State Government in India: Governor and Constitutional Powers

Introduction

Part VI of the Indian Constitution deals with the government of the States. The Governor is the constitutional head of the State, while the Council of Ministers, headed by the Chief Minister, ordinarily exercises the real executive authority.

Articles 153 to 162 establish the constitutional position of the Governor, including appointment, tenure, qualifications, powers and responsibilities. The Governor must act according to the Constitution and generally exercise powers on the aid and advice of the Council of Ministers, except where the Constitution permits the exercise of discretion.

Meaning and Constitutional Position of the Governor

The Governor is the constitutional head of a State and represents the formal executive authority of the State under the Constitution.

Article 153 provides that every State shall have a Governor. However, the same person may be appointed as Governor for two or more States.

Article 154 vests the executive power of the State in the Governor. This power is exercised directly or through officers subordinate to the Governor, in accordance with the Constitution.

India follows a parliamentary system of government at both the Union and State levels. Therefore, the Governor ordinarily acts on the aid and advice of the Council of Ministers headed by the Chief Minister.

The Governor's principal constitutional responsibilities include:

• Ensuring that the State government functions within the Constitution.
• Appointing the Chief Minister and appointing other ministers on the Chief Minister's advice.
• Performing specified legislative functions, including summoning the State Legislature and giving assent to Bills.
• Exercising constitutional discretion in limited situations where permitted.
• Exercising the power to grant pardons and other forms of relief from punishment under Article 161.

Constitutional Provisions Relating to the Governor

Article 153: Governors of States

Article 153 provides that there shall be a Governor for each State. It also permits the appointment of the same person as Governor for two or more States.

This arrangement allows the Union to appoint one person to serve as Governor in more than one State when required.

Article 154: Executive Power of the State

Article 154 vests the executive power of the State in the Governor. The Governor may exercise this power directly or through subordinate officers, subject to the Constitution.

However, the constitutional vesting of executive power in the Governor does not mean that the Governor independently runs the State government. Under the parliamentary system, the Council of Ministers ordinarily makes executive decisions and advises the Governor.

Article 154 also does not transfer to the Governor functions that existing laws confer on other authorities. Parliament and the State Legislature may, within their constitutional powers, confer functions on authorities other than the Governor.

Article 155: Appointment of the Governor

Article 155 provides that the Governor shall be appointed by the President by warrant under the President's hand and seal.

Unlike the President of India, the Governor is not elected by an electoral college. The appointment is made by the President.

Article 156: Term of Office

Article 156 provides that:

• The Governor holds office during the pleasure of the President.
• The Governor may resign by writing to the President.
• The normal term of office is five years from the date the Governor enters office.
• The Governor continues in office after the expiry of the term until the successor enters office.

The five-year term does not guarantee that the Governor will remain in office for the full period, because the Constitution provides that the Governor holds office during the pleasure of the President.

Article 157: Qualifications for Appointment

A person is eligible for appointment as Governor if the person:

• Is a citizen of India.
• Has completed 35 years of age.

Article 157 does not prescribe any requirement that the person must have served in public office or have prior political or administrative experience.

Article 158: Conditions of the Governor's Office

Article 158 lays down the conditions attached to the office of Governor.

The Governor:

• Must not be a member of either House of Parliament or of a State Legislature. If a sitting member is appointed Governor, the seat is deemed vacant from the date the Governor enters office.
• Must not hold any other office of profit.
• Is entitled to use the official residence without payment of rent.
• Is entitled to salary, allowances and privileges determined under the applicable constitutional and legal provisions.
• Cannot have salary and allowances reduced during the term of office.

Where the same person is appointed Governor of two or more States, the President determines how the salary and allowances are allocated among those States.

Article 159: Oath or Affirmation

Before entering office, the Governor must take an oath or make an affirmation in the presence of the Chief Justice of the relevant High Court or, in the Chief Justice's absence, the senior-most available judge of that Court.

