This Article has been written by J.AKSHAYA from The Tamil Nadu Dr Ambedkar Law University, School of Excellence in Law, Chennai

INTRODUCTION:

The Governor is the head of the state. He is the chief executive of the state. He enjoys the same power as how the president enjoys in the centre. Generally in India both President and Governor are considered to be the titular head of the state. He is also considered to be an agent of Central government. The Governor office has a dual role to play. Articles 153 to 167 deal with the state government. Appointment of the Governor is specified in Article 153 of the Indian Constitution .Therefore the Governor needs to execute his powers with the help and advice of council of ministers headed by chief minister. Therefor the Governor has discretionary power and position to execute on behalf of the state. Under this Article we are going to cover appointment, qualification of Governor, condition of Governors and term of office, functions and powers of Governor.

APPOINTMENT OF THE GOVERNOR:

The Governor is neither directly elected by the people nor indirectly elected by a specially constituted electoral college as is the case like the president. The governor is appointed by the president by warrant under his hand and seal. He is the nominee of the central government. But as held by the Supreme Court in 1979, the office of the governor of the state is not an employment under the central government; It is an independent office and is not under the control of or subordinate to central government.

The constitution provided for the direct election of the governor on the universal adult suffrage. But the constituent assembly opted for the present system of appointment of governor by the president for the following reasons:

The governor is being the nominal head there is no point in involving more number of voters for election and also creates a conflict between the governor and chief minister. Though the appointment would be entirely based on personal basis and he would not been an impartial person. So it is better to nominate and appoint by the president and it also enables the centre to maintain its control over the states, political stability and unity of the country.

Therefore, the American model, where the Governor of the state is directly elected was dropped and adopted the Canadian model where the Governor of the province (state) is appointed by the Governor- General (centre), was accepted in the constituent assembly.

The constitution lays down two important qualifications which are required for the appointment of a person as a Governor; they are:

1. He should be a citizen of India.
2. He should be completed the age of 35 years.

Additionally two conventions has developed, first the governor shall not belong to the state where he is appointed so that he is free from local politics and secondly , while appointing the governor, the president is required to consult the chief minister of the state concerned, the smooth functioning machinery in the state is ensured.

CONDITIONS OF GOVERNOR’S OFFICE:

The constitution lays down the following conditions for the governor’s office under Article 158:

1. He ought not to be the individual from either house of the parliament or a place of the state governing body.
2. He ought not to hold any office of profit.
3. He can utilise his official home for other purposes, however, ought not to change rent for that.
4. If an individual is named as the overseer governor of other states, he is qualified to get the compensation of both states governor (chosen by the president of India).
5. When the same person is appointed as the governor of two or more states, the emoluments and allowances payable to him are shared by the states in such proportion as determined by the president.
6. His payments and remittances can’t be diminished amid his term of office.

In 2018, the parliament has increased the salary of the governor from Rs.1 .10 lakh to Rs.3.50 Lakh per month.

Like the president, the governor is also entitled to a number of privileges and immunities. 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 month notice, civil proceeding can be instituted against him during his term of office in respect of his personal acts.

OATH OF OFFICE OF GOVERNOR:

Before entering upon his office, the governor has to make and subscribe to an oath or affirmation. In his oath, the governor swears:

1. To faithfully execute the office;
2. To preserve , protect and defend the constitution and the law and
3. To device himself to the service and well-being of the people of the state.

The oath of office to the governor is administered by the Chief Justice of the concerned state High Court and in his absence, the senior most judge of that court available.

Every person discharging the functions of governor also undertakes the similar oath or affirmation.

TERM OF GOVERNORS OFFICE:

The term of the office of the Governor is usually for 5 years but Article 156 Lays out that the Governor shall hold office only during the pleasure of the President and resignation by the governor. Further, he can resign at any time by addressing a resignation letter to the president. The Supreme Court held that the pleasure of the president is not justifiable. The Governor has no security of tenure and no fixed term of office. He may also remove by the president at any time.

The constitution does not lay down any grounds upon which a governor may be removed by the president. Hence the National Front Government headed by V.P. Singh (1989) asked all the governors to resign as they were appointed by the congress government. Eventually some of the governors were replaced and some were allowed to continue. The same thing was repeated in 1991, when the congress government headed by P.V. Narashimarao changed fourteen governors appointed by V.P Singh and Chandra Sekhar government.

The president may transfer a governor appointed to one state to another state for the rest of the term. Further, a governor whose term has expired may be reappointed in same state or any other state. A governor may hold office for more than five years until his successor takes charge. The president can make such provision as he thinks fit for the discharge of the functions of the governor in any contingency not provided for in the constitution, for example, the death of a sitting governor. Thus the chief justice of the concerned state high court may be appointed temporarily to discharge the functions of the governor of that state.

FUNCTIONS OF GOVERNOR:

The governor possesses executive, legislative, finance and judicial powers more or less analogous to the president of India. However he has no diplomatic, military and emergency powers like the president.

