The States
Part VI
The Governor.-
The pattern of the Government in the State is the same as that for the union i.e., Parliamentary system. The Constitution of India by article 153, creates the office of the Governor. Thus each State shall have a Governor. The executive power of the State is vested in the Governor. He shall exercise the executive power either directly or through officers subordinate to him. The expression "officers subordinate to him" include a Minister of the State.
Appointment of a Governor.-
The Governor of State is appointed by the President of India (Article 155). He is neither elected by the direct vote of the people nor by an indirect vote by specially constituted electoral college.
Qualifications.
According to article 157, a person to be eligible to be appointed as Governor must be-
(a) citizen of India,
(b) must have completed the age of 35 years.
The Governor must not be a member of either House of Parliament and House of the Legislature of any State. He shall not hold any other office of profit. (Article 158)
The salary of the Governor has been raised to Rs. one lakh ten thousand per month from Rs. 36,000 per month. He is also entitled to free use of his official residence. The salary and allowances of the Governor cannot be reduced during his term of office [article 158(4)]. The Governor is required to take an oath or affirmation in the presence of the Chief Justice of the High Court or if he is not present, in the presence of the senior-most Judge of the High Court.
Tenure and removal.-
Article 156 of the Constitution says that the Governor shall hold office during the pleasure of the President. Subject to this rule, the tenure of the office of the Governor is fixed for five years from the date on which he entered upon his office. He may be removed from his office at any time by the President. The Governor may resign his office by writing to the President. The five years' terms provided for the Governor under cause (3) is subject to exercise of pleasure by the President under clause (1) of article 156.
Discharge of his functions in certain contingencies.-
Under article 160 of the Constitution, the President is authorised to make such provision as he thinks fit for the discharge of the functions of the Governor of a State in any contingency.
Powers of the Governor.-
The powers of the Governor of a State are analogous to those of the President excepting that the Governor has no diplomatic, military or emergency power. The powers of the Governor can be classified under four heads-
(a) Executive Power.-
The executive power of the State is vested in the Governor and is to be exercised by him directly or through officers subordinate to him (article 154). Article 162 says that the executive power of the State extends to matters with respect to which the legislature of the State has power to make laws. All executive actions of the Government of a State shall be expressed to be taken in the name of the Governor. The validity of an order or instrument which is so authenticated shall not be called in question on the ground that it was not made or executed by the Governor [article 166(1)(2)]. Under article 166(3), the Governor is authorised to make rules for the more convenient transaction of the business of the Government of the State and for its allocation among Minister.
Tarlochan Dev Sharma v. State of Punjab, MANU/SC/1466/2001 : AIR 2001 SC 2524: 2001 AIR SCW 2689: JT 2001 (5) SC 645: MANU/SC/1466/2001 : (2001) 6 SCC 260: 2001 (4) SCJ 277: (2001) 4 SCALE 472: 2001 (5) Supreme 361. The Supreme Court held that in a democracy governed by rule of law, once elected to an office in a democratic institution, the incumbent is entitled to hold the office for a term for which he has been elected unless his election is set aside by a prescribed procedure known to law. Removal from such an office is a serious matter. It curtails the statutory term of the holder of the office.
Rai Sahib Ram Jawaya Kapur v. State of Punjab, MANU/SC/0011/1955 : AIR 1955 SC 549: 1955 SCA 577: 1955 SCJ 504: (1955) 2 SCR 225. The Supreme Court held that our Constitution has adopted the British system of Parliamentary form of Government and the basic principle of this type of Government is that the President and Governors are constitutional heads and the real executive powers are vested in the Council of Ministers.
Samsher Singh v. State of Punjab, AIR 1974 SC 2193: 1974 SCC (Lab) 550: (1975) 1 SCR 814. The Supreme Court has held that the President and the Governors are only constitutional heads and they exercise their powers and functions with the aid and advice of the Council of Ministers and not personally save in cases where the Governor is required by the Constitution to exercise the functions in his discretion.
(b) Financial Powers.-
A Money Bill cannot be introduced in the Legislature of the State without the recommendation of the Governor. No denial of grants can be made except on the recommendation of the Governor. [Article 203(3)]. The Governor is required to cause to be laid before the House of the Legislature the Annual Financial Statements (Article 202).
(c) Legislative Power.-
The Governor summons the Houses or each House of the Legislature of State to meet at such time and place as he thinks fit. However six months should not lapse between the last sitting in one session and the first sitting in the next session. He may prorogue the Houses or either House and dissolve the Legislative Assembly [article 174(1) and (2)]. He has right to address the State Legislature. No Bill can become law without the assent of the Governor. He has right to reserve certain Bills for the assent of the President (article 200). He nominates 1/6 of the members of the Legislative Council (Article 171).
