Article 153-167
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This article has been written by Disha Mohanty of National Law University and Judicial Academy, Assam. It gives a very brief idea of the State Executive and landmark judgements regarding the same. 

Introduction

The State Executive consists of the Chief Minister, the Council of Ministers and the Governor. It has the same Parliamentary pattern as followed by the Union Government with the upper hand being given to the Union in certain matters. This has been done to maintain the unitary spirit of the structure of the country. The Governor plays the twofold role of being the constitutional head at the stage level as well as being a link between the state government and the centre. He/She acts on the advice of the Council of Ministers and all executive actions are taken in his name. This article extensively studies the relation between these various state functionaries, the distribution of power between them and their accountability. 

The Governor

Article 153 of the Indian Constitution provides for every State to have a Governor. Just like the President is the nominal head of the republic, the Governor is the nominal head of a state. This means that he/she has powers and functions similar to the President of India but operates at the state level, with the real power lying in the hands of the State Chief Minister and his/her council of ministers. Further, the 7th Constitution Amendment Act of 1956 has added a provision under Article 153 which provides for the same person to act as the Governor of two states simultaneously. The term of office of the Governor is 5 years. 

Appointment, Tenure and Removal of a Governor

Appointment of a Governor is talked about under Article 155 and information regarding his tenure and removal are provided under Article 156. It states that the President appoints the Governor by warrant under his hand and seal i.e., bearing his seal and signature. The Governor shall hold office as long as he/she enjoys the pleasure of the President. The Governor may resign his office by writing under his hand i.e., a written letter undersigned by him addressed to the President. In accordance with the foregoing provisions of this article, the Governor’s term of office shall be five years from the date on which he/she enters upon his office, provided that the Governor shall continue to hold office until his/her successor enters upon his office, notwithstanding the expiration of his term.

Qualifications

Article 157 states the two qualifications to be fulfilled for a person to be appointed Governor. The two provisions are:

  • He/She should be an Indian citizen.
  • He/She should have completed 35 years of age. 

Conditions of Governor’s Office

Along with the above mentioned preliminary qualifications, there are a set of other criteria which need to be met. These are stated under Article 158. They are:

  • He/She should not be holding any office of profit.
  • He/She should not be a member of the Parliament or any other State Legislature. However, if someone holding these positions is appointed Governor, he/she would have to vacant their previously held office.
  • He/She is provided with such allowances, emoluments and privileges which the Parliament provides by law and in case these provisions are absent, they are provided to him/her as per Schedule II.
  • The above mentioned allowances, emoluments and privileges would not be diminished during his term. Further, if two states come under him/her, such expenses would be shared between them in accordance with the President’s decision. 

Oath

Every Governor, before entering his office is bound to take an oath before the Chief Justice of the High Court or the senior most judge, in the former’s absence. This is mentioned under Article 159. The oath is as follows:

“I, A. B., do swear in the name of God that I will solemnly affirm faithfully execute the office of Governor (or discharge the functions of the Governor) of ………….(name of the State) and will to the best of my ability preserve, protect and defend the Constitution and the law and that I will devote myself to the service and well-being of the people of..………(name of the State). ”

Can the governor be dismissed arbitrarily?

As per Articles 155 & 156 of the Constitution, the Governor is an appointee of the President and holds office as long as he continues to enjoy his pleasure. This essentially means that the Governor can hold his office for the prescribed term of 5 years if he continues to enjoy the pleasure of the President. Article 74 states that the President is bound to act upon the aid and advice of the Council of Ministers.Therefore, the President’s decision to remove the Governor, in effect, is actually the decision of the Centre. In the case of B.P. Singhal vs UOI (2010), the Hon’ble Court’s constitutional bench held that even though the Central Government holds the power to remove the Governor, they cannot do so arbitrarily and would have to prove the facts of the case and grounds for his/her removal. Thus, the Governor cannot be removed simply because the Union government has lost confidence in him/her.

B.P. Singhal VS Union of India (2010) case

The circumstances leading to this case revolve around the removal of the Governors of Uttar Pradesh, Gujarat, Haryana and Goa after the 14th Lok Sabha elections. The writ petition was filed by a former member of Parliament, B.P. Singhal and the matter was referred to a five judge constitution bench consisting of the then Chief Justice K.G. Balakrishnan and Justices S.H. Kapadia, R.V. Raveendran, B. Sudershan Reddy and P. Sathasivam. 

