Governor - Constitutional Functions

 

The various constitutional provisions having bearing on Governor's office and his functions are summarized as follows:
General;
Legislative;
Executive;
Judicial;
Emergency;
Special provisions; and Miscellaneous.

 

General provisions relate to his office, qualifications, appointments, tenure, conditions of office emergency functions and protection of the Governor from legal processes.

 

Legislative Powers and functions:
Governor is a part of the Legislative Assembly (Article 168). He is vested with the authority for summoning, proroguing and dissolving the Legislative Assembly (Article 174). He appoints protem Speaker (Article 188). He addresses the House and sends messages for necessary action by the Legislative Assembly (Article 175 & 176). He decides on the disqualification of Members on advice of the Election Commission (Article 192). He assents or withholds or returns for reconsideration or reserves the Bill for President's assent (Article 200).
 
Under Rule 8 of the Nagaland Rules of Executive Business 1980 (read with Second Schedule to the, Rules of Executive Business, 1980), proposals to summon, prorogue and dissolve the Assembly should 'first be approved by the Cabinet before submission to the Governor for approval. Governor appoints protem Speaker. The senior-most member of the Assembly is generally recommended for the appointment of protem-Speaker. Governor’s address to the Legislative Assembly is drafted by the State Government which is generally the policy statement of the State Government and submitted for the approval of the Governor. Governor’s address is delivered at the commencement of the first session of the Legislature of each year.

 

Governor either assents to the Bills passed by the Legislative Assembly or returns them for reconsideration or they are reserved for the consideration of the President under Article 200. Rule 55 of Nagaland Rules of Executive Business (1980) reads as follows regarding the duties of the Law Department of the State Government while submitting a Bill passed by the Legislative Assembly for assent of the Governor:
 (1)  When a Bill has been passed by the Legislature it shall be examined in the Department concerned and the Law Department and shall be forwarded to the Governor with:-
                                               
a)    report of the Secretary of the Department concerned as to, the reasons, if any, why  the Governor's assent should not be given; and
b)    a report of the Law Department as to the reason if any, why the Governor's assent should not be given or the Bill should not be reserved for the consideration of the President.

(2)   When the Governor directs that the bill should be reserved for the consideration of the President or returned to the Legislature with a message, necessary action in that behalf shall be taken by the Secretary of the Administrative Department concerned in consultation with the Secretary, Law Department.

(3)   After obtaining the assent of the Governor or the President as the case may be, the Law Department shall take steps for the publication of the Bill in the official gazette as an Act of the Legislature.

Governor can issue ordinances when the Legislative Assembly is not in session (Article 2l3). His approval and recommendations are necessary for the following:

 i)    Annual financial statement (Article 202);
 ii)   Demand for Grants [Article 203(3}];
 iii)  Supplementary, additional or excess grants (Article 205); and
 iv)  Financial Bills (Article 207).

 

The Annual Financial Statement (popularly known as Budget) has to be approved by the Cabinet before it is submitted to the Governor for approval.  The recommendation of the Governor is conveyed on the file carrying the proposal for the followings:

  1. Laying of  Annual financial statement under clause (1) of Article 202;
  2. Moving  Demands for Grants under Clause (3) of Article 203;
  3. Moving of Supplementary Demand for Grants for regularization of excess expenditure incurred under  Article 203(3) read with Article 205(1)(b) and (2);
  4. Appropriation Bill under Clause(1) and Clause(3) of Article 207;

(v)     Moving of Money Bill as defined under Article 199 of the      Constitution of India under Article 207(3).

 

The Minister-in-charge will convey the recommendation of Governor to the Secretary, Nagaland Legislative Assembly.

Whenever a dispute arises as to whether an MLA is subject to any is qualification, Governor will decide in the matter and his decision is final under Article 192 of the Constitution. Governor is advised by the Election Commission in this regard. The Election Commission in its letter No.113/2/Kt/83-ILS dated 24th June 1983 informed that the Governor is not required to make any enquiry whenever a question of disqualification of an MLA arises. Governor's function is to forward the complaint to the Election Commission for its adjudication.

 

Executive Functions:
The Executive functions of the Governor are as follows:
a) appointment of the Chief Minister and other members of the Council of Ministers (Article 164);
b) right to call for information from the Chief Minister (Article 167);
c) discharge of Executive Business of the state on the aid and advice from the Council of Ministers and discretionary functions (Article 163);
d) conduct of the entire Executive Business of the state in the name of the Governor (Article 166); and,
e) appointment of State Chief Information Commissioner, and State Information Commissioners under Section 15(3) of the Right to Information Act, 2005.

