Union & State Executive (Part - 2) - Polity Constitution; UPSC; IAS. | Polity and Constitution (Prelims) by IAS Masters PDF Download

Union & State Executive

List of Prime Ministers of India

Till date there has been 14 people who have occupied the office of the Prime Minister of India which in terms of parties they represent are as under;

* Interim - It is debatable whether Mr. Gulzari Lal Nanda was a Prime Minister or an Acting Prime Minister. The constitution does not have a position of acting Prime Minister. Mr. Nanda was sworn in as the Prime Minister of India. In contrast, the constitution provides for an acting President who discharges the duties of a President. Hence, constitutional experts and historians now agree that Mr. Nanda is the second Prime Minister of India.

^♥ Returned to Office  ^♦ Dismissed by President following a no-confidence motion

^♠ Assassinated/Died in Office    ^♣ Resigned

                            Attorney-General of India       .

Article 76 states that the President shall appoint a person who is qualified to be appointed as a Judge of the Supreme Court to be the Attorney-General of India. He is the first legal officer of the Government of India.

 It is convention that, after the change of the Government, the Attorney-General resigns and the new Government appoints one of its own choices.

• He advises the Government of India on any legal matter. He performs any legal duties assigned by the President of India.
• He discharges any functions conferred on him by the Constitution or the President.
• In the performance of his duties, the Attorney-General shall have right of audience in all Courts in the territory of India.
• He shall neither advise nor hold a brief against the Government of India in cases in which he is called upon to advise the Government of India. Nor should he defend accused persons for criminal prosecutions without the permission of the Government of India.
• The Attorney-General represents the Union and the States before the Courts but is also allowed to take up private practice provided; the other party is not the State.
• He is not paid a salary, but a retainer that is determined by the President.
• Although he is not a member of the either House of the Parliament, he enjoys the right to attend and speak in the parliamentary deliberations and meetings (of both the Lok Sabha and the Rajya Sabha), without a right to vote.
• He is entitled to all the privileges and immunities as a Member of the Parliament.
• The retainer of the Attorney-General is equal to the salary, of a Judge of the Supreme Court.
• He is assisted by two Solicitors-General and four assistant Solicitors-General.
• The Attorney-General holds office during the pleasure of the President, and receives remuneration as the President may determine.
• The 14th and current Attorney General is Mukul Rohatgi. He was appointed by Pranab Mukherjee, the President of India.

                       Comptroller and Auditor General    .

• Provisions regarding the Comptroller and Auditor General (CAG are given under Articles 148-151.

• He is appointed by the President for a full term of 6 years or 65 years of age whichever is earlier.

Duties of CAG

• To audit the accounts of the Union and the States and submit the report to the President or the Governor, as the case may be.

• To ensure that all the expenditures from the Consolidated Fund of India or States are in accordance with the Law.

• To oversee that the money sanctioned by the Parliament or the State Legislature is being spent for the particular purpose for which it has been issued.

• Also, to audit and report on the receipts and expenditure of the

1. Government companies
2. ii) All bodies and authorities 'substantially
3. financed from the Union or the State
4. revenues; and
5. iii) other corporations or bodies when so required by the Laws relating to such
6. corporations or bodies.

Since the enactment of the Comptroller and) Auditor General (Duties and Power) Act, 1976, he ceases to prepare the accounts of the Union and the States, but he continues to audit the accounts of the Union, the States and the Public Sector undertakings under these Governments.

The report of the CAG relating to the accounts of a State shall be submitted to the Governor of the State, who shall cause it to be laid before the Legislature of the State. This report is immediately referred to the Public Accounts Committee of the Parliament which, after a detailed study prepares another report which is placed before the Parliament. The discussion in the Parliament takes place on the secondary report of the Public Accounts Committee.

The CAG is an officer of the Parliament and he is called Ears and Eyes of the Public Accounts Committee.

The CAG has no control over the issue of money from the Consolidated Fund of India or of any State.

The CAG is concerned only at the stage of audit after the expenditure has already taken place.

The current CAG of India is Shashi Kant Sharma, who was appointed on 23 May 2013. He is the 12th CAG of India

• In India, except Jammu & Kashmir, all the States have the same pattern of Government as the Centre.
• Powers and authority of the State executive extend only to the territory comprising the State, while that of the Union Executive extend to the whole of India.
  The Governor  
  The Constitution provides for an office of the Governor in the States (Article 153).

