Posted in General Studies 2, Polity

Legislative Council

updated on May 4th, 2019

Legislative Council

It is the upper house of the state legislature and contains various categories of members. It has members elected by the legislative assembly (one-third) members elected by local bodies (one-third), members elected by teachers (one-twelfth), members elected by university graduates (one-twelfth), members nominated by the governor (one-sixth). The maximum strength of the legislative council can be one-third the total membership of the legislative assembly but in no case less than 40. The legislative council enjoys a term of six years with one-third from its members retiring even two years. The council elects a chairman and a vice-chairman from among its members. At present, legislative council exists in Andhra Pradesh. Bihar. Jammu and Kashmir. Karnataka. Maharashtra, and Uttar Pradesh.

To be eligible for membership of the legislative council, a person

  1. must be a citizen of India;
  2. must be more than 30 years of age:
  3. must possess such other qualifications as may be prescribed by Parliament from time to time.

Like the members of legislative assembly, the members of the legislative council must not suffer from any of the prescribed disqualifications, viz. he should not hold any office of profit under the central or state government:
he should not be of unsound mind: he should not be an undischarged insolvent; he should not have voluntarily acquired the citizenship of a foreign state, and should not be disqualified by or under any law of Parliament.

For more information See State Legislature

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Posted in General Studies 2, Polity

Legislative Assembly

updated on May 4th, 2019

Legislative Assembly

This is the popular house of the state legislature and consists of directly elected representatives of the people. The strength of the legislative assembly varies from 60 to 500 in different states according to the population. However, the legislative assembly of Sikkim has only 32 members. The assembly enjoys a term of five years but can be dissolved earlier by the governor. Likewise, its term can be extended by one year at a time by the Parliament during the national emergency.

A person can become a member of the legislative assembly only if he.

  1. is a citizen of India:
  2. is more than 25 years of age;
  3. possesses such other qualifications as may be prescribed by or under the law enacted by the Parliament.

On the other hand, a person is disqualified to be a member of state legislature (i) if he holds any office of profit under the central or state government; (ii) if he is of unsound mind: (iii) if he is an undischarged insolvent: (iv) if he has voluntarily acquired the citizenship of a foreign state; (v) if he is disqualified by or under any law of Parliament. The question whether a member of a house of the legislature of a state has become subject to any of the said disqualifications shall be referred to the governor and his decision shall be final. However, before giving his decision on such a question, the governor is expected to obtain the opinion of the election commission.

Presiding Officer The presiding officer of the legislative assembly is known as Speaker. He is elected by the members of the assembly from among themselves. In addition the assembly also elects a Deputy Speaker, who performs the duties of the speaker in his absence. In case the office of the deputy speaker is vacant, the duties of the office of the speaker are performed by such members of the assembly as the government may appoint for the purpose.

For more information See State Legislature

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The Chief Minister ,Council Of Ministers and State Legislature

updated on April 9th, 2019

Appointment

As we have seen earlier, the Council of Ministers with the Chief Minister as its head functions as the real executive. You are also aware how the Chief Minister and other members of the Council of Ministers are appointed by the Governor. Their term of office is for five years, but they remain in office till they enjoy the support of the majority in the Assembly. If a person who is appointed as the Chief Minister or a Minister, is not a member of the State Legislature, he/she has to become member of any of the two houses within six months of his/her appointment. The portfolios or different ministries are allocated to the Ministers by the Governor on the advice of the Chief Minister.

Functions of the Chief Minister and Council of Ministers

Have you ever given thought to the fact that whenever anything happens in a State, it is the Chief Minister who is said to be responsible for that? If good things happen, he/she is praised, and if bad things occur, he/she is criticized. Why so? In fact, the Chief Minister is the Head of the Government in the State. He/She plays very important roles. He/She:

  • advises the Governor on the appointment of Council of Ministers and allocation of portfolios to them;
  • presides over the meetings of the State Council of Ministers and also coordinates the functioning of different ministers;
  • guides the framing of the policies and programmes for the State and gives approvals of the Bills that are introduced by the Ministers in the State Legislature;
  • is the sole link of communication between the Council of Ministers and the Governor. The Chief Minister communicates the decisions of the Council of Ministers relating to administration as well as proposals for the legislation to the Governor; and
  • submits any matter on which decision has been taken by a Minister for consideration of the Council of Ministers, if the Governor desires him/her to do so.

Position of the Chief Minister

The Chief Minister is the real executive head of the State. It is he/she who formulates the policies and guides the Council of Ministers to implement them. He/She is the most powerful functionary, especially when one political party has an absolute majority in the Legislative Assembly. But if he/she heads a coalition government, his/her role gets restricted by the pulls and pressures of other partners of the coalition. At times, he/she is pressurized by a few independent Members of Legislative Assembly (MLAs), if the majority in the House is thin.

State Legislature

Every State has its Legislature. . Let us understand how the State Legislatures are constituted. In some of the States the Legislature is bicameral i.e. has two houses. In most of the States it is unicameral i.e. has only one house. The Governor is an integral part of the State Legislature. The unicameral legislature has the Legislative Assembly and the bicameral has the Legislative Assembly being its Lower House and the Legislative Council the Upper House. At present only Bihar, Jammu & Kashmir, Karnataka, Maharashtra Telangana and Uttar Pradesh have bicameral legislatures and the remaining 23 States have unicameral legislatures.

Composition of Legislative Assembly

The Legislative Assembly, i.e. Vidhan Sabha is the real legislature even in those States that have bicameral legislatures. According to the Constitution of India, a State Legislative Assembly shall not have more than 500 members and not less than 60 members. However, very small States like Goa, Sikkim and Mizoram have been allowed to have less than 60 members. Seats are reserved for the Scheduled Castes and Scheduled Tribes in the Legislative Assembly.If the Governor feels that the Anglo-Indian Community is not adequately represented, he/she may nominate one person of that community in the State Legislative Assembly. The Legislative Assembly is an elected body. Its members, M. L. As. are elected by the people based on the principle of universal adult franchise. There are certain qualifications prescribed by the Constitution for being elected as an M. L. A. The candidate must:

  • be a citizen of India;
  • have attained the age of 25 years;
  • have his/her name in the voters’ list;
  • not hold any office of profit; and
  • not be a government servant.

Do You Know

What is Universal Adult Franchise?: All adults men/women who have completed the age of 18 and above have the right to vote and participate in the electoral process, without any discrimination based on race, caste, religion, place of birth or sex.

The tenure of the Vidhan Sabha is of five years. However, the Governor may dissolve the Assembly earlier on the advice of the Chief Minister. Similarly the Assembly may be suspended or dissolved when President’s Rule is imposed in a State. During a national Emergency, the Parliament may extend the term of Legislative Assemblies for a period not exceeding one year at a time.

Composition of the Legislative Council

The upper chamber of the State Legislature i.e. the Legislative Council or Vidhan Parishad shall not have more than one third of the total membership of the State Legislative Assembly but not less than 40. The Legislative Council in Jammu & Kashmir has 36 members as an exception. The members of the Legislative Council are partly elected indirectly and partly nominated.

The composition of the Legislative Council is as follows:

  • One-third members are elected by the members of local bodies i.e. Municipalities, District Boards and others in the State;
  • Another one-third members are elected by the members of the Legislative Assembly;
  • One-twelfth members are elected by the electorate consisting of graduates of the State of not less than three years standing;
  • Another one-twelfth are elected by the electorate consisting of teachers having teaching experience of at least three years in the educational institutions within the State, but these institutions must not be lower in standard than secondary schools; and
  • The remaining one-sixth members are nominated by the Governor of the State.

The Vidhan Parishad is a permanent house, and hence it is not dissolved. Members are elected/nominated for a period of six years. One-third of its members retire after every two years. The retiring members are eligible for re-election. The qualifications for becoming members of the Legislative Council are similar to those for the members of the Legislative Assembly. However, the minimum age in the case of Legislative Assembly is 25 years whereas for the Council it is 30 years.

