Download as DOCX, PDF, TXT or read online from Scribd
Download as docx, pdf, or txt
You are on page 1of 9
INTRODUCTION
A governor is a person who is the constitutional head of the State.
The Constitution of India, by Article 153, creates the office of Governor. Article 153-167 deals with the subject of the Governor of the State. In Hargovind Pant v. Dr. Raghukul Tilak & Ors. [(1979) 3 SCC 458], observing on the issue as to whether a Governor could be considered as an "employee" of the Government of India, this Court said "it is no doubt true that the Governor is appointed by the President which means in effect and substance the Government of India, but that is only a mode of appointment and it does not make the Governor an employee or servant of the Government of India. ROLE OF THE GOVERNOR The role of the Governor has been a key issue in the matters of Central-State relations. The Constitution of India envisages three tiers of Government – the Union, State and the Local Self-Government. From the functional standpoint, it is stated that such a Constitution "is not a static format, but a dynamic process. In the context of Union-State relations it has been noted that "the very dynamism of the system with all its checks and balances brings in its wake problems and conflicts in the working of Union-State relations." In the light of a volatile system prevailing today, it is pertinent to recognize the crucial role played by the Governors in the working of the democratic framework. Addressing the Conference of Governors in June 2005, the President of India Dr. A.P.J. Abdul Kalam stressed the relevance of recommendations of the Sarkaria Commission and observed that "While there are many checks and balances provided by the Constitution, the office of the Governor has been bestowed with the independence to rise above the day-to-day politics and override compulsions either emanating from the central system or the state system. " The Prime Minister Dr. Manmohan Singh on the same occasion noted that "you are the representatives of the center in states and hence, you bring a national perspective to state level actions and activities." The P.V. Rajamannar Committee (1969), Inquiry Committee constituted by the Government of Tamil Nadu to report on the Centre-State relations, and the Study Team of the Administrative Reforms Commission (1967) headed by Shri M.C. Setalvad, have been quoted to have opined that "a specific provision should be inserted in the Constitution enabling the President to issue Instruments of Instructions to the Governors. The Instruments of Instructions should lay down guidelines indicating the matters in respect of which the Governor should consult the Central Government or in relation to which the Central Government could issue directions to him Sarkaria Commission Report (1988): Important recommendations- Governor should be a detached figure without intense political links or should not have taken part in politics in recent past, Governors must not be removed before completion of their five-year tenure, except in rare and compelling circumstances Punchhi Commission (2010): The phrase “during the pleasure of the President” should be deleted from the Constitution; Governor should be removed only by a resolution of the state legislature. CASE 1: RAMESHWAR PRASAD V UNION OF INDIA FACTS- Elections for Legislative Assemblies took place in Bihar in 2005. No party was unable to form the government. So, a notification was issued on 7 th march,2005 imposing President’s rule in the state till a government is formed. President’s rule was to be temporary. But Governor issued a report on 27th April,2005 in which it expressed that there is a possibility of horse trading in the state and another chance needs to be given to form a government. Another report was issued on 21 st May,2005 in which Governor reiterated its above stand and desired that the suspended assembly be dissolved so that afresh chance is given to the electorate to prove their government in the assembly. As a result of this report, the legislative assembly of Bihar was dissolved on 23 rd may,2005. this was challenged before the Supreme court. ISSUES- Whether the Proclamation is illegal JUDGEMENT- It was held that dissolving the legislative assembly was unconstitutional. CASE 2: K.M NANAVATI V. STATE OF BOMBAY ISSUE- The appellant has made SLP and an application of pardoning power to the governor. The governor reduced his sentence. The SC held that SLP and pardoning power cannot operate together both are different. If SLP is filed then the power of governor in such condition will be ceased. JUDGEMENT- The power of Governor to suspend the sentence of a convict was bad in so much as it came in conflict with the rule of the Supreme court which required the petitioner to surrender himself to his sentence.