CHANAKYA NATIONAL LAW UNIVERSITY

FINAL DRAFT

OF

POLITICAL SCIENCE

ON

POWERS AND FUNCTIONS OF THE GOVERNOR

SUBMITTED TO SUBMITTED BY
Prof.Dr. S.P. Singh SHASHI BHUSHAN
Roll No. 2158
BA.LLB.(HONS.)
SESSION- 2019-2024

1
 TABLE OF CONTENT

1. DECLARATION .....................................................................3
2 ACKNOWLWDGEMENT.....................................................4
3 AIMS AND OBJECTIVE ........................................................5
4 HYPOTHESIS ................................................................5
5. RESEARCH METHODOLOGY.............................................5
6. INTRODUCTION .............................................................6
7. DISCHARGE OF THE FUNCTIONS OF
THE GOVERNOR IN CERTAIN ........................................... 11
CONTINGRNCIES
8.CONSTITUTIONAL POSITION........................................... 12
OF THE GOVERNOR
9. POWERS OF THE GOVERNOR....................................14
10. PARDONING POWER ......................................................20
11. SARKARIA COMMISSION...............................................22
12. CONCLUSION .................................................................26
13. BIBLIOGRAPHY ...............................................................27

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 DECLARATION

I, hereby, declare that the work reported in the B.A. L.L.B (Hons.) Project Report titled
“ POWER AND FUNCTIONS OF THE GOVERNOR”submitted at
CHANAKYA NATIONAL LAW UNIVERSITY, PATNA is an authentic record of my
work carried out under the supervision of Prof.Dr. S.P. Singh . I have not submitted
this work elsewhere for any other degree or diploma. I am fully responsible for
the contents of my project.

(Signature of the Candidate)

SHASHI BHUSHAN
BA,LL.B.(HONS.)
ROLL NO.-2158
SEMESTER-1
SESSION- 2019-2024

3
 ACKNOWLEDGEMENT

I would like to show my gratitude towards my guide Prof. Dr. S.P. Singh, Faculty of POLITICAL
SCIENCE ,under whose guidance ,I structured my project.
I owe my the present accomplishment of my project to our CNLU librarians,who helped me
immensely with materials throughout the project and without whom I could not have completed it
in the present way .
I would also like to extend my gratitude to my friends and all those unseen hand that helped me
out at every stage of my project.

THANK YOU

SHAHSI BHUSHAN

4
AIMS AND OBJECTIVE

To know about the power and functions of the Governor of the State ,his executive ,judicial,
legislative powers of the governor , discharge of the functions of the Governor in certain
contingency. Compare between the power of the President and the Governor.

HYPOTHESIS
The hypothesis of the researcher is that Governor veils more discretion than President, primarily
because of his dual role of Head of a State and representative of Centre in the State. He is given
higher discretionary powers, for proper functioning of the Constitution.

RESEARCH METHODOLOGY

The research work has been done with the help of doctrinal method which carries the legal
stucture ,case analysis and legal framework.The researcher has made a comparative study on the
powers of the President of India and the Governor .

LIMITATION

Since the researcher is a student of law, he has access to a limited area.The researcher has limited
time for the project.The historical need and background is also necessary for having a bird’s eye
view of the particular topic and it gets developed only by effective and extended reading over a
long period of time. But the required materials are not available in our library.

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 INTRODUCTION

The governors of the states and union territories of India have similar powers and functions at the
state level as that of the President of India at Union level. Governors exist in the states while
lieutenant-governors exist in union territories and in the National Capital Territory of Delhi.
Governor acts as the nominal head whereas the real power lies in the hand of the chief ministers
of the states and the chief minister's Council of Minister.
In India, a lieutenant governor is in charge of a Union Territory. However the rank is present
only in the union territories of Andaman and Nicobar Islands, Delhi and Puducherry(the other
territories have an administrator appointed, who is an IAS officer).However the governor of
Punjab acts as the administrator of Chandigarh. Lieutenant-governors hold the same rank as a
governor of a state in the list of precedence.
The Governor is the head of a state just like the President is the head of the republic. The
Governor is the nominal head of a state, while the Chief Minister is the executive head.
All executive actions of the state are taken in the name of the Governor. However, in reality he
merely gives his consent to the various executive actions. He or she is devoid of taking any
major decisions. The real powers in the executive dealings of a state rest with the Chief Minister
and the Council of Ministers.
According to an amendment in the Constitution of India, brought about in 1956, the same person
can be the Governor of two or more states. Apart from the governors in the states, Lieutenant
governors are appointed in Union Territories of Delhi, Andaman Nicobar Island and Puducherry.
All other union-territories are governed by an Administrative Head (an IAS officer). The only
exception is Chandigarh. The governor of Punjab is also the lieutenant governor of Chandigarh.

