INTRODUCTION
The governance structure under India’s constitutional framework beautifully blends federalism and democracy. The Indian Constitution’s Articles 152-167 and 213[1] are crucial in outlining the duties, powers and responsibilities of state executives in this complex web of government.
THE GOVERNOR: A CONSTITUTIONAL APPARATUS
Article 153[2] of the Indian Constitution requires each state to have a governor. The Constitution (Seventh Amendment) Act of 1956[3] included a significant amendment, the Proviso to Article 153. This amendment clarifies that there are no restrictions on appointing the same person as Governor of two or more states.
APPOINTMENT OF THE GOVERNOR
Article 155[4] of the Indian Constitution governs the process of appointing a State Governor. The President, acting through a formal warrant bearing their signature and seal, designates the Governor under this constitutional provision. It is important to note that, while the President has the authority to make this appointment, the Governor does not work for the Government of India.
TENURE AND RESIGNATION OF THE GOVERNOR
Tenure Subject to Presidential Pleasure: Article 156(1)[5] captures an important aspect of the Governor’s role in state administration. The appointment of the Governor is at the discretion of the President of India. This arrangement demonstrates that the nation’s highest executive authority wields power over the state’s top constitutional representative.
Resignation Option: Article 156(2)[6] grants the Governor the right to resign from their position. They can exercise this option by writing a formal resignation letter to the President. This provision protects the principle of individual autonomy in public service by allowing the Governor to resign at any time.
Fixed Five-Year Term with Continuation Until Successor’s Arrival: Article 156(3)[7] establishes a standard tenure for a Governor of five years from their appointment. This period not only ensures consistency in the state’s administrative leadership but also includes an important provision. A Governor remains in office after their initial five-year term expires until their successor officially takes over.
On May 7, 2010, a Constitution Bench of the Supreme Court delivered a historic judgement in the case of B.P. Singhal vs. Union of India & Anr[8]. This decision made it clear that governors could not be fired simply because of a change in the central government or ideological differences. Removal must be based on rare and compelling reasons, not arbitrary decisions.
QUALIFICATIONS
Article 157[9] of the Indian Constitution establishes two key requirements for Governorship:
Citizenship: The individual must be an Indian citizen, emphasizing loyalty to the country.
Age Requirement: They must be 35 years old, reflecting the importance of maturity and experience in this important role.
THE GOVERNOR’S OFFICE
Article 158 of the Indian Constitution is a pillar that establishes the essential conditions and privileges of the Governor’s office. In a nutshell, it establishes the foundation for a fair, devoted and dignified tenure:
(1) Independence from Legislature
The Governor may not serve in both Parliament and any of the State Legislatures named in the First Schedule[10]. When a serving legislator is appointed as Governor, their legislative seat is instantly abandoned stressing the Governor’s principal function.
(2) Exclusive Commitment
The Governor may not hold any position that generates financial benefits[11]. This ensures that the Governor’s whole attention is focused on their constitutional responsibilities.
(3) Residency and Dignity
The Governor receives free official residence as well as the emoluments, allowances and privileges specified by Parliament[12].
(3A) Emoluments Allocation
If a single individual serves as Governor in many states, the President has the discretion to distribute emoluments as he sees fit among these states[13].
(4) Immutable Financial Security
The Governor’s emoluments and allowances are not subject to reduction during their term, assuring their financial stability and the office’s credibility[14].
POWERS OF THE GOVERNOR: BALANCING ACT
IN RELATION TO THE EXECUTIVE
The Governor is granted executive power under Article 154(1)[15] of the Indian Constitution, which he can exercise directly or through subordinate officers. Article 162[16] ties this power to legislative authority, and Article 166[17] requires executive actions to bear the Governor’s name, emphasizing the Governor’s role as a constitutional figurehead.
The Supreme Court emphasized the case-specific nature of Article 166’s classification as mandatory or advisory in M. Balakrishna Reddy v. Director C.B.I.[18] Nevertheless, it emphasized the importance of adhering to constitutional provisions, as actions bearing the Governor’s name carry legal weight, reinforcing the rule of law over individual discretion.
IN RELATION TO THE LEGISLATURE
In India’s State Legislature, Articles 168 and 171 define the Governor’s pivotal role. Article 168(1)[19] recognizes the Governor as part of the State Legislature, enabling them to nominate Anglo-Indian representatives to the Legislative Assembly. Article 171(3)(e)[20] empowers the Governor to nominate a portion of Legislative Council members with specialized knowledge. They also convene sessions, address the Houses, and approve bills, with financial and money bills requiring prior recommendations.
ORDINANCE-MAKING POWER
Article 213[21] of the Indian Constitution grants the Governor the authority to issue ordinances during legislative recess if two conditions are met: the Legislative Assembly (or both Houses) is not in session, and immediate action is required due to circumstances. Ordinances have the same legal weight as laws, but they are only valid for six weeks unless approved by the Legislature.
