The Governor

Articles 152 to 167 & 213 Part VI, of the Constitution, containing Articles 152 to 237 regulates the matters relating to structure of the Government in the States specified in the First Schedule of the Constitution. 

The State executive consists of the Governor, the State Council of Ministers and the Advocate-General of the State.

The Governor

Article 153 provides that there shall be a Governor for each State. The Proviso to Article 153, inserted by the Constitution (Seventh Amendment) Act, 1956, explains that there shall be no prohibition as to the appointment of the same person as Governor of two or more States.

Appointment of the Governor (Article 155)

Article 155 lays down that the Governor of a State shall be appointed by the President by warrant under his hand and seal. Though, appointed by the President (i.e., the Central Government), the Governor is not in the employment under the Government of India. It has been held that the office of the Governor is an independent office and is not under the control of or subordinate to, the Government of India.”

Qualifications (Article 157):

Article 157 provides that a person to be eligible for appointment as Governor-

1. must be a citizen of India, and
2. must have completed the age of 35 years.

Condition of Governor’s office (Article 158):

Article 158 lays down the following conditions for the office of Governor:

1. 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 be 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.
2. The Governor shall not hold any other office of profit.
3. The Governor shall be entitled without payment of rent to the use of his official residences and shall be 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.
4. 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.
5. The emoluments and allowances of the Governor shall not be diminished during his term of office.

Term of office (Article 156):

• The Governor shall hold office during the pleasure of the President.
• The Governor may, by writing under his hand addressed to the President, resign his office.

Oath Or Affirmation by The Governor (Article 159)

Every Governor and every person discharging the functions of the Governor shall, before entering upon his office, make and subscribe in the presence of the Chief Justice of the High Court exercising jurisdiction in relation to the State, or, in his absence, the senior most Judge of that Court available.

Constitutional Position Of Governor

The Constitution of India provides for a parliamentary form of government in the states as in the Centre. Consequently, the governor has been made only a nominal executive, the real executive constitutes the council of ministers headed by the chief minister. In other words, the governor has to exercise his powers and functions with the aid and advise of the council of ministers headed by the chief minister, except in matters in which he is required to act in his discretion (i.e. without the advice of ministers).

In estimating the constitutional position of the governor, particular reference has to be made to the provisions of Articles 154, 163 and 164. These are:

• The executive power of the state shall be vested in the governor and shall be exercised by him either directly or through officer’s subordinate to him in accordance with this Constitution (Article 154).
• There shall be a council of ministers with the chief minister as the head to aid and advise the governor in the exercise of his functions, except in so far as he is required to exercise his functions in his discretion (Article 163).
• The council of ministers shall be collectively responsible to the legislative assembly of the state (Article 164). This provision is the foundation of the parliamentary system of government in the state.

From the above, it is clear that constitutional position of the governor differs from that of the president in the following two respects:

• While the Constitution envisages the possibility of the governor acting at times in his discretion, no such possibility has been envisaged for the President.
• After the 42nd Constitutional Amendment (1976), ministerial advice has been made binding on the President, but no such provision has been made with respect to the governor.

Activist Governor 

West Bengal Governor: Clash with West Bengal Chief Minister Mamata Banerjee over the Citizenship Amendment Act and proposed National Register of Citizens (NRC). He accused the Mamata Banerjee-led government of turning it into a police state. 

Maharashtra Governor: He has taunted the Government when they become secular. Such comment is against Constitutional ideas where secularism is considered as the Basic Feature of the Constitution. Recently, the Governor of Rajasthan has been charged with the violation of the model code of conduct. His support of the ruling party (That BJP should win) is against the spirit of non- partisanship that is expected from the person sitting on constitutional posts. 

Constitutional Role of Governor

N A Palkhivala: Governor should be an instrument to maintain the fundamental equilibrium and uphold the Constitutional mandates.

• Dr. B.R. Ambedkar described how a Governor should use his discretion not as “representative of a party” but as “the representative of the people as a whole. 
• Sarkaria Commission:- Governor must be a person from outside the State. 
• Punchhi Commission:- Recommended that Appointment of the governor should be entrusted to a committee comprising the Prime Minister, Home Minister, Speaker of the Lok Sabha and chief minister of the concerned state.
• The five-judge Constitution Bench in the Nabam Rebia judgment of 2016 ruled that Article 163 does not give Governors a “general discretionary power” as is often misunderstood. “The area for the exercise of his (Governor) discretion is limited. Even in this limited area, his choice of action should not be arbitrary or fanciful. 

Discretionary Power

Article 163: The Constitution envisages that the Governor act on the aid and advice of the Council of Ministers, except in those situations in which the decisions can be taken by the governor’s discretion which is categorized into two parts: 

1. Constitutional 

2. Situational

Constitutional Discretion of Governor

The Governors of states can act at their constitutional discretion in the following instances: 

• When they have to reserve the bill for the consideration of the President of India, Governors can decide on their own without the advice of the Council of Ministers 
• When he has to recommend for the President’s Rule in the state, he can act at his own discretion 
• When he is given an additional charge as the administrator of the Union Territory, he can take actions at his own discretion. 

Situational Discretion of Governor:

• When he has to appoint a CM after no party has a clear majority in the election or when the incumbent dies in the office 
• When he dismisses the council of ministers on an inability to prove confidence in the state legislative assembly 
• When he dissolves the state legislative assembly on time when it loses its majority 

Supreme Court Cases

Rameshwar Prasad Case (2006): 

Supreme Court has ordered following steps to be taken:

S. R. Bommai case (1994):

SC put an end to the arbitrary dismissal of State governments under Article 356 by spelling out restrictions. 

• The President can only suspend the Legislative Assembly by suspending the provisions of the Constitution relating to the Legislative Assembly. 
• If both Houses of Parliament disapprove or do not approve the Proclamation, the Proclamation lapses at the end of the two-month period. In such a case, the government which was dismissed revives.

The jurist H.M. Seervai gave an explanation about the spirit of Article 163, which, in a way, is a prologue to Article 164(1) dealing with “pleasure”. He said, “if Governors have discretion in all matters under Article 163(1), it would be unnecessary to confer on Governors an express power to act in their discretion in a few specified matters (by way of Article 163(2)) Constitutional Law of India.

Shamsher Singh vs State of Punjab (1974), the Supreme Court said that the President and Governor shall “exercise their formal constitutional powers only upon and in accordance with the advice of their Ministers save in a few well-known exceptional situations”.

MM Punchhi Commission

• The party or alliances which get the widest support in the Legislative Assembly should be called upon to form the government. 
• If there is a pre- poll coalition or alliance, it should be treated as one political party. And in case, such a coalition gets a majority, the leader of such alliances shall be called by the Governor to form the government.
• In case no pre-poll coalition or party has a clear majority, the governor should select the Chief Minister in the order of priorities indicated here: 
  • The group of parties which had a pre-poll alliance of the largest number. 
  • The largest single party which claims to form the government with the support of others. 
  • A post-electoral alliance with all partners joining the government. 
  • A post-electoral alliance where parties are joining the government and the remaining including independents are supporting the government from outside.
• In respect of bills passed by the Legislative Assembly of a state, the Governor should take the decision within six months whether to grant assent or to reserve it for consideration of the President.
• On the question of dismissal of a Chief Minister, the Governor should invariably insist on the Chief Minister proving his majority on the floor of the House for which he should prescribe a time limit.
• The convention of Governors acting as Chancellors of Universities and holding other statutory positions should be done away with. His role should be confined to the Constitutional provisions only.