(d) Pardoning Power.-
Article 161 says that the Governor shall have the powers to grant pardons, reprieves, respite or remission of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to matter to which, the executive power of the State extends. The executive power of the State extends to matters with respect to which the Legislature of the State has power to make laws (Article 162).
The President's pardoning power under article 72 is wider than that of the Governor of States. Firstly the President has exclusive power to grant pardon in case where the sentence is a death sentence where the Governor cannot grant pardon in case of a death sentence. Secondly the President can grant pardon for punishments of sentences inflicted by Court Martial. The Governors have no such power. In respect of suspension, remission and commutation of sentence of death both have concurrent power.
K.M. Nanavati v. State of Bombay, MANU/SC/0063/1960 : AIR 1961 SC 112: (1961) 1 Cr LJ 173: (1961) 1 SCA 54: (1961) 1 SCR 497: 1961 (2) SCJ 100. The Court held that the power to suspend a sentence by the Governor under articles 161 was subject to the rule made by the Supreme Court with respect to cases which were pending before it in appeal. It is open to the Governor to grant a full pardon at any lime even during the pendency of the case in the Supreme Court in exercise of what is ordinarily called Mercy Jurisdiction.
(e) Ordinance-making Power.-
The ordinance-making power of the Governor under article 213 is similar to that of the President under article 123.
The Governor can issue ordinance only when two conditions are fulfilled-
(a) The Governor can only issue ordinance when the Legislative Assembly of a State is not in session or where there are two Houses in a State both Houses are not in session.
(b) The Governor must be satisfied that circumstances exist which render it necessary for him to take immediate action. The court cannot question the validity of the ordinance on the ground that there was no necessity or sufficient ground for issuing the ordinance by the Governor. The existence of such necessity is not a justiciable issue. The exercise of ordinance-making power is not discretionary. The Governor exercises the power on the advice of the Cabinet.
The ordinance shall be laid before the Legislative Assembly of the State or where there is a Legislative Council in the State, before both Houses and shall cease to operate at the expiration of six weeks from the re-assembly of the Legislature, unless it is approved earlier by the Legislature. The ordinance may be withdrawn at any time by the Governor. The Governor can only issue ordinance on the subjects on which the State Legislature is empowered to make laws e.g., State List and Concurrent List. According to article 213(3), therefore, an ordinance will be invalid to the extent, it makes any provision which would be invalid if enacted by the State Legislatures. But such an ordinance will not be invalid if enacted by the Governor in pursuance of instructions from the President.
D.C. Wadhwa v. State of Bihar, MANU/SC/0072/1986 : (1987) 1 SCC 378: AIR 1987 SC 579: 1987 JT 70: 1986 (4) Supreme 465. The five Judges of the Supreme Court held that such a practice was a subversion of the democratic process and colourable exercise of power and amounted to fraud upon the Constitution and therefore un constitutional. The court called it usurpation by the executive of the law making function of the Legislature. The power to promulgate an ordinance is essentially a power to be used to meet an extraordinary situation and it cannot be allowed to be perverted to serve political ends.
The Council of Ministers.-
Article 163(1) says that there shall be a Council of Ministers with the Chief Minster as the head to "aid and advise" the Governor in exercise of his functions. The Council of Ministers in the States is constituted and functions in the same way as the Cabinet.
91st Amendment, 2003.-
This amendment has added two new clauses 1A and 1B to article 164 of the Constitution. The amendment makes two important changes.
(1) Maximum size of Ministers.-
The new clause (1A) puts a maximum limit of number of Ministers to be appointed to the Council of Ministers. It provides that the total number of Ministers, including the Chief Minister in the Council of Ministers in a State shall not exceed 15 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 12 for smaller States. In those States where the total number of Ministers is more than 15% at the time of the commencement of the 91st Amendment Act, 2003 it shall be reduced to 15 per cent. with 6 months from the date on which the President notifies the date for application of the amendment.
(2) Disqualification on ground of defection.-
The new clause (1B) provides that where the 1/3 members of the original political party defect from the party their membership of the legislature will automatically come to an end. Such a member cannot be appointed as a Minister.
Relationship between the Governor and Council of Ministers.-
In general, the relation between the Governor and his Ministers is the same as that between the President and his Ministers, with this important difference that while the Constitution does not empower the President to exercise any function it authorises the Governor to exercise some function 'in his discretion'.
Article 163 says that there shall be a Council of Ministers with the Chief Minister as the head to aid and advice the Governor. The exercise of his functions, except insofar as he is by or under the Constitution required to exercise his functions on his discretion.
Sunil Kumar v. Government of West Bengal, AIR 1950 Cal 274: 51 Cr LJ 1110. The Governor under the present Constitution cannot act except in accordance with the advice of his Ministers. Under the Government of India Act, 1935, the position was different.........Under the present Constitution, the power to Act in his discretion or in his individual capacity has been taken away and the Governor, therefore, must act on the advice of his Ministers..........
