(ARTICLE 153 – 167)
This part deals with the state Government consisting of the state Executive, the state Legislature, and the state Judiciary.
|CHAPTER I||GENERAL||ARTICLE 152|
|CHAPTER II||THE STATE EXECUTIVE||ARTICLE 153 – 167|
|CHAPTER III||THE STATE LEGISLATURE||ARTICLE 168 – 212|
|CHAPTER IV||LEGISLATIVE POWERS OF THE GOVERNOR||ARTICLE 213|
|CHAPTER V||THE STATE JUDICIARY||ARTICLE 214 – 231|
|CHAPTER VI||SUBORDINATE COURTS||ARTICLE 233 – 237|
In this Part, unless the context otherwise required, the expression “state” does not include the state of Jammu and Kashmir.
This Article has been scrapped following the abrogation of Article 370 which provided special status to the state of Jammu and Kashmir.
Chapter II of Part VI of the Constitution deals with the state Executives – The Governor, The Council of Ministers of the state, and the Chief Minister of the state.
THE GOVERNORS OF THE STATES
There shall be a Governor for each state, provided that nothing in this article shall prevent the appointment of the same person as Governor for two or more states.
This Article simply provides that it is mandatory for every state to have its own Governor. A person may be appointed as Governor of two or more states. However, this doesn’t mean that two or more states can have a single combined office of the Governor. The position of Governor for each state will be independent of other. However, the same person can hold the office of Governor for different states.
THE EXECUTIVE POWERS OF THE STATE
The executive power of a state shall be vested in its Governor and shall be exercised by him either directly or through offices subordinate to him in accordance with this Constitution, unless
All Executive actions of the state government are formally taken in the name of the Governor. The Executive power of the Governor extends over the subjects over which the state Legislature is empowered to make laws. This means that the Governor has executive powers on subject matters listed in the State List as well as the Concurrent List of Schedule 7 of the Constitution of India. With respect to the concurrent list, the Executive power of the Governor is subject to the Executive power of the Union Government and the law made by the Parliament. However, the Governor will not have executive powers over Union Laws, including the law made by the Union over the subject mentioned in the Concurrent List. Besides this, the Governor has certain exclusive administrative powers in the state, as mentioned below:
ADMINISTRATIVE POWERS OF THE GOVERNOR
MISCELLANEOUS POWERS OF THE GOVERNOR
The Governor has certain powers with respect to the administration of the tribal areas under Schedule 5 and 6 of the Constitution.
APPOINTMENT OF THE GOVERNOR
The Governor of a state shall be appointed by the President.
Unlike the President of India, the Governor of the state is not an elected but an appointed head. The Governor of the state shall be appointed by the President of India, only on the advice of Union Council of Ministers.
It is to be noted that the draft constitution contained provisions for an elected Governor. However, later the Constituent Assembly provided for an appointed Governor.
WHY AN APPOINTED GOVERNOR AND NOT AN ELECTED ONE ?
There has always been a debate on this question.
The critics of an appointed governor argue that such a person appointed by the Union from outside would not be able to work effectively for the welfare of the state because he might be foreigner to the state and might not understand its special needs. In case of rift between the Centre and the state governments, an appointed Governor would act more as a representative of the Union than of the state. An appointed Governor under the instructions of the Centre might like to run administration of the state contrary to the wishes of the Chief Minister (and his Council of Minister) elected by the people of the state. He may reserve certain type of legislations for the consideration of the President, who on the advice of his Council of Ministers, may veto such a state legislation. Also, the arrangement of an appointed Governor for states is not consistent with election for the President at the Centre.
Nevertheless, the following arguments have been made in favour of an appointed Governor:
SARKARIA COMMISSION RECOMMENDATIONS FOR THE APPOINTMENT OF THE GOVERNOR
To bring in more transparency and accountability, the Sarkaria Commission (1988) recommended that Article 155 should be amended to include consultation with the Chief Minister of the state for which the Governor is to be selected and appointed.
The Commission also made following recommendations regarding the appointment of the Governor.
TERMS OF OFFICE OF THE GOVERNOR
The Governor of the state holds office during the pleasure of the President. The Constitution does not provide the grounds on which the President may remove the Governor (or withdraw his pleasure). However, the President may withdraw his pleasure only on the advice of the Council of Ministers headed by the Prime Minister. Thus, in effect, the Governor is appointed by and holds the office during the pleasure of the Prime Minister. Nevertheless, the Prime Minister, is supposed to act without any political considerations to suggest the name of a person to the President for appointment as the Governor of a state.