Quoting Justice Raveendran, “What Article 156 (1) of the Constitution dispenses with, is the need to assign reasons or the need to give notice, but the need to act fairly and reasonably cannot be dispensed with by Article 156(1).”

The bench clarified that the exercise of powers by the President under Article 156(1) should not be arbitrary. In case the President withdraws his pleasure, the court will assume that it is for compelling reasons and where the aggrieved person is unable to point out mala fide reasons for his/her removal, the court won’t interfere. But, in cases where the said person is able to prove that there existed a mala fide intention behind his/her removal, the court would cause the Union government to produce records/material to satisfy itself that the withdrawal of pleasure was for good and compelling reasons. What constitutes good and compelling reasons would depend upon the facts of the case. Thus, there won’t be any interference from the judiciary unless the executive makes a strong case based on malafide intentions.

In summary, the Court made it clear that even though the Union and the President held the power to remove the Governor, such could not be effected in an arbitrary manner or in bad faith even if his/her policies and ideologies were different from those of the Union Government. 

Discharge of his functions in certain contingencies: Article 160

The article means that in case there’s a certain eventuality where the President thinks the Governor needs to discharge certain duties not mentioned in this chapter, then the President can do so via this provision. 

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Powers of Governors

As it has already been made clear in the beginning of the article, the position, power and functions of the Governor are analogous to that of the President. His/Her powers are discussed below under four heads. 

Executive power

Under Article 154(1), the executive powers have been vested to the Governor and he can choose to exercise them either directly himself or indirectly through his Council of ministers. 

  • As such, the Governor makes important appointments of the state such as the Chief Minister and 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.
  • He/She runs the state administration by extending control over the subjects in the state list and deciding the policies and portfolios of the various ministers. 

Financial power

  • A money bill cannot be introduced in the state legislature without prior approval of the Governor.
  • The state Contingency Fund is at his/her disposal and he/she can make withdrawals out of it to meet unforeseen expenditures.
  • He/She makes sure that the Annual state budget is discussed and put before the State Legislature. 

Legislative power

  • The Governor has the power to summon and prorogue both houses of the Legislature. He/She has to make sure that the maximum gap between the two sessions of the houses is 6 months.
  • Under Article 192, the Governor has the authority to disqualify any legislator who fails to comply with the conditions given under Article 191.
  • The Governor has to address the state legislature at the beginning of the first session every year and after the state assembly elections.
  • The Governor can hold a bill and send it to the President for his consideration. Other than this, the Governor can either give assent to a bill or withhold it or send it back for reconsideration (except for money bills).

Pardoning power

According to Article 161, the Governor can grant pardons, reprieves, respites and remissions of punishment or suspend, remit and commute the sentence of any person convicted of any offence relating to matters under the state executive power, exception being cases decided by a court martial. However, in cases where a death penalty has been granted the Governor cannot pardon it. 

Is this power subject to judicial review ?

According to the Constitution, the judiciary should not encroach upon the powers of the executive. However, in certain cases this has been seen.

In the case of Epuru Sudhakar & Anr. v. Govt. of AP & Ors., the issue of whether the pardoning power of the Governor is subject to judicial review or not came up. The Hon’ble Supreme Court set aside the decision of the then Andhra Pradesh Governor, Sushil Kumar Shinde. The Governor had advised for remitting the punishment of a Congress activist in connection with the murder of two persons, one of whom was a TDP activist. The division bench consisting of Justices S.H. Kapadia and Arijit Pasayat expressly mentioned that the exercise of the pardoning power should be in compliance with the Rule of Law.

“Rule of Law is the basis for evaluation of all decisions (by the court)… That rule cannot be compromised on the grounds of political expediency. To go by such considerations would be subversive of the fundamental principles of the Rule of Law and it would amount to setting a dangerous precedent,” the bench warned.

Justice Kapadia, while concurring with the main ruling delivered by Justice Pasayat, sought to remind “exercise of executive clemency is a matter of discretion and yet subject to certain standards. It is not a matter of privilege. It is a matter of performance of official duty… the power of executive clemency is not only for the benefit of the convict but while exercising such a power the President or the Governor as the case may be, has to keep in mind the effect of his decision on the family of the victims, the society as a whole and the precedent it sets for the future.”

