State Executive

Introduction 

• The State Executive encompasses the Governor as the titular head, the Chief Minister as the effective leader heading the Council of Ministers, and the Advocate General of the State. Responsible for law enforcement and state administration, the State Executive shares similarities with Union Governments but also exhibits some distinctions. 
• Part VI of the Constitution, encompassing Articles 153 to 167, addresses the governance structure within the states. 
• The State Executive includes the Governor, the Chief Minister, their Council of Ministers, the Advocate General, and individuals in the civil service at the state level. 

Governor 

• Article 153 of the Constitution establishes the office of the Governor in the states.  
• Typically, each state has its Governor, but the 7th Constitutional Amendment Act of 1956 enables the appointment of the same individual as a Governor for two or more states. 
• As per Article 154, the Governor serves as the Chief Executive and the Head of the State. 
•  Similar to the President at the national level, the Governor's role is crucial in state governance. 
• The Governor serves as the nominal Executive Head, while the actual executive authority resides with the Council of Ministers led by the Chief Minister. In cases where a Governor oversees the responsibilities of multiple states, their actions are guided by the advice of the respective states' Council of Ministers. 

Appointment 

• According to Article 155, the President of India appoints the Governor of a state through a warrant under their hand and seal. 
• The usual term of office is 5 years, and the Governor holds office at the pleasure of the President.  
• The President can transfer the Governor from one state to another, and the Governor can resign at any time by addressing the resignation to the President. 
• The Legislature of a State or a High Court has no role in the removal of a Governor. A person may be appointed as a Governor for any number of terms.  
• The Constituent Assembly of India favored an appointed Governor over an elected one due to several considerations: 
  • Expense: Election would have been a costly proposition. 
  • Personal Issues: Elections might have been fought on personal issues. 
  • Power Dynamics: An elected Governor might consider themselves superior to the Chief Minister, leading to political rivalry. 
  • Stability: An appointed Governor could effectively check separatist tendencies and provide stability. 

Qualifications 

• Under Article 157, the Constitution of India sets two qualifications for the appointment of a person as a Governor: 
• The Governor should be a citizen of India. 
• The Governor should have completed the age of 35 years. 
• Over the years, certain conventions have been adopted: 
  • The Governor should be an outsider who does not reside in the state where they will be appointed. 
  • When appointing the Governor of a State, the President must consult with the state's Chief minister. 

Conditions for Governor's Office 

The Governor should not be a member of either House of Parliament or of a House of the State Legislature. 

• Governor's Office and Powers 
• Qualifications for Governor's Office 
• The Governor should not hold any other office of profit. 
• Emoluments, allowances, and privileges are determined by Parliament by law. 
• The Governor's emoluments and allowances should not be diminished during their term. 
• If appointed as the Governor of two or more states, salary and allowances are shared as determined by the President. 

Terms of Office 

• According to Article 156, the Governor serves a 5-year term from the date of assuming office, subject to the President's pleasure. 
• Governors whose terms expire may be reappointed in the same or a different state. 
• The Constitution doesn't specify grounds for removal by the President. 
• A Governor can hold office beyond the term until a successor assumes charge. 
• The Governor can resign at any time, and the President can transfer them to another state for the remainder of their tenure. 

Oath and Affirmations 

• Article 159 mandates the Governor to make and subscribe to an oath or affirmation. 
• Administered by the Chief Justice of the concerned State's High Court, or in their absence, the senior-most judge available. 

Privileges of the Governor 

• Enjoys personal immunity from legal liability for official acts during the term. 
• Immune from criminal proceedings during the term but can face civil proceedings with a two-month notice for personal acts. 

Powers and Functions 

• A Governor possesses executive, legislative, financial and judicial powers. The Governor has no diplomatic, military or emergency powers like the President. 
• The Governor has also been given certain discretionary powers. These powers and functions are described below: 

Executive Powers 

• All executive actions of the State Government are officially executed in the Governor's name. 
• The Governor appoints the Chief Minister and other Ministers based on the Chief Minister's advice, and they serve at the Governor's pleasure. 
• In specific states (Jharkhand, Chhattisgarh, Madhya Pradesh, and Odisha), the Governor appoints a Tribal Welfare Minister. 
• The Governor appoints the Advocate-General, determining their remuneration, and their term is at the Governor's pleasure. 
• The Governor appoints the State Election Commissioner, Chief Secretary, and sets the conditions of service. The Chief Secretary's term is indefinite. 
• Rules for State Government business and allocation among ministers are made by the Governor. 
• Article 333, which empowered the Governor to nominate an Anglo-Indian member in State Assemblies, was abolished by the 104th Amendment Act. 
• The Governor appoints the Chairman and members of the State Public Service Commission, with removal authority vested in the President, not the Governor. 
• The Governor can request the Chief Minister to submit any matter taken by a Minister for consideration by the Council of Ministers, if not already discussed. 

