Governor of States (Article 152-162)
- PART VI of the Constitution deals with the other half of Indian federalism, ie the States. Article from 152-237 deals with various provisions related to States. It covers the executive, legislature and judiciary wings of the states. Article 152 clarifies about the definition of the state, while the next set of articles lists the roles and responsibilities of the Governors of states.
Article 152: Definition
- In this Part, unless the context otherwise requires, the expression “State” does not include the State of Jammu and Kashmir.
CHAPTER II.—THE EXECUTIVE
- ARTICLE 153: GOVERNORS OF STATES
- 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.
ARTICLE 154: EXECUTIVE POWER OF 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.
ARTICLE 155: APPOINTMENT OF GOVERNOR
- The Governor of a State shall be appointed by the President by warrant under his hand and seal.
ARTICLE 156: TERM OF OFFICE OF GOVERNOR
- (1) The Governor shall hold office during the pleasure of the President.
- (2) The Governor may, by writing under his hand addressed to the President, resign his office.
- (3) Subject to the foregoing provisions of this article, a Governor shall hold office for a term of five years from the date on which he enters upon his office: Provided that a Governor shall, notwithstanding the expiration of his term, continue to hold office until his successor enters upon his office.
ARTICLE 157: QUALIFICATIONS FOR APPOINTMENT AS GOVERNOR
- No person shall be eligible for appointment as Governor unless he is a citizen of India and has completed the age of thirty-five years.
ARTICLE 158: CONDITIONS OF GOVERNOR’S OFFICE
- (1) The Governor shall not be a member of either House of Parliament or of a House of the Legislature of any State specified in the First Schedule, and if a member of either House of Parliament or of a House of the Legislature of any such State is appointed Governor, he shall be deemed to have vacated his seat in that House on the date on which he enters upon his office as Governor.
- (2) The Governor shall not hold any other office of profit.
- (3) The Governor shall be entitled without payment of rent to the use of his official residences and shall be also entitled to such emoluments, allowances and privileges as may be determined by Parliament by law and, until provision in that behalf is so made, such emoluments, allowances and privileges as are specified in the Second Schedule.
- (3A) Where the same person is appointed as 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.
- (4) The emoluments and allowances of the Governor shall not be diminished during his term of office.
ARTICLE 159: OATH OR AFFIRMATION BY THE GOVERNOR
- Every Governor and every person discharging the functions of the Governor shall, before entering upon his office, make and subscribe in the presence of the Chief Justice of the High Court exercising jurisdiction in relation to the State, or, in his absence, the senior-most Judge of that Court available.
ARTICLE 160: DISCHARGE OF THE FUNCTIONS OF THE GOVERNOR IN CERTAIN CONTINGENCIES
- The President may make such provision as he thinks fit for the discharge of the functions of the Governor of a State in any contingency not provided for in this Chapter.
ARTICLE 161: POWER OF GOVERNOR TO GRANT PARDONS, ETC., AND TO SUSPEND, REMIT OR COMMUTE SENTENCES IN CERTAIN CASES
- The Governor of a State shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or 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.
ARTICLE 162: EXTENT OF EXECUTIVE POWER OF STATE
- Subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has the power to make laws:
- Provided that in any matter with respect to which the Legislature of a State and Parliament have the power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made by Parliament upon the Union or authorities thereof.
Info-bits related to Governor of States
- Powers of the Governor can be broadly classified into executive, legislative (including financial powers) and judicial powers.
- Though the Governor has the power to pardon, he cannot pardon a death sentence.
- There are also related articles like 163 -167, 174-176, 200-201, 213, 217, 233-234 which touch the sphere of influence of the Governor of a state.
- When the governor reserves a bill for the consideration of the President, the assent of the Governor is no longer required (only President’s assent would be needed then).
- The president is not bound to give his assent to a state bill reserved by the governor for the Consideration of the President and he can return the bill to the houses for reconsideration ‘n’ times.
- Removal of Governors by Center: Disapproving the practice of replacing Governors after a new government comes to power at the Centre, the Supreme Court in 2010 had said that the Governors of states cannot be changed in an arbitrary and capricious manner with the change of power.