Reason for appointing governor instead of electing.

Several considerations prompted the Constituent Assembly to opt for an appointed governor.
Election expenses and evil consequences of countrywide elections run on personal issues. An
elected Governor might consider himself superior to the Chief Minister, who is elected from just
one constituency, and thus, create unnecessary friction. Above all, the separatist tendencies in
the country needed a strong Central Government to counter them and provide stability; it would
thus, be better to have a governor appointed by the President.

6
Article 153 - 163 Of the Indian constitution deals with the appointment, powers and special
powers of the governor
Article 153 deals with the governors of the state which explains that 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 states1]
Article 154 of the constitution deals with the executive powers of the governor.

1 added by the constitution (7th amendment) Act, 1956, s.6

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EXECUTIVE POWERS OF THE STATE

1. The executive powers 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 function conferred by any existing law on any other
authority, or
b) Prevent parliament or the legislature of the state from conferring by law function on any
authority subordinate to the Governor.
The provision of this article are similar to those of article 53 which relates to the executive
power of the Union which is vested in the president and exercised by him either directly or
through officers subordinate to him. For discussion on the nature of the powers and position of
the governor comments under article 53 above and under article 160 below may be noted.

APPOINTMENT OF GOVERNOR
Article 155 of the constitution deals with appointment of governor. The governor of a state shall
be appointed by the president by warrant under his hand and seal.

8
TENURE OF OFFICE OF THE GOVERNOR
Article 156 of the constitution deals with the tenure of the office hold by governor.
1. The governor of a state shall hold the office during 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, 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 the term, continue to
hold office until his successor enters upon his office.
The provision to article 156(3) contemplates that the governor is to continue to hold office
"notwithstanding the expiration of his term" of five years. The effect of these words is to exclude
all questions of the legality of holding of office by the governor after the expiry of his term. The
underlying idea is that there must be a governor in the state, and there cannot be an interregnum
in view of the provision which was decided in the case Krishna ballabhai v. Commisiom of
enquiry 2.
QUALIFICATION OF GOVERNOR
Article 157 of the constitution deals with qualification for appointment as governors. No person
shall be eligible for appointment as governor unless he is citizen of India and has completed the
age of thirty five years.

2 AIR 1969 SC 258: (1969) 1 SCR 385.

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CONDITIONS FOR GOVERNOR'S OFFICE

This is dealt in article 158. The conditions for the governor's office are as follows

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 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.
2. The governor shall not hold any 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 maul 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.

[(3-A) 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 determine3]
4. The emoluments and allowances of the governor shall not be diminished during his term of
office.
OATH OR AFFIRMATION BH THE GOVERNOR
Article 159 deals with the oath or affirmation by the governor. Every governor and every person
discharging the function 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, an oath or
affirmation in the following form, that is to say-
"I, execute the office of governor (or discharge the function of the governor) of ........ (Name of
the state) and will to the best of my ability preserve, protect and defend the constitution and the
law and that I will devote myself to the service and well-being of the people of..... (Name of the
state)"

3 The constitution (amendment) act, 1956, s. 7.

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DISCHARGE OF THE FUNCTIONS OF THE GOVERNOR IN CERTAIN
CONTINGENCIES
This is dealt in article 160 of the constitution. 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 153 to 160 deal with the office if the governor. Every state has a governor in whom
vests the executive power of the state. The executive power is exercisable by him either directly
or through officers subordinate to him. The exercise of the power is regulated by law
The governor of the state is appointed by the president by warrant under his hand and seal and
holds office during the pleasure of the president. Subject to his being removed earlier by
the president, he holds office for a term of five years from the date on which he enters upon his
office. The constitution permits the appointment of the same person as governor for two or more
states. Originally, the provincial constitution committee of the constituent assembly had
recommended the the governor should be directly elected by the people of the state. The proposal
of an elected governor was widely criticized on the ground that the presence of two persons in
the government, namely, the governor and the chief minister, each deriving his mandate from the
people, might lead to friction. The draft constitution accordingly suggested an alternative mode
of appointing governors: The legislature should elect a panel of four persons, and the president of
the union should appoint one of the four as governor. The constituent assembly did not approve
of either of the alternatives suggested in the draft constitution but enacted the present mode of
appointment of governors by the president. The governor thus is an appointee of the central
government in the state and in so far as he acts in his discretion, he shall be answerable to the
government of the union. In Canada, the lt. Governor is appointed by the governor general on the
advice of the dominion government. In contrast to this, state governors in Australia are appointed
by the crown on the advice of the imperial government.
A person is not eligible for appointment as governor unless he did a citizen of India and has
completed the age of 35 years. He must not be a member of either house of parliament or of a
house of the legislature of any state specified in the first schedule. If a member of the legislature
be appointed governor, he shall be deemed to have vacated his seat in the legislature. He shall
not hold any other office of profit. His salary has been fixed by the constitution but can be varied
by the union parliament. However, the emoluments and allowances of the governor cannot be
diminished during his term of office. The governor is entitled without payment of rent to the use
of his official residence and I'd also entitled to various other allowances and privileges.
Every governor and every person discharging the functions of the governor shall before