Governor's Role in State Governance 

• The Governor can request information on State affairs and legislative proposals from the Chief Minister. 
• In states with a Legislative Council (Vidhan Parishad), the Governor can nominate one-sixth of its members from individuals excelling in Literature, Science, Arts, Co-operative Movement, and Social Services. 
• The Governor acts as the Chancellor of state universities and appoints Vice-Chancellors. 

Legislative Powers 

• Governed by Article 168, the Governor has the right to summon, prorogue, and dissolve the State Legislature, addressing it at the beginning of each general election session and each year. 
• The Governor can address the State Legislature, send messages to Parliament or State Legislature regarding pending bills, and appoint a member of the State Legislative Assembly to preside when both the Speaker and Deputy Speaker positions are vacant. 
• The Governor decides on the disqualification of State Legislature members in consultation with the Election Commission. 
• Article 202 mandates the Governor to present reports of the State Public Service Commission, State Finance Commission, and the Comptroller and Auditor General to the State Legislature, ensuring the laying of the state budget. 

Ordinance Making Power of Governor 

• Article 213 empowers the Governor to issue ordinances when the State Legislative Assembly is not in session, applicable only to matters within the State Legislature's legislative scope. 
• These ordinances require approval within six weeks of the Legislature's reassembly, and the Governor can withdraw them at any time. 
• In cases like DC Wadhwa v/s the State of Bihar (1987), the Supreme Court emphasized using the legislative power of ordinances in exceptional circumstances, not as a substitute for legislative power. 
• Krishna Kumar Singh v/s the State of Bihar clarified that the authority to issue ordinances is conditional upon the satisfaction that immediate action is necessary. 

Governor's Assent to Bill 

• When a bill is sent to the Governor after passing the State Legislature, options include giving assent, withholding assent, or returning the bill (if not a Money bill) for reconsideration. 
• Bills endangering the State High Court's position must be reserved for the President's consideration. 
• The Governor can also reserve bills that are ultra vires, opposed to Directive Principles of State Policy, or inconsistent with union laws. 

Types of Bills and Powers of the President and the Governor 

Ordinary Bill 

• When presented for assent after passing through Parliament: 
  • President has the options to give assent, withhold assent, or return for reconsideration (Suspensive veto). 
  • For State Legislature Bills: 
  • The governor can give assent, withhold assent, or return for reconsideration within 6 months. No obligation to assent if returned. 

Money Bill 

• President's alternatives: 
  •  To give assent 
  •  To withhold assent 
  •  Absolute veto cannot be returned for reconsideration. 
  •  Governor's role in introducing Money Bill in the State Legislature, making advances from the Contingency Fund, and forming the State Finance Commission. 

Financial Powers 

• The Money Bill in the State Legislature requires the Governor's prior recommendation. 
• The governor can make advances from the Contingency Fund for unforeseen state expenditures. 
• The Governor forms the State Finance Commission every 5 years to review Panchayats' and Municipalities' financial positions. 

Judicial Powers 

• As per Article 161, the Governor can grant pardons, reprieves, respites, and remissions or suspend, remit, and commute sentences for offenses under state jurisdiction. 
• Consulted by the President in the appointment of judges to the respective State High Court (Article 217). 
• Appointment, postings, and promotions of District Judges in consultation with the State High Court. 
• Appoints persons to the Judicial Services of the State (excluding District Judges) in consultation with the State High Court and the State Public Service Commission. 

Discretionary Powers - SR Bommai v/s Union of India (1994): 

• Addressed the misuse of Article 356, emphasizing the Assembly as the sole forum for testing the government's majority. 
• In addition, as administrator of a Union Territory, appointing the Chief Minister in a hung assembly, seeking information from the Chief Minister, dismissing the Council of Ministers, dissolving the State Legislative Assembly, and determining royalties for my exploration. 

Powers During President's Rule - Article 356: 

• The Governor recommends the President's rule if the state government cannot function constitutionally. 
• During the President's rule, the Governor acts as the President's representative, overseeing state administration. 

Comparison Between Powers of President and Governor: 

President: 

• Cannot pardon a death sentence without instructions. 
• Needs instructions for making an ordinance in specific cases. 
• Limited constitutional discretion. 

Governor: 

• Can suspend, remit, or commute a death sentence. 
• Wider discretionary powers, including both situational and constitutional discretion. 
• Ordinance-making without specific instructions. 

