Describe in detail, the methods of appointment, powers and position of the Governors.
Ans. Appointment and powers of the Governors.—Article 153 of the Constitution lays down—”There shall be a Governor for each state: Provided that nothing in this Article shall prevent the appointment of the same person as Governor of two or more States.” The Governor of a State shall be appointed by the President by warrant under his hand and seal (Article 155). No person shall be eligible for appointment as Governor unless he is a citizen of India and has completed the age of 35 years (Article 157). 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. Subject to the above provisions, a Governor shall hold office for a period of 5 years from the date on which he enters upon his office. But notwithstanding the expiration of his term, a Governor shall continue to hold office until his successor enters upon his office, [Article 156].
Conditions of Governor’s Office.—The Governor shall not be a member of either House of Parliament or the Legislature of any State and if any such member is appointed as Governor, his seat as such member shall be deemed to have been vacated on the date on which he enters upon his office as Governor. The Governor shall not hold any other office of profit. He shall be entitled without payment of any rent to the use of his official residence and shall also be entitled to such emoluments, allowances and privilege 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 of the Constitution. The emoluments and allowances of the Governor shall not be diminished during his term of office (Article 158). The Governor’s salary has been raised from Rs. 36000 to Rs. 1,10,000 per month through the Governor’s (Employment Allowances and Privileges) Amendment Act, 2008. The Governor shall, before entering upon his office, make and subscribe, in the presence of the Chief Justice of the High Court or in his absence, the senior most judge of that Court available, an oath or affirmation in the form prescribed in Article 159 of the Constitution. In a landmark judgment in B. P Singhal v. Union of India, (2010) 6 SCC 331 the Supreme Court has held that the Governor cannot be dismissed arbitrarily on the ground that he does not agree with the policies and ideology of the Union Government in power or has lost its confidence. The petitioner had filed a writ petition as PIL challenging the removal of Governors of U.P., Gujarat, Haryana and Goa, on 22.7.2004 as illegal. The Union Government argued that the petitioner has no locus standi to maintain the petition but the Court has held that he has right to maintain the petition as the matter was of great importance of substantial nature. He argued that the Governor hold a constitutional office and performs important functions and the fact that he holds office during the pleasure of the President does not make the Governor an employee or servant or agent of the Union Government. The doctrine of pleasure simply means that he cannot be supplied reasons for his dismission. This English doctrine does not apply in India as it is a democratic country and where rule of law prevails. The doctrine of pleasure cannot be applied at the sweet will whim and fancy of the authority but only be for valid reasons. A limited Judicial Review is available in it.
Powers of Governor.—The Head of the State is known as Governor, his powers are analogous to those of the President with certain important distinctions. The President is elected to his office, while Governor are appointed by the President, and hold office during his pleasure and may be dismissed from office by him. The powers of a Governor may be classified under the following four heads: (I) Executive (2) Legislative (3) Financial (4) Judicial (Pardoning, commutation, etc.)
1. Executive Powers.—The executive powers of the State is vested in the Governor to be exercised by him either directly or through officers subordinate to him (Article 154). All executive actions shall be expressed to be taken in his name. The executive power of a State, shall extend to matters in respect to which the Legislature of a State has power to make law. In any matter with respect to which both the Legislature of a State and Parliament have powers to make laws, i.e., if it is a matter mentioned in the Concurrent List the executive power of the State shall be subject to and limited by the executive powers conferred by the Constitution or by any Jaw made by Parliament upon the Union or authorities thereof. (Article 162). The Governor appoints the Chief Minister and other Minister on the advice of Chief Minister. The Minister hold office during the pleasure of the Governor. The Council of Minister is, however, responsible to the State Legislature or to the Lower House of such Legislature where the Legislature consists of two Chambers. This means that so long the ministers enjoy the confidence of the Legislature they cannot be dismissed by the Governor. This makes the Governor a Constitutional Head like the President of India.
2. Legislative Power.—The Governor is part and parcel of the Legislature of a State which consists of the Governor and the House or Houses of Legislature as the case may be (Article 168). The Governor nominates one-sixth of the total number of the members of the Upper House of Legislative Council where such Council exists. The Governor makes nominations of persons having special knowledge or experience in literature, science, art, co-operative movement and social service (Article 171). He may nominate one members of the Anglo-Indian Community if he is of opinion that the Anglo-Indian Community needs representation in the Legislative Assembly of the State and is not adequately represented therein [Article 333]. The Governor summons, prorogues the Houses of the Legislature and dissolves the Legislative Assembly (Article 174). He addresses the Houses of the Legislature (Articles 175, 176). He gives assent to Bills without which no Bill can become law (Article 200). He sends messages to the Legislature (Article 176). The Governor is empowered to make rules for the more convenient transaction of the business, of the Government of the State, and for the allocation among minister of the said business in so far as it is not business with respect to which the Governor is by or under the Constitution required to act in his discretion (Article 166). He appoints the Advocate-General of the State (Article 165), The Chairman and members of the State Public Service Commission (Article 316), and the judges of subordinate judiciary in consultation with the Stale High Court (Articles 283, 284).
