State Executive

SUBMITTED BY: SUBMITTED TO:

NAME: HARMANJOT SINGH DR. SHRUTI BEDI
ROLL NO.: 190/19
SECTION: D
BCOM-LLB
 ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to my

teacher Dr. Shruti Bedi, who gave me the golden opportunity to
do this wonderful project on State Executive, who also helped
me in completing my project. I came to know about a lot of new
things I am really thankful to them. Secondly I would also like
thank my friends who helped me a lot in finalizing this project
within the limited time frame.

Harmanjot Singh
BCOM-LLB
 CERTIFICATE

I Harmanjot Singh, student of Section D of BCOM-LLB

hereby certify that the project was undertaken by me. The original
and genuine investigation has been carried out to investigate
about the subject matter and related data collection and
investigation is completely solely.
 TABLE OF CASES

1. B.P. Singhal v. UOI

2. Swaran Singh v. State of U.P

3. M.N. Rai v. Virendra Bhatia

 INDEX

SRO. INDEX PAGE NO.

1. State Executive 1-2

2. Governor 3-11
3. Council of Ministers 11-14
4. Advocate General 15-16
5. Conclusion 16

6. References 17
 STATE EXECUTIVE
(Articles 152 to 167 & 213)

Part 4 of the constitution, containing Articles 152 to 237, regulates the

matters relating to structure of the Government in the States specified in
the First Schedule of the constitution.1

There exist three pillars of democracy, namely the legislature, the

executive and the judiciary. These bodies have well defined functions
under the Indian Constitution and cannot overlap into each other’s areas.
These three pillars are further divided into Union and States and function
according to the powers and roles assigned to them.

The literal meaning of an executive is a powerful person who is

responsible for making things run. So the word ‘State Executive’ mean
group of persons responsible for administration of a State so that state can
run smoothly. 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 center. He/She acts on

1
The Constitution of India(Article 270)

1
the advice of the Council of Ministers and all executive actions are taken
in his name.2

2
The State Executive available at:
https://blog.ipleaders.in/the-state-executive-article-153-167-article-213/
(Last visited on May 4, 2020).

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 THE GOVERNOR
Article 153 provides “that there shall be a Governor for each State”. The Proviso
to Article 153, inserted by the Constitution (Seventh Amendment) Act, 1956,
explains that there shall be no prohibition as to the appointment of the same person
as Governor of two or more States. For instance, on 2-6-2014, Shri ESL Narasimhan
took oath as common Governor of the States of Andhra Pradesh and Telangana. 3

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. A governor must
act according to the advice of council ministers, headed by the chief minister. While
the states are ruled by Governors and the Union Territories are ruled by Lieutenant-
Governors or Administrators.

Historical Background
The Governors under the Government of India Act 1935 were “by the Raj, of the
Raj and for the Raj”. The constituent assembly wanted elected governors as
proposed by a sub-committee of B.G. Kher, K.N. Katju and P. Subbarayan.

The apprehension of the clash between powers of Governor and Chief minister led
to the system of appointed Governor in the state.

The draft constitution of 1948 was ambivalent – the drafting committee leaving it to
the constituent assembly to decide whether governors should be elected or
nominated. The governor-general (now also the viceroy) headed the central

3
The Constitution of India(Article 153)

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government of India, which administered the provinces of British India, including
the Punjab, Bengal, Bombay, Madras, the United Provinces, and others.

Appointment of the Governor

Article 155 lays down that “the Governor of a State shall be appointed by the
President by warrant under his hand and seal.”4

Though, appointed by the President (i.e., the Central Government), the Governor is
not in the employment under the Government of India. It has been held that the office
of the Governor is an independent office and is not under the control of or
subordinate to, the Government of India.

The Governor of the States of India is appointed by the President of India for a period
of five years. A Governor may be simultaneously assignee to more than one state.
The President, if he so pleases may extend his tenure. A vacancy in the Governor’s
post arises, if:

a) when the Governor completes his tenure,

b) resigns,
c) dies in office, and
d) Is removed from office by the President.
e) The Governors also have often been transferred from one state to another.