Special Responsibilities of Governor 

Follows directions issued by the President, consulting the Council of Ministers but acting based on individual judgment and discretion. 

States Specific Responsibilities of Governor 

Privileges of the Governor 

• According to Article 361, the President and the Governor enjoy certain privileges.  
• The Governor is exempt from judicial prosecution for acts performed during the term, ensuring immunity from arrest and punishment for actions taken while in office. 
• While civil proceedings can be initiated against the Governor with a two-month notice, the judiciary has affirmed that this privilege aligns with constitutional provisions. 

Recommendations to improve Governor's Office 

• Rameshwar Prasad Case, 2006: The Supreme Court ruled that Governors cannot make decisions based solely on personal opinions. 
• BP Singhal v/s Union of India: The Supreme Court emphasized that while the President can dismiss a Governor without providing reasons, such power must not be exercised arbitrarily. 
• Venkatachaliah Commission (2002): Recommended that a committee comprising the Prime Minister, Home Minister, Lok Sabha Speaker, and Chief Minister decide Governor appointments. Removals before term completion should involve consultation with the Chief Minister. 
• Punchhi Commission (2010): Suggested removing the phrase "during the pleasure of the President" from the Constitution, advocating Governor removal by State Legislature resolution. 

Chief Minister 

The Chief Minister serves as the real executive and heads the state government, similar to the Prime Minister's role at the national level. 

Articles Related to the Chief Ministers 

Qualifications 

• A Chief Minister must be a citizen of India, a member of the State Legislature, and at least 25 years old.  
• Non-legislature individuals can become Chief Minister if elected to the State Legislature within six months of appointment. Failure to do so results in the cessation of Chief Minister status. 

Appointment 

Article 164 of the Constitution outlines the process of appointing the Chief Minister.  

• The Governor appoints the leader of the largest party in the House, or the leader chosen by the largest coalition as the Chief Minister.  
• If no party holds a clear majority, the Governor may exercise situational discretion, appointing a leader who can later demonstrate majority support on the Parliament floor. 
•  If the Chief Minister dies without a successor, the Governor may use discretion to choose one, but if the ruling party nominates someone, the Governor must appoint that person. A non-legislature individual can be Chief Minister for six months, during which they must be elected to the State Legislature or cease to hold the position. 

Term of the Office 

The Chief Minister's term is not fixed, and they serve at the pleasure of the Governor. As long as the Chief Minister maintains majority support in the Legislative Assembly, the Governor cannot dismiss them. Removal can occur through a vote of no-confidence by the State Legislative Assembly. 

Oath and Affirmation 

Before assuming office, the Chief Minister takes an oath administered by the Governor. The oath includes pledges to uphold the Constitution, safeguard India's sovereignty and integrity, conscientiously fulfill duties, and administer justice without bias. 

Salary and Allowances 

Article 164(5) empowers the State Legislature to determine the Chief Minister's salary and allowances through legislation. The Chief Minister is entitled to salary, sumptuary allowance, free housing, travel allowances, medical care, and other perks. 

Powers and Functions of the Chief Minister 

Various powers and functions related to Chief Minister are as follows: 

In Relation to the Council of Ministers 

• Recommends individuals for ministerial appointments to the Governor. 
• Allocates and reshuffles ministerial portfolios. 
• Can request a minister's resignation or advise the Governor to dismiss a minister in case of differences. 
• Presides over Council of Ministers meetings, influencing decisions. 
• Guides, directs, controls, and coordinates ministers' activities. Can dissolve the Council of Ministers by resigning. 

In Relation to the Governor 

• Serves as the principal channel of communication between the Governor and the Council of Ministers. 
• Communicates all Council of Ministers' decisions and legislative proposals to the Governor. 
• Provides information requested by the Governor related to state affairs and legislation. 
• Submits, if required, matters decided by a minister but not considered by the council for the Council of Ministers' consideration. 
• Roles and Responsibilities of the Chief Minister. 
• Advisory Role - The Chief Minister advises the Governor on the appointment of crucial officials such as the Advocate-General, Chairman and Members of the State Public Service Commission, and the State Election Commissioner. 

In Relation to the State Legislature 

• Advises the Governor on summoning and proroguing State Legislature sessions. 
• Can recommend the dissolution of the Legislative Assembly to the Governor. 
• Announces government policies on the legislative floor and has the right to intervene in debates. 
• Chairs the State Planning Board. 
• Acts as Vice-Chairman of the relevant zonal council by rotation. 
• Serves as a member of the Inter-State Council and the Governing Council of NITI Aayog. 
• Functions as the Chief Spokesman of the State Government and the Crisis Manager-in-Chief at the political level during emergencies. 
• Heads the political level of the services. 

