The Constitution of India has provided for parliamentary system of Government in which the executive head at the Centre is the President. Likewise, at the State level there is a provision for an institution of the Governor, who enjoy the same status as the President at the Centre. The Governor is appointed by the President and his tenure is of five years. As a matter of convention, the Chief Minister is consulted before the appointment of Governor for a particular State whose domicile is also of another State – another convention. The Governor must have the basic qualifications of being an Indian citizen and over the age of 35 years. The Governor enjoys protection against legal proceedings in the court of law as provided under Article 361. He is not answerable to the Court of Law for the exercise and performance of powers and duties of his office or for any act done or purporting to be done in the exercise or performance of his powers and duties. The Governor shall also not to be the member of the legislature either the Centre or at the State. If a member of a legislature is appointed as Governor, he shall be deemed to have vacated his seat in the legislature on the date of assumption of his office as Governor. The Governor also does not hold any office of profit. The Governor can resign and can be removed from his office by the President before the expiry of the term and there are many examples in our country when large number of Governors have been called back after the change of party in power at the Centre.
Constitutional Powers of the Governor
The Governor enjoys various powers as he is the chief executive authority at the State level. All the executive actions in the State are taken in his name. Also:
- He makes rules for the transaction of business of the Government and for the allocation of work among the Ministers.
- The Chief Minister is appointed by the Governor and the Council of Ministers hold office at the pleasure of the Governor.
- The Governor has the right to be informed of the transaction of business by the Council of Ministers.
- He appoints officials such as Advocate General, Chairman and members of Public Service Commission and Vice-Chancellors for the State University.
- Article 356, which is much in debate, has given power to the Governor to recommend to the President if a situation of emergency has arisen in the State.
- After the declaration of emergency, the Governor takes the full responsibility of administration of the State and as a representative of the Centre, he carries out the functions.
- The Governor has the power to summon and prorogue the State Legislature and also to dissolve the legislative assembly at any time. In fact, legislature is summoned and prorogued on the advice of Chief Minister.
- The Governor can also independently summon the legislature only in instances when the Chief Minister seems to deliberately evading constitutional obligations.
- The first session of the State legislature, after the general elections, and its first session of a calendar year, is opened by the Governor.
- He can also withhold or return the bill to legislature for consideration.
- He also hold important power to hold the bill for President’s consultation.
- The Governor also has the power to nominate about one-sixth of the Legislative Council members form among the persons having special knowledge in different fields.
- The Governor can also issue ordinance when the house is not in session.
- A Money Bill cannot be introduced in the state legislative without the prior approval of the Governor.
- The Contingency Fund of the State is also at the disposal of the Governor and he can use it for meeting unforeseen expenditures pending any authorization by the State Legislature.
- The Governor is also consulted by the President in matters relating to the appointment of Judges of the High Court of the State.
- The Governor also has the power to decide on matters relating to appointment, posting and promotion of district judges and judicial officers.
It seems that the Governor enjoys a large number of powers and has all chances to dictate his term on the Council of Ministers. In fact, the discretionary powers of Governor are given to meet extraordinary situations and not to be used in day -to- day functioning of the State. The concept of discretionary powers of the Governor has been taken from the Government of India Act 1935. The discretion such as appointment of Chief Minister, dismissing the Council of Ministers, summoning and dissolving the legislative assembly, reserving a bill for President’s consideration, invoking Article 356, in fact, make this institution very strong. However, as the Governor acts on the advice of the Centre and has the constant threat of being called back, he is; in fact, never free to use them at his will.
DISCRETIONARY POWERS OF THE GOVERNOR IN INDIA
The entire administration of the State is carried out in the name of the Governor but practically the real authority is exercised by the Council of Ministers. During the normal circumstances, Governor acts according to the advice of his Council of Ministers. However, Constitution has also vested the Governor with certain discretionary powers, which he can use without the aid and advice of the Council of Ministers or in other words, in the discharge of these functions the Governor concerned is not bound to seek or accept the advice of his Council of Ministers.
