Constitutional Head of the State: The Governor's Discretionary Powers and Political Controversies

Governor

The Indian Constitution prescribes a parliamentary system for the states, mirroring the structure at the Centre. Part VI (Articles 153–167) deals with the state executive, which comprises the Governor, the Chief Minister, the Council of Ministers, and the Advocate General. Notably, there is no counterpart to the Vice-President at the state level.

Part VI does not apply to Jammu & Kashmir, which had a special status and its own Constitution (prior to the 2019 reorganisation).

The Governor holds a dual role: (1) the constitutional (nominal) head of the state, and (2) an agent of the Central government.

Key distinction: Unlike the President, the Governor is not merely the head of the executive — the office also serves as an instrument of Centre-state linkage.

Normally, each state has its own Governor, but the 7th Constitutional Amendment Act, 1956 permits one person to be appointed Governor of two or more states simultaneously.

---

The Governor is appointed by the President by warrant under his hand and seal. This is neither a direct election by the people nor an indirect election through an electoral college (as in the case of the President).

The Supreme Court clarified in 1979 that the office of Governor is not employment under the Central government — it is an independent constitutional office, not subordinate to the Centre.

Why Direct Election Was Rejected

The Draft Constitution originally envisioned direct election of Governors. The Constituent Assembly rejected this in favour of presidential appointment for the following reasons:

1. Direct election is incompatible with the parliamentary system established in the states.
2. It would likely create friction between the Governor and the Chief Minister.
3. Since the Governor is only a nominal head, elaborate electoral arrangements would be wasteful.
4. Governor elections would be decided on personal rather than national issues.
5. An elected Governor would inevitably be a party member, undermining neutrality.
6. Such elections could fuel separatist tendencies and threaten national unity.
7. Presidential nomination allows the Centre to maintain oversight of the states.
8. An election during a general election would create a leadership vacuum.
9. The ruling party's Chief Minister would push a loyalist, reducing the office to a partisan post.

The Canadian model (appointment of provincial Governors by the Governor-General, i.e., Centre) was preferred over the American model (direct election of state Governors).

Qualifications

The Constitution prescribes only two formal qualifications:

1. Must be a citizen of India.
2. Must have completed 35 years of age.

Conventions (Not Legally Binding)

1. The Governor should be an outsider — not a resident of the state to which he is appointed, ensuring freedom from local politics.
2. The President should consult the Chief Minister of the concerned state before making the appointment, to ensure smooth constitutional functioning.

Both conventions have been violated on several occasions in practice.

---

1. Must not be a member of either House of Parliament or any House of a state legislature. If such a person is appointed, they are deemed to have vacated their legislative seat upon assuming office.
2. Must not hold any other office of profit.
3. Entitled to use the Raj Bhavan (official residence) rent-free.
4. Entitled to emoluments, allowances, and privileges as determined by Parliament.
5. When one person governs two or more states, emoluments are shared among the states in a proportion determined by the President.
6. Emoluments and allowances cannot be reduced during the term of office.

In 2008, Parliament revised the Governor's salary from Rs 36,000 to Rs 1.10 lakh per month.

Immunities

Like the President, the Governor enjoys:

• Personal immunity from legal liability for official acts.
• Immunity from criminal proceedings during the term of office (including personal acts).
• Cannot be arrested or imprisoned during tenure.
• Civil proceedings may be initiated against him for personal acts only after two months' notice.

Oath of Office

Before entering office, the Governor swears (or affirms) to:

• Faithfully execute the office.
• Preserve, protect, and defend the Constitution and law.
• Devote himself to the service and well-being of the people of the state.

The oath is administered by the Chief Justice of the concerned High Court (or the senior-most available judge in their absence).

---

• Holds office for a term of five years from the date of assuming charge.
• The term is subject to the pleasure of the President — the President can remove the Governor at any time.
• The Governor can resign by addressing a letter to the President.
• The Supreme Court held (1979, Surya Narain v Union of India) that the pleasure of the President is not justiciable.
• The Constitution does not specify grounds for removal — making the Governor's tenure politically precarious.

Historical Precedents of Removal

• 1989: The V P Singh government (National Front) asked all governors appointed by the Congress to resign.
• 1991: The Narasimha Rao government changed 14 governors appointed by the V P Singh and Chandra Shekhar governments.

Other Tenure Provisions

• The President may transfer a Governor to another state.
• A Governor whose term has expired may be reappointed in the same or a different state.
• A Governor continues until a successor assumes charge — there cannot be an interregnum.
• In contingencies (e.g., death of a sitting Governor), the President can appoint the Chief Justice of the High Court to discharge gubernatorial functions temporarily.

---

The Governor possesses executive, legislative, financial, and judicial powers broadly analogous to the President — but without diplomatic, military, or emergency powers.

