

4. Reservation of a Bill: In matters relating to reservation of a Bill for the consideration of the President, the Governor may act on his own, on matters specified by the Constitution to be reserved for the consideration of the President.

5. Apart from these, there are certain other circumstances under which the Governor may act according to his own discretion. These are:
(1) appointment of a new Chief Minister, if no single political party has a clear cut majority or does not have an acknowledged leader;
(2) dismissal of a Ministry when it refuses to resign even after losing majority support in the House or after being defeated on a no confidence motion;
(3) dissolution of the Legislative Assembly on the advice of a Chief Minister who has lost majority support etc.

However, the Governor shall be bound to use his discretionary power as per the directions of the President.

WHY A NOMINATED GOVERNOR?

Constitution Assembly’s final view of Governor - The Constituent Assembly fully debated on the merits and demerits of an elected v/s nominated Governor and Finally opted for the system of presidential nomination, rather than direct election of the governor because of following reasons.

1. A nominated Governor would encourage centripetal tendencies and, thus promote all india unity, on the other hand it has been apprehended that the elected Governor would to some extent encourage the separatist provincial tendencies more than otherwise. There would be far fewer links with the Centre.

2. In a Parliamentary system the head should be impartial, but a Governor elected by the direct vote of people would have to be party man. On this point it was stated in the Constituent Assembly that he should be a more detached figure acceptable to the province, otherwise he could not function and may not be a part of the party machinery of the province.

Conflict might arise between the Governor and the Chief Minister if both were to be elected by the Governor was to be formal constitutional head with strictly limited powers that in the discharge of almost all his functions would be required to follow the advice of his Ministry. The Chairman of the Drafting Committee was vigilant enough to infuse the unitary spirit in the Constitution as well as in the infrastructure of Indian legal and political system. He expressed his apprehension that it was not necessary to have such a functionary at so much cost and so much trouble. So in the Constitution of 1949, the Governor emerged as a constitutional head appointed by the President of India for a term of five years but holding office during pleasure of the President.

CRITICISM OF GOVERNOR’S ROLE

Sarkaria Commission on Centre-State Relations, 1988 took note of the criticism with respect to the role of the Governor. The matters in which the Governor, according to the Commission, is expected to use his discretion and is subject to criticism are:-
a. in choosing chief Minister
b. in testing majority
c. in dismissal of Chief Minister
d. in dissolving the Legislative Assembly
e. in recommending President’s Rule
f. in reserving Bills for President’s consideration

Other criticisms:

• Regarding nominations to Legislative Council

• Regarding exercise of discretion as Chancellor of University

Governor is not subject to the control of the Government of India-SC

The Supreme Court specifically went into the constitutional position of governorship. In Hargovind Pant v Dr. Raghukul Tilak, 1979, a Constitution Bench Comprising five Judges of the Supreme Court observed: “Every person appointed by the President is not necessarily an employee of the Government of India. So also it is not material that the Governor holds office during the pleasure of the President. It is a constitutional provision for determination of the term of office of the Governor and it does not make the Government of India an employer of the Governor. The Governor is the head of the State and holds a high constitutional office which carries with it important constitutional functions and duties and he cannot be regarded as an independent constitutional office, which is not subject to the control of the Government of India. He is constitutionally the head of the State in whom is vested the executive power of the State”.

Sarkaria Commission on selection of a person to the Office of the Governor

The Sarkaria Commission on Inter-state Relations has suggested that following additional criteria for the selecting a person for the office of Governor:

1. A politician belonging to the ruling party at the Centre should not be appointed as Governor of a State Being run by some other party or by a combination of other parties.

2. He must be appointed after consultation with the Chief Minister of the State concerned.

3. He should be an eminent person in some walk of life,

4. He should be from outside the State and a detached figure not too intimately connected with the local politics of the State,

5. He should be a person who has not taken active part in politics, generally and particularly, in the recent past.

6. Persons belonging to the minority groups should continue to be given a chance as hitherto.

7. His tenure of office must be guaranteed and should not be disturbed except for extremely compelling reasons and if any action is to be taken 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;

8. 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

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

Sarkaria Commission on choosing a Chief Minister by the Governor

Sarkaria Commission also gave certain guidelines for the Governor in choosing a Chief Minister.

1.  In choosing a chief Minister, the Governor should be guided by the following principles, viz..
a.  The party or combination of parties which commands the widest support in the Legislative Assembly should be called upon to form the government.
b.  The Governor’s task is to see that a government is formed and not to try to form a government which will pursue policies which he approves.

2.  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 Minister.

3.  If there is no such party, the Governor should select a Chief Minister from among the following parties or group of parties by sounding them, in turn, in the order of preference indicated below:
a.  An alliance of parties that was formed prior to the Elections.
b.  The largest single party staking a claim to form the government with the support of others, including ‘independents’.
c.  A post – electoral coalition of parties, with all the partners in the coalition joining government.
d.  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.
e.  The governor while going through the process described above should select a leader who in his (Governor’s) judgement is most likely to command a majority in the Assembly.

4.  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 days of taking over. This practice should be religiously adhered to with the sanctity of a rule of law.

5.  The Governor should not risk determining the issue of majority support, on his own, outside the Assembly. The prudent course for him would be to cause the rival claims to be tested on the floor of the House.

Sarkaria Commission on Article 356

With regards to President’s rule Sarkaria Commission pointed out, Article 356 should be used very sparingly, in extreme cases, as  a measure of last resort, when all available alternatives fail to prevent or rectify the breakdown of the constitutional machinery.

Removal of Governors by new government in the centre

The practice of replacement of Governors appointed by the previous regime has been political one (not a constitutionally mandated practice) but still has been practiced since long. This practice stood against the position of the Governor, who is Constitutional head of the State and is supposed to be neutral. “It is true that, the Governors today are being pejoratively called the ‘agents of the Centre’. But the Central Government is not expected to give any instructions which compromise the status and position of the Governor nor is it expected to remove him for not implementing instructions given by it”.. NCRWC

In 2004, after the Congress-led UPA-I came to power; the Centre had sacked four Governors appointed by the previous NDA government. It was argued that if a party which comes to power with a particular social with its policies, then should be able to remove such a governor. The issue cropped again in 2014 when NDA government arrived at the center and demands of removal of governors appointed by previous regime were made.

In B.P. Singh vs. Uol 2010, the Supreme Court cleared that “the Governor cannot be removed on the ground that he is out of sync with the policies and ideologies of the Union government or the party in power at the Centre. Nor can he be removed on the ground that the Union government has lost confidence in him” The court held that if the reasons for removal were irrelevant, male fide or whimsical, they could invite judicial intervention.