The oath requires the Governor to:

• Faithfully perform the duties of the office.
• Preserve, protect and defend the Constitution and the law.
• Work for the service and well-being of the people of the State.

The oath reflects the Governor's constitutional duty to act according to the Constitution rather than personal or political preferences.

Article 160: Discharge of Functions in Certain Contingencies

Article 160 empowers the President to make arrangements for the discharge of the Governor's functions in situations not otherwise provided for in the relevant constitutional provisions.

This provision allows the constitutional system to continue functioning when an unusual situation affects the discharge of the Governor's duties.

Article 161: Power to Grant Pardons and Other Relief

Article 161 empowers the Governor to grant pardons, reprieves, respites and remissions of punishment, or to suspend, remit or commute the sentence of a person convicted of an offence relating to a matter within the State's executive power.

These terms have different meanings:

• Pardon: Removes the punishment and grants relief from its legal consequences to the extent provided by law.
• Reprieve: Temporarily delays the execution of a sentence.
• Respite: Grants a lesser or different form of punishment because of special circumstances.
• Remission: Reduces the period of punishment without changing its nature.
• Commutation: Replaces a punishment with a less severe form of punishment.
• Suspension: Temporarily stops the execution of a sentence.

The Governor's power under Article 161 is subject to the Constitution and judicial review (examination by courts to determine whether public power has been used lawfully).

Powers and Functions of the Governor

Executive Powers

The Governor is the formal head of the State executive. Executive action of the State is taken in the Governor's name in accordance with the Constitution.

The Governor's executive functions include:

• Appointing the Chief Minister.
• Appointing other ministers on the advice of the Chief Minister.
• Appointing the Advocate-General of the State under Article 165.
• Appointing the State Election Commissioner under Article 243K, subject to the constitutional framework.
• Appointing the chairman and members of the State Public Service Commission under Article 316.
• Performing other appointments and functions assigned by the Constitution or law.

The Governor ordinarily acts on the aid and advice of the Council of Ministers. The Governor does not have a general power to reject the Council's advice simply because the Governor disagrees with the government's policy.

Legislative Powers

The Governor is an important part of the State's legislative process.

The Governor's legislative powers include:

• Summoning and proroguing the State Legislature under Article 174.
• Dissolving the Legislative Assembly, where constitutionally appropriate.
• Addressing the State Legislature under Article 176.
• Sending messages to the House or Houses of the Legislature under Article 175.
• Nominating members to the Legislative Council where the Constitution and applicable law provide for it.
• Giving assent to Bills, withholding assent, returning certain Bills for reconsideration, or reserving Bills for the President's consideration under Article 200.
• Promulgating ordinances under Article 213 when the Legislature is not in session and the constitutional conditions are satisfied.

The Governor's legislative role must be exercised according to the Constitution. For example, the Governor cannot ordinarily dissolve a Legislative Assembly simply on personal preference where the government continues to enjoy the confidence of the House.

Financial Powers

The Governor has specified responsibilities in the State's financial process.

These include:

• Causing the State's annual financial statement (budget) to be laid before the Legislature under Article 202.
• Recommending certain financial Bills where the Constitution requires the Governor's recommendation.
• Ensuring that demands for grants are presented through the constitutional process.
• Performing functions relating to the Contingency Fund of the State where provided by law.

These powers operate within the parliamentary system, in which the elected government prepares and manages the State's financial policy and remains accountable to the Legislature.

Judicial Powers

Article 161 gives the Governor the power to grant certain forms of relief from punishment for offences within the State's executive authority.

The Governor also has other constitutional functions connected with the appointment of certain judicial officers and the administration of justice, as provided by the Constitution and applicable laws.

The Governor's clemency power does not replace the judicial process or permit arbitrary action. It must be exercised lawfully and may be reviewed by courts on limited grounds.

Discretionary Powers

The Governor must generally act on the aid and advice of the Council of Ministers. However, the Constitution and established constitutional principles recognise certain situations in which the Governor may exercise discretion.