Appointment of the Chief Minister is the discretionary power of the Governor (Article 164). The procedure for appointment of Chief Minister is that as soon as the General elections are over or alternatively following the resignation of the Chief Minister, the Legislature wing of the majority party in the Legislative Assembly informs the Governor through its authorized representatives about the election of a new leader.  This communication is usually sent to the Governor by the President or Secretary of the Party.  The elected Party leader also informs Governor about his election. In this connection recommendation of the Sarkaria Commission and the Inter State Council accepted by the Govt. of India as communicated by the Ministry of Home Affair’s. Governor thereafter appoints him as the Chief Minister and requests him to recommend the names of the Council of Minister. The elected leader then conveys his acceptance of Governor's offer and also sends the list containing the names of his colleagues to be appointed as members of the Council of Ministers.


          Thereafter, Governor appoints the members of the Council of Ministers and sends letters to the Ministers-designate inviting them to the swearing-in ceremony for being sworn-in as Ministers. The Ministers-designate are also requested to acknowledge the Governor's letter and send their acceptance of the offer. Once these formalities are over, swearing-in of the Council of Ministers takes place on appointed time and date. Ministers including Chief Minister and Ministers of State take oath of office and secrecy in prescribed forms as contained in Parts V and VI of Schedule 3 to the Constitution. Under Article 164(1) the Chief Minister and the Members of the Council of Ministers hold office during the pleasure of the Governor. After the swearing-in ceremony, the Governor appoints the Members of the Council of Ministers. Thereafter, the Secretary to the President/Prime Minister’s Office and MHA  have to be informed through the fax/wireless about the swearing-in of the new Chief Minister and induction of his Council of Ministers. After the formation of the Council of Ministers, the Chief Minister recommends through a letter, allocation of portfolios among the members of his Council of Ministers. The Governor accords approval to the recommendation of the Chief Minister. 

 

The Right to Information Act, 2005, enacted by Parliament, is applicable to the whole of India. The Act comes into force with effect from 12th October, 2005 all over the country. The procedure for appointment of State Chief Information Commissioner and State Information Commissioners is that the Department of Personnel & Administrative Reforms (P&AR) will submit the names of the State Chief Information Commissioner-Designate and State Information Commissioners-Designate as recommended by the Committee chaired by Hon’ble Chief Minister.  The Governor thereafter appoints them as the State Chief Information Commissioner and State Information Commissioners and sends letter inviting the State Chief Information Commissioner-Designate and State Information Commissioners-Designate to the oath taking ceremony. After completion of these formalities, the Oath taking of the State Chief Information Commissioner and State Information Commissioner takes place on appointed time and date. The State Chief Information Commissioner and the State Information Commissioners take oath in prescribed forms as contained in the First Schedule Section 13(3) and 16(3) of Right to information Act, 2005.

 

Under Article-154, the executive power of the State is vested in the Governor and it is exercised by him either directly or through officers subordinates to him in accordance with the Constitution. Under Article 166(1) all executive actions of the State Government shall be expressed to be taken in the name of the Governor. Under Article 166(3), rules for the convenient transaction of the business of the State Government are framed. The Nagaland Rules of Executive Business (1980) are thus framed under Article 166(3). Amendments to the Rules of Executive Business require Governor's prior approval.

 

The constitutional functions of the Governor are normally expected to be discharged on the aid and advice of the Council of Ministers with the Chief Minister at the head. There are however, some powers which may be exercised at his discretion. The following powers may be exercised by the Governor according to his discretion:

(a)   appointment of Chief Minister (Article 164):
(b)   assent to the bills or reserving the bills for President's consideration (Article 200):
(c)   recommendation for President's Rule following failure of the Constitutional machinery in the States (Article 356): and
(d)   exercise of special powers under Article 371 A.

 

The duties of the Chief Minister in regard to furnishing of information to the Governor have been enumerated in Article 167 which runs as follows:

"Duties of Chief Minister as respects the furnishing of information to Governor, etc. - It shall be the duty of the Chief Minister of each State

(a)   to communicate to the Governor of the State all decisions of the Council of Ministers relating to the administration of the affairs of the State and proposals for legislation;
(b)   to furnish such information relating to the administration of the affairs of the State and proposals for legislation as the Governor may call for; and
(c)   if the Governor so requires, to submit for the consideration of the Council of Ministers any matter on which a decision has been taken by a Minister but which has not been considered by the Council."