The State Legislature meets twice a year at least and the interval between two sessions cannot be more than six months. The members of Vidhan Sabha and Vidhan Parishad elect their respective Presiding Officers, as well as Speaker and Deputy Speakers, the Chairman and Deputy Chairman.

The business of the two houses is conducted by their respective Presiding Officers who also maintain discipline and order in the houses.

Functions of the State Legislature

The State Legislature performs the following categories of functions:

(a) Legislative Functions: The Assembly has the sole right to legislate. All the laws must be passed by it. Where there is a bicameral legislature, the ordinary Bills can be introduced in any of the Houses. A Bill passed by the Legislative Assembly is sent to the Legislative Council which has to pass it or to return it with recommendations to the Legislative Assembly.If the Legislative Assembly passes that Bill once again either with recommendations of the Council or without those, it shall be deemed to have been passed by both the Houses. As regards, Money Bills, these can be introduced only in the Legislative Assembly. After the Assembly passes the Money Bill, it goes to the Legislative Council which has to pass it or return the Bill to the Assembly with its recommendations within 14 days of the receipt of the Bill. Even if the Assembly rejects the recommendations of the Council, it will be deemed to have been passed by both the Houses. Once the Bill is passed by the Legislature, it is sent to the Governor for his/her assent. He/She cannot withhold the assent on the Money Bill but can send back an ordinary bill for reconsideration or can reserve any of the bills for consideration by the President.

(b) Control over the Executive: The State Legislature keeps control over the executive. The Council of Ministers is responsible to Vidhan Sabha collectively. It remains in office so long as it enjoys the confidence of the House. The Council of Ministers is removed if the Vidhan Sabha adopts a motion of no-confidence against it. Moreover, The State Legislature keeps checks on the government by asking questions and supplementary questions, moving adjournment motions and calling attention notices.

(c) Electoral Functions: The elected members of the Legislative Assembly are members of the Electoral College for the election of the President of India. The members of the Vidhan Sabha also elect the members of the Rajya Sabha from their respective States. Moreover, they elect one-third members of the Legislative Council of their own State.

(d) Functions related to Constitutional Amendments: There are important functions of the State Legislature related to the amendment of the Constitution. A constitutional amendment requires the support of a special majority of each House of the Parliament as well as ratification by not less than half of the States where the State Legislatures ratify the amendments.

In the scheme of the parliamentary system of government provided by the Constitution, the governor is the nominal executive authority (de jure executive) and the Chief Minister is the real executive authority (de facto executive). In other words, the governor is the head of the state while the Chief Minister is the head of the government. Thus the position of the Chief Minister at the state level is analogous to the position of prime minister at the Centre.

APPOINTMENT OF CHIEF MINISTER

The Constitution does not contain any specific procedure for the selection and appointment of the Chief Minister. Article 164 only says that the Chief Minister shall be appointed by the governor. However, this does not imply that the governor is free to appoint anyone as the Chief Minister. In accordance with the conventions of the parliamentary system of government, the governor has to appoint the leader of the majority party in the state legislative assembly as the Chief Minister. But, when no party has a clear majority in the assembly, then the governor may exercise his personal discretion in the selection and appointment of the Chief Minister. In such a situation, the governor usually appoints the leader of the largest party or coalition in the assembly as the Chief Minister and ask him to seek a vote of confidence in the House within a month.

The governor may have to exercise his individual judgment in the selection and appointed of the Chief Minister when the Chief Minister in office dies suddenly and there is no obvious successor. However, on the death of a Chief Minister, the ruling party usually elects a new leader and the governor has no choice but to appoint him as Chief Minister.

The Constitution does not require that a person must prove his majority in the legislative assembly before he is appointed as the Chief Minister. The governor may first appoint him as the Chief Minister and then ask him to prove his majority in the legislative assembly within a reasonable period. This is what has been done in a number of cases.

A person who is not a member of the state legislature can be appointed as Chief Minister for six months, within which time, he should be elected to the state legislature, failing which he ceases to be the Chief Minister.

According to the Constitution, the Chief Minister may be a member of any of the two Houses of a state legislature. Usually, Chief Ministers have been selected from the Lower House (legislative assembly), but, on a number of occasions, a member of the Upper House (legislative council) has also been appointed as Chief Minister.

OATH, TERM AND SALARY

Before the Chief Minister enters his office, the governor administers to him the oaths of office and secrecy. In his oath of office, the Chief Minister swears:

  1. to bear true faith and allegiance to the Constitution of India,
  2. to uphold the sovereignty and integrity of India,
  3. to faithfully and conscientiously discharge the duties of his office, and
  4. to do right to all manner of people in accordance with the Constitution and the law, without fear or favour, affection or ill-will.

In his oath of secrecy, the Chief Minister swears that he will not directly or indirectly communicate or reveal to any person(s) any matter that is brought under his consideration or becomes known to him as a state minister except as may be required for the due discharge of his duties as such minister.

The term of the Chief Minister is not fixed and he holds office during the pleasure of the governor. However, this does not mean that the governor can dismiss him at any time. He cannot be dismissed by the governor as long as he enjoys the majority support in the legislative assembly. But, if he loses the confidence of the assembly, he must resign or the governor can dismiss him.

The salary and allowances of the Chief Minister are determined by the state legislature. In addition to the salary and allowances, which are payable to a member of the state legislature, he gets a sumptuary allowance, free accommodation, traveling allowance, medical facilities, etc.

POWERS AND FUNCTIONS OF CHIEF MINISTER

The powers and functions of the Chief Minister can be studied under the following heads:

In Relation to Council of Ministers

The Chief Minister enjoys the following powers as head of the state council of ministers:
(a) The governor appoints only those persons as ministers who are recommended by the Chief Minister.
(b) He allocates and reshuffles the portfolios among ministers.
(c) He can ask a minister to resign or advise the governor to dismiss him in case of difference of opinion.
(d) He presides over the meetings of the council of ministers and influences its decisions.
(e) He guides, directs, controls and coordinates the activities of all the ministers.
(f) He can bring about the collapse of the council of ministers by resigning from office. Since the Chief Minister is the head of the council of ministers, his resignation or death automatically dissolves the council of ministers. The resignation or death of any other minister, on the other hand, merely creates a vacancy, which the Chief Minister may or may not like to fill.

In Relation to the Governor

The Chief Minister enjoys the following powers in relation to the governor:
(a) He is the principal channel of communication between the governor and the council of ministers. It is the duty of the Chief Minister:
(i) 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;
(ii) 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
(iii) 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.
(b) He advises the governor with regard to the appointment of important officials like advocate general, chairman and members of the state public service commission, state election commissioner, and so on.

In Relation to State Legislature

The Chief Minister enjoys the following powers as the leader of the house:
(a) He advises the governor with regard to the summoning and proroguing of the sessions of the state legislature.
(b) He can recommend the dissolution of the legislative assembly to the governor at any time.
(c) He announces the government policies on the floor of the house.

Other Powers and Functions

In addition, the Chief Minister also performs the following functions:
(a) He is the chairman of the State Planning Board.
(b) He acts as a vice-chairman of the concerned zonal council by rotation, holding office for a period of one year at a time.
(c) He is a member of the Inter-State Council and the National Development Council, both headed by the prime minister.
(d) He is the chief spokesman of the state government.
(e) He is the crisis manager-in-chief at the political level during emergencies.
(f) As a leader of the state, he meets various sections of the people and receives memoranda from them regarding their problems, and so on.
(g) He is the political head of the services.

Thus, he plays a very significant and highly crucial role in the state administration. However, the discretionary powers enjoyed by the governor reduces to some extent the power, authority, influence, prestige and role of the Chief Minister in the state administration.