Usually, there is a Governor for each State, but the Constitution (seventh amendment) Act of 1956, facilitated the appointment of the same person as a Governor for two or more States or Lt. Governor of the Union Territory.

• A Governor is the chief executive head of a State, but like the President of India, he is a nominal executive head (or de jure or titular or Constitutional head).
• When a Governor discharges the responsibilities of more than one State, he acts on the advice of the Council of Ministers of the respective States.
• The Governor also acts as an agent of the Central Government and therefore, the office of the Governor has a dual role.
• A Governor is appointed by the President of India by a warrant under his hand and seal, on the recommendations of the Union Council of Ministers.
• He is an agent of the Centre to which he reports fortnightly, on the affairs of the State.
• His usual term of office is five years but he holds office during the pleasure of the President.
• He can also be transferred from one State to another by the President.
• He can also resign any time by addressing his resignation to the President.
• The Legislature of a State or a High Court has no role in the removal of a Governor.
• A person may be appointed as a Governor for any number of terms.

Conditions for Governor to be appointed:

• Citizen of India
• He should have completed the age of 35 years.

The constitution lays down the following conditions for the Governor's office:

• He should not be a member of either House of the Parliament or of the House of the State Legislature.
• He should not hold any other office of profit.
• His emoluments, allowances and privileges shall be determined by the Parliament of India.
• When the same person is appointed as the Governor of two or more States, the emoluments and allowances payable to him shall be allocated among the States in such proportion as determined by the President of India.

His emoluments and allowances should not be diminished during his term of office.

• The Oath of the office to the Governor is administered by the Chief Justice of the concerned State High Court and in his absence, the senior-most Judge of that Court available.
• The salary and allowances of the Governor are drawn from the Consolidated Fund of State.
• The Governor is entitled to a salary of Rs ­­­­­­­­­125000 per month, rent-free
• accommodation and other allowances under the provision of the Governor (salary and other allowances) Act, 1982.
• Since 1987, it has been provided that the salary and other allowances of the Governor cannot be diminished to his disadvantage during the term of his office.
• Under Article 361, a Governor is not answerable to any court for the
• performance of the power and duties of his office.
• No criminal proceedings can be instituted or continued in any form as long as a person holds the office of the Governor. However, no such immunity is available in case of civil cases, the only respite being that the Governor should be given a two months' prior notice containing full details of such proceedings.
• A Court cannot issue an arrest warrant or other punishments during his term of the office.
• A Governor possesses Executive, Legislative, Financial and Judicial powers analogous to the President of India.
• He has no diplomatic, military or emergency powers like the President.

Executive Powers

• All executive functions of the government of a state are formally taken in his name.
• He can make rules specifying the manner in which the orders and other instruments made and executed in his name shall be authenticated.
• He can make rules for more convenient transaction of the business of a state government and for the allocation among the ministers of the said business.
• He appoints the Chief Minister and other Ministers on the advice of the CM. they hold office during the pleasure of the Governor.
• There should be a Tribal welfare minister in the state of Bihar, Madhya Pradesh, and Orissa appointed by the Governor.
• He appoints the advocate-General of a state and determines his remuneration. The advocate-General holds office during the pleasure of the Governor.
• He appoints the Election Commissioner for the state and determines the conditions of service and tenure of the office.
• He appoints the chairman and the members of the state public service commission. However, they can be removed only by the President of India and not by the Governor.
• He can seek information relating to the administration 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 of ministers.
• He can recommend the imposition of the emergency in a state to the President.
• The Governor has the power to suspend the members of the State Public Service Commission.
• Though the Governor does not have the power to appoint the judges of the High Court but his consultation is required by the President for the appointment of the judges of the High Court.
• If the Governor is satisfied that the members of the Anglo Community are not adequately represented in the Vidhan sabha, he may nominate one member.
• If the Vidhan Parishad is also in existence in a state, the Governor has the power to nominate 1/6^th of the total members of the Vidhan parishad from among the persons who have excelled or have the practical experience in the fields of literature, Science, Arts, Cooperative movement and Social Services.