A person appointed as the Governor holds the office for a term of five years from the date of joining the office, and not withstanding the expiry of the term, continues to hold the office, till the time his successor joins the office. However, the term of the Governor is subject to the pleasure of the President, who may remove or transfer him at any time. Thus, the Governor has no fixed term or tenure of office.
CAN THE REMOVAL OF THE GOVERNOR OF THE STATE BE CHALLENGED IN A COURT OF LAW?
The Sarkaria Commission (1988) recommended that Governors must not be removed before completion of their five year tenure, except in rare and compelling circumstances. This was meant to provide Governors with a measure of security of tenure, so that they could carry out their duties without fear or favour. It was further recommended that Governors should be informed of the grounds of their removal.
The Venkatachaliah Commission (2002) recommended that ideally the Governors should be allowed to complete their five year term. If they have to be removed before completion of their term, the central government should do so only after consultation with the Chief Minister of the state concerned.
The Punchhi Commission (2010) suggested that the phrase ‘during the pleasure of the President’ should be deleted from the Constitution, because a Governor should not be removed at the will of the Union government but only by a resolution of the state legislature.
All the above recommendations however were never made into law by Parliament. Therefore, they were not binding upon the Union government.
Finally, the Supreme Court held in 2010, that the power of the Union Government to remove the sitting Governors cannot be exercised in an arbitrary, capricious or unreasonable manner. The power of removing Governors should only be exercised in rare and exceptional circumstances for valid and compelling reasons. As such, the decision to remove a Governor can be challenged in a court of law. In such cases, the petitioner will have to make a prima facie case of arbitrariness or bad faith on part of the Union government. If a prima facie case is established, the court can require the Union government to explain the basis of such a decision, in order to verify the presence of compelling reasons. If the decision is found arbitrary or in bad faith, the Court has the power to declare such a decision as null and void.
VACANCY IN THE OFFICE OF THE GOVERNOR
It is to be noted that in case of Governor of the state, there is no provision for impeachment, as it happens for the president.
In such cases of permanent vacancy, the President can make provisions for the discharge of the functions of the Governor, till the time the new Governor is appointed by the President. As a matter of practice, in such cases of permanent vacancy, the Chief Justice of the concerned High Court is appointed by the President to temporarily discharge the functions of the Governor of the state concerned.
In cases of casual or temporary vacancy, the President has the power to determine how the functions of the office shall be carried out during such period.
QUALIFICATIONS FOR APPOINTMENT AS THE GOVERNOR
No person shall be eligible for appointment as Governor unless he is a citizen of India and has completed the age of 35 years.
Any citizen of India who is 35 years of age is eligible to be appointed as the Governor of the state.
Also, as per Clause (1) of Article 158, the person appointed as the Governor should not be a member of either House of the Parliament or of the Legislature of any state. If such a person is appointed as the Governor, he shall cease to be member of the House of the Parliament or of the Legislature of the state, from the date of joining the office of the Governor.
As per Clause (2) of Article 158, he must also not hold any office of profit under the Union or the state government.
It must be noted that a person can be appointed as Governor more than once. There is no constitutional restriction on the number of times a person can be appointed as the Governor of the state.
CONDITIONS OF GOVERNORS’ OFFICE
The emoluments, allowances and privileges of the Governor are to be determined by Parliament by law. In the absence of any such provision, the same shall be determined as specified in the 2nd Schedule of the Constitution of India. However, the emoluments, allowances and privileges of the Governor cannot be diminished during his term of office. This means that the Parliamentary law related to changes in emoluments, allowances and privileges of the Governor, will apply to a sitting Governor, only if they vary to his advantage, and not otherwise. Where the same person is appointed as the Governor of two or more states, the emoluments and allowances of the Governor shall be allocated among such states in such proportion as the President may by order determine.
OATH OF THE GOVERNOR
Every Governor and every person discharging the functions of the Governor shall, before entering upon his office, make and subscribe in the presence of the Chief Justice of the High court exercising jurisdiction in relation to the state, or, in his absence, the senior most Judge of that Court available, an oath or affirmation.
Every Governor and every person discharging the functions of the Governor shall take oath in the presence of the Chief Justice or in his absence, the senior most Judge of the High Court of the state concerned.
The President may make such provision as he thinks fit for the discharge of the functions of the Governor of a state in any contingency not provided for in this Chapter.
The President of India may assign certain functions to the Governor of a state to deal with any situation not mentioned in Part VI of the Constitution. As of now, no such contingency powers have been allocated by the President to a Governor.
JUDICIAL POWERS OF THE GOVERNOR
The Governor of a state shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the state extends.