In the following circumstances the Governor will be called upon to exercise his discretion-
(a) appointment of the Chief Minister,
(b) the dismissing of a Minister,
(c) the dissolution of Legislative Assembly,
(d) advising the President for the proclamation of an emergency under article 356 of the Constitution.
M. Karunanidhi v. Union of India, MANU/SC/0159/1979 : AIR 1979 SC 898: 1979 Cr LJ 773: (1979) 3 SCC 431: 1979 SCC (Cri) 691. The question raised before the Supreme Court was whether a Chief Minister or a Minister was a public servant within the meaning of section 21(12) of the Indian Penal Code. The Court held that the first part of the section 21(12) of I.P.C. signifies a relationship of master and servant and not applicable to a Chief Minister. A Chief Minister or Minister is a public servant within the meaning but upheld the validity of section 21(12) of the I.P.C. and therefore can be prosecuted and no prior sanction of Governor is necessary.
Mahabir Prasad v. Prafulla Chandra, MANU/WB/0035/1969 : AIR 1969 Cal 198: 72 Cal WN 328. The Court said that article 164(1) does not impose any restitution or condition upon the powers of the Governor to appoint a Chief Minister and to dismiss a ministry. This is a matter entirely in the discretion of the Governor. The right of the Governor to withdraw the pleasure during which the Ministers hold office is absolute and unrestricted.
(B) The State Legislature (Articles 168-212).-
The Constitution provides for a Legislature for every State in the Union. The Legislature of every State consists of the Governor and House or Houses. The Legislatures in the State are either bicameral i.e,, consists two Houses or unicameral i.e., consists of one House. The Legislature in Bihar, Tamil Nadu, Maharashtra, Karnataka and Uttar Pradesh, is bicameral. In the remaining States the Legislature is unicameral consisting of only one House i.e., the Legislative Assembly (Article 168).
Under article 169 Parliament may by law provide for the abolition of the Legislative Council in a State where it already exists and also 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-third of the members of the Assembly present and voting. No such law making provision for the creation and abolition of the Legislative Council shall be deemed to be an amendment of the Constitution and, therefore, it can be passed like an ordinary piece of Legislation [Article 168(b)].
Legislative Assembly (Vidhan Sabha).-
The Legislative Assembly in a State is popular House. The minimum number of seats of the Legislative Assembly is fixed at 60 and the maximum number is fixed at 500. The members of Legislative Assembly are chosen directly by the people on the basis of adult franchise from territorial constituencies in the State [Article 170(1)]. The representation in the House is on the basis of population in respect of each territorial constituency in the State.
In the Legislative Assembly of each State seats will be reserved for the Scheduled Tribes and Scheduled Castes on the basis of population (Article 332) and also if the Governor of a State is of opinion that the Anglo-Indian community is not adequately represented in the Legislative Assembly he may nominate such member of the community to the Assembly as he considers appropriate (Article 333).
Originally, all such reservation of the seats for the Scheduled Castes, the Scheduled Tribes and representatives of the Anglo-Indian community were to cease after ten years from the commencement of the Constitution. The Constitution (8th Amendment) Act, 1959, extended all such reservations and nominations for another ten years i.e., for 20 years. The Constitution (Twenty-third Amendment) Act, 1969, further extended this period from 20 years to 30 years. This period has been extended from 30 years to 40 years by the Constitution (45th Amendment) Act, 1980.
The normal tenure of the Legislative Assembly of every State is of five years but it may be dissolved earlier by the Governor (Article 172). During the proclamation of emergency the life of the Assembly may be extended by an Act of Parliament for a period of one year at the time but in no case beyond a period of six months after the proclamation has ceased to operate (Article 172).
Legislative Council (Vidhan Parished).-
The total number of members in the Legislative Council of a State having such a council shall not exceed one-third of the total number of members in the Legislative Assembly of that State. But the total number of members in the Legislative Council of a State shall in no case be than less than 40. Parliament may by law provide for the composition of the Legislative Council until Parliament passes such a law, the composition of the Legislative Council shall be as follows: of the total numbers of members in the Legislative Council of a State - (a) 1/3 are to be elected by electorates consisting of members of Municipalities, District Board and other local authorities in the State as Parliament by law specify, (b) 1/2 are to be elected by electorates consisting of graduates by three years standing residing in the State, (c) 1/2 are to be elected by electorate consisting of persons who have been teaching for at least three years in educational institution not lower in standard than secondary schools (d) 1/3 are to be elected by the members of the Legislative Assembly of the State from amongst persons who are not members of the Assembly, (e) the remainder i.e., 1/6 are to be nominated by the Governor from persons having special knowledge or practical experience in respect of such matters as Literature, science, art co-operative movement and social service.
