CONSTITUTIONAL

GOVERNANCE - II
Topic-The Governor
Lecture- 28

By Shraddha Bhausingh Rajput

Semester IV
Section – A, B and C
 Module I: The Executive and the Legislative

• The Governor- Appointment, Tenure, Oath and Removal

• Powers, Functions and Constitutional Position
 Historical Background

• The Governors under the Government of India Act 1935 were “by the Raj,
of the Raj and for the Raj”.
• The constituent assembly wanted elected governors as proposed by a sub-
committee of B.G. Kher, K.N. Katju and P. Subbarayan.
• The apprehension of the clash between powers of Governor and Chief
minister led to the system of appointed Governor in the state.
• The draft constitution of 1948 was ambivalent – the drafting committee
leaving it to the constituent assembly to decide whether governors should
be elected or nominated.
 Governor (Article 153-167)

• The governor acts in 'Dual Capacity' as the Constitutional head of the state
and as the representative.
• He is the part of federal system of Indian polity and acts as a bridge
between union and state governments.
• The appointment and powers of government can be derived from Part VI
of the Indian constitution.

•  Article 153 says that there shall be a Governor for each State. One person
can be appointed as Governor for two or more States.
• Article 153-167 deals with the subject of the Governor of the State.
• Article 153 –There shall be a governor for each state. [Provided that
nothing in this Article shall prevent the appointment of the same person as
Governor for two or more states.]
 Constitutional Provisions

• Article 163: It talks about the discretionary power of governor.

• Article 256: The executive power of the Union shall extend to the giving of
such directions to a State as may appear to the Government of India to be
necessary for that purpose.
• Article 257: The executive power of the Union shall also extend to the
giving of directions to a State as to the construction and maintenance of
means of communication declared in the direction to be of national or
military importance:
• Article 355: It entrusts the duty upon Union to protect the states against
“external aggression” and “internal disturbance” to ensure that the
government of every State is carried on in accordance with the provisions
of Constitution.
• Article 356: In the event that a state government is unable to function
according to constitutional provisions, the Central government can take
direct control of the state machinery.
• The state's governor issues the proclamation, after obtaining the consent of
the President of India.
• Article 357: It deals with Exercise of legislative powers under
Proclamation issued under Article 356 by the central government.
 Appointment

• The governor of a state is appointed by the President of India.

• The Sarkaria Commission has suggested that Article 155 should be
amended so as to ensure effective consultation with the state Chief
Minister in the matter of appointment of Governor.
• He is neither elected by the direct vote of the people nor by an indirect vote
by a specially constituted Electoral College as in the case with the
president.
• He is a nominee of the central government.
Case law- In Hargovind V. Raghukul AIR 1979, it has been held that the
office of Governor of a state is not an employment under the Government
of India. A member of the state public commission can be appointed as the
Governor. The office of Governor is an independent office and is not under
the control or subordinate to the Government of India.
 Conditions/Salary of Office

• The Governor should not be member of any house of the parliament. If an MP is

appointed as Governor, he needs to vacate his seat. He also should not hold any
other office of profit.
• His salary, allowances and other privileges are defined by parliamentary law.
Parliament enacted the Governors (Emoluments, Allowances and Privileges) Act,
1982 in this context.
• Apart from the free residence, medical facilities and other allowances, a
Governor of the state in India currently draws a salary of Rs. 1,10,000 per
month.  Salary and Allowances of the Governor are charged expenditures from
the Consolidated Fund of the State.  If same person is appointed as governor of
more than one states, the salary etc. are shared by the concerned states.
• [Article 158(3)]- He is entitled to the free use of his official residence and also to
such emoluments , allowances and privileges as Parliament may determine by
the law. Such emoluments , allowances and privileges are specified in the Second
Schedule.
 Qualification

•A governor must:
– Be a citizen of India.
–  Be at least 35 years of age.
–  Not be a member of the either house of the parliament or house of the state
legislature.
–  Not hold any office of profit.