RELATIONSHIP WITH THE GOVERNOR

The following provisions of the Constitution deal with the relationship between the governor and the Chief Minister:

  1. Article 163: There shall be a council of ministers with the Chief Minister as the head to aid and advise the governor on the exercise of his functions, except in so far as he is required to exercise his functions or any of them in his discretion.
  2. Article 164:
    (a) The Chief Minister shall be appointed by the governor and other ministers shall be appointed by the governor on the advice of the Chief Minister;
    (b) The ministers shall hold office during the pleasure of the governor; and
    (c) The council of ministers shall be collectively responsible to the legislative assembly of the state.
  3. Article 167: It shall be the duty of the Chief Minister:
    (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.

Articles Related to Chief Minister at a Glance

Article No.Subject-matter
Article 163.Council of Ministers to aid and advise Governor
Article 164.Other provisions as to Ministers
Article 166.Conduct of business of the Government of a State
Article 167.Duties of Chief Minister as respects the furnishing of information to Governor, etc.

State Council Of Minister

As the Constitution of India provides for a parliamentary system of government in the states on the Union pattern, the council of ministers headed by the chief minister is the real executive authority in the politico-administrative system of a state. The council of ministers in the states is constituted and function in the same way as the council of ministers at the Centre.

The principles of the parliamentary system of government are not detailed in the Constitution; but two Articles (163 and 164) deal with them in a broad, sketchy and general manner. Article 163 deals with the status of the council of ministers while Article 164 deals with the appointment, tenure, responsibility, qualifications, oath and salaries and allowances of the ministers.

CONSTITUTIONAL PROVISIONS

Article 163—Council of Ministers to aid and advise Governor

  1. There shall be a Council of Ministers with the Chief Minister as the head to aid and advise the Governor in the exercise of his functions, except in so far as he is required to exercise his functions in his discretion.
  2. If any question arises whether a matter falls within the Governor’s discretion or not, decision of the Governor shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion.
  3. The advice tendered by Ministers to the Governor shall not be inquired into in any court.

Article 164—Other Provisions as to Ministers

  1. The Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by the Governor on the advice of the Chief Minister. However, in the states of Chhattisgarh, Jharkhand, Madhya Pradesh, and Odisha, there shall be a Minister in charge of tribal welfare who may, in addition, be in charge of the welfare of the scheduled castes and backward classes or any other work. The state of Bihar was excluded from this provision by the 94th Amendment Act of 2006.
  2. The total number of ministers, including the chief minister, in the council of ministers in a state, shall not exceed 15 percent of the total strength of the legislative assembly of that state. But, the number of ministers, including the chief minister, in a state shall not be less than 12. This provision was added by the 91st Amendment Act of 2003.
  3. A member of either House of state legislature belonging to any political party who is disqualified on the ground of defection shall also be disqualified to be appointed as a minister. The provision was also added by the 91st Amendment Act of 2003.
  4. The ministers shall hold office during the pleasure of the Governor.
  5. The council of ministers shall be collectively responsible to the state Legislative Assembly.
  6. The Governor shall administer the oaths of office and secrecy to a minister.
  7. A minister who is not a member of the state legislature for any period of six consecutive months shall cease to be a minister.
  8. The salaries and allowances of ministers shall be determined by the state legislature.

Article 166—Conduct of Business of the Government of a State

  1. All executive action of the Government of a State shall be expressed to be taken in the name of the Governor.
  2. Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor. Further, the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor.
  3. The Governor shall make rules for the more convenient transaction of the business of the government of the state, and for the allocation among ministers of the said business in so far as it is not business with respect to which the Governor is required to act in his discretion.

Article 167—Duties of Chief Minister

It shall be the duty of the Chief Minister of each state

  1. 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
  2. To furnish such information relating to the administration of the affairs of the state and proposals for legislation as the governor may call for
  3. 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

NATURE OF ADVICE BY MINISTERS

Article 163 provides for a council of ministers with the chief minister at the head to aid and advise the governor in the exercise of his functions except for the discretionary ones. If any question arises whether a matter falls within the governor’s discretion or not, the decision of the governor is final and the validity of anything done by him cannot be called in question on the ground that he ought or ought not to have acted in his discretion. Further, the nature of advice tendered by ministers to the governor cannot be enquired by any court. This provision emphasizes the intimate and confidential relationship between the governor and the ministers.

In 1971, the Supreme Court ruled that a council of ministers must always exist to advise the governor, even after the dissolution of the state legislative assembly or resignation of a council of ministers. Hence, the existing ministry may continue in the office until its successor assumes charge. Again in 1974, the Court clarified that except in spheres where the governor is to act in his discretion, the governor has to act on the aid and advice of the council of ministers in the exercise of his powers and functions. He is not required to act personally without the aid and advice of the council of ministers or against the aid and advice of the council of ministers. Wherever the Constitution requires the satisfaction of the governor, the satisfaction is not the personal satisfaction of the governor but it is the satisfaction of the council of ministers.

APPOINTMENT OF MINISTERS

The chief minister is appointed by the governor. The other ministers are appointed by the governor on the advice of the chief minister. This means that the governor can appoint only those persons as ministers who are recommended by the chief minister.

But, there should be a tribal welfare minister in Chhattisgarh, Jharkhand, Madhya Pradesh, and Odisha1. Originally, this provision was applicable to Bihar, Madhya Pradesh, and Odisha. The 94th Amendment Act of 2006 freed Bihar from the obligation of having a tribal welfare minister as there are no Scheduled Areas in Bihar now and the fraction of population of the Scheduled Tribes is very small. The same Amendment also extended the above provision to the newly formed states of Chhattisgarh and Jharkhand.

Usually, the members of the state legislature, either the legislative assembly or the legislative council, are appointed as ministers. A person who is not a member of either House of the state legislature can also be appointed as a minister. But, within six months, he must become a member (either by election or by nomination) of either House of the state legislature, otherwise, he ceases to be a minister.

A minister who is a member of one House of the state legislature has the right to speak and to take part in the proceedings of the other House. But, he can vote only in the House of which he is a member.

OATH AND SALARY OF MINISTERS

Before a minister enters upon his office, the governor administers to him the oaths of office and secrecy. In his oath of office, the minister swears:

  1. to bear true faith and allegiance to the Constitution of India,
  2. to uphold the sovereignty and integrity of India,
  3. to faithfully and conscientiously discharge the duties of his office, and
  4. to do right to all manner of people in accordance with the Constitution and the law, without fear or favour, affection or ill-will.

In his oath of secrecy, the minister swears that he will not directly or indirectly communicate or reveal to any person(s) any matter that is brought under his consideration or becomes known to him as a state minister except as may be required for the due discharge of his duties as such minister.

The salaries and allowances of ministers are determined by the state legislature from time to time. A minister gets the salary and allowances which are payable to a member of the state legislature. Additionally, he gets a sumptuary allowance (according to his rank), free accommodation, travelling allowance, medical facilities, etc.

RESPONSIBILITY OF MINISTERS

Collective Responsibility

The fundamental principle underlying the working of the parliamentary system of government is the principle of collective responsibility. Article 164 clearly states that the council of ministers is collectively responsible to the legislative assembly of the state. This means that all the ministers own joint responsibility to the legislative assembly for all their acts of omission and commission. They work as a team and swim or sink together. When the legislative assembly passes a no-confidence motion against the council of ministers, all the ministers have to resign including those ministers who are from the legislative council2. Alternatively, the council of ministers can advise the governor to dissolve the legislative assembly on the ground that the House does not represent the views of the electorate faithfully and call for fresh elections. The governor may not oblige the council of ministers which has lost the confidence of the legislative assembly.

The principle of collective responsibility also means that the cabinet decisions bind all cabinet ministers (and other ministers) even if they deferred in the cabinet meeting. It is the duty of every minister to stand by the cabinet decisions and support them both within and outside the state legislature. If any minister disagrees with a cabinet decision and is not prepared to defend it, he must resign. Several ministers have resigned in the past owing to their differences with the cabinet.

