Appointment of Governor, Terms of Office of the Governor

Governor of the Indian states

Introduction:

• The Governor’s appointment, his powers, and everything related to the office of the Governor have been discussed under Article 153 to Article 162 of the Indian Constitution.
• The role of the Governor is quite similar to that of the President of India. The Governor performs the same duties as of President, but for the State. Governor stands as the executive head of a State and the working remains the same as of the office of the President of India. Under the Constitution of India, the governing machinery is the same as that of the Central Government.
• It is stated that the Governor has a dual role.
• He is the constitutional head of the state, bound by the advice of his council of ministers.
• He functions as a vital link between the Union Government and the State Government.

Constitutional Provisions related to Governor:

• The appointment and powers of government can be derived from Part VI of the Indian constitution. Article 153 says that there shall be a Governor for each State. One person can be appointed as Governor for two or more States.
• The governor acts in a ‘Dual Capacity’ as the Constitutional head of the state and as the representative.
• He is part of a federal system of Indian polity and acts as a bridge between union and state governments.
• Article 157 and Article 158 of the Constitution of India specify eligibility requirements for the post of governor. They are as follows:
• A governor must:
  1. Be a citizen of India.
  2. Be at least 35 years of age.
  3. Not be a member of either house of the parliament or the house of the state legislature.
  4. Not hold any office of profit.
• The term of governor’s office is normally 5 years but it can be terminated earlier by:
1. Dismissal by the president on the advice of the council of ministers headed by the prime minister of the country.
2. Dismissal of governors without a valid reason is not permitted. However, the President must dismiss a governor whose acts are upheld by courts as unconstitutional and malafide.
3. Resignation by the governor.

Constitutional provisions:

• Article 163: It talks about the discretionary power of the governor.
• Article 256: The executive power of the Union shall extend to the giving of such directions to a State as may appear to the Government of India to be necessary for that purpose.
• Article 257: The executive power of the Union shall also extend to the giving of directions to a State as to the construction and maintenance of means of communication declared in the direction to be of national or military importance:
• Article 355: It entrusts the duty upon the Union to protect the states against “external aggression” and “internal disturbance” to ensure that the government of every State is carried on by the provisions of the Constitution.
• Article 356: If a state government is unable to function according to constitutional provisions, the Central government can take direct control of the state machinery. The state’s governor issues the proclamation, after obtaining the consent of the President of India.
• Article 357: It deals with the Exercise of legislative powers under the Proclamation issued under Article 356 by the central government.

Appointment of Governor:

• The Governor is neither directly elected by the people nor indirectly elected by a specially constituted electoral college as is the case with the President.
• He is appointed by the President by warrant under his hand and seal. He is a nominee of the Central government.
• Supreme Court in 1979, held that the office of Governor of a state 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.
• The Draft Constitution provided for the direct election of the Governor based on universal adult suffrage. However, Constituent Assembly opted for the present system of appointment of the Governor by the President.

Conditions:

• The Governor shall not be a member of either House of Parliament or of a House of the Legislature of any State specified in the First Schedule, and if a member of either House of Parliament or of a House of the Legislature of any such State 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.
• The Governor shall not hold any other office of profit.
• The Governor shall be entitled to an official residence and shall be also entitled to such emoluments, allowances, and privileges as may be determined by Parliament by law.
• 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 – charged upon Consolidated Fund of India

• Terms of Office of the Governor:

• The Governor shall hold office at the pleasure of the President.
• The term of the Governor is prescribed as five years. The Governor may, under his hand resign to President.
• There is a controversy about whether the five-year term is more important than the reference to the pleasure of the President of India.

Power and Functions of Governor

Executive Powers:

• The executive power of the state is vested in the Governor.
• He Exercises it either directly or through officers subordinate to him.
• It has been held that ministers are, officers subordinate to them.
• The executive power of the governor extends to all matters concerning which the State Legislature has the power to make laws.
• All executive is expressed to be taken in the name of the Governor.
• All orders, instruments, etc are authenticated in the manner specified in the rules made by the Governor.
• Appoints the Chief Minister and other ministers are appointed by him on the advice of the Chief Minister.
• Appoints the Council of Ministers, Advocate General, Chairman, and the members of the State Public Service Commission.
• He is the chancellor of a state university.

Legislative Powers:

• Governor is an integral part of the state legislature
• He summons, dissolves, and prorogues the state assemblies
• He gives assent to the bills.
• Right to address the state legislature
• He also nominates 1/6 of the members of the Legislative Council (Art.171).
• He disqualifies MLAs on the opinion of the election commission
• Governor lays down various reports in the state legislatures – for example, state finance commission reports.
• He can also nominate one member from Anglo Indian community to the Legislative Assembly.

Financial Powers:

• A money bill cannot be introduced in the Legislative Assembly of the state without the recommendation of the Governor.
• No demand for grants can be made except on the recommendation of the Governor (Art.203).
• The Governor ensures that the annual financial statements (known as a budget) are laid before the house or houses of the Legislature (Art. 202).
• He appoints members of the State Finance Commission.

Judicial Powers:

• He appoints and transfers District Court Judges (Article 233)
• As per Art.217, he is entitled to be consulted in appointments of judges in the state high courts.
• Governor also administers the Oath of office to the High Court Judges
• 234 – bats for Appointments of persons (other than district judges) to the judicial service of the state by the Governor.

Pardoning Powers of Governor:

Governor has the authority to pardon, reprieve, respite, remit, postpone, or commute the punishment or sentence of any person convicted of any violation of state law.

1. Pardon: It relieves the offender of all sentences, punishments, and disqualifications by removing both the penalty and the conviction.
2. Commutation: It refers to the exchange of one type of punishment for a less severe form of punishment. A death sentence, for example, may be reduced to harsh imprisonment.
3. Remission: This term refers to shortening the length of a sentence without changing its essence. A sentence of rigorous imprisonment for two years, for example, may be reduced to rigorous imprisonment for one year.
4.  Respite: It is the awarding of a lower sentence in exchange for the original sentence owing to some particular circumstance, such as the convict's physical impairment or the pregnancy of a female offender.
5.  Reprieve: It denotes a temporary suspension of execution of a sentence (e.g., death penalty). Its goal is to provide the convict enough time to seek pardon or commutation.

Limitations:

1. The governor cannot pardon a death sentence. Even if state law requires a death sentence, the President, not the Governor, has the authority to grant a pardon. However, the Governor has the authority to suspend, remit, or commute a death sentence.
2. Governor does not possess any such power to grant pardon, reprieve, respite, suspension, remission, or commutation concerning punishment or sentence by a court-martial (military court).

Discretionary Powers:

The discretionary powers of the Governor in the state are far greater than those of the President in the center. Some of the Governor's discretionary powers are as follows:

• A law passed by the state legislative assembly may be reserved for the President's assent by the Governor [Article 200].
• The governor determines the amount of money payable by the tribal government (Assam, Meghalaya, Mizoram, and Tripura) to an autonomous Tribal District Council as royalty on mineral development licenses.
• The governor may decline to sign a regular bill passed by the state legislature.
• When no political party has a clear majority in the state legislature, he has the authority to nominate anyone as Chief Minister.
• Under Article 356, he can recommend to the President the imposition of constitutional emergency in a state and the imposition of President's rule in the state.
• While performing his duties as the administrator of an adjoining Union territory, he has the authority to act at his discretion (in case of an additional charge).
• He can seek information from the chief minister on state administrative and legislative concerns.
• The governor has the authority to remove the council of ministers when it cannot prove confidence in the state legislative assembly.

 Important Judgements related to Article 356:

• SR Bommai vs. Union of India (1994) was a landmark judgment of the Supreme Court of India in which the Court considered at length provisions of Article 356 of the Indian Constitution and associated concerns.
• This case had a significant impact on Centre-State Relations.
• The judgment tried to put a stop to the systematic misuse of Article 356 of the Indian Constitution, which allows the President to impose his rule over state governments.

Governors are also allocated special tasks for specific sections of the country to improve the administration:

1.  Article 371(2): designates the Governors of Maharashtra and Gujarat as having specific responsibility for the establishment of development boards in Vidarbha, Marathwada, Saurashtra, and Kutch, among other places.
2.  Article 371A:  assigns the Governor of Nagaland specific responsibility for law and order – 

•  As long as internal disturbances prevail in any section of the state
•  to form a Tuensang district regional council
•  to make arrangements for an equitable distribution of funds between Tuensang district and the rest of Nagaland.

3. Article 371C(1): assigns the Governor of Manipur the special obligation of ensuring the proper functioning of a Legislative Assembly committee composed of members from the hill areas.
4. Article 371F(g): assigns special responsibility to the Governor of Sikkim for maintaining peace and ensuring the advancement of all sections of Sikkim's population.
5. Article 371H(a): assigns the Governor of Arunachal Pradesh special responsibility for maintaining law and order in the state.

