THE GOVERNOR

Article 153 of the Constitution makes provision for appointment of Governors for the
States. Article 153 provides that, “there shall be a Governor for each State. However, one person
may be appointed as a Governor of two or more States. He is the Constitutional or nominal head
of the Executive and is bound by the advice of the Ministers. As per Article 152, the expression
‘State’ does not include the State f Jammu and Kashmir. However, the State of Jammu and
Kashmir is as much a State within India as any other State but exception in Article 152 is limited
to Part VI (The State).
According to Article 155 of the Constitution, the Governor of a State shall be appointed
by the {resident of India by warrant under his hand and seal. He is a nominee of the Central
Government. The Governor is appointed with the advice tendered by the Central Cabinet to him
as provided under Article 74 of the Constitution.
(i) Qualifications (Article 157): Article 157 provides that a p[person to be eligible for
appointment of Governor-
1. Must be a citizen of India, and
2. Must have completed the age of 35 years.

(ii) Term of Office (Article 156): Article 156(1) provides that the Governor holds office
during the pleasure of the President. He may be writing under his hand addressed to
the president, resign his Office. Subject to the above provisions, a Governor holds
office for a term of five years from the date on which he enters upon his office.
Article 156 reads as follows-
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, not withstanding the expiration of his term, continue to
hold office until his successor enters upon his office.
(iii) Powers of the Governor: The constitutional position of the Governor of a State is
similar to that of the President of India with regard to his/her State concerned of the
State. The real executive power of the State is vested in the State Council of
Ministers. The powers of the Governor may be explained with reference to the
following heads:
(a) Executive Powers (Article 154(1)
(b) Financial Powers (Articles 202 & 203 (3)
(c) Legislative Powers (Article 168(1)
(d) Ordinance Making Power (Article 213) and
(e) Power to grant pardons (Article 161)
(a) Executive Powers (Article 154(1): Article 159 of the Constitution confers on
Governor, the executive powers of the State. It runs as follows-
1. The executive power of 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.

The executive power of the State is vested in the Governor. All executive actions
of the Government of a State shall be expressed to be taken in the name of the
Governor directly or through the officers subordinate to him i.e the Ministers and
heads of various Departments of the State viz. Law and Order, Finance, Irrigation,
Commercial Taxes, Education etc., Orders and instruments, made and executed in
the name of the Governor, shall be authenticated in the manner specified in the
rules made by the Governor. The validity of an order of instrument, which is so
authenticated shall not be called in question on the ground that it was not made or
executed by the Governor (Article 166(1) and (2)). The provisions of Article
166(1) and (2) are, however, directory and not mandatory.
The Governor appoints various officials E.g. Attorney General for the
State (Article 165), Chairman and other Members of the State Public Service
Commission (Article 316) and distribute Judges and other Judges of the
subordinate Courts in the State in consultation with the State High Court.
The Ministers as well as Advocate General hold office during the pleasure
of the Governor, but the Members of the State Public Service Commission cannot
be removed by him, they can be removed only by the President on the report of
the Supreme Court on reference made by the President and, in some cases, on the
happening of certain disqualifications (Article 317)
Under Article 166(3) the Governor is authorised to make rules for the
more convenient transaction of the business of the Government of the State and
for its allocation among Ministers.
In Sunil Kumar v Government of West Bengal (AIR 1950 Cal. 274)-
the Calcutta High Court observed “The Governor under the present Constitution
cannot act except in accordance with the advice of his Ministers.”
In Ram Jawaya v State of Punjab, AIR 1955 SC 549- The Supreme
Court held that the President and Governors are the Constitutional heads and the
real executive powers are vested in the Council of Ministers. The President and
Governors are required to exercise their powers on the advice of the Council of
Ministers.
 Similar view was laid down by the Supreme Court in Samsher Singh
v. State of Punjab (AIR 1974 SC 2193) – the Supreme Court has held that
wherever Constitution requires the satisfaction of the Governor, the ‘satisfaction’
is the satisfaction of the Council of Ministers and not the personal satisfaction of
the Governor. He is merely a constitutional head.
(b) Financial Powers (Articles 202 & 203(3)): A money Bill cannot be
introduced in the Legislative Assembly of the State without the recommendation
of the Governor. No demand of grants can be made except on the
recommendation of the Governor. The Governor is required to cause to be laid
before the House of the Legislature annual financial Statements, known as Budget
(Article 202). A Bill, which, if enacted and brought into operation, would involve
expenditure from the Consolidated Fund of a State, cannot be passed by a House
of the State Legislature, unless the Governor has recommended to the House the
consideration of the Bill (Article 207(3)).
