Governor: Appointment, Powers & Associated Concerns

• Recently, the President appointed Kavinder Gupta as Lieutenant Governor of Ladakh, Ashim Kumar Ghosh as Governor of Haryana, and P. Ashok Gajapathi Raju as Governor of Goa.

About Governor

• The Governor is the nominal executive head of the state under Article 154 and is appointed by the Union government to ensure constitutional governance and federal coordination.

Constitutional Provisions Related to the Office of Governor

Immunity to the Office of the Governor

• He enjoys personal immunity from legal liability for his official acts.
• During his term of office, he is immune from any criminal proceedings, even for his acts. He cannot be arrested or imprisoned.
• However, after giving two months’ notice, civil proceedings can be instituted against him during his term of office in respect of his acts.

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Appointment of Governor

• The Governor is not elected directly or indirectly, but is a nominated constitutional authority appointed by the Union executive.
• The Governor is appointed by the President under Article 155, acting on the advice of the Union Council of Ministers.
  • In Pant v. Tilak (1979), the Supreme Court held that the Governor is a constitutional authority, not a government servant.
• Multiplicity of Office: Article 153 allows one person to serve as Governor for two or more states.
• Tenure: Under Article 156, the Governor holds office during the pleasure of the President.
  • The conventional five-year term is customary but not legally binding.
  • In Surya Narain case, the SC held that the President’s pleasure under Article 156 is non-justiciable.
• The Constitution does not require consultation with the Chief Minister during appointment or removal.

Qualifications for the post of Governor (Article 157-158)

• Citizenship: The individual must be a citizen of India.
• Age: He must be at least 35 years old.
• Member of Legislature: He cannot be a member of either the Parliament or a State Legislature.
• Office of Profit: The individual cannot hold any other office of profit.

Powers of the Governor

Discretionary Powers

• Article 167: Can seek information from the Chief Minister about state administrative and legislative matters.
• Article 200: Can reserve a Bill for the President’s consideration.
• Article 356: Can recommend the President to impose President’s rule on failure of constitutional machinery.
• He/she is not bound to act on the aid and advice of CM and COM while performing his/her duties as the administrator of a neighbouring union territory (in case of an additional charge).
• The Governor can appoint a chief minister when no party has a clear-cut majority.
• The caretaker government can be appointed temporarily until a regular government is elected or formed.
• The Governor can dismiss the council of ministers when it cannot prove the confidence of the state legislative assembly.
• The Governor can dissolve the state legislative assembly when the Council of Ministers lose their majority.

Powers Concerning Assent to Bills (Article 200)

• Article 200 of the Indian Constitution addresses the powers of the Governor concerning assent to bills passed by the State legislature, as well as other powers such as reserving a bill for the President’s consideration.
• Article 200 provides the Governor with three options:
  1. giving assent to a Bill or
  2. withholding assent to a Bill or
  3. reserving it for the President’s consideration.
• It also provides that the Governor may, as soon as possible after the presentation of the Bill to him for assent, return it requesting that the House reconsider the Bill itself or any of its provisions.

Supreme Court’s Order

• SC’s judgement in a petition by the Telangana government said that Governors should return Bills “as soon as possible” and not sit over them, making State Legislative Assemblies wait indefinitely.
• The court agreed that the proviso to Article 200 mandates that Governors should “as soon as possible” return Bills, other than Money Bills, for reconsideration by the House.

Rameshwar Prasad and Ors. vs Union Of India and Anr

• According to Article 361 of the Constitution, Governors are granted complete immunity from court proceedings for any actions taken in the exercise of their powers.
• However, the SC has ruled that “the immunity granted by Article 361(1) does not prevent the Court from examining the validity of the action, including on the grounds of malicious intent“.
• That is, if the grounds for refusal reveal malicious intent, the Governor’s decision to refuse assent could be deemed unconstitutional.
• Therefore, when a Governor declares that they are withholding assent to a bill, they must provide a valid reason for such refusal. As a high constitutional authority, the Governor cannot act arbitrarily.

Judicial Clarification on Powers of Governor

• In Shamsher Singh and Anr vs State Of Punjab (1974), a seven-judge Constitution Bench declared that the President and Governor shall exercise their formal constitutional powers only upon and by the advice of their Ministers save in a few well-known exceptional situations.
• In Nabam Rebia vs Deputy Speaker and Ors (2016), SC ruled that Article 163 of the IC does not give the Governor discretionary power to act against or without the advice of his Council of Ministers.
• In Mahabir Prasad v. Prafulla Chandra (1969), SC has concluded that the governor’s pleasure under Article 164(1) is subject to Article 164(2). Thus, the withdrawal of the governor’s pleasure must coincide with the withdrawal of support to the ministry by the assembly.

Concerns Related to Office of Governor

• Appointment of Governor: The elected government at the state level is not even consulted while making appointments to the governors. Governments have reduced this crucial constitutional office to a secure resting place for loyal politicians and bureaucrats.
• Appointment and dismissal of the Chief Minister: After elections in the state, there is a convention to invite the largest party to form a government. This convention has been flouted many times at the governor’s whim.
• Reservation of Bills for the Consideration of the President: The chief intent of this provision is for the centre to keep a tab on the legislation in the nation’s interest. However, through the governor’s office, the central government has used this provision to serve partisan interests.
• Misuse of Article 356: Article 356 (President’s Rule) is the most controversial article of the IC. In the Constituent Assembly, Ambedkar said that Article 356 would be applied as a last resort. He also hoped that ”such articles will never be called into operation and would remain a dead letter.”
• Removal of the Governor: It is the central government that appoints and removes the Governors. Hence the governor has no security of tenure and no fixed term of office. For example, there is a mass change in state governors whenever a new government comes to power at the Centre.