11
entering upon his office ,make and subscribe, in the presence of the chief justice of the state high
court or, in his absence, the senior most judge of that court available ,an oath, an affirmation In
the prescribed form.
CONSTITUTIONAL POSITION OF THE GOVERNOR
The constitutional position of the governor in relation to the legislature and administration is the
same as that of the union president.
In ram jawaya kapur v. State I Punjab4
The Supreme Court said that "the governor occupies the position of the head of the executive in
the state but it is virtually the council of minister in each state that carries on the executive
government. In the Indian constitution,therefore,we have the same system of parliamentary
executive as in England and the council of minister consisting, as it does, of the members of the
legislature is, like the British cabinet , a hyphen which joins, a buckle which fastens the
legislative part of the state to the executive part.
Under article 155, the governor holds office during the pleasure of the president, and, therefore
owes his appointment to the president and continues to hold his office at the discretion of the
president in this respect, he occupies the position of a representative of the union in the
state. However, article 163(1) states that of a there shall be a council of minister with the chief
minister at the head to aid and advise the governor in the exercise of hid functions except in
so far as he is by or under this constitution required to exercise his function or any of them in his
discretion. Article 163(2) states that that if any question arises whether any matter is or is not
matter about which the governor is by or under the constitution require to act in his discretion
,the decision of the governor shall be final and the validity of his decision is not open to question
in a court of law. Under the constitution where the expression "in his discretion" is used in
relation to the powers and functions of the governor, the reference is to special responsibilities of
the governor such as article 371-1A(1)(b) and (d) and (d) and (2)(b) and (f) ,and paragraphs 9(2)
and 18(3) in the sixth schedule. Article 239(2) also states that where a governor is appointed an
administrator of an adjoining union territory, he shall exercise his function as such administrator
independently of his council of ministers, besides, a reference may be made to ARTICLE 357
and 200. In making a report under article 356, the governor will be justified in exercising his
discretion even against the aid and advice of his council of ministers. The reason is that the
failure of the constitutional machinery may be because of the conduct of the council of ministers.

4 AIR 1955 SC 549,556

12
Similarly, article 200 indicates another instance where the governor may act in reserving a bill
for the consideration of the president irrespective of any advice from the council of ministers. In
such matters, the governor has to discharge his duties to the best of his judgment and pursue such
course which is not detrimental to the state which was decided in the case samsher Singh v. State
of Punjab . Moreover being an appointee of the president and holding his office during his
pleasure the governor in the exercise of his discretion may be guided by the union. This link
between the governor and the union of India is crucial in assessing the overall position of the
governor under the constitution.
Except in the matter in which the governor is required by or under the constitution to exercise
his function in His discretion, the governor is the constitutional or formal head of the state and he
exercises all his powers and functions on the aid and advice of his council of minister. This us so
because our constitution embodies generally the parliamentary or cabinet system of government
of the British model both at the union and the states. Clause (1) of article 164 empowers the
governor to appoint the chief minister is conditioned by an essential feature of the parliamentary
firm of government that council of ministers shall be collectively responsible to the state
legislative assembly. Thus means that the leader of a party which commands majority in the state
legislative assembly is eligible for appointment as chief minister, and the governor is bound to
request him to form the government. If there is np party commanding a clear majority in the
legislative assembly, the governor may exercise his discretion in the appointment of chief
minister according to his personal assessment if the situation at that time.
In samsher Singh v state of Punjab5.
the supreme court made it clear that except in spheres where the governor is to act in
his discretion, the governor acts on the aid and advise of the council of ministers in the exercise
of his powers and functions, and Is not requires to act personally without the aid and advise of
the council of ministers or against the aid and advise of the council of ministers. The governor
exercises his discretion in harmony with his council of ministers. The difference which the court
drew between the executive functions of the union and the executive functions of the presidential
in jayantilal shodhana v F.N .Rana6 was held in the shemsher Singh case which was discussed
earlier as not leading any conclusion that the president was nit the constitutional head of
government. Whether the function Exercised with the aid and advice if the council of ministers.
The same is true of the functions of the governor except those which he has to exercise in his
discretion. Even in matters in hid discretion, the governor acts under the guidance and direction

5 1974 2 scc 831

6 AIR 1964 SC 648

13
of the union government, especially of the ministry of home affairs.