The Governor has the contingency fund of the State at his disposal for
emergencies.
Subject to limits, if any, fixed by the legislature, the Governor can borrow
money on the security of the Consolidated Fund of the State and guarantee the
loans of any other local authorities.
(c) Legislative Powers (Article 168(1)): Article 168 of the Constitution confers on
the Governor of a State, the legislative or law making power (under delegated
legislation by the Parliament, the supreme legislature/law making body). It reads as
follows-
1. For every State there shall be a Legislature which shall consist of the Governor, and
a) In the States of Andhra Pradesh, Bihar, Maharashtra, Karnataka, Tamil Nadu,
Telangana and Uttar Pradesh two houses:
b) In other States, one House.
2. Where there are two Houses of the Legislature of a State, one shall be known as the
Legislative Council and the other as the Legislative Assembly, and where there is only
one House, it shall be known as the Legislative Assembly.
The Governor is part and parcel of the Legislature of a State which consists of the
Governor and the House or Houses of Legislature as the case may be (Article 168)
The Governor nominates one-sixth of the total; number of the members of the
Legislative Council (Upper House) where such Council exists from amongst the
persons having special knowledge or practical experience in respect of such matters as
literature, science, Arts, cooperative movement and social service (Article 71)
The Governor of a State may, if he is of opinion that the Anglo-Indian
Community needs representation in the Legislative Assembly of the State and is not
adequately presented therein, nominee one member of that community to the Assembly
(Article-333).
 The Governor summons the Houses or each House of the Legislature of State to
meet at such time and place as he thinks fit. However, six months must not lapse
between the last sitting in one session and the first in the next session. He may
prorogue the Houses or either House and dissolve the Legislative Assembly (Article
174(1) and (2)). He has right to address the State Legislature. No Bill can become law
without the assent of the President. He has right to reserve certain Bills for the assent of
the President (Article 200).
The most important Legislative power of the Governor is his Ordinance making
power. Under Article 213, whenever the Legislature is not in session and if the
Governor is satisfied that circumstance exist which require him to take immediate
action he may legislate by Ordinances.
The Governor possesses power of causing to be laid before the State Legislature
the annual financial statement (Article 202) and of making demands for grants and
recommending ‘Money Bills’ (Article 207).
(d) Ordinance Making Power (Article 213): Article 213 of the Constitution confers
on Governor, ordinance making power during the recession of the legislature. It
reads as follows-
1. If at any time, except when the Legislative Assembly of a State is in session, or
where there is a Legislative Council in a State, except when both Houses of the
Legislature are in session, the Governor is satisfied that circumstances exist which
render it necessary for him to take immediate action, he may promulgate such
Ordinance as the circumstances appear to him to required:
Provided that the Governor shall not, without instructions from the President,
promulgate any such Ordinance if:
(a) A Bill containing the same provisions would under this Constitution have
required the previous sanction of the President for the introduction thereof into
the Legislature, or
(b) He would have deemed it necessary to reserve a Bill containing the same
provisions for the consideration of the President, or
(c) An Act of the legislature of the State containing the same provisions would
under this Constitution have been invalid unless, having been reserved for the
consideration of the President; it had received the assent of the President.
2. An Ordinance promulgated under this Article shall have the same force and effect
as an Act of the legislature of the State assented to by the Governor, but every such
Ordinance-
a) Shall be laid before the Legislative Assembly of the State, or where there is a
Legislative Council in the State, before both the Houses, and shall cease to
operate at the experience of six weeks from the reassembly of the Legislature,
or if before the expiration of that period a resolution disapproving it is passed
by the Legislative Assembly and agreed to by the Legislative Council, if any
 upon the passing of the resolution or, as the case may be on the resolution
being agreed to by the Council, and
b) May be withdrawn at any time by the Governor.
Explanation: Where the Houses of the Legislature of a State having a Legislative
Council are summoned to reassemble on different dates, the period of six weeks
shall be reckoned from the latter of those dates for the purposes of this clause.
3. If and so far as an Ordinance under this Article makes any provision which would not be
valid if enacted in an Act of the Legislature of the State assented to by the Governor, it
shall be void:
Provided that, for the purposes of the provisions of this Constitution relating to the effect
of an Act of the Legislature of a State which is repugnant to an Act of Parliament or an
existing List, an Ordinance promulgated under this Article in pursuance of instructions
from the President shall be deemed to be an Act of the Legislature of the State which has
been reserved for the consideration of the President and assented to by him.
The most important power of the Governor is the Ordinance making power. The
Governor under Article 213 is empowered to promulgate an ordinance if the following
two conditions are satisfied:
1. When the Legislative Assembly of State is not in Session or where there are two
Houses in the Legislature, when both Houses are not in Session.
