Constitutional provisions related to the Governor

Constitutional provisions related to the Governor | Overview

• Introduction
• Qualification and Appointment of Governor
• Conditions and Tenure of Office of the Governor
• Powers, Functions and Privileges of Governor
• Conclusion

Introduction

Constitutional provisions related to the Governor are provided from Article 152 to Article 237. While the President is elected by the representatives of the people, namely, the Members of Parliament and the Members of the State Legislatures, the Governor is merely appointed by the President which really means, by the Union Council of Ministers. Inasmuch as the Governor holds office during the pleasure of the President, there is no security of his tenure. He can be removed by the President at any time.[1]

As it said that “as the President acts on the advice of his Ministry, it may be contended that if the Governor takes action contrary to the policy of the Union Ministry, he would risk being removed from his post as Governor and therefore he is likely to follow the advice of the Union Ministry.

The removal of the Governor under such circumstances would otherwise mean that the Union executive would effectively control the State executive, which is opposed to the basic scheme of our federal Constitution. Article 356(1) was designed to secure that if the Governor was pursuing policies which were detrimental to the State or to India, the President would remove the Governor from his office and appoint another Governor, hence, power takes the place of an impeachment which clearly is a power to be exercised in rare and exceptional circumstances”.[2]

Qualification and Appointment of Governor

Article 153 of the Indian Constitution provides that there shall be a Governor for each State however; nothing shall prevent the appointment of the same person as Governor for two or more States. Article 155 of the Constitution provides that the Governor of the State shall be appointed by the President by warrant under his hand and seal which means that the President has the right and power to appoint the governor of the State with the consultation and advice of the Council of Ministers.

Article 157 of the Constitution provides the qualification of the person for being eligible to be appointed as the Governor of a particular state that no person shall be eligible for appointment as Governor unless he is a citizen of India and has completed the age of thirty-five years.

In Ramesh Chandra v. State of Rajasthan,[4] it was held by the court that Article 155 of the Constitution, in my view, only provides for the appointments to a Constitutional office and it cannot be held that the Governor of a State holds employment under the Government of India merely because he holds an office or is appointed thereto. It is difficult to conceive that there are a master and servant or an employer and an employee relationship between the Government of a State & the Government of India.

Conditions and Tenure of Office of the Governor

Article 156 provides for the tenure of the governor of the States in which he has been prescribed that he shall hold the office during the pleasure of the present. The clause (2) of the Article provides that the Governor shall provide the resignation in writing to the President. The clause (3) of the Article provides that the governor holds the office for the term of five years from the date on which he enters upon his office, provided, that a Governor continues to hold office until his successor enters upon his of his term.

There are certain conditions as well according to which the Governor holds the office which is being described in Article 158. The clause (1) of the Article states that the Governor should neither be a member of House of parliament nor of a House of Legislature of any of the State which have been specified in the first schedule. Also, it has been provided that if any member who has been the member of House of People r of the State Legislature has been appointed as the Governor, he will be deemed to have vacated the seat that he held earlier in the House on the date on which he enters upon his office.

The clause (2) prohibits the Governor to hold any office of profit. According to the clause (3) of the Article, the Governor is entitled to use the official residences without the payment of rent for the same and is entitled to such emoluments, allowances and privileges which has been determined by law or by Parliament until the contrary has been made. The clause (4) states that the emoluments and allowances of the Governor shall not be diminished during his term of office.

Powers, Functions and Privileges of Governor

The Governor is vested with numerous powers and is responsible to perform certain functions. The Governor is being provided with certain privileges as well.

Executive Power

Article 154 states that the Governor is vested with the executive power of the State which are being exercised by him either directly or through the subordinate officers in accordance with this Constitution. The clause (2) of the Article states that nothing in this article shall be deemed to transfer to the Governor any functions conferred by any existing law on any other authority; or shall prevent Parliament or the Legislature of the State from conferring by law functions on any authority subordinate to the Governor.

Article 162 states that there is a certain extent of exercise of the executive power by the Governor. Subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has the power to make laws; provided that in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made by Parliament upon the Union or authorities thereof.[5]

In State of Orissa and another v. Pradipta Kumar Behera,[6] it was held that the scope of Articles 162 and 309 of the Constitution of India is that any rule enshrined under Article 309 of the Constitution of India cannot be supplemented by executive instruction framed under Article 162 of the Constitution of India.