POWERS OF THE GOVERNOR

Article 161 of the constitution deals with the special power invested on the governor regarding
granting pardons, etc. and to suspend, remit, or commute sentences in certain cases. The
governor of a start shall have the power to grant pardons, reprieves, respites or remission 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.
The corresponding provision relating to the powers of the president is enacted in article 72,
under this article, the governor has the power to grant pardons etc. And to suspend, remit or
commute the sentence of any persons convicted of any offence against any law "relating to a
matter to which the executive power of the state extends". The executive power of the state
extends to matters with respect to which the legislature of the state has power to make laws
which was discussed under art 162 of the Indian constitution.
Article 72 could be reconciled with article 161 by limiting the power of the governor to grant
pardons to cases not covered by article 72. Is so read, the president alone has the exclusive power
to grant pardons, reprieves, and respites in all cases where the sentence is a sentence of death and
both the president and the governor have concurrent powers in respect of pardon, suspension,
remission and commutation of a sentence other than of death. In other matters, i.e. in respect of
offences against any law relating to a matter to which the executive power of the state extends,
the governor has all the powers enumerated in article 161 of the constitution including the power
to grant pardons, reprieves and respites. To put it briefly, the power of the governor to grant
pardons, reprieves and respites in all cases where the sentence is not a sentence of death,
and to suspend, remit or commute the sentence of any person is coextensive with the executive
power of the state it therefore, follows that the governor has the power to grant to a pardon or
remit the sentence of a person who is transported for life which was decided in the
case monepragada ramchandra Ra v. Revene divl. Officer7
he powers conferred under article 72 and 162 to grant pardons, suspend, remit or
commute sentences, etc, of any convict are not judicial in nature and they are to be exercised by
the president or the governor in the exercise of executive functions. There is no obligation to hear
the parties concerns before rejecting granting a mercy petition 8. If an appeal is pending and the

7 1956 wr 1074
8 Tara Singh v. Director, consolidation of holding, AIT 1958 Punj 302.

14
matter is sub judice in the Supreme Court, the governor has no right to suspend the sentence
under article 161 which was decided under the case that k.m.nanavathu v. State of Bombay 9 .
,from no reference to a pending appeal in the high court against the conviction inference may
also be drawn that the governor was not aware of all relevant facts while making his decision this
was decided under the case Narayan duty v Punjab10. However full pardon even during the
pendency of a case is permissible.
Although the power of governor under this article is very wide, it is not free from judicial
review on certain limited grounds. In the case of satpal v. State of Haryana 11 the court held that
therefore would be justified in interfering with an order passes 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 if the order in question is a mala fide one or the governor has passed the
order of some extraneous consideration.

The court invalidated the remission of the sentence by the governor based on wrong information
and incomplete facts. In another case where the governor granted remission of sentence to a
0convict in ignorance of the fact that several other criminal cases were pending against him, the
court invalidated the remission and observed that if the power under this article "was exercised
arbitrarily, mala fide or in absolute disregard of the fine canons of the constitutionalism the
byproduct order cannot get the approval of law and in such cases the judicial hand must be
stretched to it. Failure to bring all the material facts, including the mitigating factors, to the
notice of governor vitiated his decision. As the bringing of all material facts of a case is a
precondition for a valid decision under article 161,the governor of a state in which the person
convicted by the courts of another state are undergoing imprisonment ,cannot validly exercise his
clemency powers. In hid order of pardon, the governor is also not expected to express any
opinion on the innocence or guilt if the concerned person because that is a matter to be
determined by the court.