Legislative Powers

• A Governor is an integral part of the state Legislature (Art168).
• Ha has the right to summon or prorogue the State Legislature and dissolving the state Legislative Assembly.
• He can address the State Legislature at the commencement of the first session after each general election and the first session of each year.
• Ha can send a message to the House or the Houses of the state Legislature, with respect to a Bill pending in the Legislature or otherwise.
• He can appoint any member of te state Legislative assembly to preide over its proceedings when the office of both Speaker and Deputy Speaker fall vacant simultaneously.
• He decides on the question of disqualification of the members of the state Legislature in consultation with the election commission.
• When a Bill is sent to the Governor after it is passed by the State legislature, ha has the following options:
  • Give his assent t o the Bill, or 
  • Withhold his assent to the Bill, or 
  • Return the Bill ( if it is not a Money Bill) for reconsideration of the State Legislature. If the State Legislature again passes the Bill with or without amendments, a Governor has to give his assent to the Bill.
• Ha must reserve for the consideration of the President, any Bill passed by the state Legislature which endangers the position of the state High court, in addition, as identified by Soli Sorabjee, the Governor can also reserve the Bill if it is of the following nature:
  • Ultra vires, that is , against the provisions of National importance
  • Opposed to the directive Principles of the State Policy
  • Dealing with compulsory acquisition of property under Article 31 IA of the Constitution.
• He can promulgate ordinances when the state legislature is not in session (Art. 213). These ordinances must be approved by the state legislature within six weeks from its reassembly. He can also withdraw the ordinance any time.
• He lays the reports of the state public service commission, state finance commission and comptroller and auditor general relating to the accounts of the state, before the state legislature ( Art 202).
• He ensures the laying of the state Budget before the Legislature.

Financial Powers

• Money Bill can be introduced in the State Legislature only with the prior recommendation of the Governor.
• No demands for a grant can be made except on his recommendation.
• He can make advances out of the Contingency Fund of the State to meet any unforeseen expenditure.
• He constitutes a Finance Commission after every five years to review the financial position of the Panchayats and the Municipalities.
• The Constitution confers on the Governor, the duty to get prepared and

introduced to the State Legislature, the annual budget and also the

• supplementary budgets, if necessary.

Judicial Powers

·         He can grant pardons, reprieves, respites and remissions of punishment or suspend, remit and 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 pardoning power of the Governor differs from that of the President in following respects:

o    The President can pardon death sentence while the Governor cannot.

o    The President can pardon sentences inflicted by the Court martial while the Governor cannot.

·         He is consulted by the President while appointing the Judges of the concerned State High Court.

·         He makes appointment, postings and promotions of the District Judges in consultation with the State High Court (Art 233).

·         He also appoints persons to the Judicial Services of the State (other than District Judges) in consultation with the State High Court and the State Public Service Commission.

Emergency Powers

·         If the Governor is satisfied that the Government of the State cannot be carried on in accordance with the provisions of the Constitution, he may, under Art, 356 recommend to the President to impose the President's rule (Constitutional Emergency) in that State.

·         As soon as the President’s Rule is imposed, the administration of the State is carried on by the Governor acting as the representative of the President.

Sarkaria Commission Recommendations 

On the qualification of a Governor, the Commission recommended:

a)    He should be eminent in some walk of life;

b)    He should be a person from outside the state

c)     He should be a detached figure without intense political links, or should not have taken part in politics in recent past

d)    He should not be a member of the ruling party

On the process of appointment, the Commission recommended that

·         The Governor should be appointed from a panel to be prepared by state legislature or
from a panel to be prepared by the state chief ministers

·         Effective consultation should be made with the state chief minister in selection of a person for the post of Governor.

·         Vice-President of India and Speaker of Lok Sabha should be consulted by the Prime Minister before selection of the Governor.

On the removal, the Commission suggested that

a)    As far as possible the term of 5 years should be maintained

b)    The Governor should be removed before their tenure only on the grounds as mentioned in the Constitution or if aspersions are caste on his morality, dignity, constitutional propriety etc.

c)     In the process of removal, state government may be informed and consulted.

·         The recently appointed National Commission for the Review of Working of Constitution under the chairmanship of Justice Venkatachalliah has adopted the recommendation of Sarkaria Commission as aforesaid. Dr Ambedkar in the constituent Assembly debate also referred that each state is sovereign in its own sphere and this unnecessary encroachments are unjustified.

·         Reservation of a bill for the consideration of the President.

·         Recommendation for the imposition of the President's rule in the State.

·         While exercising his functions as the administrator of an adjoining Union Territory (in case of additional charge).

·         Appointment of the Chief Minister when no party has clear cut majority in the State Legislature.