•[Article 158(2)]- The Governor can not hold any other office of Profit.
•
•[Article 158 ( 3 A )]- [If the same person is appointed as a Governor of two or more
States, the emoluments and allowances payable to the Governor shall be allocated
among the States in such proportion as the President may by order determine. ]
 Oath

• Before entering upon his office, the governor needs to subscribe to an oath
to faithfully execute his office and to “preserve, protect and defend” the
Constitution, much like President.
• The oath is administered by Chief Justice of State High Court.
• [Article 159]- Before entering upon his office a Governor has to make and
subscribe , in the presence of Chief Justice of the State High Court , an
Oath or affirmation in the prescribed form.
• In the absence of the Chief Justice the Oath may be taken before the senior
most Judge of the High Court available at the time.
 Tenure

• Although the governor holds office for a term of five years from the date
on which he enters upon his
• Office, yet this term is subject to pleasure of president.
• The “doctrine of pleasure” has always been used to drop governors any
time and thus, Governors have no security of tenure.
• Further, a governor can resign from the office by addressing resignation to
President
 Privileges

•  The Governor enjoys the same privileges as the President does under Article
361 of The Constitution of India. [Article 361]-
• Case laws- G.Vasantha Pai v. C.k.Ramaswamy , AIR 1978 ,The Madras High
Court has laid down that a combine reading of Article 154, 163 and 361 (1)
would show that immunity against answerability to any court regarding
functions exercised by the Governor and those functions in respect of which
he acts on the advice of the Council of Ministers or his Discretion.
• Pratap Singh Raojirao Rane v. State of Goa AIR 1999 , According to Bombay
High court held that, the Governor while taking decision in his sole
discretion , enjoys immunity under Article 361 of our Indian Constitution.
 Executive Powers

• [Article 154 ]- Executive power of the State –

(1) The Executive Power of the State shall be vested in the Governor and
shall be exercised by him either directly or through officers subordinate to
him in accordance with this constitution.
(2) Nothing in this article shall – (a) be deemed to transfer to the Governor
any functions conferred by any existing law on any other authority ; or (b)
prevent Parliament or the Legislature of the State from conferring by law
functions on any authority subordinate to the Governor. The Governor has
the power to appoint the Council of Ministers including the Chief Minister
of the state, the Advocate General and the members of the State Public
Service Commission.
• However, the Governor cannot remove the members of the State Public
Service Commission as they can only be removed by an order of the
President.
• The Governor 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 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 LegislativeCouncil.
 Legislative Power

• As the Governor is said to be a part of the State Legislature, he has the

right of addressing and sending messages, summoning, deferring and
dissolving the State Legislature, just like the President has, in respect to the
Parliament.
• Although these are formal powers, in reality, the Governor must be guided
by the Chief Minister and his Council of Ministers before making such
decisions.
• The Governor inaugurates the state legislature and the first session of each
year, by addressing the Assembly, outlining the new administrative policies
of the ruling government.
• The Governor lays before the State Legislature, the annual financial
statement and also makes demands for grants and recommendation of
‘Money Bills’.
 Cases

• B.P. Singhal V. Union Of India ,2010 .

• Surya Narayan V. Union Of India,1982
• Nanavati v. State of Bombay ,1961
• Swaraj Singh V. State of U.P. , 1998
• Satyapal V. State of Haryana ,2000
• Bishambar Dayal Chandra Mohan V. State of U.P. ,1982
• Dr. Ambesh KumarV. Principal LLRM Medical College Meerut , 1987
Any Questions
 References

• Books
• Basu, Durga Das, Introduction to Constitution of India, Nagpur: Wadhwa publication,2010
• Granville Austin, The Indian Constitution: Cornerstone of a Nation (Oxford University Press,
Bombay, 1966).
• Jain M. P., Indian Constitutional Law, (8th ed. 2018., Wadhwa, Nagpur)).
• Shukla, V.N. Constitution of India, 11th ed., pp. A 28-A 35 EBC, Lucknow.
• Tope, T.K. Constitutional Law of India,3rd edition Eastern Book Company, Lucknow.
• Seervai, H.M., Constitutional law of India, New Delhi: Universal law Publishing House, 2007