Important provisions of The State Executive under the Constitution of India with Case laws
Author: JESWIN JAMES
Abstract
This article briefly discusses about the salient provisions of the State Executive under the Constitution which includes the general structure of the State Executive, Governor – powers and functions, provisions regarding the Council of Ministers headed by the Chief Minister, relationship between the Governor – ministers and Governor – President with the help of case laws to better explain the concept. The article concludes by saying that distribution of powers helps to maintain the functioning of constitutional machinery in a state and to uphold democracy.
Introduction
Sir K.C. Wheare, the Father of contemporary federal theories, stated that the Constitution of India is quasi-federal in nature and not strictly federal. The Constitution, in Part IV lays down a uniform structure for the State Governments so the unitary spirit of the structure of the country is maintained. The structure of government in States is the same as that for the Union. The State Executive is comprised of Governor, Chief Minister and Council of Ministers. Articles 153 to 167 of the Constitution deals with the State Executive.
The Constitutional Head of State
Article 153 states that there shall be a Governor for each State. The 7th Constitution Amendment Act, 1956 added a provision under Article 153 stating that the same person may be appointed as the Governor of two or more states simultaneously. The executive power of the State is vested in the Governor and all executive action of the State has to be taken in the name of Governor. The Governor of a State is appointed by the President.[1] Governor holds office for a term of 5 years and holds office during the pleasure of the President.[2] Article 157 states about the qualifications for a person to be appointed as a Governor. An individual who is an Indian citizen and completed 35 years of age is qualified to be a Governor. Apart from these requirements, there are few more conditions to be satisfied for the appointment of a Governor. The Governor must not be a member of either house of Parliament or State Legislature and he shall not hold any other office of profit.[3]
Powers of Governor
A Governor has executive, financial, legislative and judicial powers.
(1) Executive Powers – The executive power of the State is vested in the Governor. Article 162, says that the executive power of the State extends to matters with respect to which the Government of the State has power to make laws. The Governor makes important appointments of the state such as the Chief Minister, Council of Ministers, Chairman and members of State Public Service Commission, State election commissioner, Advocate General, Chief Justice of the High Court, District judges and the Vice chancellors of Universities. Under Article 356, the Governor can recommend the President for the imposition of a State Emergency and during such emergency he/she enjoys extensive executive powers as an agent of the President. The Supreme Court in Ram Jawaya Kapur v. State of Punjab,[4] held that Council of Ministers are the real executive and that the President and Governors are constitutional heads.
(2) Financial Powers – Article 207(1) states that a money bill cannot be introduced in a State Legislature without the recommendation of the Governor. The Governor is required to cause to be laid before the House or houses of the Legislature ‘annual financial statements’ which is known as budget.[5] Further, no demand of grants can be made except on the recommendation of the Governor.[6]
(3) Legislative Powers – The Governor summons, prorogues and dissolves the Legislative Assembly.[7] He has to address the state legislature every year at the beginning of the first session and after the state assembly elections. The Governor can hold a bill and send it to the President for his consideration. In addition, he can either give assent to a bill or withhold it or send it back for reconsideration except for money bills.
(4) Pardoning Power – Article 161 says that the Governor shall have the power to grant pardon, remit or suspend the sentence of any person convicted of any offence against any law relating to matters to which the executive power of the State extends. Unlike the President, Governor cannot grant pardon in case of a death sentence and sentences inflicted by Court Martial. In Epuru Sudhakar v. State of A.P.,[8] the Supreme Court held that pardoning power is subject to judicial review and it could examine whether the exercise of pardoning power was done on the ground of caste, religion or political consideration and if so, can be quashed by the Court.
Under Article 213, the Governor can issue an Ordinance when either houses of the legislative assembly are not in session and if the circumstances compel him to do so. The Court cannot question the validity of an Ordinance saying that there was no necessity or sufficient grounds.[9] Ordinance have the same force and effect of an Act of the Legislature. It can override the judgment of the High Court given under Article 226.[10]
The Governor has the same protection as the President of India.[11] He shall not be answerable to any court for the performance and disposal of his duties. No criminal proceedings and arrest will stand against the Governor during his term.
The Council of Ministers
Article 163 (1) says that there shall be a Council of Ministers with the Chief Minister as the Head to ‘aid and advise’ the Governor in exercise of his functions. The total number of ministers, including the Chief Minister in a State shall not exceed 15 per cent of the total number of members of the Legislative Assembly of that State provided that they shall not be less than 12 for smaller states.[12]
The appointment of the chief Minister is done by the Governor and the other Ministers shall be appointed by the Governor on the advice of the Chief Minister. The Ministers shall hold office during the pleasure of the Governor.[13] The Governor can dismiss the Council of Ministers or the Chief Minister either by direct vote of no-confidence or censure. The Governor cannot do so at his pleasure on his subjective estimate to decide the majority because it is for the Legislative Assembly to enforce the collective responsibility of deciding the majority through vote.[14]
Anti-defection Law – In order to protect to protect the democratic values, Anti-defection law was introduced in the 10th Schedule. This provides that where the 1/3 members of the original political party defect from the party, their membership in the legislature shall end. Such a member cannot be appointed as a minister unless he is re-elected again.[15] This amendment has made a bold attempt to eradicate one of the worst challenges to the Indian democracy.
The Governor can sanction for prosecution of the ministers and there must be a satisfying proof for the same. In M.P. Special Police Establishment v. State of M.P.,[16] the issue of the case was whether or not the Governor should give the sanction for the prosecution of the Chief Minister without the aid and advice of the Council of Ministers. The Apex Court held that the Governor is not bound by the aid and advice of the Council of Ministers and could make use of his discretionary powers in this case.
The Governor is bound by the advice and opinions of the Council of Ministers but there are certain circumstances under which the Governor can act according to his own discretion. The Chief Minister is the executive head of the state who is appointed by the Governor. In case, no particular party secures majority support in an election, the Governor asks the leader of the single largest party to form the Government or in case of a coalition, the group’s leader is appointed as Chief Minister.
Conclusion
The Governor is the nominal executive and the constitutional head of a state who is an agent of the Union as the Central Government nominates the Governor in each of the states. As the Governor is the nominal head, he doesn’t possess any real power but have certain discretionary functions. This distribution of power between the Governor and the Chief Minister helps to maintain balance in a state and also to keep a check on the functioning of the constitutional machinery in a state.
References
- Constitution of India, 1950.
- https://www.legalservicesindia.com
- https://www.aironline.in/
- en.wikipedia.org
[1] Article 155, Constitution of India.
[2] Article 156, Constitution of India.
[3] Article 158(2), Constitution of India.
[4] AIR1955 SC 549.
[5] Article 202, Constitution of India.
[6] Article 203(3), Constitution of India.
[7] Article 174, Constitution of India.
[8] AIR 2006 SC 3385.
[9] Upendra Lal v. Narayani Devi, AIR 1968 MP 90.
[10] State of Orissa v. Bhupendra Kumar, AIR 1962 SC 945.
[11] Article 361, Constitution of India.
[12] 91st Amendment, 2003 – Article 164 (1A).
[13] Article 164 (1), Constitution of India.
[14] S.R. Bommai v. Union of India, 1994 AIR 1918.
[15] Article 361-B added by 91st Amendment.
[16] AIR 2005 SC 325