 

The Judicial powers of the Governor include the following:
(i) to pardon, suspend, remit or commute sentences (Article 161);
(ii) swearing-in of High Court Judges (Article 219);
(iii) appointment of District Judges (Article 233); and
(iv) appointment of Advocate General (Article 165).

 

Proposals from the State Government for remission of sentences are normally received on occasion of national days like Independence Day and Republic Day. Governor normally gives his approval in the file. Since Nagaland currently comes under the jurisdiction of Guwahati High Court, swearing-in ceremony of the Chief Justice and other Judges of Guwahati High Court is done by the Governor of Assam. However when a separate High Court is given to Nagaland these functions will devolve on the Governor of Nagaland. As regards the appointment of District Judges (Article 233), in Nagaland at present there is no separation of judiciary from the executive. The Deputy Commissioners of the districts are also the District Judges. The postings of the Deputy Commissioners have to be approved by the Governor under Rule 34(2)(xxi)(d) of Nagaland Rules of Executive Business, 1980. Proposals for appointment of Advocate General have to be submitted to the Governor with the Cabinet approval (vide Second Schedule to the Nagaland Rules of Executive Business, 1980).

 

Emergency Powers:
The Governor may entrust to the Central Government with its consent the functions lying within the executive power of the State (Article 258A). Under Article 356, Governor can report to the President about the failure of the constitutional machinery in State and recommend proclamation of President's Rule. In S.R.Bommai vrs. Union of India, the Supreme Court relied heavily on justice Sarkaria Commissioner’s Report for determining the circumstances for imposing the President’s Rule under Article 356. The Sarkaria Commission broadly classified instances of failure of constitutional  machinery into political crisis where it is not possible to form a government in the State, internal subversion where for example a government is deliberately acting against  the Constitution and the law  or is formenting a violent revolt  or revolution, physical breakdown where the government willfully refuses to discharge its constitutional obligation endangering the security of the State, and  non-compliance with constitutional  directions of the Union Government. The Commission also illustrated grounds of improper exercise of power under Article 356 such as maladministration in a State, non-exploration of the possibility of installing an alternative government in case of resignation or dismissal of a government in the State, removal of a government which has not been defeated on the floor of the House and has not been given an opportunity to prove its majority, massive defeat of a political party in Lok Sabha elections, exercise of power without warning except in cases of extreme urgency leading to disastrous consequences, internal disturbances not amounting to internal subversion or physical breakdown, stringent financial exigencies of a State, allegations of corruption against a ministry.

 

Specifically stated, Governor's recommendations after giving the reasons will run as follows:

(i)    That the President may by proclamation under Article 356(i) of the Constitution.
(a)   assume to himself the functions of the Government of the State of Nagaland and the powers vested in or exercisable by the Governor:
(b)   suspend the Nagaland Legislature and declare that the powers of the Legislature of the state shall be exercisable by or under the authority of Parliament: and

(ii)   necessary steps may be taken before the end of present financial year, to authorise expenditure from the Consolidated Fund of the state in the next financial year.

 

On receipt of the report, the President issues a Proclamation. Thereafter, the President may dissolve the Legislative Assembly through a notification. After the dissolution of the Assembly an Act is passed by the Parliament on the lines of Nagaland State Legislature (Delegation of Powers Act). After the proclamation of President's Rule, another order is issued vesting the powers of the President in the Governor. After vesting of powers of the President in the Governor, Rules of Executive Business are framed. Once popular Ministry is restored to power the president revokes the proclamation of emergency under another notification.

 

Special Powers & Functions:
The Governor of Nagaland has special responsibilities with respect to law and order which shall be exercised after consulting the Council of Ministers on the basis of his individual judgment under Article 37lA. Similarly, he is also to ensure that money provided by the Government of India is included under the appropriate grant.

 

Miscellaneous powers :
The  miscellaneous power of the Governor include the following :

(a)   appointment of the Chairman and Members of the Public Service Commission (PSC) (Article 316);
(b)   suspension of PSC Chairman and Members during the pendency of a reference in the Supreme Court [Article 317(2)];
(c)   causing the placing before the Legislative Assembly the reports from the Comptroller and Auditor General (C&AG) [Article 151(2)J; and
(d)   causing the placing before the Legislative Assembly the Annual Reports of the PSC [Article 323(2)].

 

As Head of State, Governor is expected to award President's Police Medals, Governor's Gold Medals, Special Prizes and various other honours and decorations. These honours are generally awarded at announced on Independence Day and Republic Day and a special Investiture Ceremony held in Raj Bhavan. The State Government has instituted the Governor’s Award for Distinction in the field of Art, Music and Literature since 2003.  The awards are given by the Governor on Republic Day at Durbar Hall to persons selected on the basis of the guidelines framed for the purpose.

