Dhruva Vig
The governor can be regarded as the chief-executive head of the state. The governor shall act as the nominal head in exercise of his powers, whereas the real power which has been guaranteed under the constitution, lies with the Chief Ministers of the states and their councils of Ministers.
The governor shall also act as an agent of the central government of India. Therefore, the office of governor must undertake a dual role in its functioning. In normal circumstances, a governor has been appointed for each state, but the provisions under the 7th Constitutional Amendment Act of 1956 have facilitated the appointment of the same person as a governor for two or more states, if need be.
Furthermore, the functions and powers of a Governor and a Lt. Governor are, more or less, at par with each other. The Lt. Governor, like the Governor, can act a titular head of the Union Territory. However, the powers of an Lt. Governor are wider than that of a Governor in few instances. The reasoning behind this is that a Governor of a state is under a compulsion to act solely on the aid and advice of the Council of Ministers of such state, whereas the Lt. Governor does not need such approval from the Council of Ministers on every matter, barring a few instances.
It can be said that the primary function of the governor shall be to preserve, protect and defend the constitution, and the laws of such territory, which have been incorporated in his/her oath of office under Article 159 of the Indian constitution, in the administration of the State affairs.
Definitions
The definition of a governor under ‘The Governors (Emoluments, Allowances and Privileges) Act, 1982’ is that a “Governor” shall mean the Governor, or any person who is discharging the functions of the Governor, of any State or of two or more States.
Under the ‘Delhi Municipal Corporation Act, 1957, the term “Administrator” has been used, which shall mean the Lieutenant-Governor of the National Capital Territory of Delhi.
Similar definitions have also been provided under various statutes/enactments which deal with the issue of defining both a ‘Governor’ as well as a ‘Lt. Governor’.
Powers
The powers that a Governor or a Lt. Governor enjoys are somewhat equivalent in nature to that of the President of India. A governor may appoint Chief Ministers, Ministers, the State Election Commissioner, and judges of the District Courts under the exercise of his discretionary powers. The Governor may also serve as Chancellors of all the universities in the state(s).
The Governor holds the power to dissolve the state Assembly if need be, and if such Assembly is not in session, a Governor may promulgate ordinances on his own behalf. The Governor may also, based upon the recommendations of the Election Commission, disqualify a legislator if he deems so. Another power the Governor holds is the power to exercise his rule over the state, in instances where the ruling party has lost its majority vote in the Assembly.
A Lieutenant Governor also has the same powers with that of a Governor. Only three Union Territories, i.e., Andaman and Nicobar, Delhi, and Puducherry, have a Lt. Governors. These powers have been enshrined in the constitution to ensure checks and balances for the state government and their functioning. Thus, Governors exist in the states of India, while Lt. Governors preside over union territories of Andaman and Nicobar, Delhi, and Puducherry.
Both the Governor and the Lt. Governor possess executive, legislative, financial, and judicial powers, which are more or less analogous to the powers of the President of India, as the same has been decided in the case of State of U.P. v. Babu Ram Upadhya[1]. However, the Governor/Lt. Governor holds no diplomatic, military or emergency powers like that of the president.
The following statutes deal with the powers and functioning of Governors/Lt. Governors-
- Constitution of India, Governor of States (Article 152-162)
- Government of National Capital Territory of Delhi Act, 1991
- The Governors (Emoluments, Allowances and Privileges) Act, 1982
- The Government of Union Territories Act, 1963
Difference
| Governor | Lt. Governor |
| The Governor of a state is appointed under Article 153 of the Constitution of India. | As per Article 239, every Union Territory in India shall be administered by the President, through appointment of an administrator. A Lieutenant Governor shall be appointed in the UTs of Andaman and Nicobar Islands, Puducherry, and Delhi. |
| The Governor shall be regarded as the constitutional head of their respective States. | Lt. Governor shall be regarded as an administrator of the UT and not a constitutional head. |
| Articles 153 to 167 of Constitution of India deal with the provision of State Executive (Government, Chief Ministers, Council of Ministers & Advocate General of the states). | Articles 239 to 241 of Constitution of India deal with the provisions relating to Union Territories. |
| States have their own government. | Union Territories fall under the direct governance by Union of India. |
| The Governors are subjected to work as per the advice of the Council of Ministers of their respective state. | In this regard, the Lt. Governor of Delhi shall hold more power than that of a Governor of any state. The Governor is not under any compulsion to follow the advice of the Council of Ministers as well. |
Case laws
Union of India v. V. Sriharan[2]
Held: The present case talks about the issue of Pardoning Power. Unless the appropriate Government commutes the punishment or remits the sentence, such terminal point would not change at all. Life imprisonment thus means imprisonment for rest of the life of the prisoner. Right to claim remission, commutation, reprieve etc. as provided under Article 72 or 161 of the Constitution will always be available being constitutional remedies untouchable by the Court. A special category of sentence instead of death can be substituted by the punishment of imprisonment for life or for a term exceeding 14 years. Further, Court may put that category beyond application of remission.
B.P. Singhal v. Union of India[3]
Held: The Governor has a dual role. The first is that of a Constitutional Head of the State, bound by the advice of his Council of Ministers. The second role is to function as a vital link between the Union Government and the State Government.