·         Seeking information from the Chief Minister with regard to the administrative and legislative matters of the State.

·         Dismissal of the Council of Ministers when it cannot prove the confidence of the State Legislative Assembly.

·         Dissolution of the State Legislative Assembly if the Council of Ministers has lost its majority.

·         Determining the amount payable by the State of Assam to the autonomous Tribal District Council as royalty accruing from licenses for mine exploration.

·         The Governor has certain special responsibilities to discharge according to the directions issued by the President. In this regard, the Governor though has to consult the Council of Ministers, acts finally in his individual judgment and discretion. They are:

              i.        Maharashtra: Establishment of a separate Development Boards for

            ii.        Vidarbha and Marathwada.

           iii.        Arunachal Pradesh: With respect to the law and order in the State.

           iv.        Assam: With respect to the administration of the Tribal areas.

             v.        Nagaland: With respect to the law and order in the State.

           vi.        Manipur: With respect to the administration of the hill areas in the State.

          vii.        Sikkim: For peace and for ensuring social and economic advancement of the different sections of the population.

         viii.        Gujarat: Establishment of a separate Development Boards for Saurashtra and Kutch.

Council of Ministers (Article 164)

Ø  The Chief Minister at the head of a state council of Ministers is appointed by the Governor on the advice of the Chief Minister. the council of ministers shall be collectively responsible to the Legislative assembly of the State and individually to the Governor.

Ø  Any person can be appointed as minister, but he ceases to be minister if he does not remain a member of the state legislature for a period of six consecutive months.

Ø  The salaries and allowances of Ministers are governed by laws made by the state legislature. 

Ø  The Chief Minister is the real executive and is the head of the Government of a State.

Ø  The position of the Chief Minister at the State level is analogous to the position of the Prime Minister at the Centre.

Ø  The Chief Minister shall be appointed by the Governor.

Other Ministers shall be appointed by the Governor on the advice of the Chief Minister.

• Normally the leader of the majority party in the Vidhan Sabha is appointed as the Chief Minister by the Governor.
• The Governor shall administer the oath of office and secrecy to the Ministers
• The salaries and allowances of the Ministers shall be determined by the State Legislature.

In relation to the Council of Ministers

• Recommends persons to be appointed as the Ministers by the Governor.
• Allocates and reshuffles the portfolios among the Ministers.
• Can ask a Minister to resign or advise the Governor to dismiss the Minister in case of difference of opinion.
• Presides over the meetings of the Council of Ministers and influences its decisions.
• Guides, direct, controls and coordinates the activities of all the Ministers.
• Can bring about the collapse of the Council of Ministers by resigning from the office.
  In relation to the Governor
• He is the principal channel of communication between the Governor and the Council of Ministers.
• He communicates to the Governor of all decisions of the Council of Ministers relating to the administration of the affairs of the State and proposals for legislation.
• He furnishes such information relating to the administration of the affairs of the State and proposals for legislation as the Governor may call for.
• 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.
• He advises the Governor with regard to the appointment of important officials like Advocate General, the Chairman and the Members of the State Public Service Commission, the State Election Commissioner etc.

In relation to the State Legislature

• He advises the Governor with regard to the summoning and proroguing of the sessions of the State Legislature.
• He can recommend the dissolution of the Legislative Assembly to the Governor any time.
• He announces the Government policies on the floor of the House.
• Chief Minister is the leader of the party in power, leader of the State and the political head of the services, under the State.

                                    TheAdvocate General                                   .

165. Advocate-General for the State.—(1) The Governor of each State shall appoint a person who is qualified to be appointed a Judge of a High Court to be Advocate-General for the State.

(2) It shall be the duty of the Advocate-General to give advice to the Government of the State upon such legal matters, and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the Governor, and to discharge the functions conferred on him by or under this Constitution or any other law for the time being in force.

(3) The Advocate-General shall hold office during the pleasure of the Governor, and shall receive such remuneration as the Governor may determine

• The Advocate General is the first law officer of a State.
• His office and functions are comparable to that of the Attorney General of India.
• Appointed by the Governor and holds the office during his pleasure.
• His remunerations are also determined by the Governor.
• To be appointed to the office of the Advocate-General, he/she must be qualified to be a Judge of the High Court.
• He has the right to attend and speak in the proceedings of either Houses of the State Legislature without any right to vote.
• He has the right of audience in any Court in the State.