Constitutional Law

Powers of the President and the Governor in India: An Analysis

Powers of the President and the Governor in India: A Comparative Analysis

Kanishka Singh, a 5th-year law student from MIT World Peace University has written this article on “Powers of the President and the Governor in India: An Analysis”.

Introduction

India, the largest democracy in the world, is governed by a carefully crafted constitutional structure that outlines the duties and powers of the President and the Governor. They stand in for both the nation’s unity and the federal nature of India’s political system as constitutional heads of state and individual states, respectively.

Despite holding prestigious positions, the President and the governor’s actual authority is frequently misunderstood or underrated. In this article, we examine a comparative analysis of the authority granted to the President and the Governors, illuminating the subtle differences between their functions in the Indian political system.

This article sheds light on the contributions of the President and Governors to the nation’s government and their responsibilities. It examines the parallels and discrepancies in the authority they wield. We set off on our constitutional research adventure, we will learn how these eminent individuals, each of whom has a distinct area of influence, are crucial in determining India’s government and sustaining the democratic character that makes up our country.

Executive powers of the President and the Governor in India

President

Part V of the Constitution discusses the Union Executive in Articles 52 to 78. The president is the head of state in India. Along with the Vice-President, Attorney-General of India, Council of Ministers, and Prime Minister, is a member of the Union Executive. The President of India represents the country’s solidarity and cohesion. The primary duty of the President is to preserve, protect and defend the constitution and the law of India as made part of his oath (Article 60 of the Indian constitution).

The Electoral College, which consists of the following members, elects the president indirectly:

  • The elected members of both Houses of Parliament,
  • The elected members of the state legislatures,         
  • The elected members of the legislative assemblies of Delhi and Pondicherry, which are union territories.

The nominated members of the State Legislative Assembly, the nominated members of the State Legislative Councils, the nominated members of the Legislative Assembly of Delhi, and the nominated members of the Legislative Assembly of Pondicherry do not vote in the presidential election. Even if new elections to the dissolved assembly are not held prior to the presidential election, members of dissolved assemblies no longer qualify to vote in presidential elections.

As the highest-ranking official in the executive branch at the national level, the President holds a significant constitutional position. It’s crucial to remember that the President’s executive authority is not unrestricted. It must follow the Prime Minister-led Council of Ministers’ recommendations.

The key aspects of the President’s executive authority include:

  • The President appoints the head of the majority party or coalition to serve as prime minister following a general election, or in the event that the prime minister steps down or dies. To form the government, the Prime Minister chooses additional members of the Council of Ministers.
  • The President has the authority to summon and prorogue (end) both the Lok Sabha and the Rajya Sabha sessions. The President addresses the first session after a general election and the first session after the summer recess.
  • The President, on the advice of the Prime Minister, has the authority to dissolve the Lok Sabha in the event that the legislature loses confidence in the government or if a majority is not clearly established. While an emergency exists or during the final six months of the president’s term, the Lok Sabha cannot be dissolved.
  • The Chief Justice of India, Supreme Court and High Court judges, the Attorney General, the Comptroller and Auditor General (CAG), and the Election Commissioner are just a few of the high constitutional functionaries that the President has the authority to nominate.
  • Article 72 of the Indian Constitution empowers the President to grant pardons, reprieves, respites, or remissions for specific crimes. However, the Council of Ministers’ recommendations govern this authority.

Governor

The Governor serves as the state’s chief executive. Part VI of the Constitution discusses the state executive in Articles 153 to 167. The Governor, the Chief Minister, the council of ministers, and the state advocate general make up the state executive. The Union government appoints the Governor in each state, making the Governor both a titular head or constitutional head and an agent of the federal government. The Governor is neither directly nor indirectly elected by the people or a similar electoral college, unlike the President. He is chosen by the president via a warrant bearing his signature and seal. He could be considered the Central Government’s choice.

