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Judicial Powers
The judicial powers and functions of the governor are:
1. He can grant pardons, reprives, respites and remissions of punishment or suspend, remit and commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the state extends.5
2. He is consulted by the president while appointing the judges of the concerned state high court.
3. He makes appointments, postings and promotions of the district judges in consultation with the state high court.
4. He also appoints persons to the judicial service of the state (other than district judges) in consultation with the state high court and the State Public Service Commission.
Now, we will study in detail the three important powers of the governor (veto power, ordinance-making power and pardoning power) by comparing them with that of the President.
Table 30.1 Comparing Veto Powers of President and Governor
President Governor
With Regard to Ordinary Bills With Regard to Ordinary Bills
Every ordinary bill, after it is passed by both the Houses of the Parliament either singly or at a joint sitting, is presented to the President for his assent. He has three alternatives:
1. He may give his assent to the bill, the bill then becomes an act.
2. He may withhold his assent to the bill, the bill then ends and does not become an act.
3. He may return the bill for reconsideration of the Houses. If the bill is passed by both the Houses again with or without amendments and presented to the President for his assent, the president must give his assent to the bill. Thus the president enjoys only a 'suspensive veto’.
Every ordinary bill, after it is passed by the legislative assembly in case of a unicameral legislature or by both the Houses in case of a bicameral legislature either in the first instance or in the second instance, is presented to the governor for his assent. He has four alternatives:
1. He may give his assent to the bill, the bill then becomes an act.
2. He may withhold his assent to the bill, the bill then ends and does not become an act.
3. He may return the bill for reconsideration of the House or Houses. If the bill is passed by the House or Houses again with or without amendments and presented to the governor for his assent, the governor must give his assent to the bill. Thus, the governor enjoys only a 'suspensive veto’.
4. He may reserve the bill for the consideration of the President.
When a state bill is reserved by the When the governor reserves a bill
governor for the consideration of the President, the President has three alternatives:
(a) He may give his assent to the bill, the bill then becomes an act.
(b) He may withhold his assent to the bill, the bill then ends and does not become an Act.
(c) He may return the bill for reconsideration of the House or Houses of the state legislature. When a bill is so returned, the House or Houses have to reconsider it within six months. If the bill is passed by the House or Houses again with or without amendments and presented to the president for his assent, the president is not bound to give his assent to the bill. He may give his assent to such a bill or withhold his assent.
Every money bill after it is passed by the Parliament, is presented to the President for his assent. He has two alternatives:
1. He may give his assent to the bill, the bill then becomes an act.
2. He may withhold his assent to the bill, the bill then ends and does not become an act.
Thus, the President cannot return a money bill for the reconsideration of the Parliament. Normally, the
for the consideration of the President, he will not have any further role in the enactment of the bill. If the bill is returned by the President for the reconsideration of the House or Houses and is passed again, the bill must be presented again for the presidential assent only. If the President gives his assent to the bill, it becomes an act. This means that the assent of the Governor is no longer required.
Every money bill, after it is passed by the state legislature (unicameral or bicameral), is presented to the governor for his assent. He has three alternatives:
1. He may give his assent to the bill, the bill then becomes an act.
2. He may withhold his assent to the bill, the bill then ends and does not become an act.
3. He may reserve the bill for the consideration of the president.
Thus, the governor cannot return a money bill for the reconsideration of the state legislature. Normally, the
president gives his assent to a money bill as it is introduced in the Parliament with his previous permission.
When a Money Bill is reserved by the Governor for the consideration of the President, the President has two alternatives:
governor gives his assent to a money bill as it is introduced in the state legislature with his previous permission.
When the governor reserves a money bill for the consideration of the President, he will not have any further role in the enactment of the
(a) He may give his assent to bill. If the President gives his assent the bill, the bill then to the bill, it becomes an Act. This
becomes an Act. means that the assent of the
(b) He may withhold his assent governor is no longer required. to the bill, the bill then ends
and does not become an act.
Thus, the President cannot return a money bill for the reconsideration of the state legislature (as in the case of the Parliament).