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 in exercise of what is ordinarily called mercy jurisdiction. But the governor cannot exercise his power of suspension of the sentence for the period when the supreme court is seized of the case. The order of the governor could only operate until the matter became sub judice in the supreme court and it did become so on the filling of the petition for special leave to appeal. After the filling of such petition and till the judicial process is over the power of the Governor cannot be exercised. CASE 3: THE NABAM REBIA CASE Rebia speaker of Arunachal Pradesh assembly had approached the top court after the state’s governor preponed a session on the joint request of 20 rebel congress MLAs, 11 BJP and 1 Independent Legislator. In response, the Governor had prepared as assembly session from 14 January,2016 to 15 December,2015 and listed the removal of the speaker on the agenda. The Apex court had then ruled that in ordinary circumstances , the governor can summon the House only on the aid and advice of the council of minister heading it. JUDGEMENT- The five-judge Constitution Bench judgment of the Supreme Court in Nabam Rebia versus Deputy Speaker on July 13, 2016 held that a Governor cannot employ his ‘discretion’, and should strictly abide by the “aid and advice” of the Cabinet to summon the House. Article 356 is inspired by sections 93 of the Government of India Act, 1935, Which provided that if a Governor of a province was satisfied that a situation had arisen in which the government of the province cannot be carried on in accordance with the provisions of the said Act, he could assume to himself all or any of the powers of the government and discharge those functions in his discretion. The Governor, however, could not encroach upon the powers of the high court. CASE 4: S. R. BOMMAI V. UNION OF INDIA This case relates to State emergency u/art 356. State emergency is incomplete without this case being discussed. The major part of this case is about the Centre State relation. FACTS: The situation in Karnataka in 1989 April was clogged and led to state emergency u/art 356(1). This proclamation was thereafter confirmed by the Parliament. The situation which led to state emergency was that S.R. Bommai a personal of Janta Party formed the government in 1988, but subsequently joined the Lok Dal forming a collision government as Janta Dal. But soon there were bifurcations amongst the party members leading to fall of the Government. Therefore, the President had to proclaim emergency. This proclamation was challenged through Writ Petition but the High Court dismissed the Petition. Hence appeal to Supreme Court. ISSUES: 1. Whether President Proclamation u/art 356 is justified? 2. Whether the President has unrestricted power to proclaim emergency? 3. Whether the proclamation can be challenged even after approved by both the houses of Parliament? JUDGEMENT: The judgement given in S.R. Bommai strengthens the federal structure in India by giving the states the due autonomy and barring the interference of Central government in the functioning of government machinery. The judgement specifies the extent of Judicial review, thereby keeping the scale of checks and balances in place. The judgement aimed to curb the political misuse of Article 356, but recent events demonstrate how these provisions are used for political gains by the parties in power. These events have been repeatedly observed even after the pronouncement of this landmark judgement but the judiciary has actively preserved the federal system. An amendment to the Article is required to reduce the frequency of imposition of President’s Rule in states. GOVERNOR AND ITS POSITION INTRODUCTION Generally, in India, the President and Governor are regarded as a rubber stamp; they are considered to be the titular head of the state. Appointment of a Governor has been specified in article 153 of the Indian Constitution. Therefore, the governor has been made just a nominal official; the real official comprises the committee of ministers headed by the chief minister. At the end of the day, the governor needs to exercise his powers and functions with the help and advice of Council of ministers headed by the chief minister, aside from in issues in which he is required to act in his watchfulness (i.e., without the exhortation of ministers). In assessing the established position of the governor, specific reference must be made to the arrangements of Articles 154, 163 and 164. The official intensity of the state will be vested in the governor and will be practised by him either legitimately or through officers subordinate to him as per this Constitution (Article 154). Therefore, Governor of the state has been conferred with the various powers by the constitution of India. The article deals with the Powers and the Position of the Governor as per the constitutional provisions. APPOINTMENT AND QUALIFICATION OF THE GOVERNOR The Governor is generally appointed by the President of the Nation under Article 155 of Indian Constitution. The governor shall be appointed by the President under his seal and warrant. The candidate shall fulfil the listed criteria given below to be appointed as Governor of the state enshrined in Article 157 of Indian Constitution which is as follows: 1. He ought not to be the individual from either house of parliament or a place of the state governing body. 2. He ought not to hold any office of profit. 3. He can utilise his official home for other purposes, however, ought not to charge rent for that. 4. If an individual is named as the overseer Governor of other states, he is qualified to get the compensation of both state’s Governor (chosen by the President of India). 