State Council of Ministers 

Formation and Composition 

• Similar to the Central Council of Ministers, the State Council comprises ministers appointed by the Governor based on the Chief Minister's recommendation. 
• Appointed by the Governor on the advice of the Chief Minister. 
• Tribal Affairs Minister 
• The Governor appoints a Tribal Affairs Minister for specific states, including Chhattisgarh, Madhya Pradesh, Jharkhand, and Odisha. 

Qualifications and Appointment 

• Article 163 and Minister Qualifications 
• Article 163 mandates that every state has a Council of Ministers led by the Chief Minister to aid and advise the Governor, excluding discretionary powers. 
• A minister must be a member of the State Legislature, and if not initially a member, must become one within six months. 
• Qualifications include being an Indian citizen, pledging allegiance to the Constitution, and meeting age requirements. 
• Responsibilities and Tenure 
• The Council is collectively responsible to the State Legislative Assembly. 
• The term of the Council, headed by the Chief Minister, is at the Governor's pleasure. 
• A minister not part of the State Legislature for six consecutive months ceases to be a minister. 
• Amendments and Disqualifications 
• The 91st Amendment Act of 2003 sets limits on the total number of ministers, ensuring adequate representation. 
• Members disqualified due to defects cannot be appointed as ministers. 

Structure of Council of Ministers 

The Indian Constitution does not specify the size of the council; instead, the Chief Minister determines its size and the ministers' ranks based on the State Legislature's needs. 

The Council of Ministers consists of four categories: 

• Cabinet Ministers: These experienced ministers oversee vital departments like Home, Finance, Defence, Agriculture, Foreign Affairs, etc. Typically numbering between 15 to 20, a cabinet minister heads a ministry with independent control, attending cabinet meetings alongside a Minister of State, Deputy Minister, or both, unless designated as a minister without portfolio. 
• Ministers of State: Ministers of State may be given independent charge of a ministry and, while unable to attend Cabinet meetings in their own right, can participate if invited. 
• Deputy Ministers: Junior members of the Council of Ministers without independent charge of any department, Deputy Ministers receive guidance from a minister of cabinet rank or a Minister of State for proper training. 
• Deputy Chief Minister: Appointed for political reasons, the deputy Chief minister holds a non-constitutional office and often oversees portfolios like finance or home. 

Oath and Affirmation 

Before assuming office, ministers take oaths administered by the Governor: 

• Oath of Office: Ministers swear allegiance to the Constitution, uphold India's sovereignty and integrity, and pledge to discharge their duties impartially, in accordance with the Constitution and the law, without bias. 
• Oath of Secrecy: Ministers commit not to discuss privileged information as state ministers unless it aids in fulfilling their official duties, ensuring confidentiality. 

Salary and Allowances 

The State Legislature determines ministers' salaries and allowances, aligning them with those payable to Members of the State Legislature. 

Responsibility of Ministers 

• Council of Ministers' responsibilities include: 
  • Collective Responsibility: As per Article 164, the Council of Ministers is collectively responsible to the Legislative Assembly. Ministers share responsibility for their actions, and when a no-confidence motion is passed, all ministers, including those in the Legislative Council, must resign. 
  • Individual Responsibility: Ministers serve at the Governor's pleasure, and the Governor can dismiss a minister if the Council of Ministers retains the Legislative Assembly's confidence. However, removal requires the Chief Minister's advice. 
• In case of dissatisfaction or disagreement with a minister's performance, the Chief Minister has the authority to request their resignation or advise the Governor to dismiss them. 

Absence of Legal Responsibility 

•  Similar to the central government, the state's constitutional framework lacks provisions for legal responsibility of ministers. There is no requirement for a minister to countersign the Governor's order for a public act. 

Cabinet Committees 

• The cabinet operates through various committees known as Cabinet Committees, categorized as Standing and Ad hoc. While Standing Committees are permanent, Ad hoc Committees are temporary and established by the Chief Minister based on the current needs and circumstances. Consequently, their number, names, and composition may vary over time. 

Advocate-General 

• Article 165 of the Indian Constitution addresses the Advocate-General for the State. 
• Serving as the primary Law Officer of the State, the Advocate-General's role and responsibilities mirror those of the Attorney-General of India. 
• Appointed by the Governor and serving at their pleasure, the Advocate-General's remuneration is determined by the Governor. Qualifications for this role include eligibility to be a Judge of the High Court. 
• The Advocate-General has the privilege to attend and speak in the proceedings of either House of the State Legislature, without the right to vote. 
• Additionally, the Advocate-General holds the right of audience in any court within the state.