Individual Responsibility

Article 164 also contains the principle of individual responsibility. It states that the ministers hold office during the pleasure of the governor. This means that the governor can remove a minister at a time when the council of ministers enjoys the confidence of the legislative assembly. But, the governor can remove a minister only on the advice of the chief minister. In case of difference of opinion or dissatisfaction with the performance of a minister, the chief minister can ask him to resign or advice the governor to dismiss him. By exercising this power, the chief minister can ensure the realization of the rule of collective responsibility.

No Legal Responsibility

As at the Centre, there is no provision in the Constitution for the system of legal responsibility of the minister in the states. It is not required that an order of the governor for a public action should be countersigned by a minister. Moreover, the courts are barred from inquiring into the nature of advice rendered by the ministers to the governor.

COMPOSITION OF THE COUNCIL OF MINISTERS

The Constitution does not specify the size of the state council of ministers or the ranking of ministers. They are determined by the chief minister according to the exigencies of the time and requirements of the situation.

Like at the Centre, in the states too, the council of ministers consists of three categories of ministers, namely, cabinet ministers, ministers of state, and deputy ministers. The difference between them lies in their respective ranks, emoluments, and political importance. At the top of all these ministers stands the chief minister—supreme governing authority in the state.

The cabinet ministers head the important departments of the state government like home, education, finance, agriculture and so forth3. They are members of the cabinet, attend its meetings and play an important role in deciding policies. Thus, their responsibilities extend over the entire gamut of state government.

The ministers of state can either be given independent charge of departments or can be attached to cabinet ministers. However, they are not members of the cabinet and do not attend the cabinet meetings unless specially invited when something related to their departments is considered by the cabinet.

Next, in rank are the deputy ministers. They are not given independent charge of departments. They are attached to the cabinet ministers and assist them in their administrative, political and parliamentary duties. They are not members of the cabinet and do not attend cabinet meetings.

At times, the council of ministers may also include a deputy chief minister. Thus, Andhra Pradesh had the office of deputy chief minister till 1956. This post was created in West Bengal in 1967. More recently, Rajasthan, Madhya Pradesh, and Karnataka have created this office. The deputy chief ministers are appointed mostly for local political reasons.

CABINET

A smaller body called cabinet is the nucleus of the council of ministers. It consists of only the cabinet ministers. It is the real centre of authority in the state government. It performs the following role:

  1. It is the highest decisionmaking authority in the politico-administrative system of a state.
  2. It is the chief policy formulating body of the state government.
  3. It is the supreme executive authority of the state government.
  4. It is the chief coordinator of state administration.
  5. It is an advisory body to the governor.
  6. It is the chief crisis manager and thus deals with all emergency situations.
  7. It deals with all major legislative and financial matters.
  8. It exercises control over higher appointments like constitutional authorities and senior secretariat administrators.

Cabinet Committees

The cabinet works through various committees called cabinet committees. They are of two types—standing and ad hoc. The former are of a permanent nature while the latter are of a temporary nature. They are set up by the chief minister according to the exigencies of the time and requirements of the situation. Hence, their number, nomenclature and comp-osition varies from time to time. They not only sort out issues and formulate proposals for the consideration of the cabinet but also take decisions. However, the cabinet can review their decisions.

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Posted in Polity

Governor

updated on April 9th, 2019

At the state level, there is a Governor in whom the executive power of the State is vested by the Constitution. But the Governor acts as a nominal head, and the real executive powers are exercised by the Council of Ministers headed by the Chief Minister.

Appointment

The Governor of a State is appointed by the President of India. In order to become a Governor, a person must have the following qualifications. He/She:

(a) must be a citizen of India,
(b) must be at least 35 years old, and
(c) should not hold any office of profit during his/her tenure.

If a person is a member of either House of the Parliament or the Legislature of a State, or a member of the Council of Ministers at the national or the state level and is appointed as Governor, he/she resigns that post. The Governor is appointed for a term of five years but normally holds office during the pleasure of the President. The pleasure of the President means that the Governor may be removed by the President even before the expiry of his/her term. He/She may also resign earlier. However, in reality, while appointing or removing the Governor, the President goes by the advice of the Prime Minister.

Powers of Governor

With every job there are powers attached. The powers of the Governor are conferred by the Constitution to enable him/her to perform his/her functions effectively as a Head of the State.

The powers of the Governor can be categorized as (i) executive powers, (ii) legislative powers, (iii) financial powers, (iv) judicial powers, and (v) discretionary powers.

(a) Executive Powers: The Constitution of India vests the entire executive powers of the State in the Governor who performs these functions according to the aid and advice of the Council of Ministers with the Chief Minister as its head. He/She appoints the Chief Minister and other members of the Council of Ministers. He/She also appoints persons on important posts such as the Chairpersons and Members of the State Public Service Commission, State Election Commission, State Finance Commission and the Advocate General, Judges of the courts, other than the High Court. He/She is consulted when the Judges of the State High Court are appointed by the President. But in practice the Governor’s powers are only formal. He appoints only that person as Chief Minister who is the Leader of the majority in the Legislative Assembly. He/She appoints Members of the Council of Ministers only on the advice of the Chief Minister. All other appointments are made and executive functions are performed by him/her exactly as per the advice of Council of Ministers.

(b) Legislative Powers: The Governor is an inseparable part of the State Legislature and as such he/she has been given certain legislative powers. He/She has the right to summon and prorogue the State Legislature and can dissolve the State Legislative Assembly. He/She addresses the State Legislative Assembly or the joint sessions of the two houses of the legislature. He/She may nominate one person of Anglo-Indian Community as a member of Legislative Assembly in case the community is not represented. He/She also nominates one-sixth of the members to the Legislative Council, if the State has a bi-cameral legislature. Once again, in real practice the Governor does all this on the recommendations of the Council of Ministers headed by the Chief Minister. A bill passed by the State Legislature becomes a law or Act only when the Governor gives assent to it.

(c) Financial Powers: You must have read in the newspapers that every year the budget is presented by the government in the Legislature for its approval. In fact, the budget i.e. ‘the Annual Financial Statement’ of the State is prepared and presented by the State Finance Minister before the State Legislature, on behalf of the Governor. Moreover, no money bill can be introduced in the State Legislature without the recommendations of the Governor. He/She also has control over the State Contingency Fund.

(d) Discretionary Powers: As we have seen earlier, the Governor acts on the advice of the State Council of Ministers. This means that in reality, the Governor has no powers. But according to the Constitution, under special circumstances, he/she may act without the advice of the Council of Ministers. Such powers, which are exercised by the Governor on his own, are called discretionary powers. Firstly, if no political party or coalition of parties wins a clear majority in the Legislative Assembly, he/she can exercise his/her discretion in inviting a person to be the Chief Minister. Secondly, the Governor acts as a link between the Centre and the State. He/She can reserve any bill passed by the State Legislature for the consideration of the President of India. Thirdly, if he/she thinks that the government of the State is not functioning according to the Constitution, he/she can report to the President. In that case under Article 356, the President’s Rule is imposed, the State Council of Ministers is removed and the State Legislature is dissolved or put under suspension. During such emergency, the Governor rules on behalf of the President.

Relationship between the Governor and the Council of Ministers

As we have seen above, the State executive consists of the Governor, the Chief Minister and the Council of Ministers. Normally, the Governor exercises all his/her powers on the advice of the Council of Ministers. We know that when the Chief Minister is sworn in, the Governor simply performs a formal duty. He/She invites the leader of the majority in the State Legislative Assembly to be sworn in as the Chief Minister. The members of the Council of Ministers are also appointed by the Governor on the recommendations of the Chief Minister. The majority can consist of members of Legislative Assembly belonging to one party or a group of parties and independents. However, when there is no clear majority in the House electing one candidate as its leader, the Governor can exercise his/her discretionary power. Similarly, although theoretically the Ministers hold their offices during the pleasure of the Governor, in practice the Chief Minister and the Council of Ministers remain in office till they enjoy the support of the majority in the Legislative Assembly. The Governor can dismiss them only when the President’s Rule is imposed.