9 AIT 1961 SC 112

10 2011 4 scc 353
11 2000 5 SCC 170,174

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 EXECUTIVE POWERS
Article162 of the constitution deals with the extent of executive power of state. Subject to the
provision of this constitution the executive power of a state shall extend to the matters with
respect to which the legislature of the state has power to make laws.
Provided that in any matter with respect to which the legislature of a state and parliament have
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.
This article defines the extent of the executive power of the state. The power extends to matters
with respect to which the state legislature has authority to make laws, i.e. the subjects
enumerated in the state list and the concurrent list. But in relation to the subjects enumerated in
the concurrent list, the executive power of the state is subject to the executive power expressly
conferred by the constitution or by any law made by parliament, upon the union or its authorities.
Thus, where parliament by law confers upon the union authorities the duty of executing a law on
a subject in the concurrent list list, the executive power of the state, in relation to that subject,
shall, to the extent powers are exercises or by the union authorities, be deemed to abrogate.
Similarly where the legislature power of the state is subject to the legislative power of the union
as for example, the power of the state legislature in entry 23 of list II is subject to the power and
confers executive power on its officials then the legislative power of the state is denuded to that
extent and so also the executive power. Any exercise if executive power by the state in such case
will be unconstitutional. This was decided under the case Bharat coking coal ltd v. State of
Bihar 12 .
The limit fixed by article 162, however, is extensible. The provisions of article 258(2) afford a
means of such extension. The article provides that a law made by the union parliament which
applies in any stare may, not withstanding that it relates to matter with respect to which the state
legislature has no power to make laws, confer powers and impose duties or authorize the
conferring of powers and the imposition of duties upon the state or its officers and authorities.
Further ,thus view is supported by clause (3) of the sand article
which provides,inter alia,that where an act of parliament by virtue of clause (2)Z confers powers
and imposes duties upon a state or its officers in relation to matter with respect to which a state
legislature has no power to make laws, the union is to pat to the stare such sums as may be
agreed or determined by arbitration in respect of any extra cost of administration incurred by the
existing machinery of the state government. But the limit, it may be noted, could be extended
12 (1990) 4 SCC 557.

16
only by parliament. The state legislature cannot on its own accord, undertake the execution of the
matters falling within the exclusive authority of the union.
EXECUTIVE FUNCTION
This article doesn't define what the executive functions are and what activities legitimately come
within their scope. It is concerned primarily with the distribution of the executive power between
the union and the stated. Although it cannot be possible to farm an exhaustive definition of what
executive functions are, ordinarily they connote the residue of governmental functions that
remain after legislative and judicial functions are taken away. The executive function comprise
both the determination of policy as well as carrying it into execution. This evidently includes the
initiation of legislation, the maintenance of order the protection of social and economic welfare,
the direction if foreign policy in fact the carrying on or supervision of the general administration
of the state.
As the constitution differentiates between the function of the executive, the legislature and the
judiciary should it be inferred that the executive can undertake only such functions as have been
specifically conferred upon it by specific legislation there is no scope for such inference. The
powers of the executive are not limited merely to the carrying out of laws decided under the case
ram jawaya kapur v state of Punjab discussed earlier. For example if the executive government of
the state formulates a particular policy in furtherance of which it wants to start a trade
or business, a specific legislation for such trade activity is not necessary. If the trade or business
involves expenditure either directly or under provided of an act. Legislation may become
necessary if the government requires certain powers in addition to what they possess under the
ordinary law in order to carry on a particular trade or business. Thus when it is necessary to
encroach upon private rights in order to enable government to carry on their business, a specific
legislation sanctioning such a course will be required. The government may carry out other
activities also in the exercise of its executive power so long as those activities not covered by
law and so long as they do not interfere directly with the constitutional or other legal rights of an
individual. Thud the government may establish and run a medical college under its executive
power insofar as such establishment and running are not covered by law and do not infringe any
right if an individual. Which was decided under state A.P v. lavu narendranayh13.
But once a law
prescribes a course of action for the exercise of executive powers it must be exercised
accordingly otherwise it will be an invalid exercise of executive power. Thus if a law provides
that a contract with government could be terminated in a particular manner by a particular officer
13 (1971) 1 scc 607

17
its termination in any other manner by another officer would be invalid which was decided under
the case P.H Paul Manoj pandian v. veldurai 14 . Also in virtue of the principle of rule of law
incorporated in our constitutional order executive action which infringes or is it likely to infringe
the rights of an individual must supported by law. Otherwise it will be invalid for the simple
reason that it is not support by law otherwise it will be invalid for the simple reason that it is
not similarly ,may exercise of executive power will be invalid if it contravenes a law of a
competent legislature. A tax or compulsory ejection of money from any person can also not be
justified in the exercise of executive power without the authority of law.