Linchpin in Centre and State Relations

The term linchpin refers to the connection between the two parties. Jawaharlal Nehru, in his famous speech, once referred to the Governor as being the “linchpin of constitutional apparatus of State”. On the one hand, he is the Constitutional Head of the State and is a part of the State apparatus. On the other hand, he is the representative of the Central Government in the State and thus provides a link with Centre.[7] In the exercise of his legislative powers, the governor has the power to reserve some of the bills for the president and also when the State legislature is not in session and the governor considers it necessary to have a law, then the governor can promulgate ordinances.

These ordinances are required to be submitted to the state legislature in its next session. According to the Report of the Administrative Reforms Commission,

“the Governor functions, for most purposes, as a part of the State apparatus; but he is meant, at the same time, to be a linked with the Centre and this link and his responsibility to the Centre flow out of the Constitution mainly because of the provision that he is appointed and can be dismissed by the President, hence, The Constitution specifically provides for a departure from the strict federal principles and it is relevant to observe that this departure is not fortuitous or casual”.[8]

However, the office of the Governor is often misused than being used for productive purposes. In State of Rajasthan v. Union of India,[9] Justice Bhagwati has also conceded that the inclusion of the word ‘otherwise’ in Article 356 gave the President very drastic Powers which, if misused or abused can destroy the Constitutional equilibrium between the Union and the States.

Discretionary Powers

According to Article 161 of the Indian Constitution, the Governor of a State has enormous power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or 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. Hence the Governor can order life imprisonment but cannot order a death sentence.

In Baldev Singh v. State of Punjab,[10] it was held by the court that where a convict under the NDPS Act was seeking benefit of the Circular issued by the State Government under Article 161 of the Constitution on the occasion of Independence Day, whereby, all prisoners who had been convicted in the State of Punjab and confined to jails as on August 15, 2003 were given one-year special remission.

The Court relying upon the decision of Ekka Ram’s case held that the embargo under Section 32-A of the NDPS Act was applicable only to executive decisions under Section 432 of the Code of Criminal Procedure, but did not apply for the purpose of imposing any restriction on the powers of the Governor under Article 161 of the Constitution of India and has held that the convicts are also entitled to the benefit of aforesaid Circular.

In Kuldip Singh v. State of Punjab,[11] while following the decision in Ekka Ram’s case, the court held that the convicts under the NDPS Act are entitled to special remissions granted by the State under Article 161 of the Constitution of India.

In Charanjit Singh v. The State of Punjab,[12] the court again considered the aforesaid question with regard to the eligibility of grant of special remissions to the convicts undergoing imprisonment. The Court by following the decision of Ekka Ram’s case allowed the benefit of remissions under the Circulars issued by the State Government under Article 161 of the Constitution of India.

Conclusion

The Governor is the Constitutional Head of a State and hence, is dignified part of the Government as he is highly respected and is supposed to be a non-partisan functionary.

---

[1] A Consultation Paper on The institution of Governer Under the Constitution prepared by Justice Shri B.P. Jeevan Reddy, Member of the Commission, National Commission to Review the Working of the Constitution

[2] H.M. Seervai, Constitutional Law of India, Fourth Ed. Vol. Ill, N.M. Tripathi, Bombay, 1996, p. 3103

[4] 1977 WLN 414

[5] Article 162, the Constitution of India, 1950

[6] W.P.(C) No.7473 of 2017 & W.P.(C) No.21249 of 2016

[7] M.P. Jain, Indian Constitutional Law (1987) p. 187

[8] Administrative Reforms Commission Report Vol. 1, Sept. 1967, pp. 272-273

[9] AIR (1977) SC 1361

[10] Crl.W.P.No.729 of 2005

[11] Crl.W.P.No.2084 of 2010

[12] 2011(1) RCR (Crl.) 75

---

1. Constitutional Provisions Related to President of India(Opens in a new browser tab)
2. Relationship between Fundamental Rights and Emergency Provisions(Opens in a new browser tab)