Table 30.2 Comparing Ordinance-Making Power of President and Governor
President | Governor |
1. He can promulgate an | 1. He can promulgate an |
ordinance only when both the | ordinance only when the |
Houses of Parliament are not in | legislative assembly (in case of |
session or when either of the | a unicameral legislature) is not |
two Houses of Parliament is | in session or (in case of a bi- |
not in session. The second | cameral legislature) when both |
provision implies that an | the Houses of the state |
ordinance can also be | legislature are not in session or |
promulgated by the president | when either of the two Houses |
when only one House is in | of the state legislature is not in |
session because a law can be | session. The last provision |
passed by both the Houses | implies that an ordinance can |
and not by one House alone. | be promulgated by the |
governor when only one House | |
(in case of a bicameral | |
legislature) is in session | |
because a law can be passed |
2. He can promulgate an ordinance only when he is satisfied that circumstances exist which render it necessary for him to take immediate action.
3. His ordinance-making power is co-extensive with the legislative power of the Parliament. This means that he can issue ordinances only on those subjects on which the Parliament can make laws.
4. An ordinance issued by him has the same force and effect as an act of the Parliament.
5. An ordinance issued by him is subject to the same limitations as an act of Parliament. This means that an ordinance issued by him will be invalid to the extent it makes any provision which the Parliament cannot make.
6. He can withdraw an ordinance at any time.
7. His ordinance-making power is not a discretionary power. This means that he can promulgate or withdraw an ordinance only on the advice of the council of ministers of ministers headed by the prime minister.
8. An ordinance issued by him should be laid before both the Houses of Parliament when it reassembles.
by both the Houses and not by one House alone.
2. He can promulgate an ordinance only when he is satisfied that circumstances exist which render it necessary for him to take immediate action.
3. His ordinance-making power is co-extensive with the legislative power of the state legislature. This means that he can issue ordinances only on those subjects on which the state legislature can make laws.
4. An ordinance issued by him has the same force and effect as an act of the state legislature.
5. An ordinance issued by him is subject to the same limitations as an act of the state legislature. This means that an ordinance issued by him will be invalid to the extent it makes any provision which the state legislature cannot make.
6. He can withdraw an ordinance at any time.
7. His ordinance-making power is not a discretionary power. This means that he can promulgate or withdraw an ordinance only on the advice of the council headed by the chief minister.
8. An ordinance issued by him should be laid before the legislative assembly or both the Houses of the state legislature
9. An ordinance issued by him ceases to operate on the expiry of six weeks from the reassembly of Parliament. It may cease to operate even earlier than the prescribed six weeks, if both the Houses of Parliament passes resolutions disapproving it.
10. He needs no instruction for making an ordinance.
(in case of a bicameral legislature) when it reassembles.
9. An ordinance issued by him ceases to operate on the expiry of six weeks from the reassembly of the state legislature. It may cease to operate even earlier than the prescribed six weeks, if a resolution disapproving it is passed by the legislative assembly and is agreed to by the legislative council (in case of a bicameral legislature).
10. He cannot make an ordinance without the instructions from the President in three cases:
(a) If a bill containing the same provisions would have required the previous sanction of the President for its introduction into the state legislature.
(b) If he would have deemed it necessary to reserve a bill containing the same provisions for the consideration of the President.
(c) If an act of the state legislature containing the same provisions would have been invalid without receiving the President’s assent.
Table 30.3 Comparing Pardoning Powers of President and Governor
President | Governor | ||
1. He can pardon, reprive, respite, remit, suspend or commute the | 1. | He can respite, | pardon, reprieve, remit, suspend or |
punishment or sentence of any person convicted of any offence against a Central law.
2. He can pardon, reprieve, respite, remit, suspend or commute a death sentence. He is the only authority to pardon a death sentence.
3. He can grant pardon, reprieve, respite, suspension, remission or commutation in respect to punishment or sentence by a court-martial (military court).
commute the punishment or sentence of any person convicted of any offence against a state law.
2. He cannot pardon a death sentence. Even if a state law prescribes for death sentence, the power to grant pardon lies with the President and not the governor. But, the governor can suspend, remit or commute a death sentence.