The Legislative Council is not subject to dissolution but after every two
years 1/3 of its members retire. Like the Rajya Sabha in the Centre it is a permanent body.
Qualifications of Membership.-
A person to be qualified to be chosen as member in the State Legislature-
(a) must be a citizen of India, and makes and subscribe before some persons authorised by the Election Commission an oath or affirmation prescribed in the Third Schedule;
(b) must not be less than 25 years of age in the case of the Legislative Assembly and must not be less than 30 years of age in the case of Legislative Council;
(c) must possesses such other qualification as may be prescribed by Parliament by law; (Article 173).
Disqualification of membership.-
A person is disqualified for being chosen as a member of the Legislature of a State-
(a) if he holds any office of profit under the Central or State Government, or
(b) if he is of unsound mind, or
(c) is he is an undischarged insolvent, or
(d) if he is not a citizen of India or has voluntarily acquired the citizenship of a foreign state or is under any acknowledgement of allegiance or adherence of a foreign State, or
(e) if he is so disqualified by or under any law of Parliament (article 190).
The necessary qualifications and disqualifications are prescribed by Parliament in the Representation of the People Act, 1951
Article 190 deals with the disqualification incurred by a member after he has been elected as member. It says that no one can be a member of both the Houses of the Legislature of a State or a member of the Legislature of two or more States to the same time. If a person in chosen a member of the Legislatures of two or more States then at the expiry of the specified period under rules made by the President his seat in the Legislature shall fall vacant unless he resign his seat in all but one of the States. If a member of the State Legislature absents himself, without the permission of House from all meetings for a period of sixty days, the House may declare his seat vacant [article 190(3)(4)]. If a member becomes disqualified under clause (1) of article 191 his seat shall become vacant.
Decisions on Qualifications.-
According to article 192 if any question arises as to whether a member of a House of the Legislature of a State has become subject to any of the qualifications mentioned in article 191(1), the question shall be referred to the Governor and his decision shall be final. The Governor is required to obtain the opinion of Election Commission before giving the decision on such questions.
Before taking his seat in the House, every member of State Legislature has to take oath or affirmation before the Governor or some person appointed by him for that purpose (article 188). Member of a State Legislature shall be entitled to receive such salaries and allowances as may from time-to-time be determined by the Legislature of the State by law (Article 195).
Session of State Legislature.-
According to article 174, the Governor shall from time-to-time summon a House of the Legislature to meet at such time and place as he thinks fit. But six months should not intervene between its last sitting in one session and the date appointed for its first sitting in the next session. This means that the Assembly must meet at least twice a year and not more than six months elapse between two sessions.
The Governor may from time-to-time prorogue the House, or either Houses. [Article 174(2)(a)]. The Governor may dissolve the Legislative Assembly of a State [Article 174(2)(b)]. In case of dissolution and prorogation, the Governor can exercise his discretion to some extent. His discretion is non-justiciable and cannot be challenged even on the ground of mala fide.
Under article 175, the Governor has right to address either House of the Legislature of a State or both Houses assembled together. He may send message to the Houses or House of the Legislature in respect of a Bill pending in the Legislature or otherwise. When a message is so sent, it is the duty of the House to consider any matter required by the message to be taken into consideration.
Articles 175 and 176 are exactly similar to those of articles 86 and 87 relating to the functions of the President. Thus the position of the Governor in relation to State Legislature is the same as that of the President in relation to Parliament.
Speaker and Deputy Speaker.-The Speaker is the Chief Presiding Officer of the Legislative Assembly of a State. He is elected by the members of the Assembly from their own members. The Assembly elects its Deputy Speaker also from its own members (Article 178). The Deputy Speaker performs the duties of the Speaker when the Speaker is absent or while the office of the Speaker is vacant. Both Speaker and Deputy Speaker vacate theirs offices when they cease to be members of the Assembly. They may also resign from their offices.
They can be removed from their officers, by the resolution of the Assembly passed by a majority of all the members of the Assembly [Article 180(1)]. For moving such a resolution fourteen days' notice is required (Article 179). The Speaker does not vacate his office on the dissolution of the Assembly. He continues in office until a new Speaker is elected before the new House meets.
Powers and Functions of Speaker.-The position, duties and powers of the Speaker of a State Legislature are the same as those of the Speaker of the Lok Sabha.
Chairman and Deputy Chairman of Legislative Council (Articles 182, 183, 184, 185).-The Legislative Council of each State elect its Chairman and Deputy Chairman from among its own members. Like the Vice-President in the Rajya Sabha, the Governor is not the ex-officio Chairman of the Legislative Council. Like the Speaker and Deputy Speaker, the Chairman and Deputy Chairman may resign their offices, vacate their offices when they cease to be members of the Council and may be removed form their offices.
Legislative Procedure.
The procedure of legislation in a State Legislature is broadly similar to that in the Parliament.
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