He also said “An undue exercise of this power is to be deplored. Considerations of religion, caste or political loyalty are fraught with discrimination”. Thus, this judgment gave a final conclusion that the settled position of law that exercise or non-exercise of the pardoning power by the Governor would not be immune from judicial review.

Ordinance making power of the Governor

Under Article 213, the Government can issue an ordinance if the circumstances compel him to do so, when either houses of the legislative assembly are not in session. However, there are two circumstances under which the Governor cannot issue an ordinance. They are:

  • If the ordinance has certain provisions which the Governor would have reserved for the President in case it were a Bill.
  • If the State Legislature has an act with similar provisions and the same would be declared invalid without the President’s assent.

The Council of Ministers

The Council of Ministers is appointed by the Governor. It along with the Chief Minister exercise the real power and implement policies and rules in the State. Hence, together they form the executive head of the State.

Maximum size of ministries

The total number of Ministers, including the Chief Minister, in the Council of Ministers in a State shall not exceed fifteen per cent of the total number of members of the Legislative Assembly of that State, provided that the number of ministers, including the Chief Minister in a State shall not be less than twelve; And that where the total number of Ministers including the Chief Minister in the Council of Ministers in any State at the commencement of the Constitution (Ninety-first Amendment) Act, 2003 exceeds the said fifteen per cent then the total number of ministers in that State shall be confined to such number within six months from such date. 

Disqualification of defection on the ground of split abolished

In order to protect the true essence of democracy, the Anti-defection law was introduced in the 10th schedule. It was a measure to reduce the rampant horse trading that was happening under the popular phenomenon of “Aaya Ram Gaya Ram” in the political parties. Initially, the law allowed defection if 1/3rd of the party members agreed to split their party. But this provision backfired and resulted in mass defections. So this was subsequently changed in the 91st amendment and the bar was raised to 2/3rd. Under the new provisions, a member won’t be disqualified in case of a split in the following two conditions:

  • that he/she has willingly given up his membership in his original political party; or
  • that he/she has voted or not voted in the House contrary to the instructions by such political party or by any person or authority authorised by it and such an act has not been condoned by such political party, person or authority within fifteen days.

Can the Governor sanction for Prosecution of Ministers under Corruption Act?

The Governor can sanction for the prosecution of the ministers but the proof for the same needs to be satisfactory. There have been many cases where the Governor has ordered a sanction for the prosecution of a Minister, sometimes with the advice of the Council of Ministers and at times on his own discretion and one such case has been discussed below. 

M.P. Special Police Establishment v. State of M.P., 2005

In this case, the issue 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 Supreme Court held that the Governor could make use of his discretionary powers in this case and is not bound by the aid and advice of the Council of Ministers. Thus, Governor sanctioned for the prosecution of the Chief Minister.

Non-legislator can be appointed as Minister

Going by the established practices, it is mostly a legislator who is appointed minister. But an exception to this rule exists under Article 164(4). This provision provides that if a non-member is appointed minister, he/she must get elected within the next 6 months. This has happened in numerous cases, for e.g., Kamaraj Nadar in Madras in 1954, T.N. Singh in U.P. in 1971.

A non-member cannot be reappointed Minister without getting himself elected 

In 2001, the then Governor of Tamil Nadu had appointed Jayalalitha as the Chief Minister of Tamil Nadu. Now, Jayalalitha was not an elected member of the house and additionally had corruption charges against her which caused her nomination papers to be rejected. 

The Hon’ble Supreme Court ruled that it would be a clear violation of the Constitution if it allowed any individual to be appointed Minister for a second term of “six consecutive months” without getting elected to the legislature. The court also held that Article 164(4) can be put to the best use when its effectiveness restricted to a short period of six consecutive months. Quoting the judgement: “The clear mandate of Article 164(4) that if an individual concerned is not able to get elected to the legislature within the grace period of six consecutive months, he shall cease to be a Minister, cannot be allowed to be frustrated by giving a gap of few days and re-appointing the individual as a Minister, without his securing the confidence of the electorate in the meanwhile.”