The powers and functions of the governor can be stated under the following heads namely;

1. Executive Powers
2. Legislative Powers
3. Financial Powers
4. Judicial powers.

EXECUTIVE POWERS:

The executive powers and functions of the governor are:

1. All executive actions of the government of the state are formally taken in his name.
2. He can make rules specifying the manner in which the orders and other instruments made and executed in his name shall be authenticated.
3. He can make rules for more convenient transaction of the business of the state government and for the allocation among the ministers of the said business.
4. He appoints the Chief Minister and other ministers. They also hold office during the pleasure. There should be Tribal Welfare minister in the states of Chhattisgarh, Jharkhand, Madhya Pradesh and Odisha appointed by him. The state of Bihar was excluded from the provision by the 94^th Amendment Act of 2006.
5. He appoints the advocate general of the state and determines his remuneration. Holds office during the pleasure of the governor.
6. He appoints the state election commissioner and determines his condition of service and tenure of office. However the state election commissioner can be removed like grounds of a judge of a high court.
7. He can seek any information related to the administration of the affairs of the state and proposals for legislation from the chief minister.
8. He appoints the chairmen and members of the state public service commission. They can be removed by the president only.
9. He can require the chief minister to submit the consideration of the council of ministers any matter on the discussion has been taken by minister but which has not been considered by a council.
10. Governor acts as the chancellor of universities in the state. He also appoints the vice-chancellor of universities in the state.

LEGISLATIVE FUNCTIONS:

A governor is an integral part of state legislature. Some of the main legislative functions of the governor are:

1. He can summon the state legislature or prologue and dissolve the state legislature assembly.
2. He can address the state legislature at the commencement of the first session after each general election and the first session of each year.
3. He can send messages to the houses or houses of the state legislature, with respect to the bill pending in the legislature or otherwise.
4. He can appoint any member of the state legislature assembly to preside over its proceedings when the offices of the both chairman and deputy chairman fall vacant. Similarly he can also appoint any member of the state legislature council to reside over the proceedings when fall vacant.
5. He nominates one-sixth of the members of the state legislature council from against persons having special knowledge or practical experience in literature, science, art , corporate movement and social service.
6. He can nominate one member to state legislative assembly from the Anglo-Indian community.
7. He decides the question of disqualification of menbers of the state legislature in consultation with the election commission.
8. When a bill is sent to the governor after it is passed by the state legislature; he can:
9. Give assent to the bill
10. Withhold his assent to the bill
11. Return the bill for reconsideration
12. Reserves the bill for the consideration of the president.
13. He can promulgate ordinances when the state legislature is not in session. These ordinances must be approved by the state legislature within six weeks from its reassembly. He can also withdraw an ordinance anytime. This is the most important power of the governor.
14. He lays the report of the state Finance Commission, the State public service commission and the comptroller and auditor general- meeting to the accounts of the state, before the state legislature.

FINANCIAL POWERS:

1. He sees that the Annual Financial Statement (State budget) is laid before the state legislature.
2. Money bills can be introduced in the state legislature only with his prior recommendation.
3. No demand for a grant can be made except on his recommendation.
4. He can make advances out of contingency fund of the state to meet any unforeseen expenditure.
5. He constitutes a finance commission after every five years to review the financial position of the panchayats and the municipalities.

JUDICIAL POWERS:

1. He can grant pardons, reprieves, respites and remissions 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.
2. He is consulted by the president while appointing the judges of the concerned state high court.
3. He makes appointment, postings and promotions of the district judges in consultation with the state high court.
4. He also appoints persons to judicial services of the state in consultation with the State public service commission.

These are the important judicial functions of the governor.

What are the SC Judgments regarding the Office of Governor?

Shamsher Singh vs. State of Punjab(1974): The Supreme Court held that the Governor is bound to act in accordance with the aid and advice of the Council of Ministers headed by the Chief Minister. Article 154(1) makes it clear that the executive power of the State is vested in the Governor, but shall be exercised by him in accordance with the Constitution.

S R Bommai vs. Union of India (1994): The case was concerned with the use of Article 356 and the Governor’s power to dismiss a State Government. The Supreme Court ruled that whether the State Government has the majority should be tested on the floor of the House. It shouldn’t be based on the subjective assessment of the Governor.

Rameshwar Prasad vs. Union of India (2006): The Supreme Court held the Governor’s decision to dissolve the Assembly as unconstitutional and mala fide.

CONCLUSION:

The Union and State Governments should abide by the spirit of the Constitution as well as the Supreme Court’s Judgments in this regard. The implementation of recommendations of various Commissions can ensure that such needless controversies do not arise in future. The Governors should also act according to their Constitutional mandate, rather than acting as political agents. An active but unbiased Office of Governor can strengthen the Union-State relationship and the federal structure. The governor is the chief executive of the states and these are the core functions and powers which the governor has to follow.

REFERENCES:

1. M. Laxmikanth , Indian Polity ,McGraw Hill Education (India) Private Limited, 6^th edn;2020
2. J.N. Pandey , The Constitution Of India, Central Law Agency Hyderabad, 59^th edn.; 2022.
3. forumias.com/blog/issues-related-7
4. unacademy.com/content/clat/a
5. Subodh Asthana , the powers and position of a Governor as per the constitutional provisions., June 1 2019.