State Executive

The Governor

The pattern of Government in the States is the same as that of the Union, that is a parliament system. The executive head to a State is the Governor who is to act according to the advice of the council of Ministers. Normally each State has its own Governor, but under the Seventh Amendment Act 1956, the same person can be appointed as Governor of one or more States. All executive action of the State is formally taken in the name of the Governor.

The Governor of a states are appointed by the President. He normally holds office for five years but can be removedany day before that, by the President. Thus he is a Nominee of the Union Government. He may be asked to continue beyond the normal five years, until his successor enters upon his office. The Governor can also be transferred from one State to another by the President. He draws a salary of Rs. 1,10,000/- per month and is entitled to a rent-free official residence and other allowances. His salary and allowances subject to the vote of the State Legislature. I order to the appointed as Governor, a person must be a citizen of India and must have completed the age to thirty-five years. The Governor cannot be a member of Parliament or of a State Legislature and if a person is such a member at the time of the appointment as Governor, his seat in Parliament or the State Legislature, as the case may be, will become vacant on the date on which he assures office as Governor. The governor cannot hold any other office of profit during the term of his office.

The constitution grants certain immunities to a Governor. Article 361 says that a Governor shall not be” answerable to any Court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties”. Secondly no criminal proceedings can be instituted or continued in any court against a Governor during his term of office. Similarly, no process for the arrest or imprisonment of a Governor can be issued from any court during his term of office. Civil proceeding against a Governor in which relief is claimed, can be instituted in a court while the Governor is in his office, only after two months for the date on which due notice has been given to him regarding full details of the said proceedings.

Sarkaria Commission Report and the Office of the Governor

The Sarkaria commission has suggested that a politician belonging to the ruling party at the Centre should not be appointed as Governor of a State being run by some other party or by a combination of other parties. He must be appointed after consultation with the State concerned. A Governor should be an eminent person in some walk of live, should be from outside the State, should be detached figure not too intimately connected with the local politics of the State, and a person who has not taken active part in politics generally and particularly in the recent past. Persons belonging to the minority groups should continue to be given a chance as hitherto. The system of Governor sending fortnightly reports to the President must continue. The governor must retire the President must continue. The Governor must retain the power to refer any bill to the Centre for assent.

Powers and functions of the governor

The constitution confers on the Governor quite a large number of powers, which may be grouped under four heads;

(A)       Executive powers

The executive power of the State is vested in the Governor. It is exercised by him directly or through officers subordinate to him in accordance with the Constitution. The executive power of the State extends to all matters on which the State Legislature has the power to make laws. In case of matters specified in the Concurrent List, the executive power of the President. As executive actions of the State Government are taken in his name. The governor is authorized to make rules regarding the way in which orders and instructions made and executed in his name are to be authenticated. He also makes ruled for the convenient transaction of the business of the Government and for its allocation amongst the ministers. In the States of Bihar,Madhya Pradesh and Orissa, it is the special responsibility of the governor to see that a Ministers placed in charge of tribal welfare. In Assam the Governor is given certain special powers with respect to the administration of the tribal areas as provided in the Sixth Schedule to the Constitution.

The Governor has vast power of appointment and patronage. He appoints the Chief Minister and on his advice the other Ministers. He also appoints the Advocate-General of the State and the members of the State Public Service Commission though the latter cannot be removed by him.  They can be removed by the President on the report of the Supreme Court and, in some cases, on the happening of certain disqualification.

The Ministers hold office during the pleasure of the Governor. As such he exercises a general supervision over the Council of Ministers and State administration. He can submit for the consideration of the council of Ministers any matter, which in his opinion requires consideration by it. It is the duty of the Chief Minister to communicate to the Governor all decision of the Council of Ministers relating to the administration of the State and proposals for legislation and to provide such information as the Government may call for.

(B)       legislative powers

The legislative powers of the Governor under the Constitution are formidable. The Governor is an integral part of the State Legislature. The main legislative powers of the Governor may be enumerated as follows: -

1.      The constitution confers upon the Governor the power to nominate one member to the Lower House and some members to the Upper House of the State. He can nominate one member from the Anglo-Indian community to the State Legislative Assembly if in his opinion this community is not adequately represented in that House. In a state with a Legislative council, the Governor nominates one-sixth of the total number of its members.

2.      The Governor can summon the State Legislature, prorogue either House or dissolve the Legislative Assembly.

3.      The Constitution gives the Governor the right to address, the House or Houses of the State Legislature separately or jointly. At the beginning of each new session and immediately after a general election to the Assembly he has to deliver an address to the Legislature in which he lays down the policy of his government for the ensuing     year.

4.      The Governor can also send messages to any House of the State Legislature. The Constitution lays down that a House to which any message is so sent shall with all convenience dispatch, consider any matter required by the message to be taken into consideration.

5.      Every Bill passed by the state Legislature has to receive the Governor’s assent before it can become a law. The governor has three alternatives before him with respect to such a Bill: (i) He can give his assent to the Bill; (ii) Or he can return it to the Legislature, if it is not a Money Bill, for reconsideration suggesting alterations and modifications in part or in the whole. But such bills when passes again by the Legislature must receive the assent of the Governor, which means that the Governor cannot withhold his assent to a Bill if it is passed a second time by the State Legislature (iii) Or he may reserve the Bill for the assent if the President.

6.      Lastly, he can issue an Ordinance when one or both the Houses of the State Legislature are not in session. It has the force of a law. The governor is authorized to promulgate Ordinance when he is satisfied that circumstances exist which renders it necessary for him to take action immediately. However, the Governor is prohibited from promulgating Ordinances that contain provisions which under the Constitution require the previous sanction of the President for introduction in the State Legislature or which are to be reserved for the assent of the President. In such cases, the governor can promulgate an Ordinance after obtaining permission from the President. An Ordinance issued by the governor ceases to be in operation six weeks after the reassembly of the Legislature unless approved earlier. The Governor may withdraw an Ordinance any time before it expires.

(C)        financial powers

No Money Bill and Financial Bill can be introduced nor can any demand for grant to be made in the Legislative Assembly except on Governor’s recommendation. It is the duty of the Governor to get prepared and introduced in the State Legislature the annual budget showing the estimated revenue and expenditure of the State for the year and, if necessary, the supplementary budgets, for the State. The governor can also make advances out of the contingency Fund of the State in case of unforeseen expenditure, pending its authorization by the Legislature.

(D)       judicial powers

The constitution confers some judicial powers on the Governor as well. Like the President, the Governor has the power to grant pardons, reprieves, respites or remissions or punishment or to suspend, remit or commute sentences in certain cases. Such powers, however, extend only in respect of cases over which the State Legislature has power to make laws. He has no power to commute or pardon criminals who are guilty of breaking the Union Laws. He cannot grant pardon in cases of death sentence.

(E)        emergency powers

The Governor has the power to make a report to the President whenever he is satisfied that a situation has arisen in which government of the State cannot be carried on in accordance with the provisions of the Constitution (Art. 356), thereby inviting the President to assume to himself the functions so the Government of the State or any or them. When the President’s rule is imposed in a State, an important change in the position of the Governor takes place. Instead of being a constitutional head of the State, who is guided by his Council of Ministers in the discharge of his duties, he becomes the “agent of Union Government in the State”. He takes over the reins of administration directly into his own hands and runs the State with the aid of the civil services. Thus, during the period of emergency, the executive power of the State is exercised by the Governor in accordance with the instructions received from the President.

Powers of the governor with respect to bills

A Money Bill shall not be introduced in the Assembly except on the recommendation of the Governor but no such prior recommendation shall be required if a Money Bill relates to the abolition or reduction of any tax.

A Bill having been passed by Legislature of a state shall be presented to the Governor for his assent and the Governor shall declare either that he assents to the Bill or he withholds assent there from or that he reserves   the Bill for the consideration of the President; provided that the Governor may return the Bill to the Legislature for its reconsideration and if the Bill is again passed by the Legislature and presented to the Governor, he shall not with-hold his assent from the Bill.

If a Bill is reserved for the consideration of the President, the President shall declare either that he assents to the Bill or that he withholds his assent from it, Provided further that the president may return the Bill to the Legislature of the State and the Bill is again passed by the Legislature within six months, it shall be again presented to the President for his assent.

The Governor and the PRESIDENT: A Comparison

Comparison in the field of legislative powers

The comparison with respect to ordinance making powers

Comparison with respect to other matters

The council of ministers

The Council of Ministers in the State is constituted and functions in the same ways the Union Council of Ministers is headed by the Chief Minister and is responsible to the State Legislative Assembly. The Ministers are appointed by the Governor on the advice of the Chief Minister. Any person can be appointed as a Minister but he ceases to be a Minister if he is not elected as a member of the State Legislature within six months after his appointment as a Minister.

Relationship between the governor and the council of minister

Broadly speaking the relationship between the Governor and the council of Ministers is similar to that between the President and the Union council of Ministers. Whereas the Constitution does not provide much discretionary powers for the President, it empowers the governor to exercise some functions in his discretion (Art.163) while exercising his discretionary power the Governor need not seek or act according to the advice tendered by his Council of Ministers. If any question arises whether any matter is a matter on which the Governor can use discretionary power, the decision of the Governor is final. The functions, which are specially required by the Constitution to be exercised by the Governor in his discretion, are:

(1)    The Governor of Assam can in his discretion, determine the amount payable by the State of Assam to the District Council, a royalty accruing for licenses for minerals. (2) The Governor of a State as the administrator of an adjoining UnionTerritory can exercise his functions as such administrator independently of his council of Ministers. Apart from the exercise of his discretionary power the Governor can be entrusted with special responsibilities. In such cases the Governor shall seek the advice of his Council of Ministers, but he is not bound by the advice tendered by his Council of Ministers. The special responsibilities include:

(1)    Under Art. 371 (2), the President may direct that the Governor of Maharashtra or Gujarat have a special responsibility for taking steps for the development of certain areas in the State, such as Vidarbha, Saurashtra.

(ii)     The Governor of Nagaland shall, under Art. 371A (1) (b) have similar responsibility with respect to law and order in the that State so long as internal disturbances caused by the hostile Nagas in that State continue.

(iii)    Art. 371C, empowers the President to direct that the Governor of Manipur shall have special responsibility to secure the proper functioning of the Committee of the Legislative Assembly of the State consisting of the members elected from the Hill Area of that State.

(iv)    Art. 371 D (g) similarly, imposes a special responsibility upon the Governor of Sikkim “ for peace and for an equitable arrangement for ensuring the social and economic advancement of different sections of the population of Sikkim”.

In the discharge of such special responsibility, the governor has to act according to the directions issued by the President from time to time, and subject, therefore, he is to act “in his discretion”.

From the practice of the parliament from of Government in the States, the Governor has come to assume discretionary power in the following matters as well: -

(1)    Under Art. 356, when the Governor sends a report to the President that the Government of the State cannot be carried on in accordance with the provisions of the Constitution, the Governor does not act according to ministerial advice. He can make such a report to the President purely on his discretion. The report made by a Governor, under Art. 356, therefore, falls under his discretionary power.

(ii)     In matters relating to reservation of a Bill for the consideration of the President, the Governor may act on his own on matters specified by the Constitution to be reserved for the consideration of the President.

However, the Governor shall be bound to use his discretionary power as per the directions of the President.

Advocate- general

The Advocate-General is the first law officer of a State. The office corresponds to the office of the Attorney-General of India and enjoys similar function within the State. He is appointed by the governor and holds office during the pleasure of the Governor. A person who is qualified to be appointed as a Judge of a High Court can only be appointed as Advocate-General. He has the right to participate in the proceedings of the House or Hoses of the State Legislature without the right to vote and has the right of audience in any court in the State.

The State legislature

The Constitution provides for a Legislature for every State. The Legislature of every State consists of the Governor and one or two Houses. The Legislatures in the State are either bicameral (consisting to two houses) or unicameral (consisting of one House). The Legislature in Jammu & Kashmir, Bihar, Maharashtra, Karnataka and Uttar Pradesh, is bicameral. In the remaining States the Legislature is unicameral consisting of the Legislative Assembly.

Creation and abolition of legislative councils

Under Art. 169 Parliament may be law provide for the abolition of the Legislative Council in a State where it already exists or for the creation of such a Council in a State. Where such a Council does not exist, if the Legislative Assembly of the State passes a resolution to that effect by a majority of the total membership of the Assembly and by a majority of not less than two-thirds of the members of the Assembly present and voting, the Parliament may approve the resolution by a simple majority. A resolution passed by the Legislative Assembly of a State for the Parliament. The Parliament may or may not approve such a resolution. The power for the creation or abolition of the Legislative Council lies with the Parliament.