The Chief Minister is required to communicate to the Governor all the decisions of the Council of Ministers. He/She may call for necessary information related to the state administration. If a Minister individually takes a decision, the Governor may ask the Chief Minister to place such a matter for consideration of the Council of Ministers. It is true that the Governor is a nominal head and the real powers are exercised by the Council of Ministers headed by the Chief Minister. But it will not be correct to say that the Governor is just a constitutional or ceremonial head. He/She can exercise his/her powers effectively under certain circumstances, especially when there is political instability in the State. Since he/she is a link between the Centre and the State, he/she becomes very effective, if the central government sends directions to the State government. The discretionary powers also make the Governor to act as a real executive in particular circumtances.

The governor is the nominal executive head of the state. All the executive authority of the state is vested in him and is exercised by him either directly or through officers subordinate to him.

The governor is appointed by the President and holds office during his pleasure. As a matter of convention, the President sounds the chief minister of the concerned state while appointing the governor.

Before entering upon his office, the governor is to take an oath or affirmation before the Chief Justice of the High Court of that state. In case the Chief Justice of the High The court is not available, the oath is to be conducted by the senior most judge of the court available.

To be eligible for appointment as governor, a person

  1. must be a citizen of India;
  2. must have completed 35 years of age;
  3. should not be a member of either House of Parliament or the state legislature;
  4. must possess the qualifications prescribed for membership of the state legislature;
  5. must not hold any office of profit.

Why An Appointed Governor? The question is often raised as to why the Constituent Assembly of India preferred an appointed Governor over an elected Governor. In the main, four considerations were taken into account for this decision. Firstly, the election would have been an expensive proposition. Secondly, the election would have been fought on personal issues. Thirdly, an elected Governor would have considered himself superior to the Chief Minister. This would have given rise to mutual bickering. Fourthly, an appointed Governor could more effectively check separatist tendencies and provide stability.

Term and Salary The governor is appointed for a term of five years. However, he can relinquish his office earlier by tendering his resignation to the President. The President can also remove him from office before the expiry of his term. The term of the Governor gets automatically extended if his successor does not assume office on the expiry of his term. The governor drew’s a monthly salary of Rs 1,10,000. In addition, he is entitled to free residence, medical facilities, and certain other allowances. The salary and allowances of the governor are charged to the Consolidated Fund of the state and are not subject to the vote of the state legislature.

Powers of the Governor

The Constitution vests quite extensive powers in the governor. though lie is expected to exercise his powers on the advice of the council of ministers. In addition, he also enjoys certain discretionary powers that he exercises on his own. He enjoys the follow ing powers:

1. Executive Powers The governor is the executive head of the state and all executive actions of the state are taken in his name. He also appoints all important officials of the state including the chief minister, ministers, advocate general, chairman and members of the state public service commission and so forth. The governor also reserves the right to recommend to the President that the government of the state is not being carried on in accordance with the provisions of the Constitution and Presidential rule be imposed in the state. When the state is placed under President s rule, the governor acts as the representative of the President in the state and assumes extensive powers.

2. Legislative Powers These powers include the right to
(a) summon or prorogue either house of the state legislature and dissolve the state legislative assembly;
(b) address the first session of the state legislature after the general elections;
(c) send messages to the state legislature on bills pending before it;
(d) appoint one-sixth members of the legislative council:
(e) nominates one member of the Anglo-Indian community to the legislative assembly if it does not get representation otherwise;
(f) give assent to the bills passed by the state legislature;
(g) reserve certain types of bills passed by the legislature for the assent of the President;
(h) make laws through ordinances during the recess of the state legislature.

3. Financial Powers He ensures that the budget of the state is laid before the state legislature every year. All money bills can be introduced in the state legislature only on the recommendation of the governor. The governor administers the contingency fund of the state and can advance money out of it to meet unforeseen expenditure. However, the money must be recouped with the authority of the state legislature.

4. Judicial Powers The governor is consulted by the President while appointing the Chief Justice and judges of the state High Court. He appoints judges of courts below the High Court. He can grant pardon, reprieve, respite or remission of punishments to persons convicted of an offence against state laws.

5. Other Powers
(a ) He receives the report of the state auditor general pertaining to the accounts of the state and places it before the state legislature.
(b) He places the report of the state public service commission along with the observations of the council of ministers before the state legislature.
(c) As chancellor of various universities within the jurisdiction of the state, he appoints vice-chancellors of these universities.

6. Discretionary Powers The governor also enjoys the following discretionary powers:
(a) He can appoint any member as chief minister if no political party has a clear cut majority in the assembly, or if the majority party has no acknowledged leader.
(b) He can seek information from the chief minister on legislative and administrative matters.
(c) He can refuse to sign an ordinary bill passed by the state legislature.
(d) He can dismiss a ministry if he is convinced that it has lost majority support.
(e) He can reserve a bill passed by the state legislature for the assent of the President.
(f) He can recommend to the President the failure of constitutional machinery in the state.
(g) He can dissolve the legislative assembly if the chief minister advises him to do so following a vote of no-confidence. It is for the governor to decide whether a particular matter falls within his discretion or not.

Position Though the governor has been accorded a constitutional status like the President of India, his position differs from that of the President insofar as he is permitted by the Constitution to act without the advice of his council of ministers and can use his discretion in certain matters. The Constitution specifically provides that if any question arises whether a particular matter is or is not one which the governor, as under the Constitution, can act in his discretion, the decision of the governor shall be final, and the validity of anything done by the governor shall not be called in question.

The working of the office of the governor since the inauguration of the Constitution shows that generally the governors have tended to act as agents of the ruling party at the Centre and failed to play their role as constitutional rulers. In view of the controversial role played by some of the governors, a demand was raised in certain quarters that the office of the governor should be done away with. This question was examined in detail by the Surakarta Commission, which favored the retention of the office of
governor. However, the commission suggested that while appointing the governor the Centre must consult the chief minister of the state: that only persons of unquestionable integrity and honesty be appointed as governors; active politicians should not be appointed as governors as far as possible and removal of governors should be made difficult so that the governors can act in an uninhibited and fair manner. In short, it can be said that there is no need to do away with the office of the governor, but certain norms must be observed about the appointment of governors so that the office may be able to command the necessary respect.

COMPARISON BETWEEN GOVERNOR AND PRESIDENT

  1. Both the Governor and the President occupy constitutional position.
  2. While the President is the Executive Head of the Indian Union, the Governor is a constitutional head of a single or more states.
  3. All the executive decisions of the Union and state are taken in the name of President/Governor, but actually all the powers are exercised by the Prime Minister or the Chief Minister.
  4. All the bills passed by the Parliament or State Legislature must receive the ascent of President/ Governor before they become an Act.
  5. The Governor can keep a bill passed by the state legislature for the approval of the President (Article 200). However, the President does not enjoy any such power.
  6. In certain matter the Constitution permits the Governor to act without the advice of the Council of Ministers but no such power is vested in the President. The President can either give ascent to a bill referred to him or refer back the same for reconsideration to the Parliament.
  7. The President can grant pardon to a person awarded death sentence. The Governor does not enjoy any such power.
  8. Both the President and the Governor can issue Ordinances during the recess of the Parliament/State Legislature.
  9. The President can nominate two Anglo-Indian members to the Lok Sabha in case the community does not get adequate representation. Governor can, however, nominate only one member of the Anglo-Indian Community to the state legislature.
  10. Both President and Governor enjoy important financial powers. Money bills can be introduced in the Parliament/State Legislature with the prior approval of the President/Governor.
  11. The President can declare war or conclude peace. No such power is available to the Governor.
  12. President can grant pardon to a person punished under martial law, but no such power is available to the governors

The governor is assisted in the discharge of his functions by a council of ministers headed by the chief minister. The chief minister is appointed by the gov ernor. Generally, the leader of the ma jority party in the state assembly is appointed chief minister, who holds position identical to that of the prime minister at the Centre. He enjoys a term that rims parallel to that of the state legislature-five years. However, if the term of the state legislature is extended, the tenure of the Chief Minister is also extended.