3. He does not possess any such power.
The Constitution of India provides for a parliamentary form of government in the states as in the Centre. Consequently, the governor has been made only a nominal executive, the real executive constitutes the council of ministers headed by the chief minister. In other words, the governor has to exercise his powers and functions with the aid and advise of the council of ministers headed by the chief minister, except in matters in which he is required to act in his discretion (i.e., without the advice of ministers).
In estimating the constitutional position of the governor, particular reference has to be made to the provisions of Articles 154, 163 and 164. These are:
(a) 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 (Article 154).
(b) There shall be a council of ministers with the chief minister as the head to aid and advise the governor in the exercise of his functions, except in so far as he is required to exercise his functions in his discretion (Article 163).
(c) The council of ministers shall be collectively responsible to the legislative assembly of the state (Article 164). This provision is the foundation of the parliamentary system of government in the state.
From the above, it is clear that constitutional position of the governor differs from that of the president in the following two respects:6
1. While the Constitution envisages the possibility of the governor acting at times in his discretion, no such possibility has been envisaged for the President.
2. After the 42nd Constitutional Amendment (1976), ministerial advice has been made binding on the President, but no such provision has been made with respect to the governor.
The Constitution makes it clear that if any question arises whether a matter falls within the governor’s discretion or not, the decision of the governor is final and the validity of anything done by him cannot be called in question on the ground that he ought or ought not to have acted in his discretion. The governor has constitutional discretion in the following cases:
1. Reservation of a bill for the consideration of the President.
2. Recommendation for the imposition of the President’s Rule in the state.
3. While exercising his functions as the administrator of an adjoining union territory (in case of additional charge).
5. Seeking information from the chief minister with regard to the administrative and legislative matters of the state.
In addition to the above constitutional discretion (i.e., the express discretion mentioned in the Constitution), the governor, like the president, also has situational discretion (i.e., the hidden discretion derived from the exigencies of a prevailing political situation) in the following cases:
1. Appointment of chief minister when no party has a clear-cut majority in the state legislative assembly or when the chief minister in office dies suddenly and there is no obvious successor.
2. Dismissal of the council of ministers when it cannot prove the confidence of the state legislative assembly.
3. Dissolution of the state legislative assembly if the council of ministers has lost its majority.
Table 30.4 Articles Related to Governor at a Glance
Article No. Subject Matter |
153. Governors of states |
154. Executive power of state |
155. Appointment of Governor |
156. Term of office of Governor |
157. Qualifications for appointment as Governor |
158. Conditions of Governor’s office |
159. Oath or affirmation by the Governor |
160. Discharge of the functions of the Governor in certain contingencies |
161. Power of the Governor to grant pardons and others |
162. Extent of executive power of state |
163. Council of ministers to aid and advise the Governor |
164. Other provisions as to ministers like appointments, term, salaries, and others |
165. Advocate-General for the state |
166. Conduct of business of the government of a state |
167. Duties of the Chief Minister regarding furnishing of information to the Governor, and so on |
174. Sessions of the state legislature, prorogation and dissolution |
175. Right of the Governor to address and send messages to the house or houses of state legislature |
176. Special address by the Governor |
200. Assent to bills (i.e. assent of the Governor to the bills passed by the state legislature) |
201. Bills reserved by the Governor for consideration of the President |
213. Power of Governor to promulgate ordinances |
217. Governor being consulted by the President in the matter of the appointments of the judges of the High Courts |
233. Appointment of district judges by the Governor |
234. Appointments of persons (other than district judges) to the judicial service of the state by the Governor. |
Moreover, the governor has certain special responsibilities to discharge according to the directions issued by the President. In this regard, the governor, though has to consult the council of ministers led by the chief minister, acts finally on his discretion. They are as follows:
1. Maharashtra-Establishment of separate development boards for Vidarbha and Marathwada.
2. Gujarat-Establishment of separate development boards for Saurashtra and Kutch.
3. Nagaland-With respect to law and order in the state for so long as the internal disturbance in the Naga Hills-TUensang Area continues.
4. Assam-With respect to the administration of tribal areas.
5. Manipur-Regarding the administration of the hill areas in the state.
6. Sikkim-For peace and for ensuring social and economic advancement of the different sections of the population.
7. Arunachal Pradesh-With respect to law and order in the state.
8. Karnataka - Establishment of a separate development board for Hyderabad-Karnataka region8 .
Thus, the Constitution has assigned a dual role to the office of a governor in the Indian federal system. He is the constitutional head of the state as well as the representative of the Centre (i.e., President).