Veto Powers of Governor
Ordinary Bill	Money Bill
Every ordinary bill, after being enacted by the legislative assembly in the case of a unicameral legislature or by the Houses in the case of a bicameral legislature, is presented to the Governor for assent, who may - Give assent to the bill, which then becomes an act. Withhold assent to the bill, the bill then ends and does not become an act. Refer the bill back to the House of Representatives for reconsideration. If the bill is passed by both houses again, with or without amendments, and given to the Governor for his approval, the Governor must approve it. As a result, the Governor enjoys only a suspensive veto. Reserve the bill for the President's consideration. When the Governor reserves a bill for the President's consideration, he has no further role in the bill's enactment. If the President returns the bill to the House or Houses for reconsideration and it is passed again, the law must be offered again for Presidential assent only. If the President gives assent to the bill, it becomes an act. This means that the Governor's approval is no longer required.	After being passed by the State Legislature, a money bill is forwarded to the Governor for his approval, who may - Give assent to the bill, and it will become an act. Withhold assent to the bill, the bill then ends and does not become an act. Reserved the bill for the President's consideration. As a result, the Governor cannot return a money bill to the state assembly for reconsideration. When the Governor reserves a money bill for the President's consideration, he has no further role in the bill's enactment. When the President gives his assent to the bill, it becomes an Act. This means that the Governor's approval is no longer required.

Immunities Enjoyed by the governor

• No criminal proceedings may be brought against a state's governor in any court during his full term of office [Article 361(2)].
• No court has the authority to issue an arrest warrant for the Governor.[Article 361(3)]
• During his tenure of office, the Governor is not personally accountable or answerable to any court for the exercise and performance of his power [Article 361(1)].
• Civil procedures in respect of his personal acts 361(4) can be launched against him during his term of office after giving two months' notice.

  Breaches on the Governor's Constitutional Immunity  :

• Recently, there have been a few instances of the Governor's constitutional immunity being violated.
• The CBI questioned the governors of West Bengal and Goa over their roles in the defense deal: In the recent case of the Governors of West Bengal and Goa being questioned, the room highlighted the topic of a legal dispute over whether they are entitled to constitutional immunity from the inquiry. The Central Bureau of Investigation has questioned the Governors of West Bengal and Goa about alleged corruption in the sale of 12 helicopters to India by Agusta-Westland (an Anglo-Italian defense manufacturer).
• Madhya Pradesh's Vyapam Case On a petition seeking the removal of the Madhya Pradesh Governor for his alleged role in the Vyapam scam, the Supreme Court issued a notice to the state government and the governor of Madhya Pradesh. The role of the Governor was underlined by the Central Bureau of Investigation in the Vyapam inquiry investigation, as he enjoys constitutional immunity from arrest and criminal investigation.

Appointment of Lieutenant Governor:

• A union territory in India is administered by a lieutenant governor.
• The Governor and Lieutenant Governor of India have the same duties and functions as the President of India under the Indian Constitution.
• The office of Lieutenant Governor is now held by three Indian Union Territories: the National Capital Territory of Delhi, the Andaman and Nicobar Islands, and Puducherry.
• The functions, powers, and duties of the Lieutenant Governor are defined under Articles 239 and 239 AA of the Indian Constitution.
• The Lieutenant Governor serves an important constitutional function.
• He is appointed by the President of India and functions as the President's representative, with the aid and advice of the Council of Ministers.

Under the President's rule, the Lieutenant Governor becomes the government's full-fledged executive head, with the authority to create a council of ministers of advisors. The length of the President's rule is also up to the Lieutenant Governor's discretion.

Powers of Lieutenant Governor:

• A Lieutenant Governor has the same powers as Governor:
• The governor has the power to administer the state which is equivalent to that of the President.
• The governor can appoint Chief Ministers, Ministers, State Election Commissioner, and judges of the District Courts.
• The governors serve as Chancellors of all the universities in the state.
• The governor can also dissolve the state Assembly if they see the need, and if the Assembly is not in session, they can promulgate ordinances.
• The governor can also disqualify a legislator based on the recommendation of the Election Commission.
• The Governor holds the power to rule the state in case the ruling party loses its majority in the Assembly.

Discretionary Power of Lieutenant Governor:

• The Lieutenant Governor shall act at his discretion in a matter:
  • which falls outside the purview of the powers conferred on the Legislative Assembly but in respect of which powers or functions are entrusted or delegated to him by the President; or
  • in which he is required by or under any law to act at his discretion or to exercise any judicial or quasi-judicial functions.
• If any question arises as to whether any matter is or is not a matter as respects which the Lieutenant Governor is by or under any law required to act in his discretion, the decision of the Lieutenant Governor thereon shall be final.
• If any question arises as to whether any matter is or is not a matter as respects which the Lieutenant Governor is required by any law to exercise any judicial or quasi-judicial functions, the decision of the Lieutenant Governor thereon shall be final.

Conclusion

Conclusion

As the Supreme Court ruled in 1979, the office of the Governor is not a position or Employment in the Central Government. The Governor's office is an independent constitutional post that is neither subordinate to nor controlled by the central government. In the B. P. Singhal case, a Supreme Court Constitutional bench ruled in 2010 that the central government has the authority to remove Governors of various states as long as it does not act arbitrarily, without reason, or in bad faith. Thus the Governor of a state serves as both the constitutional head of the state and the center's agent or representative.

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