5. His payments and remittances can’t be diminished amid his term. Since, the Article is silent about the direct and indirect election of the governor, the mode of his appointment is by way of nomination by the Central Government which is approved by the President of India, but after such appointment Governor is free to act on his own wisdom and perform his duties for the betterment of the society. However, due to the powers of governor, he is sometimes used as a tool for disruption by the central government in a situation when there is no coordination between the state and central government. Thus, sometimes in cases of UT where Lt. Governor has more powers, he/she becomes a tool to disrupt by the Central government. OATHS AND RESIGNATION The Governor takes his oath from the Chief Justice of the respective state, and he/she addresses his resignation to President of India. Powers of Governor The Powers of the Governor can be classified under four heads viz. Legislative, Executive, Judicial and financial powers which are as follows. Legislative Powers Even though the Governor isn’t the member from either House of the State Legislature, yet he is vested with some significant powers and obligations in the authoritative space. He is to bring the House or each House of the State Legislature, if it is a bicameral governing body, to meet at such time and spot as he deems fit. There must not be a difference of more than 6 months between the first and the last session of the house. He ensures that the balance is maintained. He may prorogue the Houses or either House and break up the Legislative Assembly. For example, on March 12, 1967, the Punjab Governor, Dr D.C. Pavate, prorogued the State Vidhan Sabha (Legislative Assembly) which was deferred by the Speaker for two months on March 7, 1967, preceding the House could think about the Budget. This was an initial move towards an answer of established emergency that held the State. The disintegration of the Assembly has been finished by the Governors numerous periods. He can address either or both of the Houses, amassed together at the beginning of the first session after each General Election and furthermore, at the initiation of the main session every year. The Bills passed by the State council require his consent. He can retain his consent and return the Bill (other than a Money Bill) to the State governing body for re- examination. In any case, if the House ends, with or without alteration, he should accord his consent to it. He is engaged in saving specific Bills for the consent of the President. For example, the Bills accommodating obligatory procurement of the property or diminishing the forces of the High Court must be so saved for President’s assent. He designates people, having extraordinary learning or pragmatic involvement concerning such issues, like Literature, Art, Science, Co-usable Movement and Social Service. He designates a few individuals from the Anglo-Indian Community if he finds the last insufficiently spoke to. On the guidance of the Election commission, he is approved to choose questions emerging about the exclusion of any individual from either House. He can issue statutes amid the opening of the governing body if some projection emerges. These mandates stop to work at the lapse of about a month and a half from the reassembly of the Legislature, or prior if a goal objecting such a law is passed by the Legislative Assembly and consented to by the Legislative Council. Governor’s mandates are liable to specific confinements. On the off chance that they identify with any issue in regard of which a Bill would have required the President’s prior approval or his consent after reservation, the Governor cannot issue them aside from on the President’s guidance. He may likewise send messages and ask for updates to the House or Houses on a Bill pending in the council or something else. He can get the State Assembly suspended while prescribing to the President the taking over of the State Administration. Such a stage is taken with the plan to reinstall mainstream service at an early date. This was finished by the Governor of Uttar Pradesh on June 13, 1973, and Governor of Punjab on October 4, 1983. EXECUTIVE POWERS The executive powers vested to the Governor of the state under the Indian Constitution are as follows: His powers to stretch out to the issues counted in the State list. On account of issues gave in the Concurrent List, Governor practices to control over them at the same time, subject to the official advice of the President He makes rules for the exchange of the matters and portfolios of the legislature of the State for its allotment among Ministers. He has the privilege to look for data from the Chief Minister, and the Chief Minister of the State must notify and answer him regarding all choices of his service. He can likewise require the Chief Minister to present any individual Minister’s choice for the thought of the Council of Ministers, He is enabled to make arrangements of the Council of Ministers and on the recommendation of different Ministers. He is consulted by the President in the appointment of the Judges of the state High Court. The Governor appoints Judges of the District Courts. In case he/she feels that the Anglo-Indian community has not been adequately represented in the Vidhan Sabha, he or she can nominate one member of the community to the Legislative Assembly of the state. In all the states where a bicameral legislature is present, the Governor has a right to nominate the members, who are “persons having special knowledge or practical experience in matters such as literature, science, art, co-operative