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

1. He/She should be an Indian citizen.

4
Supra note, art.155

4
 2. He/She should have completed 35 years of age.5

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:

a) The Governor must not be a member of either House of Parliament or of a

House of the Legislature of any State. If a member of either House of
Parliament or of a House of Legislature of any State is appointed as Governor,
he shall be deemed to have vacated his seat in that House on the date on which
he enters upon his office as Governor.
b) The Governor shall not hold any other office of profit.
c) The Governor is entitled without payment of rent to the use of his official
residence.
d) The Governor is entitled to such emoluments, allowances and privileges as
may be determined by Parliament by law. (e) The emoluments and allowances
of the Governor shall not be diminished during his term of office.
e) The 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 or in his absence, the senior most Judge of
that Court, an oath or affirmation in the prescribed form.

5
Supra note, art.157

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Removal of the Governor
As stated earlier, Article 156(1) provides that the Governor holds office during the
pleasure of the President. It further says that subject to the exercise of pleasure by
the President, the Governor shall hold office for a term of five years. It is, therefore,
clear that the Governor has no security of tenure and no fixed term of office.6

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)7, 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.

Removal should not be done by giving following reasons:

1. Conflicts between party in power (union) & Governor.

6
Supra note, art.156
7
Anr on 7 May, 2010

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 2. Party has lost confidence in Governor.
3. Party has change at the Centre.

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

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

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unless the executive makes a strong case based on malafide, irrelevant, arbitrary,
whimsical 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.

The Governor: Powers

The powers and functions of the Governor can broadly be categorized under two
heads namely (a) as the head of the State, and (b) as the representative of the Union
Government.

(A) Executive Powers

All the executive functions in the State are carried on in the name of the Governor.
He/she not only appoints the Chief Minister but on his/her advice appoints the
members of the Council of Ministers. According to a well-established convention
he/she calls the leader of the majority party or an alliance of parties ( if no single
party in the Legislative Assembly gets majority) to form the Government. On the
advice of the Chief Minister he/she allocates portfolios among the ministers.

He/she appoints the Advocate- General and Chairman and members of the State
Public Service Commission.

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He/she appoints State Election Commissioner

He/she has the power to appoint judges of the courts, other than the High Court.
He/she, however, is consulted when the judges of the State High Court are appointed
by the President of India.

While discharging all his/her functions as Head of the Executive in the State, the
Governors like the President, is aided and advised by the Council of Ministers
headed by the Chief Minister.

(B) Legislative Powers

The Governor is an inseparable part of the State Legislature and as such he/she
possesses certain legislative powers as well. The Governor has the right to summon
and prorogue the State Legislature. He/she can, on the recommendation of the
Council of Ministers headed by the Chief Ministers dissolve the State Legislative
Assembly. He/She can address the session of the State Legislative Assembly or Joint
Session of the two Houses of the Legislature. He can send messages to either or both
Houses. He/She can nominate one member of the Anglo Indian Community to the
State Legislative Assembly, if he/she is satisfied that after General Elections, the
said community is not adequately represented in the Assembly. He/she nominates
one-sixth members of the total strength of the Legislative Council if the same is
existing in a State. Such nominated members are those who possess special
knowledge in the field of literature, science, cooperative movement and social
service.

The assent of the Governor is necessary for a bill to become a law. In this regard,
the Governor has the following options:

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(a) He/she may give assent to the bill; in that case the bill becomes a law;

(b) He/she may withhold the assent; in which case the bill fails to become a law;

(c) He/she may return the bill with his message. If the State Legislature passes the
bill in its original shape or in a modified form, the Governor has to give the assent
to the bill;

(d) He/she may reserve the bill for the consideration of the President.

The Governor has the power to issue ordinances during the period when the State
Legislature is not in session. However, the ordinance has to be placed before the
State Legislature when it reassembles for the next session. It ceases to operate after
six weeks, unless earlier rejected by the Legislature. The Legislative Assembly may
replace the ordinance by a law enacted by it within the said period. The legislative
powers, like the executive powers, of the Governor are, in practice exercised by the
State Council of Ministers, headed by the Chief Minister.