---

1. Executive Powers

1. All executive actions of the state government are formally taken in the Governor's name.
2. Can frame rules on the authentication of state government orders.
3. Can make rules for the allocation of government business among ministers.
4. Appoints the Chief Minister and other ministers (who hold office at his pleasure). Must appoint a Tribal Welfare Minister in Chhattisgarh, Jharkhand, Madhya Pradesh, and Odisha (Bihar was excluded by the 94th Amendment, 2006).
5. Appoints the Advocate General of the state (holds office at the Governor's pleasure).
6. Appoints the State Election Commissioner (removable only like a High Court judge).
7. Appoints the Chairman and members of the State Public Service Commission — removable only by the President, not the Governor.
8. Can seek any information from the Chief Minister on administration and proposed legislation.
9. Can require the Chief Minister to place before the Council of Ministers any matter decided by a single minister without Council deliberation.
10. Can recommend President's Rule in the state to the President. During President's Rule, acts as the President's agent with extensive executive powers.
11. Acts as Chancellor of state universities and appoints Vice-Chancellors.

---

2. Legislative Powers

The Governor is an integral part of the state legislature:

1. Can summon, prorogue, and dissolve the Legislative Assembly.
2. Addresses the legislature at the start of the first session after a general election and the first session of each year.
3. Can send messages to the House(s) on pending bills or other matters.
4. Can appoint a member to preside over Assembly proceedings if both Speaker and Deputy Speaker offices are vacant; similarly for the Legislative Council.
5. Nominates 1/6th of the members of the Legislative Council from persons with expertise in literature, science, art, cooperative movement, and social service.
6. Can nominate one Anglo-Indian member to the Legislative Assembly.
7. Decides on disqualification of members in consultation with the Election Commission.
8. On a bill passed by the state legislature, can:
   • (a) Give assent — bill becomes law.
   • (b) Withhold assent — bill lapses.
   • (c) Return the bill (not money bills) for reconsideration — if passed again, must give assent.
   • (d) Reserve the bill for Presidential consideration — mandatory if it endangers the state High Court's position; optional if the bill is: ultra-vires, opposed to Directive Principles, against national interest, of grave national importance, or deals with compulsory acquisition of property under Article 31A.
9. Can promulgate ordinances when the legislature is not in session — must be approved within six weeks of reassembly; can withdraw anytime. This is the Governor's most significant legislative power.

---

3. Financial Powers

1. Ensures the Annual Financial Statement (state budget) is laid before the legislature.
2. Money bills require his prior recommendation before introduction.
3. No demand for grant can be made without his recommendation.
4. Can make advances from the Contingency Fund for unforeseen expenditure.
5. Constitutes the Finance Commission every five years to review the financial position of panchayats and municipalities.

---

4. Judicial Powers

1. Can grant pardons, reprieves, respites, remissions; or suspend, remit, commute sentences for offences under state law.
2. Is consulted by the President in the appointment of High Court judges.
3. Makes appointments, postings, and promotions of district judges in consultation with the High Court.
4. Appoints persons to the state judicial service (other than district judges) in consultation with both the High Court and State Public Service Commission.

---

On Ordinary Bills

When a state bill is reserved by the Governor and returned by the President for reconsideration, if the state legislature passes it again, the bill goes back to the President alone — the Governor's assent is no longer required.

On Money Bills

Normally, money bills are introduced with the prior permission of the Governor/President, so assent is a formality.

---

---

---

The Constitution establishes a parliamentary system in states. The Governor is a nominal executive; real executive power rests with the Council of Ministers headed by the Chief Minister.

Three pivotal articles define this position:

• Article 154: Executive power of the state vests in the Governor, exercised directly or through subordinate officers.
• Article 163: A Council of Ministers headed by the Chief Minister aids and advises the Governor — except in matters where he must act in his discretion.
• Article 164: The Council of Ministers is collectively responsible to the Legislative Assembly — the bedrock of parliamentary governance in states.

How the Governor Differs from the President

1. The Constitution explicitly envisages discretionary action by the Governor — no such provision exists for the President.
2. After the 42nd Amendment (1976), ministerial advice was made binding on the President. No equivalent provision binds the Governor.

---

Constitutional Discretion (Expressly Mentioned)

1. Reserving a bill for Presidential consideration.
2. Recommending President's Rule in the state.
3. Administering an adjoining Union Territory (as additional charge).
4. Determining royalty payable by Assam, Meghalaya, Tripura, and Mizoram to Tribal District Councils for mineral exploration licenses (Sixth Schedule).
5. Seeking information from the Chief Minister on administrative and legislative matters.

Situational Discretion (Implicit — from Political Exigencies)

1. Appointment of Chief Minister when no party has a clear majority or when the incumbent CM dies suddenly without an obvious successor.
2. Dismissal of the Council of Ministers that has lost the confidence of the Assembly.
3. Dissolution of the Legislative Assembly when the Council of Ministers has lost majority support.

---

The Governor has special Presidential directions in the following states, where he acts in his discretion even after consulting the Council of Ministers:

---

---

• Trap: The Governor cannot pardon death sentences — only the President can. The Governor can only suspend, remit, or commute.
• Trap: State PSC members are appointed by the Governor but removed only by the President.
• Trap: The 42nd Amendment made ministerial advice binding on the President but not on the Governor.
• Trap: When a state bill reserved by the Governor is returned by the President and re-passed by the legislature, it goes back to the President, not the Governor.
• Trap: An ordinance by the Governor needs Presidential instructions in three specific cases — unlike the President who needs none.
• The Governor's five-year term is subject to the pleasure of the President — no fixed, secure tenure.
• The Canadian model of gubernatorial appointment was adopted, not the American model of direct election.
• Conventions of consultation with CM and outsider appointment are not legally enforceable.