The Governor of a state has the power to grant pardon, reprieve, respite, remission or commute of sentence to any person convicted of any offence against a law to which the executive power of the state extends. If the convicted person has appealed to the Supreme Court as well as the Governor against the decision of the respective High Court, then the Governor shall not make any order on the appeal if the Supreme Court has already admitted such an appeal. In case the Governor makes an order in such a case, the Supreme Court has the power to strike down the order made by the Governor.
However, whereas Article 72 provides that in case of a death sentence, the President has the power to pardon, Article 161 doesn’t provide any such provision. Therefore, it has been assumed that unlike the President, the Governor doesn’t have the power to pardon in case of a death sentence. However, the Governor can suspend, remit or commute the death sentence of a person.
It is important to note that India has a unitary legal system and there is no separate body of state law. All crimes are crimes against the Union of India. Therefore, a convention has developed that the governor’s powers are exercised for only minor offences, while requests for pardons and reprieves for major offences as well as in case of offences committed in the UT’s are deferred to the President.
DIFFERENCE BETWEEN THE PARDONING POWERS OF THE PRESIDENT AND THE GOVERNOR
|PARDONING POWERS OF THE PRESIDENT (ARTICLE 72)||PARDONING POWERS OF THE GOVERNOR (ARTICLE 161)|
|The power extends over any person convicted of any offence against a Union law.||The powers extend over any person convicted of any offence against a state law.|
|The power extends over any person convicted by court martial.||The powers does not extend over any person convicted by court martial.|
|The power to pardon a death sentence.||No power to pardon a death sentence. However, the Governor can pardon other punishments.|
ARE THE PARDONING POWERS OF THE GOVERNOR SUBJECT TO JUDICIAL REVIEW ?
The pardoning powers of the Governor are subject to judicial review, if it is evident that the Governor has
In such cases, the court would be justified in interfering with an order passed by the Governor in exercise of power under article 161.
EXTENT OF EXECUTIVE POWER OF THE STATE
Subject to the provisions of this Constitution, the executive power of a state shall extend to the matters with respect to which the Legislature of the state has power to make laws, provided that in any matter with respect to which the Legislature of a state and Parliament have power to make laws, the executive power of the state shall be subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made by Parliament upon the Union or authorities thereof.
The Executive power of the state extends to all the matters over which the Legislature of the state has the power to make laws. Therefore, the Executive power of the state extends to all the matters listed in the state list as well as the concurrent list. However, in case of matters listed in concurrent list, the executive power of the state extends only over those matters upon which the Parliament or the Constitution have expressly not conferred such executive powers upon themselves.
COUNCIL OF MINISTERS TO AID AND ADVICE THE GOVERNOR
Clause (1) of Article 163 provides for the state Council of Ministers headed by the Chief Minister to aid and advice the Governor in the exercise of his function, except in certain cases where the Constitution explicitly requires the Governor to act in his discretion. While he has the discretion to act on his own in certain matters, those matters must be specified by or under the Constitution. It was held by the Committee on Governors (2018) that the word ‘Discretion’ relates to functions which are outside the areas of ministerial responsibility and where the administration is exclusively vested in the Governor aided by his own secretarial staff. These would also involve situations where there is no Council of Ministers to advice the Governor. For e.g. in appointing the Chief Minister of the state after elections, or dissolving the House after the government loses the vote of confidence in the House.
However, Clause (2) of Article 163 provides that the decision of the Governor to act in his discretion cannot be questioned. This provision has given the Governors wide discretionary powers. The states often allege that the Governors appointed by the Union work on the directions given by the Union and not on the advice of the state Council of Ministers.
ARE THE DESCRETIONARY POWERS OF THE GOVERNOR ABSOLUTE?
The Constitution makers while adhering to the principle of responsible government, made deliberate provisions for the use of discretionary powers by the Governor for limited purposes. Governors have, however, misused these powers, so often and so rampantly that the judiciary which as per the constitutional design was not allowed to adjudicate upon the decisions of the Governor and, in fact, was reluctant to do so till the early 1970s came heavily on the Governor in the S.R. Bommai judgement in 1994, which not only expanded the scope of judicial review to include the decision of the Governor under its purview but also practically laid down an instrument of instructions to the Governor, the idea the constitution makers had dropped after mooting over it. Since then, the Supreme Court has only expanded the domain of its intervention in the exercise of discretion by the Governor.
Notwithstanding this, the Governors continue to rake political controversy through their partisan decisions. The weak constitutional position of the Governor, especially the lack of security of tenure, and their selection for their active political affiliations make them susceptible to the pressure of the Union government and leads them to play subsequent partisan roles that irritates Centre-State relations. In their discretion, they act on the directions of the Union and not on the advise of the state Council of Ministers. It is high time that a political consensus is built around to develop a model code of conduct for selection of the Governors and their security of tenure to secure the constitution from their such partisan roles. The Governor is a symbolic office and is supposed to act on the aid and advice of the state Council of Ministers, except in certain situations where either such an advice is not available or where following such an advice is against the democratic principles. He is to act as the friend, philosopher and guide to the Council of Ministers without intruding into the powers of the state Council of Ministers.