movement and social service”, to the Legislative Council. In like manner, he can expel the Chief Minister or his Council of Ministers just when the Legislative Assembly passes a demonstration of majority disapproval or reproaches the CoM or annihilations an important measure. As it were, Governor is not authorised to act and exercise his duty at his pleasure since it is the Legislative Assembly which upholds the aggregate obligation of the CoM to itself [Article 164(2)]. The Supreme Court in S.R. Bommai v. Union of India saw that at whatever point an uncertainty emerges whether a service has lost the certainty of the House, the primary method for testing is on the floor of the House. Clearly, the evaluation of the quality of the Ministry had not been left to the Governor. This reality was affirmed when Uttar Pradesh Governor rejected Kalyan Singh’s Government on Feb. 21, 1998 as 25 M.L.As of Lok Tantrik Congress and Janata Dal (Raja Ram) Group pulled back help, and it was left in the minority. Kalyan Singh would not leave. Subsequently, he was rejected. Governor did not allow him to look for certainty vote on the floor of the House. Allahabad High Court in a milestone between time requests reinstalled Kalyan Singh and left it to the Governor to request a preliminary of solidarity on the floor of the House. FINANCIAL POWERS Financial powers of the Governor enlisted in the constitution are as follows: No money Bill can be presented in the Assembly aside from on Governors’ proposal. The Contingency Fund is available to him. He can make signs of progress out of it to meet unexpected use, pending its approval by the State Legislature. No interest for a grant can be made except on the suggestion of the Governor. Under Article 205, the Governor can request advantageous, expansion or abundance gifts from the State Legislature. Governor is required to see that the yearly financial report or spending plan of the State is presented before the House or Houses of the Legislature have gone through it. Amendments making arrangements for budgetary issues can’t be moved without the assent of or on the recommendations of the Governor if any changes have to be done. JUDICIAL POWERS Judicial Powers of the Governor are as follows: According to Article 161, The Governor can allow pardons, respites, rests or abatement of disciplines. He can likewise suspend, dispatch or drive the sentence of an individual indicted for an offence illegal. The Governor is consulted by the President in the appointment of the Chief Justice to the High Court of that specific state. EMERGENCY POWERS Governor isn’t vested with emergency powers to meet any consequence emerging from outside animosity or equipped resistance [Article 352(1)] not at all like that of President of India. Anyway, he is enabled to answer to the President at whatever point he is fulfilled that a circumstance has emerged in which legislature of the state can’t be carried on as per the arrangements of the Constitution (Article 356). In the last case, the President expects to be the apex authority of the State Government. However in the ordinary course of practise it may be noticed that, Governor accepts the reins of State Government since the state is under the President’s Rule and in case there is no clear majority of a political party, the Governor has the discretion to appoint chief Minister of the state. MISCELLANEOUS PROVISIONS Governor acts as the first person to supervise the Auditor General’s report on expenditure and income of the state. He is also an agent of the President to oversee the emergency situation and President rule in a particular state. CONCLUSION The Governor of a state isn’t just a figurehead. He can practice a few powers in his prudence, and free of the suggestions made by the state Chief Minister. Governor is anything but a pointless height. The Governor goes about as the connection between the Union and the state. He goes about as the operator of the President in the country both when he goes nearly as the nominal and constitutional head of the state in typical occasions just as when he goes about as the whole head of the state amid the time of President’s rule operates in the state. The Governor relies on his prudence in informing the President for the declaration concerning an emergency in the state. He can make a decision concerning whether there has been a breakdown of constitutional machinery in the state or not. Thus, the Governor plays an important in the governance of a state in the country.
UNION EXECUTIVE STATE EXECUTIVE
HEAD OF THE PRESIDENT (ARTICLE 53) GOVERNOR (ARTICLE
STATE 153)
METHOD OF INDIRECT ELECTION WITH APPOINTED BY
APPOINTMENT/ SINGLE TRANSFERABLE PRESIDENT (ARTICLE ELECTION VOTE AND PROPORTIONAL 155) REPRESENTATION CAN BE APPOINTED FOR TWO OR MORE STATES
EXECUTIVE POWER PRESIDENT(Art. 53) GOVERNOR (Art
VESTS WITH AND 154) EXTENDS TO TO THE EXTENT PARLIAMENT CAN MAKE LAWS (Art. 73) TO THE EXTENT STATE LAGISLATURE CAN MAKE LAWS (Art. 162)
TENURE 5 YEARS PLEASURE OF
PRESIDENT (ART 156)
QUALIFICATIONS CITIZEN OF INDIA CITIZEN OF INDIA
MUST HAVE MUST HAVE COMPLETED 35 COMPLETED 35 YEARS OF AGE YEARS OF AGE ELIGIBLE TO BE APPOINTED AS MEMBER OF HOUSE OF PEOPLE
OATH CJI CJ OF HC
IN CASE OF VICE PRESIDENT PRESIDENT MAY
ABSENCE FROM DECIDE OFFICE CJI
VICE PRESIDENT NO SUCH POSITION
HEAD OF THE PM AND CoM (ART 74, 75) CM AND CoM (ART. 163, GOVERNMENT 164)