A convicted person cannot be appointed as Chief Minister: Constitution Superior, not mandate

After the Supreme Court verdict last year in Lily Thomas vs. Union of India, striking down Section 8(4) of the Representation of the People Act, legislators have lost their protection from immediate disqualification. In the light of this ruling, Ms. Jayalalithaa will be disqualified as an MLA the moment conviction is awarded, say legal experts. The SC held that “ a person who is convicted for a criminal offence and sentenced to imprisonment for a period of not less than two years cannot be appointed the Chief Minister of a State under Article 164(1) read with (4) and cannot continue to function as such.

Relationship between the Governor and Council of Ministers

The relationship between the Governor and the Council of Ministers is analogous to that between the President and the Council of Ministers. Article 163 says that there shall be a Council of Ministers to aid and advise the Governor. These group of ministers hold office during the pleasure of the Governor and are directly responsible to the Legislative Assembly. Under normal conditions, the Governor is bound by the advice and opinions of the Council of Ministers but there are certain circumstances under which the Governor functions according to his/her own discretion. 

Appointment of the Chief Minister

The Chief Minister is the most powerful functionary at the State Government level and is the executive head of the state. He/She is appointed by the Governor. Post the general elections, the party with the majority votes and elects its leader. 

This person is then appointed as Chief Minister. In case, no particular party secures majority support, 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.

Dismissal of a Minister

The ministers of a state holds office during the pleasure of the President. However, since the ministers are chosen by the Chief Minister, in practice it is the Chief Minister who decides whom to retain and whom to oust. Thus there are two provisions here:

  • The Governor cannot dismiss a Minister against the advice of the Chief Minister.
  • The Governor cannot retain a Minister against the wishes of the Chief Minister.

Dissolution of the Legislative Assembly

There are two provisions in the Constitution under which the State Legislative Assembly can be dissolved. One is under Article 174(2)(b) which states that the Governor may dissolve the Legislative Assembly from time to time. This was recently seen when the Governor of Telangana dismissed the State’s Legislative Assembly after being advised by the Chief Minister to do so. The other is under Article 365 which can be applied during a state emergency i.e., President’s Rule. Under Article 365, if the state government fails to comply with the instructions of the Union Government, then it is up to the Governor to assess the ground situation and then call for its dissolution, after approval by both houses of the Parliament. But this decision comes under the judicial review of both the High Court and Supreme Court and they can declare it invalid if it is found to be done on mala fide grounds. Since 2000, President’s Rule has been applied 15 times in the country. 

Advising the President for the Proclamation of an Emergency under Article 356

When the State Government is unable to function in accordance to the constitutional machinery, then the Governor sends a report to the President briefing him/her about the grievousness of the situation. This power has been granted to the Governor under Article 356. This may happen when there is a vote of no confidence in the house or a government breakdown in the state.

Protection of Governor 

Article 361 lays down the provisions for the protection of the Governor. The Governor shall not be answerable to any court for the performance and disposal of his/her duties. There can be no criminal proceedings against him/her during the term of his/her office. Neither can there be a process to arrest him/her during the term of his/her office. Any civil proceedings in which relief is claimed against the Governor of a State, shall be instituted during his/her term of office in any court in respect of any act done or purporting to be done by him/her in his personal capacity.

Conclusion 

The Indian Government’s structure is Quasi-Federal in nature. The President operates at the National Level, the Governor operates at the State Level. The Governor being the nominal head doesn’t possess any real power but does have some important discretionary functions. This distribution of power between the Governor and the Chief Minister helps maintain balance in a state and also to keep a check on the functioning of the individual machineries. 

References

  1. https://blog.ipleaders.in/federalism-in-india-2/
  2. https://blog.ipleaders.in/separation-of-powers-and-its-relevance/
  3. https://www.thestatesman.com/supplements/law/dissolution-of-the-assembly-1502697823.html
  4. https://economictimes.indiatimes.com/news/politics-and-nation/subramanian-swamy-seeks-delhi-l-gs-sanction-to-prosecute-arvind-kejriwal/articleshow/58581948.cms?from=mdr
  5. https://www.casemine.com/judgement/in/56097923e4b014971133c603
  6. https://www.business-standard.com/about/what-is-president-s-rule
  7. http://rajkhushiniti.blogspot.com/2014/09/whether-convicted-person-can-be.html
  8. https://www.indiatoday.in/india/south/story/governor-gives-nod-for-yeddyurappas-prosecution-127021-2011-01-21

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