It must not however be assumed that the legislative functions are exclusively performed by the
legislature, executive functions by the executive and judicial functions by the judiciary. The
constitution though differentiates the functions of the three organs of government has not made
an absolute division of functions of the three organs of government ,has not made an absolute
division of functions between the tree organs of government has not made an absolute division of
functions between the three agencies of the state. Often the exercise of legislative or judicial
function is entrusted to the executive. For instance, power to frame rules, regulations and
notifications which are essentially legislative in character is frequently entrusted to the executive
authority. Accordingly while it may be possible to characterize with precision that an agency of
the state is executive, legislative, or judicial, it cannot be predicted that a particular functions
exercised by any individual agency is necessarily of the character which the agency bears.

14 (2011) 5 scc 214

18
COMPARISON BETWEEN POWERS OF PRESIEDNT AND GOVERNOR
Though both are regarded as the Head of State, there is some fundamental difference between the
position of Governor and the President. The selection of Governor is an undemocratic process,
whereas, President is elected indirectly by representatives of the people. Governor is nominated
by President on the advice of Council of Ministers, which give them the status of being ‘agent of
the Centre’. As per the Constitutional Assembly Debates, it was decided to have a nominated
Governor rather than elected, as presence of both Chief Minister and Governor as elected bodies
may lead to conflict.
Governor performs a three-fold role -
Head of the State
Link between Centre and State.
Agent of the Centre
He/she helps in maintaining the democratic form of government and cordial relation between
Centre and State. He has a duty to inform Centre in cases where the State violate the federal.
structure envisaged in the constitution or act unconstitutionally otherwise. President on the other
hand is the constitutional head of the country and has a task of preserving and protecting the
Constitution.
There is a difference in power afforded to the President and the Governor under the Constitution
as they have different mandates to follow, under the Constitution.

19
POWER OF PARDON
Articles 72 & 161. They invest the power of pardon in the President and the Governor of a state
respectively. Art. 72 and 161 are power conferring articles and do not specify the procedures to
be followed in their application. The articles limit the exercise of pardoning power under the
constitution to the President and the Governor. The manner in which the power is to be exercised
is not specified. Thus no clear power of discretion can be read in them.
Supreme Court in Maru Ram v. Union of India (1980, Constitutional bench, SC) settled the
position with respect to President, where it held that President cannot exercise his power under
Art. 72 without seeking advice from Council of Ministers. No other decision of Supreme Court
has afforded a contrary view, after the judgment in this case.
The High Court of Madras, in 1991, cleared the position of Governor when it quashed the order
of Fatima Biwi, the then Governor of Tamil Nadu, refusing grant of pardon to 4 convicts of Rajiv
Gandhi murder case, as the Governor had not sought the advice of Council of ministers .
in the case of Satpal v. State of Haryana (2000, Division bench, SC) which was subsequently
upheld in Epuru Sudhakar v Government of Andhra Pradesh (2006, Division bench, SC) court
has opined the view that both, the President and the Governor, should not act mechanically on
the advice of Council of ministers and has insisted on ‘application of mind’ by them. The
observation was made while listing the situations where judicial review of decisions under Art.
72 and 161 is possible. Nevertheless, it is an evidence of existence of discretion with President
and the Governor, in acceptance of the advice tendered by the Council of Ministers. In light of
the above mentioned discussion, the researcher is of the opinion that both President and Governor
Exercise same level of discretion in exercise of their clemency power under the constitution.

ASSENT TO BILLS

Articles 111 and 200 deal with assent to Bills passed by Parliament and Legislature of states
respectively. Presidential assent is required for a Bill passed by Parliament and assent of
Governor for a Bill passed by Legislature of the State. Under Art. 200, Governor is also
empowered to reserve any Bill for the consideration of the President. Art. 201 gives power to the
President to assent to or withhold his assent from such Bill.
Though, there is presence of a subjective limit of ‘as soon as possible’ in Art. 111 and 200, no
time limit is specified in the text of the constitution within which declaration of assent,
withholding of assent or reserving for the assent of the President should be made. Also, the
phrase ‘as soon as possible’ has been employed only for the case where a Bill is returned without