Ordinance-making power of Governor.—The most important legislative power of the Governor is the power to promulgate ordinances under Article 213. His powers in this respect are similar to those of the President. Ordinances are promulgated when the Legislature is not in session and the matters to which the Ordinance relates require an immediate action in this respect. There are certain Ordinances which cannot be promulgated without instructions from the President. Such an instruction is required of a Bill containing the same provisions as the Ordinance would (i) have required the previous sanction of the President before introduction in the Stale Legislature, or (ii) have been reserved by the Governor for the consideration of the President, or (iii) have required the assent of the President before becoming law (Article 213). Every such Ordinance shall be laid before the Legislative Assembly of the State or where there is a Legislative Council in the State, before both Houses, and shall cease to operate, unless withdrawn earlier by the Governor, at the expiry of six weeks from the re-assembly of the Legislature, or if before the expiry of that period a resolution disapproving it is passed by the Legislative Assembly and agreed to by the Legislative Council, if any, (Article 213). Assent to a Bill is an important legislative power vested in a Governor. He may (i) give his assent to the Bill, or (ii) without his assent, or (iii) reserve the Bill for the consideration of President who may exercise the powers which the Governor would have otherwise exercised in respect of the Bill, or (iv) return a Bill, other than a Money Bill, to the Legislative, But if a Bill is passed again with or without amendment he shall not withhold his assent therefrom. The Governor shall reserve all Bills for the consideration of the President which would, if they become law, so derogate from the powers of the High Court as to endanger the position which that Court is by the Constitution designed to fulfil (Article 200). If assent is withheld, it means that the Bill has been vetoed. A Bill shall be reserved for the assent of the President if it provides for compulsory acquisition of property.
3. Financial Powers.—No Money Bill or other Financial Bills can be introduced and no demand for grants may be moved in the Legislature except on the recommendation of the Governor, even amendments require recommendation. The Governor causes the Annual Financial Statement, that is, the Budget to be laid before the House or Houses of Legislature and he is authorised also to place demands for supplementary and additional grant if required in any year. The Governor has the Contingency fund of the State at his disposal for emergencies. Subject to limits, if any, fixed by the Legislature, the Governor alone can borrow money on the security of the Consolidated Fund of the State and guarantee the loans of any other local authorities. (Articles 205, 257 and 209].
4. The Judicial (Pardoning) Power.—Article 161 says that the Governor of a State is empowered to grant pardon, reprieve, respite or remission of sentence in respect of any offence against any law relating to a matter to which the executive power of the State extends. In Epuru Sudhkar v. Government of A. R, AIR 2006 SC 3385 the Apex Court has observed that the pardoning powers of the President under Article 72 and the Governors under Article 161 is subject to judicial review. In K. M. Nanawati v. State of Bombay, AIR 1961 SC 99, the petitioner was convicted of murder and was sentenced to imprisonment for life by the Bombay High Court. At the time of the decision in the High Court the petitioner was in naval custody. Soon after the judgment was pronounced by the High Court, the petitioner made an application for leave to appeal to the Supreme Court. On the same day the Governor issued an order suspending the sentence subject to condition that the accused shall remain in the Naval jail custody till the disposal of his appeal to the Supreme Court. The warrant issued for the arrest of the accused was returned unserved. The question involved was should the accused surrender as required by Rules of Supreme Court under Order 21, Rule 5 or should he remain in Naval custody in pursuant to the order made by Governor under Article 161? The Supreme Court has held that the power of the Governor to suspend sentences under Article 161 is subject to the rules made by the Supreme Court with respect to only those cases which are pending before it in appeal. It is open to the Governor to grant a full pardon at any time even during the pendency of the case in the Supreme Court, but the Governor cannot exercise his power of suspension of the sentence for the period when the Supreme Court is seized of the case.
Position of Governor.—Like the President of India, the Governor is also a mere Constitutional Head. Though all the above mentioned powers are vested in him but he is required to exercise his powers with the aid and advice of his Council of Ministers. In Ram Jawaya Kapoor v. State of Punjab, AIR 1955 SC 549, the Supreme Court has held that the President and the Governors in India are only Constitutional Heads. The real executive power is exercised by the Council of Ministers. The President and the Governors are required to exercise their powers on the advice of the Council of Ministers. In Sham.sher Singh v. State of Punjab, AIR 1974 SC 2193, the Supreme Court has held that wherever the Constitution requires the ‘satisfaction’ of the Governor, the satisfaction is the satisfaction of the Council of Ministers and not the personal satisfaction of the Governor. He is merely a Constitutional Head. Accordingly, it was held that the removal of the members of the subordinate judiciary by the concerned Minister was valid.