State Executive - Revision Notes, Indian Polity UPSC Notes | EduRev

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Part VI, Chapter II of the Constitution deals with the state Executive. The Constitution provides for a federal government having separate system of administration for the Union and the States. The federal and federating units are obliged to act within the purview fixed by the Constitution, and a separate pattern does not necessarily mean a different pattern of administration. In fact, all State administration are uniform, except J&K. The  pattern is the same both at the Union and state level, namely a parliamentary system— the executive head is the constitutional ruler, who is to act in accordance with the advice of the Council of Ministers responsible to the legislature, except in matters in respect of which the Governor of a State is empowered by the Constitution to act 'in his discretion' [Art. 163(1)]

Governor Art. 

153 provides that every state shall have a Governor as the head of executive power of the state. The same Governor may look after two or more States (seventh amendment, 1956)

Appointment 

The governor of a State is not elected but is appointed by the President and holds his office at the pleasure of the President (Art. 155). While appointing a Governor the President seeks the opinion of the Chief  Minister of the concerned state.

Term of office

Art. 156 states the Governor shall hold office during the pleasure of the President. While the normal term of a Governor's office is five years, it may be terminated by : (i) dismissal by the President; and  (ii) resignation addressed to the President.

Salary 
According to Art. 158, Governor is entitled to rentfree use  of his official residence and such emoluments and privileges as may be determined by Parliament by law. The emoluments, charged to the Consolidated Fund of India, cannot be diminished during his term of office. Where the same person is appointed as Governor of two or more States, the Constitution stipulates that the emoluments payable to the Governor shall be allocated among the states in such proportions as the President may order or determine.

Qualifications and conditions of office Arts. 157 and 158 states in order to be appointed as Governor a person must : (i) be a citizen of India; (ii) have attained the age of 35 years; (iii) not hold

STATE EXECUTIVE
any office of profit under the Government; (iv) not be a member of the Parliament or State Legislature.
There is no bar to the selection of a Governor from amongst members of a legislature but if a Member of a Legislature is appointed Governor, he ceases to be a Member immediately upon such appointment.

Powers

A governor's powers are analogous to those of the President in respect of executive, legislative, financial and judicial matters. However, he has no diplomatic and emergency powers like the President.
These powers come under four heads namely executive, legistative, financial and judicial . Besides these powers Governor also enjoys certain discretionary powers, unlike the President.

Executive Powers
(i) All the executive actions of the State are said to be taken in the name of the Governor;
(ii) He appoints the Chief Minister, and on his advice several ministers;
(iii) The executive powers of the Governor relate to all the items of the State List of the Seventh Schedule;
(iv) He has the power related to items in the Concurrent List too, but it is subject to presidential powers:
(v) He has the power to appoint the advocate General and members of State Public Service Commission. The Chief Minister, minister and the Advocate General function at his pleasure, but not the members of the State Public Service Commission;
(vi) He nominates one member of the Anglo-Indian community to the Assembly;
(vii) He also nominates members to the Legislative Council from amongst person having practical knowledge and experience in respect of matters such as literature, science, art, cooperative government and social services.

Legislative Powers 
(i) The Governor has the right to address, sent messages to, summon, prorogue and dissolve the state legislature;
(ii) He can cause the 'annual financial statement' to be laid in the legislature;
(iii) The Governor, may not, however, issue ordinances on such issues, bills which he would have reserved for presidential consideration.

Ordinance Making Power : 
Under Art. 213, the Governor is empowered to issue an ordinance with the power and effect on an Act of the state legislature. The ordinance can be issued in the following situations:
(i) If the state legislature is not in session;
(ii) The ordinance should have the aid of ministerial advice;
(iii) The ordinance must be laid in the House within six weeks from the date of reassembly; and
(iv) The ordinance should deal only with the subjects in Lists II and III of the Seventh Schedule.
The governor himself is competent to withdraw the ordinance at any time. The peculiarity of the ordinance making power of the Governor is that it cannot be issued without the 'instruction' of the President.

Financial Power
(i) The Governor recommends the money bills to be introduced in the House;
(ii) Demands of grants cannot be introduced without his recommendation;
(iii) He asks the ' annual financial statement'; to be laid in the assembly.

Judicial Powers
(i) The Governor determines the appointment, postings and promotions of district judges and other judicial officers;
(ii) He has the power to grant pardon, reprieve, respite or remission of punishment or to suspend, remit or commute the sentence of any person against any offence to a matter to which the executive powers of the state extends.

Emergency Powers
The Governor has no emergency powers but he has the power to make a report to the President whenever he is satisfied that a situation has arisen in which government of the State cannot be carried on in accordance with the provisions of the constitution [Art. 356], thereby inviting the President to assume to himself the functions of the Government of the State or any of them. [This is popularly known as 'Presidents Rule'].

Discretionary Powers 
While the Constitution does not empower the President to exercise any function in his discretion, it authorises the Governor to exercise some functions 'in his discretion,' though in most cases he has to act on the advice of the Council of Ministers (Art. 163). If any question arises whether any matter is or is not a matter as regards which the Governor is required by the Constitution to act in his discretion, the decision of the Governor shall be final, and the validity of any-
thing done by the Governor shall not be called into question on  the ground that he ought or ought not to have acted in his discretion {Art. 163(2)].
The Governor's discretion may be of two types
(i) explicit discretion mentioned in the Constitution i.e., the constitutional discretion; and
(ii) the implicit or the hidden discretion which is derived from exigencies of the political situation, and may be termed as 'situational discretion'. In brief, the Governor has the marginal discretion in a particular situation.