The chief minister recommends to the governor the names of persons to be appointed as members of the council of ministers and allocates portfolios among them. He can ask any minister to resign from the council or drop him from the council by reshuffling it. He coordinates the working of various ministries and ensures that the council works as a team.

The chief minister is the chief link between the governor and the council of ministers and keeps the former informed of all decisions of the council The chief minister takes an active part in the deliberations of the state legislature. He makes all important policy announcements on the floor of the legislature and defends the policies of his government in the house. He can recommend dissolution of the legislative assembly to the governor even before the expiry of its term. Generally, this advise is accepted by the governor.

Thus, the chief minister of a state occupies a prominent position in the state machinery’. However, the position of the chief minister depends on his personality, the position of his party in the state legislature, and whether his party controls the government at the Centre or not.

The Constitution of India envisages the same pattern of government in the states as that for the Centre, that is, a parliamentary system. Part VI of the Constitution, which deals with the government in the states, is not applicable to the State of Jammu and Kashmir, which enjoys a special status and has a separate Constitution of its own.

Articles 153 to 167 in Part VI of the Constitution deal with the state executive. The state executive consists of the governor, the chief minister, the council of ministers and the advocate general of the state. Thus, there is no office of vice-governor (in the state) like that of Vice-President at the Centre.

The governor is the chief executive head of the state. But, like the president, he is a nominal executive head (titular or constitutional head). The governor also acts as an agent of the central government. Therefore, the office of governor has a dual role.

Usually, there is a governor for each state, but the 7th Constitutional Amendment Act of 1956 facilitated the appointment of the same person as a governor for two or more states.

APPOINTMENT OF GOVERNOR

The governor is neither directly elected by the people or indirectly elected by a specially constituted electoral college as is the case with the president. He is appointed by the president by warrant under his hand and seal. In a way, he is a nominee of the Central government. But, as held by the Supreme Court in 1979, the office of governor of a state is not an employee under the Central government. It is an independent constitutional office and is not under the control of or subordinate to the Central government.

The Draft Constitution provided for the direct election of the governor on the basis of universal adult suffrage. But the Constituent Assembly opted for the present system of appointment of governor by the president because of the following reasons1:

  1. The direct election of the governor is incompatible with the parliamentary system established in the states.
  2. The mode of direct election is more likely to create conflicts between the governor and the chief minister.
  3. The governor being only a constitutional (nominal) head, there is no point in making elaborate arrangements for his election and spending huge amount of money.
  4. The election of a governor would be entirely on personal issues. Hence, it is not in the national interest to involve a large number of voters in such an election.
  5. An elected governor would naturally belong to a party and would not be a neutral person and an impartial head.
  6. The election of governor would create separatist tendencies and thus affect the political stability and unity of the country.
  7. The system of presidential nomination enables the Centre to maintain its control over the states.
  8. The direct election of the governor creates a serious problem of leadership at the time of a general election in the state.
  9. The chief minister would like his nominee to contest for governorship. Hence, a second rate man of the ruling party is elected as governor.

Therefore, the American model, where the Governor of a state is directly elected, was drop-ped and the Canadian model, where the governor of a province (state) is appointed by the Governor-General (Centre), was accepted in the Constituent Assembly.

The Constitution lays down only two qualifications for the appointment of a person as a governor. These are:

  1. He should be a citizen of India.
  2. He should have completed the age of 35 years.

Additionally, two conventions have also developed in this regard over the years. First, he should be an outsider, that is, he should not belong to the state where he is appointed so that he is free from the local politics. Second, while appointing the governor, the president is required to consult the chief minister of the state concerned, so that the smooth functioning of the constitutional machinery in the state is ensured. However, both the conventions have been violated in some of the cases.

CONDITIONS OF GOVERNOR’S OFFICE

The Constitution lays down the following conditions for the the governor’s office:

  1. He should not be a member of either House of Parliament or a House of the state legislature. If any such person is app-ointed as governor, he is deemed to have vacated his seat in that House on the date on which he enters upon his office as the governor.
  2. He should not hold any other office of profit.
  3. He is entitled without payment of rent to the use of his official residence (the Raj Bhavan).
  4. He is entitled to such emoluments, allowances and privileges as may be determined by Parliament.
  5. When the same person is appointed as the governor of two or more states, the emoluments and allowances payable to him are shared by the states in such proportion as determined by the president.
  6. His emoluments and allowances cannot be diminished during his term of office.

In 2008, the Parliament has increased the salary of the governor from 36,000 to1.10 lakh per month. Like the President, the governor is also entitled to a number of privileges and immunities. He enjoys personal immunity from legal liability for his official acts. During his term of office, he is immune from any criminal proceedings, even in respect of his personal acts. He cannot be arrested or imprisoned. However, after giving two months’ notice, civil proceedings can be instituted against him during his term of office in respect of his personal acts.

Before entering upon his office, the governor has to make and subscribe to an oath or affirmation. In his oath, the governor swears:
(a) to faithfully execute the office;
(b) to preserve, protect and defend the Constitution and the law; and
(c) to devote himself to the service and well-being of the people of the state.

The oath of 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.

Every person discharging the functions of the governor also undertakes a similar oath or affirmation.

TERM OF GOVERNOR’S OFFICE

A governor holds office for a term of five years from the date on which he enters upon his office. However, this term of five years is subject to the pleasure of the President. Further, he can resign at any time by addressing a resignation letter to the President.

The Supreme Court held that the pleasure of the President is not justifiable. The governor has no security of tenure and no fixed term of office. He may be removed by the President at any time.

The Constitution does not lay down any grounds upon which a governor may be removed by the President. Hence, the National Front Government headed by V P Singh (1989) asked all the governors to resign as they were appointed by the Congress government. Eventually, some of the governors were replaced and some were allowed to continue. The same thing was repeated in 1991, when the Congress Government headed by P V Narasimha Rao changed fourteen governors appointed by the V P Singh and Chandra Sekhar governments.

The President may transfer a Governor appointed to one state to another state for the rest of the term. Further, a Governor whose term has expired may be reappointed in the same state or any other state.

A governor can hold office beyond his term of five years until his successor assumes charge. The underlying idea is that there must be a governor in the state and there cannot be an interregnum.

The President can make such provision as he thinks fit for the discharge of the functions of the governor in any contingency not provided for in the Constitution, for example, the death of a sitting governor. Thus, the chief justice of the concerned state high court may be appointed temporarily to discharge the functions of the governor of that state.

POWERS AND FUNCTIONS OF GOVERNOR

A governor possesses executive, legislative, financial and judicial powers more or less analogous to the President of India. However, he has no diplomatic, military or emergency powers like the president.

The powers and functions of the governor can be studied under the following heads:

  1. Executive powers.
  2. Legislative powers.
  3. Financial powers.
  4. Judicial powers.

Executive Powers

The executive powers and functions of the Governor are:

  1. All executive actions of the government of a state are formally taken in his name.
  2. He can make rules specifying the manner in which the Orders and other instruments made and executed in his name shall be authenticated.
  3. 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.
  4. He appoints the chief minister and other ministers. They also hold office during his pleasure. There should be a Tribal Welfare minister in the states of Chattisgarh, Jharkhand, Madhya Pradesh and Odisha appointed by him.
  5. He appoints the advocate general of a state and determines his remuneration. The advocate general holds office during the pleasure of the governor.
  6. He appoints the state election commissioner and determines his conditions of service and tenure of office. However, the state election commissioner can be removed only in like manner and on the like grounds as a judge of a high court.
  7. He appoints the chairman and members of the state public service commission. However, they can be removed only by the president and not by a governor.
  8. He can seek any information relating to the administration of the affairs of the state and proposals for legislation from the chief minister.
  9. He can require 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.
  10. He can recommend the imposition of constitutional emergency in a state to the president. During the period of President’s rule in a state, the governor enjoys extensive executive powers as an agent of the President.
  11. He acts as the chancellor of universities in the state. He also appoints the vice-chancellors of universities in the state.