Who has the powers to summon the House?
- It is the Governor acting on the aid and advice of the cabinet.
- Article 174 of the Constitution gives the Governor the power to summon from time to time “the House or each House of the Legislature of the State to meet at such time and place as he thinks fit…”
- However, the phrase “as he thinks fit” is read as per Article 163 of the Constitution which says that the Governor acts on the aid and advice of the cabinet. Article 163(1) essentially limits any discretionary power of the Governor only to cases where the Constitution expressly specifies that the Governor must act on his own and apply an independent mind.
What has the Supreme Court said in the past about the Governor’s power to summon the House?
- It is settled law that the Governor cannot refuse the request of the Cabinet to call for a sitting of the House for legislative purposes or for the chief minister to prove his majority. In fact, on numerous occasions, including in the 2016 Uttarakhand case, the court has clarified that when the majority of the ruling party is in question, a floor test must be conducted at the earliest available opportunity.
- In 2016, a Constitution Bench of the Supreme Court in Nabam Rebia and Bamang Felix vs Deputy Speaker, the Arunachal Pradesh Assembly case, expressly said that the power to summon the House is not solely vested in the Governor.
What did the SC say in the Arunachal case?
- Referring to discussions in the Constituent Assembly, the court noted that the framers of the Constitution expressly and consciously left out vesting powers to summon or dissolve the House solely with the Governor.
- In paragraph 162 of the judgment, the court discussed that draft Article 153 (which later became Article 174), that dealt with the powers of the Governor, was substantially altered to indicate that the framers did not want to give Governors the discretion.
- “The most significant feature of draft Article 153 was expressed in sub-article (3) thereof, wherein it was provided, that the functions of the Governor with reference to sub-clause (a) and (c), namely, the power to summon and dissolve the House or Houses of the State Legislature “… shall be exercised by him in his discretion,” the court noted.
- “The manner in which draft Article 153(3) was originally drawn, would have left no room for any doubt, that the Governor would definitely have had the discretion to summon or dissolve the House or Houses of the State Legislature, without any aid or advice. After the debate, draft Article 153 came to be renumbered as Article 174. Article 174 reveals that sub-article (3) contained in draft Article 153 was omitted. The omission of sub-article (3) of draft Article 153, is a matter of extreme significance, for a purposeful confirmation of the correct intent underlying the drafting of Article 174,” it added.
- After debating the intention of the framers, the court concluded that “the only legitimate and rightful inference, that can be drawn in the final analysis is, that the framers of the Constitution altered their original contemplation, and consciously decided not to vest discretion with the Governor, in the matter of summoning and dissolving the House, or Houses of the State Legislature, by omitting sub-article (3), which authorized the Governor to summon or dissolve, the House or Houses of Legislature at his own, by engaging the words “… shall be exercised by him in his discretion…”. In such view of the matter, we are satisfied in concluding, that the Governor can summon, prorogue and dissolve the House, only on the aid and advice of the Council of Ministers with the Chief Minister as the head. And not at his own.”
When can a Governor use his discretion?
- Article 163(1) of the Constitution says that “there shall be a council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this constitution required to exercise his functions or any of them in his discretion.
- When the chief minister has lost the support of the House and his strength is debatable, then the Governor need not wait for the advice of the council of ministers to hold a floor test. Generally, when doubts are cast on the chief minister that he has lost the majority, the opposition and the Governor would rally for a floor test and the ruling party would attempt to stall the process to buy time and keep its flock together.
- The court in Paragraph 153 the 2016 Arunachal Pradesh ruling, clarifies this question as well. “In ordinary circumstances during the period when the CM and his council of ministers enjoy the confidence of the majority of the House, the power vested with the Governor under Article 174 to summon, prorogue and dissolve the house(s) must be exercised in consonance with the aid and advice of the chief minister and his council of ministers. In the above situation, he has precluded [from taking] an individual call on the issue at his own will, or in his own discretion. Only in a situation where the government in power – on holding of such floor test – is seen to have lost the confidence of the majority, would it be open to the Governor to exercise the powers vested with him under Article 174 at his own, and without any aid and advice,” the court said.