The occasions where the Governor's marginal discretion may be exercised are as follows:

(i) Selection of Chief Minister if no political party has an absolute majority, or does not have recognised leader;
(ii) Dismissal of a Ministry if he is convinced that it has lost the confidence of a majority in the Assembly or the ministry is engaged in activities which are likely to endanger national security or solidarity;
(iii) Dissolution of Legislative Assembly;
(iv)Asking information from the Chief Minister relating to legislative and administrative matters;
(v) Asking the Chief Minister 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;
(vi) Refusing to give assent to a Bill passed by the legislature and sending it back for reconsideration;
(vii) reserving a bill passed by the State legislature for the assent of the President;
(viii) Seeking instructions from the President before promulgating an ordinance dealing with certain matters;
(ix) Advising the President for the proclamation of an emergency;
(x) In the case of the Governor of Assam, certain administrative matters connected with the tribal areas and settling disputes between the government of Assam and the District Council with respect to mining royalties; and
(xi) Likewise Governor of Nagaland, Governor of Sikkim, Governor of Arunachal Pradesh and Governor of Mizoram, Meghalaya and Tripura have been entrusted certain specific functions to be exercised by them in their discretion.

President's control over the governor 

Although the Governor's discretion appears to be absolute, it cannot in reality be absolute because absolute discretion is an element of autocracy which is impossible until the Governor functions within the framework of a democratic institution. So constitution provides that Governor will be under the complete control of the President as regards matter on which the Governor is empowered to act in his discretion.
As regards other matters, however, though the President will have a personal control over the Governor through his power of appointment and removal, it does not seem that the President will be entitled to exercise any effective control over the State government against the wishes of a Chief Minister who enjoys the confidence of the State legislature, though, of course, the President may keep himself informed of the affairs in the State through the reports of the Governor, which may even lead to the removal of the Ministry, under Art. 356.
Council of Ministers Art. 163 provides for a Council of Ministers to advise and aid the Governor, in the exercise of his functions, except some functions which he is by or under the Constitution required to exercise 'in his discretion'.
 

Appointment The council of Ministers headed by the Chief Minister (corresponding to Prime Minister of the Union) constitutes the real executive power of the state. The Chief Minister is appointed by the Governor, while the other Ministers are appointed by the Governor on the advice of the Chief Minister. The Council of Minister shall be collectively responsible to the Legislative Assembly of the State and individually responsible to the Governor. Any person may be appointed a Minister provided he has the confidence  of the Legislative Assembly, but he ceases to be a Minister if he is not or does not remain, for a period of six consecutive months, a member of the State Legislature. The salaries and allowances of Ministers are governed by laws made by the State Legislature [Art. 164]

Functions The council of Ministers is the chief executive body. It formulates policies, initiates legislation and coordinates the work of various agencies of the government. It guides, directs and controls the public administration and implements the policies of the state assisted by the bureaucracy.

Powers and functions of Chief minister 
(i) The Chief Minister is the working head of the State Government. He advises the Governor in matters of administration of the State.
(ii) Being the head of the Council of Ministers, he presides over its meetings.
(iii) He communicates to the Governor all the decision taken by the Council.
(iv) He places the matter for which the Governor intends to have legislation, before the Council.
(v) The Chief Minister is the sole channel of communication both between his ministers and the legislature as well as between the former and the Gover-
nor.
 

Chief Minister vis-a-vis Governor
Under Art. 167:

(i) The Chief Minister is required to communicate to the Governor all decisions of the Council of Ministers with regard to administration of the State and proposal for legislation;
(ii) The Chief Minister must furnish the details of administration of the affairs of the state and proposal for legislation as and when the Governor calls for them; and
(iii) When the Governor requires, the Chief Minister should furnish a proposal for the consideration of the Council of Ministers.

Dismissal of CM by Governor
As regards the controversy over the question whether a Governor has the power to dismiss the Council of Ministers headed by the
Chief Minister of the assumption that the Chief Minister and his cabinet have lost their majority in the Legislative Assembly, the conclusion that can be drawn from Art. 164 is that :
(i) The Governor has the power to dismiss an individual Minister at any time.
(ii) He can dismiss a council of Ministers or the Chief Minister (whose dismissal means a fall of the council of Ministers), only when the Legislative Assembly has expressed its want of Confidence in the Council of Ministers, either by a direct vote of noconfidence or censure or by defeating an important measure or the like, and the Governor does not think fit to dissolve the Assembly. The Governor cannot do so at his pleasure on his subjective estimate of the strength of the Chief Minister in the Assembly at any point of time, because it is for the Legislative Assembly to enforce the collective responsibility of the council of Ministers to itself.

Wherever a doubt arises whether a Ministry has lost the confidence of the House, the only way of testing is on the floor of the House. The Assessment of the strength of the Ministry is not a matter of private opinion of any individual, be he the Governor or the President.

Advocate General
Art. 265 provides that each State shall have an Advocate General corresponding to the Attorney General of India, with similar functions for the State.
He is appointed by the Governor and holds office during his pleasure. The advocate General should be a judge of the High Court. He is obliged to give advice to Government on legal matters on which he is asked his opinion. He receives such remuneration as the Governor may determine. The advocate General has the right to speak and participate in the proceedings but no right to vote in the legislature of the state.

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