However, as the Supreme Court ruled in 1979, a state’s governor is not employed by the federal government. It is a constitutionally independent office that is not managed by employees of the central government. According to the Canadian model of government, the Union in India nominates governors, and the President appoints them. A governor serves a five-year term in office.

The key aspects of the Governor’s executive authority include:

  • According to Article 159 of the Indian Constitution, the governor’s main responsibility is to uphold, defend, and protect the constitution and the law in the conduct of state business. The governor’s main duties include acting as the state’s CEO and supervising the activities of the executive branch of government.
  • The Governor appoints the head of the majority party or coalition as the Chief Minister following a state election, or in cases where the Chief Minister resigns or loses the majority. The state’s Council of Ministers is then established by the chief minister.
  • The Governor has the authority to call and adjourn the state legislative assembly, as well as to address its meetings.
  • The Governor may recommend to the President that the State Legislative Assembly be dissolved in the event that the state’s government loses its majority or if there is a constitutional crisis. President’s Rule may be imposed in the state or other options but the President has the final say.
  • The Governor appoints a number of state high functionaries, including the State Election Commissioner, the Chairman and Members of the State Public Service Commission, and the Advocate General.
  • According to Article 161 of the Indian Constitution, the Governor has the authority to pardon, reprieve, respite, or remit the punishment for specific crimes committed at the state level. On the Council of Ministers’ advice, this authority is used.

Overall, while both the President and the Governor have executive authority, they perform distinct roles, varying levels of authority. The President operates at the national level, whereas the Governor operates at the state level within India’s federal system.

Case Laws

The Supreme Court ruled in U.N. Rao v. Indira Gandhi,[1] that because Article 74(1) is mandatory, the President must consult the Council of Ministers in order to exercise his or her executive authority.

In light of Article 74(1) and Articles 75(2)-(3), any executive power exercised without such assistance and counsel is unconstitutional. Even after the President has dissolved the legislature. According to the ruling in the Bejoy Lakshmi Cotton Mill case[2], ministers actually exercise the executive branch’s authority despite the fact that the president or governor is officially in charge. President or Governor refers to the President or Governor who has received assistance and advice from Ministers.

In Shamsher Singh v. State of Punjab,[3]held that wherever the Constitution requires the satisfaction of the President or Governor, for example, in Articles 123, 213, 311(2)(c), 356, 360, the satisfaction is not the personal satisfaction, but it is the satisfaction in the constitutional sense under the cabinet system of government.

Legislative powers of the President and the Governor in India:

President:

  • The President has the power to call a special session of either the Lok Sabha or the Rajya Sabha. The President also adjourns or puts an end to, Parliamentary sessions. Each year following a general election, the first session of the new fiscal year officially begins with the President’s address.
  • The President has the authority to dissolve the Lok Sabha if there is a situation in which no party or coalition has a clear majority in the Lok Sabha. Moreover, in the case where the government is unable to demonstrate its majority. However, The President cannot dissolve the Lok Sabha during an emergency or within the last six months of their term.
  • The President makes several speeches to both houses of parliament. It includes the start of the first session of the year, during the joint session, and during the budget session. The President’s address outlines the goals and priorities of the executive branch.
  • In order for a bill to become law, the President must give his or her assent. When a bill is given assent by the President after being approved by the Parliament, it becomes an Act. Moreover, it is incorporated into national law.
  • With the exception of money bills, the President may withhold their assent to a bill or return it for reconsideration. The President must sign the bill if it is resubmitted to them and approved by Parliament.
  • Ordinances can be promulgated by the President in urgent situations when Parliament is not in session. Ordinances must be approved by Parliament within a certain time and have the same authority as laws passed by Parliament.

Governor:     

  • The Governor has the authority to call and prorogue the state legislative assembly. Additionally, the Governor addresses the assembly at the start of each year’s first session and the session following an election.
  • The Governor may dissolve the state legislative assembly at the Chief Minister’s recommendation. Also, in the event that no party or coalition has a clear majority. If necessary, the Governor may also suggest President’s Rule.
  • A bill needs the governor’s approval before it can be enacted as state law. Legislation passed by the state legislative assembly may receive the Governor’s assent or not.
  • Similar to the President, the Governor has the authority to withhold their assent to a bill or send it back for revision, with the exception of money bills, which they cannot do. The Governor is required to sign the bill if it is reintroduced to them and approved by the state legislature.
  • Similar to the President, the Governor has the authority to enact laws when the state legislature is not in session. These ordinances must be approved by the assembly within a certain time period and have the same authority as laws passed by the state legislature.

Despite both having legislative authority, the President deals with national-scale issues, while the Governor handles state-specific affairs. In order to ensure checks and balances in the legislative process, certain restrictions and constitutional provisions apply to the exercise of their legislative powers.

Case Law

According to R.C. Cooper v. Union of India,[4] the President (and Governor) are to exercise this authority on the advice of the Council of Ministers. If both Houses pass a resolution disapproving it before the end of the six-week period, the ordinance ends operating on the day the resolution is passed (parliamentary safeguards). The ordinance must be laid before the Parliament when it reconvenes and ceases to be in effect six weeks after the date of the reconvening.

Emergency Powers of the President and the Governor in India:

The Indian Constitution contains provisions known as “emergency powers” that give the national government certain extraordinary powers to handle crises at the state or national level. To preserve the nation’s security, integrity, and stability, these powers are only used in certain situations. There are three types of emergencies under the Indian Constitution:

National Emergency (Article 352):

  • When a war, external aggression, or armed rebellion poses an immediate threat to the nation’s security, a National Emergency may be declared.
  • A National Emergency may be proclaimed by the President. However, the Prime Minister-led Cabinet must submit a written recommendation to the President before the President can declare a National Emergency.          
  • The President may exercise extraordinary authority and suspend some fundamental rights protected by the Constitution during a National Emergency.

 However, Articles 21 and 32, which grant the right to petition the courts for the enforcement of fundamental rights, cannot be suspended.

  • Within one month, both houses of Parliament must approve the declaration of a national emergency. It may be prolonged by successive parliamentary approvals for a total of six months at a time.

State Emergency (President’s Rule – Article 356):

  • When a state’s constitutional machinery malfunctions and the state government is unable to function in accordance with the Constitution, a State Emergency, also known as President’s Rule, may be declared.
  • In order for the President to impose President’s Rule in the state, the Governor of the state sends a report to him outlining how the constitutional machinery has broken down. 
  • Under President’s Rule, the state is governed by the Governor on behalf of the President, and the state legislative assembly’s legislative authority is transferred to the Parliament.           
  • The initial implementation of the President’s Rule lasts for six months. With the consent of both houses of Parliament, it may be extended an additional three times, each for a maximum of six months.          

Financial Emergency (Article 360):

  • When there is a threat to India’s financial stability or credit, or any portion of its territory, a financial emergency may be declared.
  • Based on the Cabinet’s written recommendation, the President has the authority to declare a financial emergency.        
  • In times of financial emergency, the president has the authority to direct the states to adhere to specific financial principles and to make decisions regarding the stability of the financial system.           
  • Within two months, both houses of Parliament must approve the declaration of a financial emergency. Similar to the National Emergency, it may be prolonged by successive parliamentary approvals for a total of six months at a time.

It is crucial to remember that using emergency powers is a serious decision that should only be made in extreme cases. The Constitution includes checks and balances to prevent abuse of these powers because emergency measures have an impact on how democratic institutions typically operate. The Supreme Court of India has the power to review the legality of emergency proclamations and declare them invalid if it determines that they are unconstitutional or improperly imposed. The Constitution’s emergency provisions seek to strike a balance between upholding democratic principles and ensuring the stability and security of the country.

Emergency Powers of the Governor:

The Governor of a state does not have the authority to declare any kind of emergency, unlike the President. The Governor does, however, have a say in whether or not the state is placed under the President’s Rule. The President may impose President’s Rule based on the Governor’s recommendation if the Governor considers that the state’s constitutional apparatus has malfunctioned. The Governor’s only responsibility is to recommend President’s Rule for the state to him or her, who has the final say.

The President at the federal level alone has the authority to declare a National or Financial Emergency, not the Governor.

The use of emergency powers is uncommon throughout India’s democratic history because they are regarded as extraordinary measures. To ensure that they are used sparingly and only in urgent circumstances to protect the interests of the country and its citizens. The Constitution carefully lays out the requirements and processes for declaring emergencies.

Pardoning Power

The President of India and state governors have significant constitutional authority to pardon people. They have the authority to grant those who have been found guilty of crimes reprieves, respites, remissions of punishment, or pardons. This power is meant to give the executive authorities a way to be merciful and lenient in situations where the regular course of justice might result in harsh or unfair verdicts. The central and state levels of the pardoning power operate as follows:

The President:

  • Article 72 of the Indian Constitution: Article 72 of the Indian Constitution establishes the President’s ability to grant pardons. According to this article, the President has the power to pardon, reprieve, respite, or remit punishment for those found guilty of violating federal laws.
  • Different Pardons:     
    • Pardon: With a pardon, the offender is totally cleared of the crime and is treated as though it never happened. The punishment has been completely suspended, but the conviction is upheld.
  • Reprieve: A reprieve is a temporary halt in the execution of the punishment. This is frequently done to give the convicted party time to seek legal recourse or for the court to consider the case more carefully.
  • A respite is a reduction in the severity of the punishment without an absolution of the offense.
    • Remission: Remission is the shortening of a sentence without altering its content.  
  • The Prime Minister-led Council of Ministers serves as the President’s advisory body when it comes to issuing pardons, even though the President has that authority in theory. Each case is given careful consideration by the Council of Ministers before recommendations are made to the President.
  • The President is not permitted to pardon individuals for crimes covered by military law or those for which the Parliament has impeached them. If the person has already been found guilty by a court-martial, the pardoning power is not applicable in those circumstances.

The Governors:

  • According to Article 161 of the Indian Constitution, state governors have the authority to pardon. This article gives the governor the authority to pardon, reprieve, respite, or remit punishment for those found guilty of violating state laws.
  • The types of pardons and restrictions on the governor’s power to pardon are comparable to those of the president. On the recommendation of the local state’s Council of Ministers, the Governor may also use his or her pardoning authority.
  • The Governor’s pardoning authority only extends to violations of state law. It does not cover transgressions of federal or military law.

A key component of India’s criminal justice system is the pardoning power. It may be used by the President or the governor. When there may be mitigating circumstances or when the strict application of the law may cause excessive hardship or injustice, it offers a channel for compassion and mercy. However, the use of this authority is closely scrutinized, and decisions are made after taking the recommendations of the Council of Ministers into account as well as the unique merits of each case.

Case Laws

The Apex Court ruled in Epuru Sudhakar v. Govt. of Andhra Pradesh[5] that judicial review is available for the President’s and Governors’ pardoning powers under Articles 72 and 161. Caste or political considerations cannot be used as justification for exercising the pardoning power arbitrarily. It stated that it would constitute a violation of the Constitution if the pardoning power had been used for caste, religious, or political reasons, and the Court would then review its legality.

In Narain Dutt v. State of Punjab[6], the Supreme Court overturned a pardon order issued by the Governor of Punjab in a case involving murder and other offenses and remanded it for further consideration. The Court observed that there was no mention of the accused persons’ conviction and sentence in the Governor’s order. The Court determined that the Governor’s use of his or her authority is subject to limited judicial review under Article 161.

The power of a governor to pardon an offender is an exercise of executive authority. It is separated from the court’s authority to rule on the accused’s guilt or innocence. In this instance, the Governor’s use of his or her authority has gone beyond what is permitted by the Constitution.

In the case of State of Haryana v. Jagdish[7], the Supreme Court made an observation and held that the power under Articles 72 and 161 of the Constitution was never intended to be used as an unrestrained authority of reprieve by the executive. The power of clemency should be exercised cautiously and only in suitable cases, wherein it reduces the severity of the punishment awarded without completely erasing the conviction

Powers of the President and the Governor in Dissolution of Legislative Bodies:

An important aspect of the President’s and the Governor’s constitutional authority is their role in the dissolution of legislative bodies, such as the Parliament and state legislative assemblies. However, because they oversee different tiers of government, their roles in this situation are different. Let’s look at each of their responsibilities:

Role of the President in Dissolution of the Lok Sabha (Lower House of Parliament):

  1. Term of the Lok Sabha: The Lok Sabha’s term is five years unless it is dissolved earlier. 
  2. Dissolution of the Lok Sabha: The Lok Sabha cannot be dissolved by the President. The President does not have the authority to dissolve the lower house before it has served out its full term.           
  3. No-Confidence Motion: The Lok Sabha may be dissolved prior to the expiration of its five-year term only in the event that the majority of its members lose faith in the current administration and no viable alternative administration can be formed. The Prime Minister could suggest to the President to dissolve the Lok Sabha in such a case.
  4. Caretaker Government: In the event that the Lok Sabha is dissolved or its term expires, the Council of Ministers. It includes the Prime Minister, who continues to serve as the interim administration until a new administration is formed following new elections.

Role of the Governor in Dissolution of State Legislative Assemblies:

  1. Term of State Legislative Assemblies: State legislative assemblies typically have terms of five years unless they are dissolved earlier.
  • Dissolution of State Legislative Assemblies: State legislative assemblies can be dissolved at any time, and the governor is important in this process.
  • Chief Minister’s recommendation: The Chief Minister may urge the Governor to dissolve the state legislative assembly if they believe the government has lost its majority in the assembly or there is a constitutional crisis.
  • President’s Rule: If the Governor is persuaded that the state’s government cannot be run in accordance with the Constitution’s provisions, they may recommend to the President that President’s Rule be imposed (Article 356). The Governor oversees the state on the President’s behalf and the President’s Rule implies the dismissal of the state government. However, the Governor must verify the reality of the situation and consider all other options before recommending President’s Rule.
  • Caretaker Government: In the event that the state legislative assembly is dissolved or its term expires, the current chief minister and the council of ministers continue in that capacity until a new government is formed as a result of new elections or other arrangements.

While the President lacks the authority to dissolve the Lok Sabha. It’s worth noting that the Governor plays a significant role in the dissolution of the state legislative assembly. This distinction is consistent with Indian federalist principles and the division of authority between the national and state governments.

Significance of Ceremonial and Symbolic Roles:

India’s political system places a high value on the ceremonial and symbolic functions of the President and the Governors. These are grounded in the values of democracy, federalism, and the preservation of the nation. The following significant factors underline the importance of these roles:

Maintaining Constitutional Principles:

The President and Governors’ ceremonial roles place emphasis on their adherence to the values and principles of the Constitution. In their respective roles as head of state at the federal and state levels, they stand in for the continuity and stability of the country, transcending fleeting political shifts.

A Non-Party Position

Both the President and the Governors are obligated by the Constitution to maintain their independence and neutrality. They may have had political allegiances prior to being appointed, but once in office, they are obligated to act in the state’s or the nation’s best interests without favoring any one political party.

Supporting Diversity and Unity:

India is a multicultural country with a wide range of languages, cultures, and traditions. By standing in for the entire nation and upholding the idea of unity in diversity, the ceremonial roles of the President and the Governors act as a unifying force.

Protecting the Constitution:

The Constitution is sworn to be upheld, guarded, and defended by the President and the Governors. Their ceremonial roles serve as a constant reminder of their dedication to preserving the constitutional order and its principles.

Signaling Transitions and Continuity:

During periods of transition, such as the transfer of power following elections or changes in government, ceremonial functions play a vital role. The President’s or Governor’s swearing-in ceremony as well as other ceremonial events stand for the orderly transition of power and continuation of government.