Nabam Rebia & Bamang Felix v. Dy. Speaker, Arunachal Pradesh Legislative Assembly[4]
Held: The contention of discretionary power of Governor under Article 163 was taken up in this instance. The Court held that there are limited situations where discretionary power of Governor can be exercised independent of, or contrary to aid and advice of Council of Ministers, held (per curiam), are: Firstly, when Constitution expressly provides for the same, Secondly, where a constitutional provision could not be construed otherwise on a legitimate interpretation of the same and Thirdly, where Court has laid down that such discretion is available to Governor.
Thus, there is no substance in submission that Governor has freedom to determine when and in which situation he can take a decision to exercise his discretion independent of, or, contrary to aid and advice of Council of Ministers premised on Article 163(2). Article 163(2) must be read subject to Article 163(1).
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- It was further held that the Discretionary power of Governor, are amenable to judicial review. There is no substance in submission that decision of Governor would be final and binding and beyond purview of judicial review. Accepting primacy of Article 163(2) would convert Governor to an all-pervading super-constitutional authority which is clearly not envisaged under the Constitution. Constituent Assembly Debates, legislative history of Article 163, principle of Cabinet responsibility / Ministerial Responsibility, and Governor exercising only nominal powers; and overall impression that executive power of State under Articles 153 to 167 and legislative power of State under Articles 168 to 212 do not assign any significant role to Governor, held, are relevant in this regard.
- As per first part of Article 163(1), Council of Ministers will aid and advise Governor in the exercise of his functions and Governor cannot reject the same and act in his “individual judgment”.
- If the exercise of function is beyond the purview of the aid and advice of the Council of Ministers but is by or under the Constitution, Governor can act “in his discretion”. Article 163(2) of the Constitution will have reference only to the last part of Article 163(1) of the Constitution and is not all-pervasive. Governor is only a formal and constitutional head of the executive. Council of Ministers is the real head and virtually controls both legislative and executive functions. Principle of Cabinet responsibility is firmly entrenched in our constitutional democracy and does not accept any parallel administration by Governor.
Govt. (NCT of Delhi) v. Union of India[5]
Held: The apex Court laid down the powers of Lieutenant Governor in this case. The Court held that the Lieutenant Governor can exercise power to make reference of dispute with Ministers of representative Government of NCT of Delhi on “any matter” to President only in exceptional circumstances and not as a matter of rule or routine. Words “any matter” in Article 239-AA(4) proviso cannot be inferred to mean “every matter”.
Moreover, the Court held that such difference of opinion should have a sound rationale. The Lieutenant Governor should not act in a mechanical manner without due application of mind so as to refer every decision of Council of Ministers of NCT of Delhi, to President Attempt must be made to settle such dispute(s) by way of discussion and dialogue. Lieutenant Governor must work harmoniously with his Ministers and must not seek to resist them at every step of the way.
While exercising said power, the Lieutenant Governor should keep in mind: (a) the standards of constitutional trust and morality, (b) the principles of collaborative federalism and constitutional balance, (c) the concept of constitutional governance and objectivity, and (d) the nurtured and cultivated idea of respect for a representative Government.
State (NCT of Delhi) v. Union of India[6]
Held: It was held, while deciding the issue of administration of Government of National Capital Territory of Delhi (GNCTD), that the delegation of executive power like transfer and posting of personnel appointed by Central Government and posted under administration of GNCTD by Central Government to Lt. Governor of Delhi to the exclusion of wishes of the elected representatives of Delhi Legislative Assembly and GNCTD, by Notification dt. 21-5-2015, were to be disapproved. “It is doubtful whether exclusive power of transfer and posting of such personnel vests in GNCTD or the Lt. Governor. Furthermore, it is doubtful whether all-India services can be mentioned as State Public Service and it is equally doubtful whether it can come under discretionary power of Lt. Governor under Article 239-AA(4) proviso. Thus, as neither GNCTD nor Lt. Governor as delegate of Central Government had been vested exclusive power by the Constitution in this regard, directions issued, to ensure just and fair mechanism with transparency in transfer and posting.”
References:
- Powers of Lieutenant Governor – Constitution of India – iPleaders
- The Hindu explains: The powers of Governors and Lt. Governors – The Hindu
- What are the Powers of Governors and Lt. Governors- Explained. (jagranjosh.com)
- State of U.P. v. Babu Ram Upadhya AIR 1961 SC 751 : (1961) 2 SCR 679 : (1961) 1 Cri LJ 773 ↑
- Union of India v. V. Sriharan (2016) 7 SCC 1 : (2016) 2 SCC (Cri) 695 : 2015 SCC OnLine SC 1267 ↑
- B.P. Singhal v. Union of India (2010) 6 SCC 331 ↑
- Nabam Rebia & Bamang Felix v. Dy. Speaker, Arunachal Pradesh Legislative Assembly (2016) 8 SCC 1 : 2016 SCC OnLine SC 694 ↑
- Govt. (NCT of Delhi) v. Union of India (2018) 8 SCC 501 : 2018 SCC OnLine SC 661 ↑
- State (NCT of Delhi) v. Union of India (2020) 12 SCC 259 : 2019 SCC OnLine SC 193 ↑