Legislative Powers

A governor is an integral part of the state legislature. In that capacity, he has the following legislative powers and functions:

  1. He can summon or prorogue the state legislature and dissolve the state legislative assembly.
  2. He can address the state legislature at the commencement of the first session after each general election and the first session of each year.
  3. He can send messages to the house or houses of the state legislature, with respect to a bill pending in the legislature or otherwise.
  4. He can appoint any member of the State legislative assembly to preside over its proceedings when the offices of both the Speaker and the Deputy Speaker fall vacant. Similarly, he can appoint any member of the state legislative council to preside over its proceedings when the offices of both Chairman and Deputy Chairman fall vacant.
  5. He nominates one-sixth of the members of the state legislative council from amongst persons having special knowledge or practical experience in literature, science, art, cooperative movement, and social service.
  6. He can nominate one member to the state legislative assembly from the Anglo-Indian Community.
  7. He decides on the question of disqualification of members of the state legislature in consultation with the Election Commission.
  8. When a bill is sent to the governor after it is passed by state legislature, he can:
    (a) Give his assent to the bill, or
    (b) Withhold his assent to the bill, or
    (c) Return the bill (if it is not a money bill) for reconsideration of the state legislature.
    However, if the bill is passed again by the state legislature with or without amendments, the governor has to give his assent to the bill, or
    (d) Reserve the bill for the consideration of the president. In one case such reservation is obligatory, that is, where the bill passed by the state legislature endangers the position of the state high court. In addition, the governor can also reserve the bill if it is of the following nature:
    (i) Ultra-vires, that is, against the provisions of the Constitution.
    (ii) Opposed to the Directive Principles of State Policy.
    (iii) Against the larger interest of the country.
    (iv) Of grave national importance.
    (v) Dealing with compulsory acquisition of property under Article 31A of the
    Constitution.
  9. He can promulgate ordinances when the state legislature is not in session. These ordinances must be approved by the state legislature within six weeks from its reassembly. He can also withdraw an ordinance anytime. This is the most important legislative power of the governor.
  10. He says the reports of the State Finance Commission, the State Public Service Commission and the Comptroller and Auditor-General relating to the accounts of the state, before the state legislature.

Financial Powers

The financial powers and functions of the governor are:

  1. He sees that the Annual Financial Statement (state budget) is laid before the state legislature.
  2. Money bills can be introduced in the state legislature only with his prior recommendation.
  3. No demand for a grant can be made except on his recommendation.
  4. He can make advances out of the Contingency Fund of the state to meet any unforeseen expenditure.
  5. He constitutes a finance commission after every five years to review the financial position of the panchayats and the municipalities.

Judicial Powers

The judicial powers and functions of the governor are:

  1. He can grant pardons, reprieves, respites and remissions of punishment or suspend, remit and commute the sentence of any person convicted of any offense against any law relating to a matter to which the executive power of the state extends.
  2. He is consulted by the president while appointing the judges of the concerned state high court.
  3. He makes appointments, postings and promotions of the district judges in consultation with the state high court.
  4. He also appoints persons to the judicial service of the state (other than district judges) in consultation with the state high court and the State Public Service Commission.

Now, we will study in detail the three important powers of the governor (veto power, ordinance making power and pardoning power) by comparing them with that of the President.

PresidentGovernor
With Regard to Ordinary BillsWith Regard to Ordinary Bills
Every ordinary bill, after it is passed by both the Houses of the Parliament either singly or at a joint sitting, is presented to the President for his assent. He has three alternatives:
1. He may give his assent to the bill, the bill then becomes an act.
2. He may withhold his assent to the bill, the bill then ends and does not become an act.
3. He may return the bill for reconsideration of the Houses. If the bill is passed by both the Houses again with or without amendments and presented to the President for his assent, the president must give his assent to the bill. Thus the president enjoys only a ‘suspensive veto’.






Every ordinary bill, after it is passed by the legislative assembly in case of a unicameral legislature or by both the Houses in case of a bicameral legislature either in the first instance or in the second instance, is presented to the governor for his assent. He has four
alternatives:
1. He may give his assent to the bill, the bill then becomes an act.
2. He may withhold his assent to the bill, the bill then ends and does not become an act.
3. He may return the bill for reconsideration of the House or Houses. If the bill is passed by the House or Houses again with or without amendments and presented to the governor for his assent, the governor must give his assent to the bill. Thus, the governor enjoys only a ‘suspensive veto’.
4. He may reserve the bill for the consideration of the President
When a state bill is reserved by the governor for the consideration of the President, the President has three alternatives:
(a) He may give his assent to the bill, the bill then becomes an act.
(b) He may withhold his assent to the bill, the bill then ends and does not become an Act.
(c) He may return the bill for reconsideration of the House or Houses of the state legislature. When a bill is so returned, the House or Houses have to reconsider it within six months. If the bill is passed by the House or Houses again with or without amendments and presented to the president for his assent, the president is not bound to give his assent to the bill. He may give his assent to such a bill or withhold his assent.
When the governor reserves a bill for the consideration of the President, he will not have any further role in the enactment of the bill. If the bill is returned by the President for the reconsideration of the House or Houses and is passed again, the bill must be presented again for the presidential assent only. If the President gives his assent to the bill, it becomes an act. This means that the assent of the Governor is no longer required.







With Regard to Money Bills
Every money bill after it is passed by the Parliament is presented to the President for his assent. He has two alternatives:
1. He may give his assent to the bill, the bill then becomes an act.
2. He may withhold his assent to the bill, the bill then ends and does not become an actor.


Every money bill, after it is passed by the state legislature (unicameral or bicameral), is presented to the governor for his assent. He has three alternatives:
1. He may give his assent to the bill, the bill then becomes an act.
2. He may withhold his assent to the bill, the bill then ends and does not become an actor.
3. He may reserve the bill for the consideration of the president.
Thus, the President cannot return a money bill for the reconsideration of the Parliament. Normally, the president gives his assent to a money bill as it is introduced in the Parliament with
his previous permission. When a Money Bill is reserved by the Governor for the consideration of the President, the President has two alternatives:
(a) He may give his assent to the bill, the bill then becomes an Act.
(b) He may withhold his assent to the bill, the bill then ends and does not become an act.
Thus, the President cannot return a money bill for the reconsideration of the state legislature(as in the case of the Parliament).
Thus, the governor cannot return a money bill for the reconsideration of the state legislature. Normally, the governor gives his assent to a money bill as it is introduced in the state legislature with his previous permission.
When the governor reserves a money bill for the consideration of the President, he will not have any further role in the enactment of the bill. If the President gives his assent to the bill, it becomes an Act. This means that the assent of the governor is no longer required.