1. Constituent Assembly Debates, Volume IV, pp. 588-607.
2. Vide the Finance Act, 2018, with effect from 1st January, 2016. This Act amended the Governor’s (Emoluments, Allowances and Privileges) Act, 1982.
3. Surya Narain v Union of India, (1982).
4. Soli Sorabji, The Governor: Sage or Saboteur, Roli Books (New Delhi), 1985, p. 25.
5. For the meanings of these legal terms, see 'Pardoning Power of the President’ under Chapter 17.
6. M.P. Jain, Indian Constitutional Law, Wadhwa, Fourth Ed, p. 186.
7. Paragraph 9(2) of the Sixth Schedule says: 'If any dispute arises as to the share of such royalties to be made over to a district council, it shall be referred to the governor for determination and the amount determined by the governor in his discretion shall be deemed to be the amount payable to the district council and the decision of the governor shall be final’. The Sixth Schedule contains the provisions as to the administration of tribal areas in the States of Assam, Meghalaya, Tripura and Mizoram.
8. This provision was added by the 98th Constitutional Amendment Act of 2012.
I
n the scheme of parliamentary system of government provided by the Constitution, the governor is the nominal executive authority (de jure executive) and the Chief Minister is the real
executive authority (de facto executive). In other words, the governor is the head of the state while the Chief Minister is the head of the government. Thus the position of the Chief Minister at the state level is analogous to the position of prime minister at the Centre.
The Constitution does not contain any specific procedure for the selection and appointment of the Chief Minister. Article 164 only says that the Chief Minister shall be appointed by the governor. However, this does not imply that the governor is free to appoint any one as the Chief Minister. In accordance with the conventions of the parliamentary system of government, the governor has to appoint the leader of the majority party in the state legislative assembly as the Chief Minister. But, when no party has a clear majority in the assembly, then the governor may exercise his personal discretion in the selection and appointment of the Chief Minister. In such a situation, the governor usually appoints the leader of the largest party or coalition in the assembly as the Chief Minister and ask him to seek a vote of confidence in the House within a month.1
The governor may have to exercise his individual judgement in the selection and appointed of the Chief Minister when the Chief Minister in office dies suddenly and there is no obvious successor. However, on the death of a Chief Minister, the ruling party usually elects a new leader and the governor has no choice but to appoint him as Chief Minister.
A person who is not a member of the state legislature can be appointed as Chief Minister for six months, within which time, he should be elected to the state legislature, failing which he ceases to be the Chief Minister.3
According to the Constitution, the Chief Minister may be a member of any of the two Houses of a state legislature. Usually Chief Ministers have been selected from the Lower House (legislative assembly), but, on a number of occasions, a member of the Upper House (legislative council) has also been appointed as Chief Minister.4
Before the Chief Minister enters his office, the governor administers to him the oaths of office and secrecy.5 In his oath of office, the Chief Minister swears:
1. to bear true faith and allegiance to the Constitution of India,
2. to uphold the sovereignty and integrity of India,
3. to faithfully and conscientiously discharge the duties of his office, and
4. to do right to all manner of people in accordance with the Constitution and the law, without fear or favour, affection or ill- will.
In his oath of secrecy, the Chief Minister swears that he will not directly or indirectly communicate or reveal to any person(s) any matter that is brought under his consideration or becomes known to him as a state minister except as may be required for the due discharge of his duties as such minister.
The term of the Chief Minister is not fixed and he holds office during the pleasure of the governor. However, this does not mean that the governor can dismiss him at any time. He cannot be dismissed by the governor as long as he enjoys the majority support in the legislative assembly.6 But, if he loses the confidence of the assembly, he must resign or the governor can dismiss him.
The salary and allowances of the Chief Minister are determined by the state legislature. In addition to the salary and allowances, which are payable to a member of the state legislature, he gets a sumptuary allowance, free accommodation, travelling allowance, medical facilities, etc.
The powers and functions of the Chief Minister can be studied under the following heads: