Governor: A Titular Head?

Governor: A Titular Head?

This Article is written by Miss Divyakshi Jain, Semester X, B.B.A. LL.B. (IPR Hons.) at National Law University Jodhpur. In this article, she has dealt with the concept of governor and an analysis of GNCTD act 2021.

The Governor of the states of India perform similar powers and functions at the state level as that of the President of India at the Union level. Governors exist in states while lieutenant governors exist in Union Territories including the National Capital Territory of Delhi. The governor acts as the nominal head of the State while the real power vests with the Chief Ministers and his/her council of ministers. In Union territories, the lieutenant governor enjoys the most power, except in NCT and Puducherry where the power is shared with the council of ministers headed by the CM.

The governors and lieutenant governors are appointed for a period of five years by the President. Articles 157[1] and 158[2] of the Constitution lay down the eligibility requirements for the post of governor, namely that a governor must:

  • be a citizen of India.
  • be at least 35 years of age.
  • not be a member of the either house of the parliament or house of the state legislature.
  • not hold any office of profit.
  • not be a resident of the same state.

Read: Separation of Power in India – An Overview

The factors of evaluation used by the President to evaluate the governor candidates is not mentioned in the Constitution.

The primary function of the governor is to preserve, protect and defend the constitution and the law as incorporated in his oath of office under Article 159 of the Constitution[3]. All of the actions, recommendations and supervisory actions over the legislative and executive entities of a State is used to enact the various provisions of the Constitution. The Governor has many different types of powers:

  • Executive Powers related to administration, appointments, and removals of governor

The Constitution vests the governor with all the executive powers of the State Government. The governor appoints the CM, whoever enjoys the majority support in the Vidhan Sabha. The governor also appoints the council of ministers and assigns them portfolios based on the advice of the CM.

The Council of Ministers remain in power as per the “pleasure” of the governor. However, in reality, as long as the majority of the Vidhan Sabha supports the council of ministers, they cannot be dismissed.

The Governor appoints the CM of the state. He also appoints the Advocate General and the chairman and members of the State Public Service Commission. Moreover, the State Election Commissioner is also appointed by him. He is consulted by the President when appointing the judges of the High Court and the Governor himself appoints the judges of the District Courts. All administrative tasks are carried out in his name. He also has the power to appoint staff for his/her tenure under Class one and Class four as per the provisions of the Constitution of India.

The governor by virtue of his/her office is the Chancellor of most of the Universities in the State. The dignity and impartiality of the Chancellor office puts the Governor in the position of protecting the autonomy of Universities and saving them from undue political interference. Governor has the power to direct inspection towards any component of the Universities and its affiliated colleges. As the Chancellor, he also appoints committees for the appointment of Vice Chancellor. Governor also appoints teachers at the University based on recommendation by respective appointed committees.

Read: President’s Power of Dissolution

  • Legislative powers related to lawmaking and state legislature i.e., State Legislative Assembly (Vidhan Sabha) and State Legislative Council (Vidhan Parishad)

The governor as the state head summons the sessions of both the houses of the state legislature. The governor has also been given the power to dissolve the State Legislative Assembly. These powers are formal in nature and the use of them must comply with the advice of the CM and his/her Council of Ministers.

The Governor gives the first address as the inauguration of the state legislature after the assembly elections and at the beginning of the first session of every year. The governor’s address in such situations generally addresses the new policies of the state government. A bill passed by the state legislature can only become an Act by the consent of the Governor. The Governor can send such bills, except for money bills, back for reconsideration to the state legislature as well. However, if the bill is sent unchanged back to the Governor for the second time, he would have to assent to it. The Governor ahs the power to reserve certain bills to be determined by the President.

When the state legislature is not in session and the Governor feels the need for a law, he also has the power to promulgate ordinances. These ordinances are presented to the State legislature when next they are in session. They remain valid for no longer than six weeks from the date when the state legislature is reconvened unless it is approved by the state legislature before that date.

The Governor is empowered under Article 192[4] to disqualify any member of the House of State Legislature when the election commission recommends that the legislator is no longer in compliance with the provisions of Article 191[5]. As per Articles 165[6] and 177[7], the Governor can ask the Advocate General to attend the proceedings of the State legislative houses and report on any unlawful activity, if any is discovered.

  • Financial powers

The governor causes the laying of the annual financial statement in the form of State Budget before the State Legislature. Further all demands of grants need the recommendation of the Governor. They could then even ask for advances from the State Contingency Fund to meet any unexpected expenses. Moreover, he constitutes the State Finance Commission.

  • Discretionary powers

The governor can use these powers in the following cases:

  1. When no party gets a clear majority, the governor has the discretion to choose the candidate for Cm who will assemble the majority coalition in a timely manner.
  2. He can impose President’s rule when he feels the need for it.
  3. He submits reports to the President on his own or on direction by the President regarding the affairs of the state.
  4. He can withhold assent to a bill or send it to the President for approval.
  5. During emergency rule as per Article 353, he can override the advice of the council of ministers if permitted by the President.