(C) Financial Powers

1. No money bill can be introduced in the State Legislative Assembly without the
prior permission of the Governor.

2. The annual and supplementary budgets are introduced in the Assembly in the
name of the Governor and He/She make sure that budget is presented annually in
legislative assembly.

3. The Governor has the control over the State Contingency Fund.

(D) Judicial Powers

Article 161 states that the Governor possesses the power to grant pardon reprieves,
respites or remission of punishment or to suspend, remit or commute the sentence of

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any person convicted by the Courts of any offence against any law relating to a
matter to which the executive power of the State extends, but he cannot grant pardon
in case of death sentence. In the case of Swaran Singh v. State of U.P[x], the
Governor of Uttar Pradesh remitted the whole of the life sentence of an MLA of the
State Assembly who had been convicted of the offence of murder within a period of
less than two years of his conviction. The Supreme Court found that Governor was
not posted with material facts such as the involvement of the accused in 5 other
criminal cases, his unsatisfactory conduct in prison and the Governor’s previous
rejection of his clemency petition in regard to the same case.

He/She appoints the judges below High Courts Level.

The President consults the Governor while appointing Chief Justice and Judges of
High Court.

(E) Discretionary Powers

Article 163(1) provides that the Governor is to act in accordance with the advice of
the Council of Ministers "except in so far as he is by or under this Constitution,
required to exercise his functions or any of them in his discretion." To add to this,
Clause (2) of Article 163 clarifies that if any question arises whether any matter is
or is not a matter as respects which the Governor is by or under this Constitution
required to act in his discretion, the decision of the Governor, in his discretion, shall
be final and "the validity of anything done by the Governor shall not be called in
question on the ground that he ought or ought not to have acted in his discretion."
As has been stated earlier that while exercising the executive, legislative, financial
and judicial powers the Governor is aided and advised by the Council of Ministers
headed by the Chief Minister. These powers are enjoyed by him/her as the Head of
State. There are a few more powers which he/she possesses as the representative of

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the Central or Union Government. These powers are also called discretionary
powers. It is under special circumstance that the Governor may act without the
advice of the Council of Ministers. In other words, such powers of the Governor are
exercised in his/her own discretion. They are:

1. President’s Rule: A situation may arise when in the opinion of the

Governor there is the breakdown of the constitutional machinery in the State.
In such a case, the Governor may report the situation to the President for
imposition of the President’s Rule in that State. As the Governor exercises this
power on his/her own, it is called the discretionary power of the Governor. In
case the Governor’s report is accepted by the President, and he/she proclaims
emergency under Article 356, the State Council of Ministers is removed, and
the State Legislative Assembly is either dissolved or put under suspension.
During such emergency, the Governor rules on behalf of the President. Now
because of this discretionary power it is huge area of controversy and that’s why
we have case of SR Bommai vs UOI8 which lays down on what conditions that
state can declare emergency.

In S.R. Bommai case (1994), following the Sarkaria Commission’s

recommendations, the Supreme Court underlined that the breakdown of
constitutional machinery implied a virtual impossibility, and not a mere
difficulty, in carrying out governance in a State.

 SC said that while the subjective satisfaction of the President regarding such
a breakdown was beyond judicial scrutiny, the material on which such
satisfaction was based could certainly be analysed by the judiciary, including
the Governor’s report.

8
AIR 1994 SC 1918

12
  The Court reinstated the governments in Arunachal Pradesh and Uttarakhand
which were suspended after the arbitrary imposition of the President’s Rule.

2. Reserve a Bill: A situation may also arise when the Governor may reserve
a bill for the consideration of the President. As the Governor does or can do this
job on his own, it again is one of his discretionary powers. The discretionary
powers of the Governor were meant for extraordinary and emergency situations.
However, in practice these have not only been used in such situations, but have
been made use of relating to normal powers in controversial manner. This has
led to creating tension between Union and State relations.

THE COUNCIL OF MINISTERS

Article 163(1) provides: "There shall be a Council of Ministers with the Chief
Minister at the head to aid and advise the Governor in the exercise his functions,
except in so far as he is by or under this Constitution required to exercise his
functions or any of them in his discretion."

