• Lex Specialis

Governor: Appointment and Powers under the Indian Constitution

Niyati Nagar


Introduction


The Governor of a State has a very pivotal function to play in the quasi-federal structure of government in India. They form an important link between the State and the Centre. By informing the Centre about the State affairs they help Centre in discharging its constitutional responsibilities towards the State.


Article 153 of the Constitution of India provides for the mandatory position of Governor in each and every state of India, clarifying that one person can be appointed as a Governor for two or more States. The appointment of the Governor is made by the President of India pursuant to Article 155 of the Constitution. As provided under Article 75 of the Constitution, President operates on the advice of the Prime Minister, giving the Centre carte blanche in the matter.


The Governor functioning under their dual capacity of a) the head of the State, b) the representative of the Centre in the State acts as a channel of communication and contact. Being the head of the state, the concerned State Chief Minister is being consulted in practice thereby making it a constitutional convention.


Furthermore, Article 154 of the Constitution provides for the vesting of state executive power in the concerned Governor, they have been made functional either directly or through their subordinate officers as in accordance with the Constitution. Clause (2)(a) and (b) is a non-obstante clause and provides for the limitations on the power of the Governor, whereby they cannot supersede the legislative enactments conferring function on different authority or the authority subordinate to the Governor.


The Tenure and Eligibility of the Governor


Article 156 governs the tenure of the office of the Governor, which is during the pleasure of the President, general practice limits it to five years. Clause (2) stats that they shall hold the office on the expiry of the term until the successor joins the office. Clause (3) provides for the resignation that can be made in writing to the President.


The eligibility of the Governor is prescribed under Article 157 requires a person to be the citizen of India and above the age of 35.


Further, under Article 158 the additional requirement is a) should not be the member of a House of Parliament or of the State Legislature, if member, they have to vacate the seat on entering upon the office as Governor. (Clause 1), b) cannot hold any other office of profit. (Clause 2).


Moreover, the Article presents the emoluments and allowances attached to the office.

Before starting their tenure as the Governor of a State, the Governor is required to stand on an oath under Article 159.


President is bestowed with the power to make rules or provisions as he/she deems fit concerning the discharge of functions of the Governor in case of a contingency not mentioned under the Constitution under Article 160. Arun Kumar v UOI.


Pardoning and other Power of the Governor


The Governor of a State or the State has the power to grant pardon, commute, remit, or suspend the sentences of conviction depending upon the subject matter of the conviction. The subject matter of the conviction determines the existence of the power with the Governor, the power under Article 161 of the Constitution, co-exist with the power of the State Legislature to legislate as provided under Schedule VII List II & III.


The power of granting pardon under this Article is a constitutional power that cannot be fettered by position such as Sections 432, 433A of Code of Criminal Procedure. This power cannot be altered, modified, or interfered with in any manner whatsoever by any statutory provision or Prison Rules. State of Punjab v Joginder Singh. Unlike the grant of pardon, remission or suspension of the sentences do have the limitations imposed by section 433A of the Code of Criminal Procedure.


However, the clemency power of the Governor is not the discretionary power and it could be exercised only on the aid and advice of the Council of Ministers. Balchandran v State of Kerala. A Governor’s power of granting pardon under Article 161 being an exercise of executive function is independent of the Court’s power to pronounce on the innocence or guilt of the accused. The powers of a Court of law in a criminal trial and subsequent appeal right up to the Supreme Court and that of the President/Governor under Articles 72 and 161 operate in totally different arenas and the nature of these two powers is also totally different from each other. Narayan Dutt v State of Punjab. Being prerogative power, it is not open for the judicial review except on very limited grounds namely, non-applicability of mind while delivering an order, non-consideration of relevant material, garbed with arbitrariness. Mohinder Singh v State of Punjab. Pardoning power can also be exercised while the appeal is pending before the Supreme Court and it results in the debarring of the court from proceeding with the hearing of the appeal. K.M. Nanavati v State of Bombay



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