Representation in Diplomacy:

The President acts as the ceremonial head of India during diplomatic engagements and represents India in the global arena. Similarly to this, governors represent their respective states at ceremonial events and serve as their states’ ambassadors inside India.

Promoting national identity:

People develop a sense of national pride and identity when the President and the Governors participate in ceremonial events like Republic Day and Independence Day festivities. As people gather to honor the nation’s accomplishments and growth, these gatherings promote a sense of patriotism and solidarity.

Encouragement of Civility and Decorum:

The President and the Governors’ gracious behavior serves as a model for decorum and politeness in public life. Their deeds and conduct inspire both politicians and the public to uphold honor and respect for the highest constitutional positions.

Perform a constitutional check:

While their primary functions are ceremonial, the President and the Governors also have some constitutional authority, as was previously mentioned. Their limited discretionary powers can act as a constitutional check and balance. In the case of a constitutional crisis or a departure from democratic standards.

In India, the President and the Governors play ceremonial and symbolic duties that go beyond simple symbolism. They support national unity, maintain constitutional principles, and represent the country’s vibrant variety. These positions are essential to maintaining India’s democratic framework and bolstering the concepts of federalism and democratic government at both the national and state levels.

Powers of the President and the Governor in Judicial Review over Immunity in India:

In the case of Rameshwar Prasad v. UOI[8], the court discussed the extent of immunity granted to Governors and the President under Article 361 of the Constitution. It was held that the President and Governors cannot be impleaded or issued notices in their personal capacity. Moreover, they are not accountable to any court for the actions they take in the exercise of their official duties. This immunity even covers charges of mala fides as the words “purported to be done” in Article 361 are broad.

However, this personal immunity does not prevent challenges to their actions. Challenges to the actions of the President or Governor, including allegations of mala fides, can make through appropriate legal means. The defense of these actions falls upon the Union of India or the respective State Government. Even if personal mala fides are alleged and proven, the governments cannot claim immunity and must respond appropriately.

The respondent State must satisfy the court with evidence on record or an affidavit filed by the Governor/President. Article 361 does not prevent the Governor or President from filing an affidavit if they wish to do so. The bar lies only in the court’s power to issue notices to or make the President or Governor answerable.

Conclusion:

The contrast between the President’s and the governor’s respective functions under the constitution reveals how different those roles are. At the state level, the Governors carry out comparable duties. Whereas the President has ceremonial and symbolic authority at the federal level.

The Council of Ministers advises the President when using his limited executive authority. They also have emergency powers to handle extreme crises and play crucial roles in the legislative process.

The Chief Minister and the State Council of Ministers also provide advice to the Governors regarding their administrative authority. They play a crucial role in the dissolution of state legislative assemblies and, in some situations, might advise President’s Rule.

Both the President and the Governors play ceremonial responsibilities that highlight the nation’s diversity and unity while respecting constitutional principles. These functions act as a uniting factor and help to remind us of the democratic values that underpin Indian governance.

Overall, the division of authority between the President and the Governors guarantees that the national and state governments coexist peacefully. It strengthens India’s solid democratic system. Understanding these responsibilities offers important insights into how India’s political system operates and its adherence to democratic principles.

Also Read: Separation of Powers in India, Click Here!

References:

  1. https://knowindia.india.gov.in/profile/the-states.php#:~:text=The%20Governor%20of%20a%20State,State%20is%20vested%20in%20Governor.

[1] AIR 1971 SC 1002

[2] AIR 1967 SC 1145,

[3] 1974 SC 2192,

[4] AIR 1970 SC 564,

[5] AIR 2006 SC 3385

[6] 2011 SC 1216

[7] AIR 2010 SC 1690

[8] AIR 2006 SC 980

    • 7 months ago (Edit)

    […] Powers of the President and the Governor in India: An Analysis […]

Leave feedback about this

  • Quality
  • Price
  • Service

PROS

+
Add Field

CONS

+
Add Field
Choose Image
Choose Video