Governor of a state – Power, Tenure, Qualifications, Appointment

Governor of a state – Power, Tenure, Qualifications, Appointment

The Constitution of India by Article 153 Creates the Office the Governor. Each State shall have a Governor, However one person can be appointed Governor for two or more State. Under Art 155 The Governor of a State is appointed by the President of India. He is neither elected by the Direct vote of the People nor by an Indirect vote by a specially constituted Electoral College as in the case with the President. He is a nominee of the Central Government.

Qualification :

Under Article 157 of Indian Constitution a person to be eligible to be appointed as Governor must be

1. He is a Citizen of India
2. He has completed the Age of 35 years

Condition of Governor’s Office:

The Governor must not be a Member of either House of Parliament or of a House of the Legislature of any State. If a member of either House of Parliament or of a House of the Legislature of any such State is appointed as Governor, he shall be deemed to have vacated his seat in the House on the date on which he enters upon his office as Governor. Art. 158(1). He shall not hold any other office of Profit Art. 158(2)

Official Residence, Emolument and Allowances of Governor:

The Governor shall be entitled to use his official residence free of rent. He is 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.

Oath by the Governor:

According to Article 159, before entering upon his office, is required to take an oath of affirmation in the presence of the Chief Justice of the High Court or, in his absence, the seniormost Judge of the Supreme Court available, ‘to preserve, protect and defend the Constitution and the law and to devote himself to the service and well-being of the people of India’.

Tenure and Removal:

Article 156 says that the Governor shall hold office for a term of five years from the date on which he enters upon his office.
He may be removed by from his office at any time by the President. The President acts on the advice of the Cabinet. The Governor may, resign his office by writing to the President. The five years term provided for the Governors under clause(3) is subject to exercise of pleasure by President under Clause (1) of Art. 156.

Scope of Article 156(1) and the Limitations on Doctrine of Pleasure:

Under Article 156(1) the Governor holds office during the pleasure of the President. Therefore, the President can remove the Governor from office at any time without assigning any reason and without giving any opportunity to show cause.

Though no reason need be assigned for discontinuance of the pleasure resulting in removal, the power under Article 156(1) cannot be exercised in an arbitrary, capricious or unreasonable manner. The power will have to be exercised in rare and exceptional circumstances by the petitioner.

A Governor cannot be removed on the ground that he is out of sine with the policies or ideologies of the Union Government or the party in power at Centre nor he can be removed on the ground that the Union government has lost confidence in him. It follows therefore that change in Government at Centre is not a ground for removal of Governors holding office to make way for others favoured by the new government.

As there is no need to assign reasons, any removal as a consequence of withdrawal of the pleasure will be open to a very limited judicial review. If the aggrieved person is able to demonstrate prima facie that his removal was either arbitrary, mala fide, capricious or whimsical, the Court can call upon the Union Government to disclose to the Court the material upon which the President has taken decision to withdraw the Pleasure.

Powers of the Governor:

Executive Powers of President

• For every executive action that the State Government takes is to be in his name
• He may/ may not make rules to simplify the transaction of the business of the Central Government
• Chief Ministers and other ministers of the States are appointed by him.
• It is his responsibility to appoint Tribal Welfare Minister in the States of:

1. 1. Chattisgarh
   2. Jharkhand
   3. Madhya Pradesh
   4. Odisha

• He appoints the advocate general of states and determines their remuneration.
• He Appoints the Following People:
  1. State Election Commissioner
  2. Chairman and Members of the State Public Service Commission
• Vice-Chancellors of the Universities in the State.
• A Constitutional emergency in the state is recommended to the President by him.

Legislative Power of President

• He summons or progures Parliament and dissolve the State legislative assemblies
• He addresses the state legislature at the first session of every year
• If the speaker of the legislative assembly is absent and the same is Deputy Speaker then Governor appoints a person to preside over the session
• As President nominates 12 members in Rajya Sabha, Governor appoints 1/6of the total members of the legislative council from the fields of:
  • Literature
  • Science
  • Art
  • Cooperative Movement
  • Social Service
• He consults the Election Commission of India on question of disqualification of MP

Financial Powers of President

• He looks over the state budget laid in the state legislature
• His recommendation is a prerequisite for the introduction of money bill in the state legislature
• Contingency Fund of State is under him and he makes advances out that to meet unforeseen expenditure.
• He constitutes the Finance Commission every five years

Diplomatic Power of President

International Treaties and Agreements are approved by the Parliament and Negotiated and Concluded in his Name.

Judicial Powers of President

• He has the following pardoning powers against punishment:

1. Pardon
2. Reprieve
3. Respite
4. Remit
5. Commute

• President consults the Governor while appointing judges of High Court
• In consultation with the state High Court, Governor makes appointments, postings, and promotions of the district judges
• In consultation with the state High Court and state public service commission, he also appoints persons to the judicial services.

Ordinance-making Power of the Governor

The Ordinance-making power of the Governor under Art. 213 is similarly to that of the President under Art. 123. The Governor can issue Ordinance only when two conditions are fulfilled:

1) The Governor can only issue Ordinances when the Legislative Assembly of a State is not in session or where there are two Houses in a State both Houses are not in session.

2)  The Governor must be satisfied that circumstances exist which render it necessary for him to take immediate action. The Court cannot question the validity of the Ordinance on the ground that there was no necessity or sufficient ground for issuing the Ordinance by the Governor. The existence of such necessity is not a justiciable issue. The exercise of Ordinance-making power is not discretionary.

References:-

D.D. Basu, Commentary on India Constitution, Justice. S.S. Subramani

D.C. Jain, Constitution of India by V.N. Shkula (1969)

Dr. J. N. Pandey, Constitutional Law of India (1969)

Sujata.V. Manohar, T.K. Tope’s Constitutional Law of India (2010)

 

Author: R. Shanmuga Sundaram,
LLB (Hons) 2nd Year - Chettinad School of Law