OTHER PROVISIONS WITH RESPECT TO THE MINISTERS
The Chief Minister is appointed by the Governor in his discretion, while the Council of Ministers is appointed by the Governor on the aid and advice of the Chief Minister.
APPOINTMENT OF THE CHIEF MINISTER
As a matter of convention, the Governor appoints the leader of the single largest party having majority in the Legislative Assembly of the state, as the Chief Minister of the state. In case no party gets a clear majority in the Legislative Assembly of the state, the Sarkaria Commission has laid down the following order in which the Governor must consider the parties to form the government:
The Sarkaria Commission recommends that a person, who has been appointed Chief Minister without a clear majority, should seek a vote of confidence in the Assembly within 30 days.
However, a Governor can act in his discretion in skipping the above order, if he feels that the respective leader might not be able to prove his majority in the House. Thus, the Governor has to make his own decision as to whom to invite to form the Government and in what order, subject, of course, to democratic norms.
APPOINTMENT OF THE COUNCIL OF MINISTERS
The Constitution does not provides or restricts the size of the Council of Ministers. However, the 91st Constitutional Amendment Act (2003) provided that the total number of Ministers in the Council of Ministers, including the Chief Minister, shall not exceed 15 percent of the total number of members of the Legislative Assembly. It further provided that any member who has been disqualified to be a member of the state Legislature on the ground of defection must not be appointed as a Minister.
Clause (4) of Article 163 provides that any person, who is not a member of the Legislature of the state, could be appointed as a Minister in the Council of Ministers (including the Chief Minister), but such a person needs to attain the membership of either house of the state Legislature within a period of six months from the date of such an appointment, failing to do which the person would cease to be the Minister.
COLLECTIVE RESPONSIBILITY OF THE COUNCIL OF MINISTERS
The Council of Ministers, headed by the Chief Minister, are collectively responsible to the Legislative Assembly of the state. This means that all the Ministers are collectively responsible to the Legislative Assembly for all their acts of omission or commission. They work as a team, and as such swim and sink together. If any policy measure of any Minister is disapproved by the Legislative Assembly, it could lead to a motion of vote of no confidence against the entire Council of Ministers, and hence the government. If such a vote of no confidence is passed by the majority of the Legislative Assembly, the entire Council of Ministers, including the Chief Minister, has to resign.
The principle of Collective Responsibility also means that decisions of the Council (especially the Cabinet) are binding on all the Ministers, even if the Ministers disagree in person on some of the decisions. It shall be the duty of each Minister to stand by and defend every decision of the Council (or the Cabinet).
INDIVIDUAL RESPONSIBILITY OF THE MINISTERS
Article 164 provides that all the Ministers hold the office during the pleasure of the Governor. This means that the Governor can remove a Minister even when the Council of Ministers enjoy the confidence of the state Legislative Assembly. But the Governor can remove a Minister only on the advice of the Chief Minister. Thus, in case of difference of opinion or dissatisfaction with the performance of a Minister, the Chief Minister can anytime ask a Minister to resign or can advise the Governor to remove such a Minister.
ADVOCATE GENERAL OF THE STATE
The Constitution provides that each state shall have an Advocate General, an official corresponding to the Attorney General of India, having similar functions in the state. He shall be appointed by the Governor of the state and shall hold office during the pleasure of the Governor. The Advocate General receives such remuneration as the Governor may decide. Only a person who is qualified to be a Judge of the High Court can be appointed as the Advocate General. He may take part in the proceedings of the state Legislature but will not have the right to vote in such proceedings.
CONDUCT OF THE BUSINESS OF THE GOVERNMENT OF THE STATE
Though all the Executive decisions are to be taken by the Council of Ministers, headed by the Chief Minister, all Executive actions of the state shall be expressed to be carried out in the name of the Governor. The Governor can make rules specifying the manner in which the orders and other instruments executed in his name shall be authenticated.
He can make rules regarding the way in which the business of the state government needs to be carried out, and also regarding the way in which such business of the state government needs to be distributed among various Ministries. However, for this purpose, the Governor is bound to act on the aid and advice of the Council of Ministers.
DUTIES OF THE CHIEF MINISTER
It shall be the duty of the Chief Minister of each state,
Article 167 implies that Governor is a part of the state Legislature.
The Chief Minister is the principle channel of communication between the Governor and the state Council of Ministers.
Besides above mentioned duties, the Chief Minister is required,