The Chief Minister is appointed by the Governor. The other Ministers are appointed
by the Governor on the advice of the Chief Minister. It is the sole prerogative of the
Chief Minister to form the Ministry by choosing such Ministers as he may deem fit.
Judiciary cannot intervene in the matter relating to appointment or allocation of
ministries. The Ministers hold office during the pleasure of the Governor 88 The
Council of Ministers is collectively responsible to the Legislative Assembly of the
State.87 Before a Minister enters upon his office, the Governor administers to him
the oaths of office and of secrecy according to the forms set out for the purpose in

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the Third Schedule. The salaries and allowances of Ministers shall be such as the
Legislature of the State may from time to time, by law, determine and, until so
determined, shall be as specified in the Second Schedule.

3. Selection of Chief Minister: In general Governor don’t use this

discretionary power because the party in state legislature is directly choose by the
respective people of the state and who so ever has a clear majority, governor appoints
him/her as a Chief Minister but this power came in picture when there is no clear
majority in state and all party are having cut to cut completion then in those cases
Governor can make out of his will the chief minister from the party he likes and we
all know that he is the agent of union government so there are very high chances that
in above mention example he/she will made chief minister the party he/she belongs
to. As we know in states more horse trading is going on, affiliations are not very
clear so in this type of case the governor have a capacity because of his discretionary
power to really choose the person who he wants to be in power.

4. Dismissal of the Ministry

When he dismisses the council of ministers on an inability to prove confidence in
the state legislative assembly. So long as the party in power has majority in the
Lower House, the Governor cannot dismiss the Ministry, though the Ministers hold
office at his pleasure. Instances are there when the Governor has, exercised his
discretion and a Ministry enjoying majority support in the Assembly, has been
dismissed.

5. When he dissolves the state legislative assembly on time when it loses its

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6. Minister for Tribal Welfare

Proviso to Clause (1) of Article 164 requires that in the State of Chhattisgarh,
Jharkhand, 95 Madhya Pradesh and Orissa there shall be a Minister in charge of
Tribal Welfare, who may in addition, be in charge of the welfare of the Scheduled
Castes and backward classes or any other work.

THE ADVOCATE-GENERAL FOR THE STATE

(Article 165)

Article 165 provides for the office of the Advocate-General for the State. The
Advocate-General is appointed by the Governor. A person who is qualified to be
appointed a Judge of a High Court is eligible for appointment as Advocate-General.9

The Advocate-General holds office during the pleasure of the Governor and receives
such remuneration as the Governor may determine.

The Advocate-General performs the following duties:

(i) It is his duty to give advice to the Government of the State upon such legal matters
as may be referred to him by the Governor.

(ii) He is to perform such other duties of a legal character as may be assigned to him
by the Governor.

(iii) He is to discharge the functions conferred on him by or under this Constitution

or any other law, for the time being in force.

9
The Constitution of India(Article 165)

15
He has the right to speak and otherwise participate in the proceedings of the Houses
of the State Legislature or any Committee of the Legislature of which he may be
named as a member but he does not have the right to vote.

The Advocate-General enjoys all the privileges as are available to the members of
the Legislature. It is also ruled that the advice tendered by the Advocate-General, in
discharge of his duties and constitutional obligations, itself, cannot be judicially
reviewed by the High Court under Article 226.

Referring to the provisions of Article 165, the Allahabad High Court in M.N. Rai v.
Virendra Bhatia, held that the appointment of the Advocate-General, is made at the
discretion of the Governor. Simply because the appointee was associated with a
political party, it could not be contended that the Governor did not exercise his
discretion, the Court ruled. In such a matter it was held, consultation with the Chief
Justice of the State, was not necessary.10

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.

10
Narender Kumar, Constitutional Law of India 783 (Allahabad Law Agency, Faridabad 10th edn., 2020)

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 REFERENCES

BOOKS:
1. Pandey, J.N., Constitutional Law of India (Central Law
Agency, 55th edition, 2018)
2. Kumar, Narender, Constitutional Law of
India(Allahabad Law Agency, 10th edition, 2020)

BARE ACT:
1. The Constitution of India

WEBSITES:
1. www.indiankanooon.org
2. https://lawctopus.com/

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