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any assent. No constitutional convention exists in regard to this. Since, Council of Ministers
enjoy the majority support in the House, any Bill sent for obtaining assent can reasonably be
deemed as the mandate given by Council of Ministers and it is in exceptional circumstances that
Council of ministers would advise otherwise than assenting to the Bill. In light of this, the
provision for reserving a Bill for the assent of President under Art. 200 may be read in a manner
to give some discretion to the Governor. This interpretation is in consonance with the dual role of
Governor as explained in the first section. No guidelines have been provided by the Constitution
regarding matters where assent shall be withheld.
In Purshottam Nambudiri v. State of Kerala 15 , it was held that under Articles 200 and 201, there
is no time limit for the President or the Governor for granting assent to a Bill. With regard to S2,
in Shamsher Singh v. State of Punjab 16 it was held that Governor has no discretion under Art.
200, “whether it relates to ...returning a Bill for reconsideration or assenting or withholding
assent to the Bill” and he has to act as per the advice of the Council of Ministers. Though, the
court observed that Governor can exercise discretion under situations where reserving the Bill is
mandatory under the constitution. Furthermore, in Hoechst Pharmaceuticals v. State of
Bihar (1983, 3 judge bench, SC) it was held that Governor’s power to reserve a Bill for
president’s assent is not judicially reviewable. Also, court was of the opinion that Governor can
act in his discretion in reserving a Bill for the consideration of the President. Reconciling these 2
cases, it can be inferred that Governor has some discretionary power in reserving Bill for
President’s consideration.
As per my best knowledge, there are no case laws or conventions regulating granting or
withholding of assent by President. Moreover, there are instances where President has taken
decision on a Bill referred to him after 12 years. Ex - The Trade Unions (West Bengal
Amendment) Bill, which was referred to the President in 1969 and President withheld his assent
to the Bill in 1982.

Dr. Ambedkar Speech, referred to by T Krishnamachari,

‘...Governor will not be exercising his discretion in the matter of referring a Bill back to the
House with a message....if the Governor sends back a Bill for further consideration, he does so
expressively on the advice of his Council of Ministers.”

15 (1962,single judge bench, SC)

16 (1974, 7 judge bench, SC)

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Sarkaria Commission

As per Sarakaria Commission, in reserving Bills for consideration of the President under Art.
200, Governor exercises his discretion. Governor, in exceptional circumstances can disregard the
advice of the Council of Ministers and reserve the Bill for consideration of President. For e.g., if
the provisions of Bill are ‘patently unconstitutional’ or pose a threat to the sovereignty, unity and
integrity of the nation, it is imperative for the Governor to reserve the Bill, even if Council of
Ministers advice otherwise.
Researcher has reached to the conclusion that Governor has more discretionary power than
President under Articles 111,200 and 201. Though, most of the powers are same, the rationale for
the conclusion is that prima facie discretion to decide whether a law passed by State Legislature
is violative of the Constitution rests with the Governor.
Governor, in exercise of his discretion: Can choose to keep the Bill in ‘cold storage’ and not
declare anything. Can act contrary to any advice of Council of Ministers which have the effect of
violating any provision of the constitution
Can reserve a Bill for President’s consideration. President can, in exercise of his discretion,
Can choose to keep the Bill in ‘cold storage’ and not declare anything. Can act contrary to any
advice of Council of Ministers which have the effect of violating any provision of the
constitution.
Committee of Governors

Committee of Governors also recognize existence of this discretionary power with Governors
and have given detailed guidelines for regulating their conduct in appointment of Chief Minister.
In light of the case laws and Report of Committee of Governors, researcher has reached to the
conclusion that both, the President and the Governor, enjoy same level of discretion in
appointment of Prime Minister and Chief Minister respectively.

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DISSOLUTION OF MINISTRY
Relevant constitutional provisions: Articles 164(1) (2) and 75(2) (3).
Council of Ministers are collectively responsible to the House and hold office during the pleasure
of the President/Governor. Thus, they can be dismissed when they are stop being responsible to
the House (i.e. loose majority support) or when President/Governor withdraws their pleasure.
However, there is nothing in the text of the constitution that suggests that a Ministry should be
dismissed on losing support in the House.
In Mahabir Pd. v. Prafulla Chandra Ghosh (1969, single judge, Cal HC) it was held that
Governor can withdraw his pleasure during which the Council of Ministers hold their office if
they have lost support of the majority in the House and a no confidence motion has been passed
against them. In Jogendra Nath Hazarika v. State of Assam (1982, division bench, Gau HC),
Governor’s right to withdraw his pleasure was held to be under his sole discretion and termed as
“absolute, unrestricted and unfettered...” One limitation to the sole discretion of Governor in
dissolving the ministry was spelled out in Pratapsingh Raojirao Rane v. Governor of Goa (1999,
division bench, Bom HC). It was held that Governor’s sole discretion is only restricted when the
Council of Ministers enjoy majority support in the House. Same was observed by the apex court
in Jagdambika Pal v. Union of India (1998, 3 judge bench, SC). In Shamsher Singh v. State of
Punjab (1974, 7 judge bench, SC) it was held that President shall use his discretionary power for
dismissal of a government which has lost the majority support but refuse to vacate the office.
The discretion, as held in most of these cases, should be exercised after conducting a floor test in
the House.It has suggested that in case of suspicion loss of majority support in House, Governor
may summon the Assembly, even against the advice of Chief Minister.
Dr. B.R. Ambedkar had told the Constituent Assembly that the President could not act contrary to
or without the advice of the Ministers Subsequently, he stated that in appointment of Prime
Minister and dismissal of government, he will enjoy discretionary powers.