Recent Controversies Regarding Governors

• Tamil Nadu Assent Case: The SC ruled that the Governor’s indefinite delay in granting assent to state bills was unconstitutional and imposed a “reasonable time” requirement under Article 200.
• Kerala VC Row: The Kerala High Court quashed the Governor-appointed interim Vice Chancellors for violating UGC norms and state statutes.
• Raj Bhavan Symbolism: The Kerala Governor was criticised for displaying saffron ‘Bharat Mata’ flags in Raj Bhavan, raising questions over constitutional neutrality.
• Puducherry Conflict: The Lt. Governor bypassed the Chief Minister in top-level appointments, leading to a ministerial boycott and administrative breakdown.
• Chakma Council Dissolution: The Mizoram Governor imposed direct rule over the Chakma Council in 2024, drawing federalism concerns from the elected government.

Supreme Court on Improving the Governor’s Office

In BP. Singhal v. Union of India

• The President has the power to remove a Governor without giving him or her any reason, and without granting an opportunity to be heard. This power cannot be exercised in an arbitrary, capricious or unreasonable manner. The power should only be exercised in rare and exceptional circumstances.
• Mere variance with the policies and ideologies of the central government, or that the central government has lost confidence in him or her, is insufficient to remove a Governor.
• A change in central government cannot be a ground for removal of Governors, or to appoint more favourable persons to this post (Governor).
• A decision to remove a Governor can be challenged in a court of law.

SR Bommai vs. Union of India, 1994

• The case was about limiting the Governor’s powers in dismissing a state government under Article 356 of the Constitution.

• SC: The floor of the Assembly is the only forum that should test the majority of the government, not the Governor’s subjective opinion.

Rameshwar Prasad Case, 2006

• On the validity of the President’s Rule’s proclamation and the Assembly’s dissolution in Bihar in 2005.

• The SC said the Governor could not decide based on his subjective assessments and that the motivated and whimsical conduct of the Governor is amenable to judicial review.

Nabam Rebia vs. Deputy Speaker (2016)

• The Governor had gone against the advice of the State Cabinet and called the session of the Legislative Assembly at an earlier date (against the recommended date).

• SC: The Governor does not enjoy broad discretionary powers and is always subject to Constitutional standards.
• The Governor’s discretion was not extended to the powers conferred under Article 174.
• Hence, he could not summon the House, determine its legislative agenda or address the legislative assembly without consultation.

Kaushal Kishor v. State of Uttar Pradesh (2023)

• Questions relating to disparaging comments by public functionaries came up for consideration before the Supreme Court.

• The Court said that the freedom of expression of public functionaries could not be curtailed other than by the “reasonable restrictions”, as permitted by Article 19(2) of the IC.

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Recommendations by Various Commissions

Rajamannar Committee (1969)

• The governor of the state should not consider himself an agent of the centre but play his role as the constitutional head of the State.

Sarkaria Commission (1988)

1. On Appointment of Governors
   • CM should be consulted in the Governor’s appointment.
   • The governor should be eminent in some walks of life and from outside the state.
   • He should be a detached figure without intense political links or should not have taken part in politics in the recent past.
   • He should not be a member of the ruling party.
2. On Removal of Governor
   • Governors should not be sacked before their five-year tenure except in “rare and compelling” circumstances.
   • Removal procedure must allow the Governors to explain their conduct.
   • Governors should be informed of the grounds for their removal.
3. Use of Article 356
   • This article should be used sparingly and as a last resort.
   • It can be invoked only in the event of political crisis, internal subversion, physical breakdown, and non-compliance with the Constitutional directives of the Centre.
   • An alternate course of action must be explored before invoking it.

Venkatachaliah Commission (2002)

• It is also known as the National Commission to Review the Working of the Constitution (NCRWC).
• Appointment should follow a collegium process involving the Prime Minister, Home Minister, Speaker, and Chief Minister.
• A two-year cooling-off period is needed for active or retired politicians.
• Governors should be allowed to complete their five-year term. If they are removed before the completion of their term, it should be done only after consultation with the Chief Minister.

2^nd Administration Reform Commission (ARC) (2005)

• It recommends Appointment of non-partisan persons with long experience in public life and administration as state governor.
• The Inter-State Council needs to develop guidelines for governors to follow when using their discretionary power.

Punchhi Commission (2010)

• The convention of making the governors chancellors of universities should be done away with.
  • In Kerala, the State Assembly passed a Bill to abolish the Governor’s chancellorship. The Governor did not permit it and referred the Bill to the President.
• Articles 355 and 356 should be amended to allow the Government to bring specific troubled areas under its rule for a limited period instead of the whole State.
• The phrase “during the pleasure of the President” must be deleted from the Constitution.
• The State Legislature should be empowered to remove the governor through a resolution (similar to the process of impeachment of the President by the Parliament).
• The Governor must resign if they lose the confidence of the elected government. A fixed five-year tenure should be protected from arbitrary removal.

Reforming the Governor’s office through fixed tenure, transparent appointments, and clear discretionary guidelines is essential. These measures will safeguard constitutional federalism and promote impartial, effective governance.

Reference: The Hindu

PMF IAS Pathfinder for Mains – Question 287

Q. Discuss recent controversies surrounding the role of Governors in state politics. How do these episodes highlight the challenges to India’s federal structure? Suggest measures to strengthen the spirit of cooperative federalism. (250 Words) (15 Marks)

Approach

• Introduction: Write briefly about the Governor and mention the recent controversy.
• Body: Discuss recent controversies about the Governor, challenges to the federal structure and suggest measures to strengthen the spirit of cooperative federalism.
• Conclusion: Highlight the urgent need to reform the Governor’s office to preserve federal balance and democratic integrity.