The role and powers of governors

D. N. Bezboruah

The recent political developments in Aruchal Pradesh, triggered off largely by the actions of the Governor that led to the eventual imposition of President’s rule in the State, have drawn pointed attention to the role and powers of governors in India. Soon after the State cane under President’s rule, the Supreme Court sent a notice to the Aruchal Pradesh Governor seeking a copy of the report that was sent to the President of India recommending the imposition of President’s rule. In a rare kind of volte-face, the Supreme Court later recalled its earlier order and admitted that it had committed a “mistake” in directing the Governor of Aruchal Pradesh to share with the Supreme Court his recommendations to the President of India seeking President’s rule for the State, since Article 361 of the Indian Constitution protects the President and the governors of States from being answerable to any court for the exercise and performance of the powers and duties of their office or for any act done or purporting to be done by them in the exercise and performance of those powers and duties. Article 361 also protects the President and the governors from crimil proceedings in any court during the terms of their office. This rare development and the others preceding it have impelled me to take another look at the role and powers of governors in India.

Article 153 of our Constitution stipulates that there shall be a governor for each State. Article 154 says that the executive power of the State shall be vested in the governor and shall be exercised by him either directly or through officers subordite to him in accordance with the Constitution of India. Article 154 also stipulates that nothing in the 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 legislation of the State from conferring by law functions on any authority subordite to the Governor. Thus Article 154 makes the Governor the head of State while the Chief Minister of the State remains the head of government. Article 155 states that the Governor of a State shall be appointed by the President by warrant under his hand and seal. While Article 156 stipulates that the Governor shall hold office during the pleasure of the President, it also stipulates that the Governor shall hold office for a term of five years from the date on which he enters upon his office. The same article provides that and notwithstanding the expiration of his term, a governor shall continue to hold office until his successor enters upon his office. Article 157 qualifies that no person shall be eligible for appointment as governor unless he is a citizen of India and has completed the age of 35 years. One cannot help wondering why the appointment of governors is confined to fairly elderly people—in some cases to people who are so old as to be incapable of getting up to any dais or rostrum without assistance. It is time we reversed this facet of our political culture to induct younger people as governors who can be counted on not merely to execute ceremonial functions but to also be engaged in more demanding executive functions. Article 158 lays down the conditions of the governor’s office and stipulates that the governor shall not be a member of either House of Parliament or of the 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 be 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. Article 158 also stipulates that the governor shall not hold any other office of profit.

Beyond stipulating that the executive power of the State shall be vested in the governor and shall be exercised by him either directly or through officers subordite to him, the Indian Constitution does not specify the role of governors in any detail except to stipulate, under Article 160, that “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 of the Constitution vests on the Governor 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. Apart from all this, the Governor’s report and recommendation is mandatory for the imposition of President’s rule in any State.

What is very significant is that, as the Supreme Court has pointed out, governors are political appointees regardless of whether they were senior bureaucrats, retired senior officers of the armed forces, judges of the Supreme Court or any of the high courts or senior leaders of political parties. There was a time in the early days of independence when governments were anxious to avoid appointing politicians as governors. Those were days when the ruling party sought to ensure that governors should be seen as independent and non-partisan heads of state. The rulers of the day have thrown such cautions out of the window not only in the appointment of governors but in the appointment of the President as well. We have had two successive Presidents who were members of the Indian tiol Congress.

A comparison between governors of India and governors of the United States of America may not be out of place. In India, a governor is only head of state. He is not the head of government. In the United States, a governor of a State is not only the head of state but also the head of government. In the United States, a governor is elected. In India, a governor is appointed. Actually, a governor of a State in the United States is more the equivalent of a Chief Minister in India than anything else. Because a governor in the United States is both the head of state and the head of government, his powers and responsibilities are far more extensive than those of the governors of Indian States. His duties and powers are also far more clearly specified than the duties and powers of Indian governors. However, the role and powers of governors of the United States are more extensive for yet another reason. States are the primary subdivisions of the United States, and possess a number of powers and rights under the United States Constitution, such as regulating inter-State commerce, running elections, creating local governments and ratifying constitutiol amendments. Each State has its own constitution, grounded in republican principles, and government consists of three branches: executive, legislative and judicial. Also, due to the shared sovereignty between each State and the federal government, Americans are citizens of both the federal republic and the State in which they reside.

The importance of the State, within the federal structure of the United States, gives the governor great powers that differ from State to State. Depending on the individual jurisdiction and the constitution of the State, a governor in the United States may have considerable control over government budgeting, the power of appointment of many officials (including many judges), and a considerable role in legislation. The governor may also have additiol roles, such as that of commander-in-chief of the State’s tiol Guard (when not federalized) and of that State’s respective defence force (which is not subject to federalization). Governors can veto State Bills, and in all but seven States they have the power of the line-item veto on appropriations Bills (a power that the US President does not have). In some cases, legislators can override the governor’s veto by a two-thirds vote, in others by three-fifths.  In many States and territories the governor also has partial or absolute power to commute or pardon a crimil sentence. Some of these are powers that the Indian Constitution has not given to our governors. All US governors serve four-year terms except those in New Hampshire and Vermont, who serve two-year terms.

People in India should give serious thought to the question of whether the institution of governors is really necessary and whether it would not be far more preferable to make chief ministers of Indian States both the head of State and head of government instead of gratuitously having separate heads of State and the heads of government. Many serious thinkers are of the view that nothing would be lost if the institution of governors is abolished considering that today the governor’s post is more a decorative than a functiol one. The only function of the governor that appears to make the institution necessary is that in the event of President’s rule becoming uvoidable for a State, it is the governor who sends a report to that effect to the President of India. Obviously, a mechanism can surely be worked out to have other altertives for invoking President’s rule in a State. There is no point in a poor country like ours squandering thousands of crores of rupees on a seemingly redundant institution.