Comparing Ordinance-Making Power of President and Governor

PresidentGovernor
1. He can promulgate an ordinance only when both the Houses of Parliament are not in session or when either of the two Houses of Parliament is not in session. The second provision implies that an ordinance can also be promulgated by the president when only one House is in session because a law can be passed by both the Houses and not by one House alone.1. He can promulgate an ordinance only when the legislative assembly (in case of a unicameral legislature) is not in session or (in case of a bicameral legislature) when both the Houses of the state legislature are not in session or when eit-her of the two Houses of the state legislature is not in session. The last provision implies that an ordinance can be promulgated by the governor when only one House (in case of a bicameral legislature) is in session because a law can be passed by both the Houses and not by
one House alone.
2. He can promulgate an ordinance only when he is satisfied that circumstances exist which render it necessary for him to take immediate action.2. He can promulgate an ordinance only when he is satisfied that circumstances exist which render it necessary for him to take immediate action.
3. His ordinance-making power is co-extensive with the legislative power of the Parliament. This means that he can issue ordinances only on those subjects on which the Parliament can make laws.3. His ordinance-making power is co-extensive with the legislative power of the state legislature. This means that he can issue ordinances only on those subjects on which the state legislature can make laws.
4. An ordinance issued by him has the same force and effect as an act of the Parliament.4. An ordinance issued by him has the same force and effect as an act of the state legislature.
5. An ordinance issued by him is subject to the
same limitations as an act of Parliament. This
means that an ordinance issued by him will be
invalid to the extent it makes any provision which the Parliament cannot make.
5. An ordinance issued by him is subject to the same limitations as an act of the state legislature. This means that an ordinance issued by him will be invalid to the extent it makes any provision which the state legislature cannot make.
6. He can withdraw an ordinance at any time.6. He can withdraw an ordinance at any time.
7. His ordinance-making power is not a discretionary power. This means that he can promulgate or withdraw an ordinance only on the advice of the council of ministers headed by the prime minister.7. His ordinance-making power is not a discretionary power. This means that he can promulgate or withdraw an ordinance only on the advice of the council of ministers headed by the chief minister.
8. An ordinance issued by him should be laid before both the Houses of Parliament when it reassembles.8. An ordinance issued by him should be laid before the legislative assembly or both the Houses of the state legislature (in case of a bicameral legislature) when it reassembles.
9. An ordinance issued by him ceases to operate on the expiry of six weeks from the reassembly of Parliament. It may cease to operate even earlier than the prescribed six weeks, if both the Houses of Parliament passes resolutions disapproving it.9. An ordinance issued by him ceases to operate on the expiry of six weeks from the reassembly of the state legislature. It may cease to operate even earlier than the prescribed six weeks, if a resolution disapproving it is passed by the legislative assembly and is agreed to by the legisla-tive council (in case of a bicameral legislature).
10. He needs no instruction for making an ordinance.10. He cannot make an ordinance without the instructions from the President in three cases:
(a) If a bill containing the same provisions would have required the previous sanction of the President for its introduction into the state legislature.
(b) If he would have deemed it necessary to re-serve a bill containing the same provisions for the consideration of the President.
(c) If an act of the state legislature containing the same provisions would have been invalid without receiving the President’s assent.

Comparing Pardoning Powers of President and Governor

PresidentGovernor
1. He can pardon, reprive, respite, remit, suspend or commute the punishment or sentence of any person convicted of any offence against a
Central law.
1. He can pardon, reprieve, respite, remit, suspend or commute the punishment or sentence of any person convicted of any offence against a state law.
2. He can pardon, reprieve, respite, remit, suspend or commute a death sentence. He is the only authority to pardon a death sentence.


2. He cannot pardon a death sentence. Even if a state law prescribes for death sentence, the power to grant pardon lies with the President and not the governor. But, the governor can suspend, remit or commute a death sentence.
3. He can grant pardon, reprieve, respite,
suspension, remission or commutation in respect to punishment or sentence by a court-martial (military court).
3. He does not possess any such power.



CONSTITUTIONAL POSITION OF GOVERNOR

The Constitution of India provides for a parliamentary form of government in the states as in the Centre. Consequently, the governor has been made only a nominal executive, the real executive constitutes the council of ministers headed by the chief minister. In other words, the governor has to exercise his powers and functions with the aid and advise of the council of ministers headed by the chief minister, except in matters in which he is required to act in his discretion (i.e., without the advice of ministers).

In estimating the constitutional position of the governor, particular reference has to be made to the provisions of Articles 154, 163 and 164. These are:
(a) The executive power of the state shall be vested in the governor and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution (Article 154).
(b) There shall be a council of ministers with the chief minister as the head to aid and advise the governor in the exercise of his functions, except in so far as he is required to exercise his functions in his discretion (Article 163).
(c) The council of ministers shall be collectively responsible to the legislative assembly of the state (Article 164). This provision is the foundation of the parliamentary system of government in the state.

From the above, it is clear that the constitutional position of the governor differs from that of the president in the following two respects:

  1. While the Constitution envisages the possibility of the governor acting at times in his discretion, no such possibility has been envisaged for the President.
  2. After the 42nd Constitutional Amendment (1976), ministerial advice has been made binding on the President, but no such provision has been made with respect to the governor.

The Constitution makes it clear that if any question arises whether a matter falls within the governor’s discretion or not, the decision of the governor is final and the validity of anything done by him cannot be called in question on the ground that he ought or ought not to have acted in his discretion. The governor has constitutional discretion in the following cases:

  1. Reservation of a bill for the consideration of the President.
  2. Recommendation for the imposition of the President’s Rule in the state.
  3. While exercising his functions as the administrator of an adjoining union territory (in case of additional charge).
  4. Determining the amount payable by the Government of Assam, Meghalaya, Tripura, and Mizoram to an autonomous Tribal District Council as royalty accruing from licenses for mineral exploration.
  5. Seeking information from the chief minister with regard to the administrative and legislative matters of the state.

In addition to the above constitutional discretion (i.e., the express discretion mentioned in the Constitution), the governor, like the president, also has situational discretion (i.e., the hidden discretion derived from the exigencies of a prevailing political situation) in the following cases:

  1. Appointment of chief minister when no party has a clear-cut majority in the state legislative assembly or when the chief minister in office dies suddenly and there is no obvious successor.
  2. Dismissal of the council of ministers when it cannot prove the confidence of the state legislative assembly.
  3. Dissolution of the state legislative assembly if the council of ministers has lost its majority.

Moreover, 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 led by the chief minister, acts finally on his discretion. They are as follows:

  1. Maharashtra—Establishment of separate development boards for Vidarbha and Marathwada.
  2. Gujarat—Establishment of separate development boards for Saurashtra and Kutch.
  3. Nagaland—With respect to law and order in the state for so long as the internal disturbance in the Naga Hills–Tuensang Area continues.
  4. Assam—With respect to the administration of tribal areas.
  5. Manipur—Regarding the administration of the hill areas in the state.
  6. Sikkim—For peace and for ensuring social and economic advancement of the different sections of the population.
  7. Arunachal Pradesh—With respect to law and order in the state.
  8. Karnataka – Establishment of a separate development board for Hyderabad-Karnataka region.

Thus, the Constitution has assigned a dual role to the office of a governor in the Indian federal system. He is the constitutional head of the state as well as the representative of the Centre (i.e., President).

Articles Related to Governor at a Glance

Article No.Subject-matter
Article 153. Governors of states
Article 154.Executive power of state
Article 155.Appointment of Governor
Article 156.Term of office of Governor
Article 157.Qualifications for appointment as Governor
Article 158.Conditions of Governor’s office
Article 159.Oath or affirmation by the Governor
Article 160.Discharge of the functions of the Governor in certain contingencies
Article 161.Power of the Governor to grant pardons and others
Article 162.Extent of executive power of state
Article 163.Council of ministers to aid and advise the Governor
Article 164.Other provisions as to ministers like appointments, term, salaries, and others
Article 165.Advocate-General for the state
Article 166.Conduct of business of the government of a state
Article 167.Duties of the Chief Minister regarding furnishing of information to the Governor, and so on
Article 174.Sessions of the state legislature, prorogation and dissolution
Article 175.Right of the Governor to address and send messages to the house or houses of state legislature
Article 176.Special address by the Governor
Article 200.Assent to bills (i.e. assent of the Governor to the bills passed by the state legislature)
Article 201.Bills reserved by the Governor for consideration of the President
Article 213.Power of Governor to promulgate ordinances
Article 217.Governor being consulted by the President in the matter of the appointments of the judges of the High Courts
Article 233.Appointment of district judges by the Governor
Article 234.Appointments of persons (other than district judges) to the judicial service of the state by the Governor.
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