Examples include:

• Appointing a Chief Minister when no political party or coalition has an obvious majority in the Legislative Assembly.
• Requiring a floor test (a vote in the Assembly to establish whether the government has majority support) when there is a genuine constitutional question about the government's majority.
• Reserving a Bill for the President's consideration where the Constitution permits or requires it.
• Sending a report to the President under Article 356 when the constitutional conditions for such a report arise.
• Exercising specific responsibilities provided by the Constitution for certain States.

Discretion is not an unrestricted personal power. It must be exercised in accordance with constitutional principles and may be reviewed by courts where the law permits.

Relationship Between the Governor and the Council of Ministers

Article 163 provides for a Council of Ministers headed by the Chief Minister to aid and advise the Governor, except where the Constitution requires the Governor to exercise functions in discretion.

The Governor is the constitutional head, while the Chief Minister and Council of Ministers ordinarily exercise the real executive authority.

This distinction is essential to understanding State government under the parliamentary system.

The Governor may seek information about the administration from the Chief Minister and must act within the limits of the Constitution. The Governor cannot ordinarily replace the elected government's policy decisions with personal preferences.

Important Case Law

Ram Jawaya Kapur v. State of Punjab (1955)

The Supreme Court of India explained the nature of executive power under the Indian Constitution. It observed that the Constitution does not establish a rigid separation of powers in which the executive, legislature and judiciary are completely isolated from one another.

The case is important for understanding the relationship between executive authority and legislative functions in India's parliamentary system.

Samsher Singh v. State of Punjab (1974)

The Supreme Court held that the President and the Governor are constitutional heads who ordinarily exercise their powers on the aid and advice of their respective Councils of Ministers.

The Governor is not generally required or permitted to act independently of ministerial advice, except in areas where the Constitution allows discretion.

This is a leading case on the constitutional position of the Governor.

Satpal v. State of Haryana (2000)

The Supreme Court examined the exercise of the Governor's power to grant remission under Article 161. It set aside the decision in question because it was based on incorrect information and incomplete facts.

The case establishes that the Governor's clemency power cannot be exercised arbitrarily and must be based on relevant and accurate material.

Nabam Rebia v. Deputy Speaker (2016)

The Supreme Court considered the constitutional limits on the Governor's powers in Arunachal Pradesh. It held that the Governor could not use discretionary powers to interfere improperly with the functioning of the State Legislature.

The decision reinforces the principle that the Governor's powers are limited by the Constitution and cannot be used to undermine parliamentary democracy.

Distinction Between the President and the Governor

Distinction Between Executive Power and Discretionary Power

Practical Example

Suppose a State election results in a Legislative Assembly where no political party has an outright majority.

The Governor may need to decide whom to invite to form the government. The Governor should consider which party or coalition is most likely to demonstrate majority support in the Assembly.

If the majority is disputed, the appropriate constitutional course is generally to require a floor test rather than decide the issue solely on personal judgment.

This example shows how the Governor's discretionary role can arise while remaining subject to constitutional limits.

Summary

• Part VI of the Indian Constitution deals with the government of the States.
• Article 153 provides for a Governor for every State and permits one person to serve as Governor of multiple States.
• Article 154 vests State executive power in the Governor, but the Governor ordinarily acts on the aid and advice of the Council of Ministers.
• Articles 155 to 160 deal with appointment, tenure, qualifications, conditions of office, oath and arrangements for contingencies.
• Article 161 empowers the Governor to grant pardons and other forms of relief from punishment for offences within the State's executive authority.
• The Governor has executive, legislative, financial and judicial functions under the Constitution.
• Discretionary powers are limited and must be exercised according to constitutional principles.
• Samsher Singh v. State of Punjab (1974) is a leading authority on the Governor's constitutional position.
• Nabam Rebia v. Deputy Speaker (2016) confirms that the Governor cannot use discretionary powers to undermine democratic government.
• The Governor is the constitutional head of the State, while the elected Council of Ministers ordinarily exercises the real executive authority.