In the landmark case of A.K. Roy[22], the courts emphasized the importance of the Governor’s ordinance-making power being used wisely rather than as a workaround for the legislative process. This emphasizes the significance of preserving the constitutional framework’s integrity.
POWER TO GRANT PARDONS
Governors have the authority under Article 161[23] of the Indian Constitution to pardon, commute, or suspend sentences for those convicted of state-level offences. This authority is subject to judicial review, which ensures impartiality. Notably, in D. Chatterjee alias Dhana v. State of W.B.[24], the importance of presenting all relevant facts was emphasized. However, according to the State of Haryana v. Balwan[25] case, the policy guiding this power should not be arbitrary or discriminatory. Finally, while Article 161 grants broad clemency authority, its application must be consistent with constitutional principles and judicial scrutiny.
THE COUNCIL OF MINISTERS
- Non-Member as Minister: Non-legislators can be appointed as Chief Ministers or Ministers under Article 164(1)[26] of the Indian Constitution. They must, however, meet the eligibility requirements outlined in the Constitution.
- Minister for Tribal Welfare: Article 164(1) mandates the appointment of a Minister for Tribal Welfare in specific states (Chhattisgarh, Jharkhand, Madhya Pradesh, and Orissa), potentially overseeing Scheduled Castes and backward classes.
- Appointment of the Chief Minister: While the Governor appoints the Chief Minister, tradition dictates that the leader of the majority party in the Lower House assumes this role. Legal and constitutional prerequisites are followed, as per the R. Kapur v. State of Tamil Nadu[27] case.
- Dismissal of the Council of Ministers: If the Ministry loses the trust of the legislative body, the Governor has the authority to dismiss them. While theoretically at the Governor’s discretion, this act is uncommon and usually reserved for exceptional circumstances.
THE ADVOCATE-GENERAL FOR THE STATE
The office of the Advocate-General for the State is established by Article 165[28] of the Indian Constitution. The Governor appoints the Advocate-General, who must be qualified to serve as a High Court Judge. They provide legal counsel to the State Government on matters referred to them, participate in legislative proceedings without voting rights, and enjoy legislative-like privileges. Importantly, under Article 226[29], their advice is not subject to judicial review, as confirmed in the M.T. Khan v. Government of A.P.[30] case. As illustrated by the cited case, this article emphasizes the Advocate-role General’s as a legal advisor, their qualifications, and the non-reviewability of their constitutional advice.
CONCLUSION
Eventually, the Indian Constitution clearly describes the functions and powers of the state executives, principally the Governor, the Council of Ministers and the State Advocate General. The Governor is a constitutional leader who balances executive authority with discretion. The Council of Ministers is the executive branch of the state government, led by the Chief Minister. The Advocate General provides legal assistance to guarantee that the state’s business is conducted in line with the law. Understanding these constitutional provisions is crucial for a functional democracy since they embody the ideas of federalism, democracy and separation of powers that underpin the Indian state.
Author(s) Name: Aditya Shaw (Calcutta University, Kolkata)
References:
[1] Constitution of India 1950, arts 152-167, 213
[2] Constitution of India 1950, art 153
[3] Constitution of India Seventh Amendment Act 1956, (India.gov.in, 11 Oct 2012) https://www.india.gov.in/my-government/constitution-india/amendments/constitution-india-seventh-amendment-act-1956 <accessed 8 September 2023>
[4] Constitution of India 1950, art 155
[5] Constitution of India 1950, art 156(1)
[6] Constitution of India 1950, art 156(2)
[7] Constitution of India 1950, art 156(3)
[8] B.P. Singhal v. Union of India (2010) 6 SCC 331
[9] Constitution of India 1950, art 157
[10] Constitution of India 1950, art 158
[11] Constitution of India 1950, art 158(2)
[12] Constitution of India 1950, art 158(3)
[13] Constitution of India 1950, art 158(3A)
[14] Constitution of India 1950, art 158(4)
[15] Constitution of India 1950, art 154(1)
[16] Constitution of India 1950, art 162
[17] Constitution of India 1950, art 166
[18] M. Balakrishna Reddy v. Director C.B.I [2008] AIR SC 1754
[19] Constitution of India 1950, art 168(1)
[20] Constitution of India 1950, art 171(3)(e)
[21] Constitution of India 1950, art 213
[22] A.K. Roy v. Union of India, [1982] AIR SC 710
[23] Constitution of India 1950, art 161
[24] D.Chatterjee alias Dhana v. State of W.B., [2004] AIR SC 3454
[25] State of Haryana v. Balwan, [1999] AIR SC 3333
[26] Constitution of India 1950, art 164(1)
[27] B.R. Kapur v. State of Tamil Nadu, [2001] AIR SC 3435
[28] Constitution of India 1950, art 165
[29] Constitution of India 1950, art 226
[30] M.T. Khan v. Government of A.P., [2004] AIR SC 2934