 

The Governor is the Chief Rector of Nagaland University, a Central University established in 1994.  He is also the Chancellor of the Global Open University Nagaland and the Visitor of the Institute of Chartered Financial Analysts of India University Nagaland in terms of the legislations passed in respect of these two Private Universities in 2006.   The powers and functions of Chief Rector of Nagaland University have not been defined.  As the Chancellor of the Global Open University Nagaland, the Governor can (i) preside over the convocation; (ii) constitute a Committee to review the functioning of the University; (iii) preside over the meeting of the Governing Council if desired; and, (iv) seek information from Pro Chancellor on all affairs of the University.   As Visitor of the Institute of Chartered Financial Analysts of India University Nagaland the Governor can (i) preside the convocation; (ii) call for any paper or information relating to the affairs of the University; (iii) issue such directions as he may deem fit in the interest of the University and the directions so issued shall be complied with by all concerned.  The Governor of Nagaland is also the Visitor of Christian Institute of Health Science and Research.

 

Governor is the ex-officio President of the Rajya Sainik Board and Indian Red Cross Society. The Secretary to Governor provides administrative support to the Governor in discharge of Governor's various ex-officio responsibilities.  The Secretary maintains liaison with the office-bearers of the concerned organizations for regular conduct of meetings. The Governor of Nagaland is also the Chairman of North East Zone Cultural Centre (NEZCC). In this capacity, he has to over-see the functioning of the NEZCC including the Shilpgram at Guwahati inaugurated by the Prime Minister on January 17, 2006. The Secretary to Governor provides staff support in discharge of his duties as the Chairman of NEZCC. It is likely that in future Governor may be called upon to shoulder similar additional responsibilities. The Secretary will provide staff support for those duties.

Apart from the exercise of formal powers, the real significance of the Governor's office lies in the enormous informal influence and moral authority exercised by the Governor over the State Government, legislators and public leaders due to his personal stature, rich experience, vast erudition and unquestioned patriotism. Sir Walter Bagehot has described the real powers of the sovereign to be the following :-
         
(a)   the right to advise;
(b)   the right to warn; and
(c)   the right to be informed.

 

The above description holds good for Governor also. Through his powers of advice, warning and information, Governor can be an effective brake on the wrong policies and a powerful accelerator of all constructive programmes. In other words, he acts as a friend, philosopher and guide to the State.

 

A resume of Constitutional provisions governing the nature, powers and responsibilities of the office of the Governor
 
                                                                                  Articles
 General :
Governor's office                                        … 153
Appointment                                              … 155
Tenure                                                     … 156
Qualification                                              … 157
Oath or affirmation                                    … 159
Conditions of office        … 158 & Second Schedule
Contingency functions                                … 160

Protection of Governor from  
legal processes.                                           … 361
 
Legislative:

Governor, a part of
Legislative Assembly.                                 … 168
Summoning, proroguing
& dissolving                                               … 174
Addresses and messages                            … 175 & 176
Appointment of protem Speaker                … 188
Decision on disqualification of
Members of Legislative Assembly              … 192
Assent of Bill                                             … 200
Reservation of Bill for the
consideration of the President                    … 201
Annual Financial Statement (Budget)         … 202
Demand for Grants                                    … 203 (3)
Supplementary, additional or
excess Grants                                             … 205
Special provision for Financial Bills          … 207
Ordinance during recess of Legislature       … 213
Executive:
Appointment of the Chief
Minister and other Ministers                      … 164
Conduct of executive business
of the State                                                 … 166
Right for information from
the Chief Minister                                       … 167
Council of Ministers to aid
and advise and discretionary
functions                                                    … 163

Judicial:
Power to grant pardons, suspend
remit or commute sentences                       … 161
Appointment of Advocate General
Swearing-in of High Court Judges              … 165
Appointment of District Judges                     … 219
Power of application of provisions
of Chapter V Part VI to certain
classes magistrates                                     … 233

Special Responsibility:
         Law and Order                                           … 371A

Emergency provisions:
Entrustment to the Central
Government the functions in the
executive power of the State                      … 258A
Proclamation of failure of
Constitutional machinery in
the States                                                    … 356

Miscellaneous provisions:
Causing of the placing of Reports
of the CAG before Legislature                    … 151 (2)
Appointment of PSC Chairman
& Members                                                … 316
Suspension of PSC Chairman and
Members during the pendency of a
reference to the SC                                     … 317 (2)
Placing of the Annual Report of the
PSC before the Legislative Assembly.        … 323 (2)