The term of governor’s office is normally 5 years, but he can be removed before the expiry of the term by:

  • Dismissal by the President at whose pleasure the Governor holds office.
  • Resignation by the Governor.

However, there is no provision for the impeachment of a Governor unlike other constitutional posts such as President, Judges of Supreme Court, etc.

Analysis of the GNCTD Act, 2021

The Government of National Capital Territory of Delhi (Amendment) Act, 2021[8] passed on March 24 has again rekindled the fight over jurisdictional powers between the Delhi’s elected government and the Center and its nominated Lieutenant Governor.

The Central Government has claimed that this amendment is not unconstitutional, and it merely seeks to clear the ambiguities that exist in Article 239AA[9], a special provision inserted through the 69th Constitutional Amendment[10] in 1991 to give Delhi a legislature, the GNCTD Act and the Transaction of Business Rules[11]. The division of power in Delhi on account of its special status as the national capital, wherein the jurisdiction on different subjects is divided between the Center and the State was executed through the 69th Amendment.

The SC in the 2018 verdict[12] about the power structure in Delhi, has stated that the Delhi Lieutenant Governor was bound to act on the “aid and advice” of the city’s state council of ministers in all state legislative jurisdiction matters- the exceptions being land, public order and police, all of which are under central jurisdiction. The Central Government claimed that the amendment was necessary to understand the 2018 verdict.

In effect, the amendment means that the Government of NCT would be the nominated Lieutenant Governor and not the elected state legislature and executive. While this has been seen to be bizarre, the justification taken is that as per the General Clauses Act the governor and president are indeed the titular head of a state or a country respectively. As a Union territory, the Central Government felt that there is nothing in wrong in treating the nominated Lieutenant Governor as the Government, which is the norm for all the other union territories.

It contains a retrospective clause that forbids the State Legislative Assemble from constituting any oversight committees and also renders the existing committees void once the amendment comes into effect. This would mean that the State legislature would have no power to constitute any oversight committee to scrutinize the functioning of Delhi administration. The Center has stated that since the State does not have the jurisdiction over issues such as land, public order, etc., they should not be allowed to oversee it. The biggest question that has emerged is if the State legislature cannot exercise oversight over their policies, what would their purpose actually be?

The SC verdict had used the following words to discuss the powers of the Delhi assembly: “A conjoint reading of clauses (3) (a) and (4) of Article 239AA divulges that the executive power of the Government of NCTD is co­extensive with the legislative power of the Delhi Legislative Assembly and, accordingly, the executive power of the Council of Ministers of Delhi spans over all subjects in the Concurrent List and all, but three excluded subjects, in the State List.”[13]

Read: Interpretation of state under Article 12

Conclusion

Though the original Article 239AA also required the State government to seek the advice of the Lieutenant Governor, this amendment has drastically expanded the scope of Lieutenant Governor’s power. Though the amendment doesn’t make the approval of the Lieutenant Governor mandatory, but it would in practice create a situation where none of the decisions of the State could be implemented without the consent and concurrence of the Lieutenant governor, which would curb the legislative freedom of the Delhi government. Furthermore, this is in blatant contradiction with the SC verdict on the issue.

Besides the obvious issue of delay, the legislative business would be slowed down if there was a difference of opinion between the Lieutenant Governor and the elected government. The SC verdict had said about the powers of the L-G: “The status of NCT of Delhi is sui generis (unique) and the status of the L-G is not that of a Governor of a State, rather he remains an Administrator, in a limited sense, working with the designation of Lieutenant Governor.[14]

But this amendment has effectively changed the entire power structure as well as the functioning of the Government in Delhi and this could have serious potential repercussions, as it has made the Lieutenant Governor of Delhi more powerful than was ever envisioned. And considering Delhi’s delicate and unique position, there is no assurance as to what can happen.

 

 

References:

[1] Constitution of India, 1950 Article 157.

[2] Constitution of India, 1950 Article 158.

[3] Constitution of India, 1950 Article 159.

[4] Constitution of India, 1950 Article 192.

[5] Constitution of India, 1950 Article 191.

[6] Constitution of India, 1950 Article 165.

[7] Constitution of India, 1950 Article 171.

[8] Government of National Capital Territory of Delhi (Amendment) Act, 2021.

[9] Constitution of India, 1950 Article 239AA.

[10] 69th Constitutional Amendment, 1991.

[11] Transaction of Business Rules Act, 1993.

[12] Government of NCT of Delhi v. Union of India, (2018) 8 SCC 501.

[13] Id.

[14] Supra 12.

Also Read: The breach of democracy – January 6th 2021

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