Researcher has reached to the conclusion that both Governor and the President enjoy similar
discretion in the abovementioned matter. Both have the discretion of dissolving the House when.
Ruling party has lost the majority support in the House. Floor test has been conducted or Council
of Ministers have denied to face the House. No other criteria are specified for any of them.

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DISSOLUTION OHF HOUSE
Relevant constitutional provisions: Articles 85(2) (b) and 174(2) (b) Article 356
Articles 85(2) (b) and 174(2) (b) empower the President and the Governor to dissolve the House
of The People and the Legislative Assembly respectively. However, no provision specifies the
procedures or considerations to be kept in mind while dissolving the House. Art. 356 does not
expressly allow for dissolution of State Assembly.
In Pu Myllai Hiychoo v. State of Mizoram (2005, constitutional bench, SC) it was held that
satisfaction of the Governor or the President does not amount to their personal satisfaction, but
satisfaction in constitutional sense, which included aid and advice of Council of Ministers. In
SR Bommai v. Union of India (1994, 9 judge bench, SC), it was observed that though not
expressly provided, State Assembly can be dissolved by the President by exercising the powers
of the Governor under Art. 174(2) (b) read with Art. 356(1) (a), for achieving the purposes of the
Proclamation issued under Art. 356. However, it is not a discretionary power of the President as
it is subject to approval from both the Houses of Parliament. Rationale for this limitation is that
since Presidential proclamation is subject to approval from Parliament, until such approval is
obtained, President should not take any irreversible steps such as dissolving the State Assembly.

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Advice Tendered Is Against Provisions of the Constitution

It is the contention of the researcher that in any case, where the President or the Governor is
supposed to act according to the aid and advice of Council of Ministers, if the advice tendered by
them has the effect of violating the constitution, an implied discretion is available to both of them
to disregard the advice. Acting according to such an advice would amount to violation of
Constitution by President/Governor. This position has been taken by Seervai where he goes to
the extent of suggesting that President should reject any such advice of Council of Ministers and
‘if necessary, dismiss the Ministry if it persists in its advice.’ I do not concur with this extremist
position.
President under Art. 60 [53] and Governor under Art. 159 [54] are under an obligation to
‘preserve, protect and defend the Constitution’. The nature of this obligation, irrespective of
protection under Art. 361 is personal in nature as President can be impeached for violating the
Constitution. Thus, President is under a constitutional obligation to reject any advice of Council
of Ministers which is of the nature of violating the constitution.
For e.g., if under Art. 111, a Bill is returned to the President after reconsideration, he is not
allowed to withhold his assent there from. In such as case, if for any reason, Council of Ministers
advice the President to withhold his assent for the Bill, it is an advice which violates a provision
of the Constitution, and President shall reject such advice.

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 CONCLUSION

Governor veils more discretion than President, primarily because of his dual role of Head of a
State and representative of Centre in the State. He is given higher discretionary powers, for
proper functioning of the Constitution. He has prima facie discretion in deciding whether a
proposed law by a State is violative of the Constitution. He also has greater discretion with
regard to dissolution of Legislative Assembly when it does not function according to the
Constitution. This can also be related to a correlative duty of protecting the Constitution as a
representative of the Centre. Though President has discretionary powers in many cases,
relatively, these powers are less than those exercised by the Governor. It is also observed that in
cases where discretion is given to the post of Head of the State, both the President and the
Governor exercise similar discretion. Instances can be found in exercise of clemency powers and
dissolution of ministry by both the functionaries. Also, since both are under an oath to protect the
Constitution, discretionary power to reject advice of Council of Ministers which is violative of
the Constitution rests with both. Amongst various incidences of overlapping or similar discretion,
Governor has more discretion in exercise .But still governor is only a nominal executive as for as
state is concerned. The real power on the state lies in the hands of the council of minister. The
governor also has certain special powers which cannot be altered by the council of minister. The
governor always be the nominal executive of the state.

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BIBLIOGRAPHY

V.N.Shukla’s,Constitution of India, 12 th edition by mahendra p. Singh

Dr. J.N. Pandey Constitutional law of India ,51 st edition

P.M.Bakshi, The Constitution of India

M.P.Jain ,Indian

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