Discretionary powers of the Governor are:
- a) Article 239:
Article 239 provides that a Union Territory shall be administered by the President through an Administrator or a Governor of a State, adjoining Union Territory, may be appointed as the Administrator of that Union Territory. Where the Governor of a State is appointed as the Administrator of an adjoining Union Territory, he shall exercise his functions as the Administrator without the aid and advice of his Council of Ministers.
- b) Sixth Schedule:
Para nine of 6th schedule is related to the licences or leases for the purpose of prospecting for or extraction of minerals. It provides that “such share of the royalties accruing each year from licences or leases for the purpose of prospecting for or extraction of minerals guaranteed by the government of the State in respect of any area within an autonomous District as may be agreed upon between the government of the State and the District Council of such District shall be made over to that District Council. It further provides that if any dispute arises as to the share of such royalties to be made over to a District Council, it shall be referred to the Governor for determination and the amount determined by the Governor in his discretion shall be deemed to be final.
- c) Article 371:
Article 371 of the Constitution provides that the President may confer special responsibilities upon the Governor with respect to the State of Maharashtra and Gujarat for the establishment of separate Development Boards for Vidarbha, Marathwada, Saurashtra, Kutch and the rest of Gujarat with the provision that a report on the working of each of these Boards will be placed each year before the State Legislative Assembly.
Article 371 A of the Constitution has conferred special responsibilities on the Governor of Nagaland for certain purposes. The Governor after consulting his Council of Ministers, shall exercise his individual judgement as to the action to be taken. These responsibilities are: with respect to law and order so long as internal disturbances occur in some areas of that State; to establish a Regional Council for Tuensang District; to arrange for equitable allocation of money between Tuensang District and the rest of Nagaland.
Article 371 C of the Constitution confers special responsibilities upon the Governor of Manipur to secure the proper functioning of a Committee of the Members of the Legislative Assembly consisting of the members representing the Hill Area.
Article 371 F (g) of the Constitution confers special responsibilities upon the Governor of Sikkim for peace and for an equitable arrangement for ensuring the social and economic advancement of different sections of the population of Sikkim.
Article 371H (a) of the Constitution confers special responsibilities upon the Governor of Arunachal Pradesh with respect to law and order in the State of Arunachal Pradesh.
However, the Sarkaria Commission recommended that “before taking a final decision in the exercise of his discretion, it is advisable that the Governor should, if feasible consult his Ministers even in such matters, which relate essentially to the administration of a State”. Such a practice will be conducive to the maintenance of healthy relations between the Governor and his Council of Ministers.
- d) Appointment the Chief Minister
Governor uses his discretion in the appointment of the Chief Minister, where after the General Assembly elections, no single party or group commands absolute majority. He may call such person to form the government to whom he thinks fit to form the government. Similarly, if after the death or resignation of the Chief Minister on any political ground or after the defeat of the Chief Minister in the House, any party or group is not in majority, the Governor may appoint such person as the Chief Minister to whom he thinks fit.
- e) Article 200 When a Bill has been passed by the Legislative Assembly of a State or, in the case of a State having a Legislative Council, has been passed by both Houses of the Legislature of the State, it shall be presented to the Governor and the Governor shall declare either that he assents to the Bill or that he withholds assent therefrom or that he reserves the Bill for the consideration of the President. When a Bill is reserved by a Governor for the consideration of the President, the President shall declare either that he assents to the Bill or that he withholds assent therefrom: Provided that, where the Bill is not a Money Bill, the President may direct the Governor to return the Bill to the House or, as the case may be, the Houses of the Legislature of the State together with such a message as it mentioned in the first proviso to Article 200 and, when a Bill is so returned, the House or Houses shall reconsider it accordingly within a period of six months
from the date of receipt of such message and, if it is again passed by the House or Houses with or without amendment, it shall be presented again to the President for his consideration Procedure in Financial Matters
f) Dissolution of State Assembly: The Governor has the power to dissolve the Legislative Assembly.