2. The Governor must be satisfied that circumstances exist which render it necessary for
him to take immediate action.
An Ordinance promulgated under this Article shall have the same force and effect as
an Act of the Legislature of the State.
The Ordinance shall be laid before the Legislative Assembly or where there is a
Legislative Council in the State, before both Houses and, shall cease to operate at the
expiration of six weeks from the reassembly of the Legislature. The Ordinance may
be withdrawn at any time by the Governor.
The Governor cannot issue an ordinance without the instructions from the President
under the following cases:
a) If a Bill containing the same provisions would have required the previous sanction
of the President for its introduction into the Legislature.
b) If he would have deemed it necessary to reserve a Bill containing the same
provisions would have been invalid unless having been reserved for the
consideration of the President.
c) If an Act of the Legislature of the State containing the same provisions would
have been invalid unless having been reserved for the consideration of the
President it had received the assent of the President.
D.C Wadhwa v State of Bihar, (1987) 1 SCC 378 – The petitioner in the instant
case, challenged the practice of the State of Bihar in promulgating and re-
promulgating ordinances on a large scale without enacting them into Acts of the
legislature and keeping them alive for an indefinite period of time. He pointed out
that the Governor of Bihar had promulgated 256 ordinances between 1967 and
1981 and all these were kept alive for period ranging from 1 to 14 years by
repromulgating them from time to time. Out of these 256, 69 were repromulgated
several times and kept alive with the prior permission of the President of India.
The five-Judge Bench of the Court held that such a practice was a “subversion of
the democratic process” and “colourable exercise of power and amounted to fraud
upon the Constitution and, therefore, unconstitutional.”
(e) Judicial Powers: The Governor appoints the District Judges and other Judges
of the subordinate Courts in the State. The Governor is consulted by the President
in the appointment of the Chief Justice and the Judges of the High Court.
(f) Power to grant pardons (Article 161): The term ‘Pardon’ is an act of grace,
which cannot be claimed/demanded as a matter of right. Article 161 of the
Constitution confers on 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 matters to which the
executive power of the State extends.
It is to be noted that the pardoning power of the Governor of the State is
subject to judicial review.
A similar power is conferred by Article 72 on the President of India. But
there is a difference between the pardoning power of the President under Article
72 and the pardoning power of the Governor of a State under Article 161. Under
Article 72 the President’s power is wide than that of the Governors of States:
firstly the President has exclusive power to grant pardon in cases where the
sentence is a death sentence while the Governor cannot grant pardon in case of a
death sentence. Secondly, the President can pardon punishments of sentences
inflicted by Court Martial. The Governors have no such power. In respect of
suspension, remission and commutation of sentence of death both have concurrent
power.
Case Law: In K.M Nanawati v State of Bombay (AIR 1961 SC 99)- the
Supreme Court has held that the power of the Governor to suspend sentence under
Article 161 is subject to the rules made by the Supreme Court with respect to only
those cases which are pending before it in appeal. It is open to the Governor to
grant a full pardon at any time even during the pendency of the case in the
Supreme Court, but the Governor cannot exercise his power of suspension of the
sentence for the period when the Supreme Court is seized of the case.
In Swaran Singh v State of U.P (AIR 1998 SC 2026)- it has been
observed that if the order is passed by the Governor under Article 161 without
being appraised of material facts, the order would be arbitrary and the Court is not
precluded from judicially reviewing such other. If the power of the Governor
under Article 161 is exercised arbitrarily, mala fide or in absolute disregard of the
finer cannons of the constitutionalism, the byproduct under cannot get the
approval of law and in such cases the judicial hand must be stretched to it.
In Epuran Sudhakar v State of A.P (The Times of India, 5 October,
2006) – it has been held that the Governor cannot exercise his pardoning power
arbitrarily. The Court further observed that is the exercising of pardoning power
is done on the ground of caste, religion or political considerations the Court can
examine its constitutional validity.
In Satpal v State of Haryana (AIR 2000 SC 1702) – it has been observed
that the power of granting pardon under Article 161 is very wide and do not
contain any limitation as to the time on which and the occasion on which and the
circumstances in which the said power could be exercised. But the said power
being a constitutional power is amenable to judicial review on certain limited
grounds. The Court, therefore, would be justified in interfering with an order
passed by the Governor in exercise of power under Article 161 of the
Constitution. If the Governor is found to have exercised the power himself
without being advised by the Government or if the Governor transgresses the
jurisdiction in exercising the same or it is established that the Governor has passed
the order without application of mind or the order in question is a mala fide one or
the Governor has passed the order on some extraneous consideration.