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THE STATE.
A) THE STATE EXECUTIVES.
QUESTION BANK.
Q.1. Explain fully the position of the Governor under the Constitution of
India?
Q.2. State the powers and functions of the Governor?
Q.3. Explain the powers and functions of the Governor under the Constitution.
Q.4. Explain the role of the Governor under the Constitution of India.
SHORT NOTES.
1. Ordinance making power of the Governor.
2. Powers and functions of the Governor.
3. Legislative powers of the Governor.
4. Governor of the State.
The model of the State executive is similar to that of the Union Executive. The
State executive consists of the Governor, who is the head of the State, and the
Council of Ministers, with the Chief Minister as its head.
THE GOVERNOR: -
The pattern of government in the State is similar to that of the Union,
i.e., the Parliament and Cabinet systems. The Executive Head (i.e., the Governor)
in the State should act according to the aid and advice of the Council of Ministers.
Art.153 provides that each State shall have a Governor. However, one person may
be appointed Governor for two or more states. The Governor is the executive head
of the State.
A)
Appointment of Governor (Art. 155): -
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“The State Executive”
Prof. Santosh D. Bhosale 119
The Governor of the State is appointed by the President of India (Art. 155).
People or representatives of people (like the President) do not elect him directly or
indirectly. He is the nominee of the Central Government.
B)
Qualification (Art. 157):-
A person to be eligible for appointment of Governor-
i.
Shall be a citizen of India.
ii.
Shall have completed the age of 35 years.
The Governor should not be a member of either the House of Parliament or
the state legislature. However, if he is so appointed, he shall be deemed to have
vacated his seat in the House. He shall not also hold any office of profit under any
government (Art. 158).
C)
Term of office and his removal (Art. 156): -
The Governor holds office at 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 enters his office. The Governor may resign from office by writing
to the President. He may, however, be removed from his office at any time by the
President.
D)
Powers of Governor: -
In short, the governor's powers are analogous to those of the President,
except the Governor has no diplomatic, military, or emergency power.
The Governor’s power can be classified under the following heads:-
1.
Executive Powers (Art. 154):-
The executive powers of the State are vested in the Governor. They
are to be exercised by him directly or through officers subordinate to him (i.e.,
Ministers of the State) (Art. 154). Executive powers of the State extend to the
matters with respect to which the legislature of the State has the power to make
laws (Art. 162). All executive actions of the state government shall be expressed
and taken in the name of the governor.
Supreme Court held that our Constitution has adopted the British system of
a
Parliamentary form of government. The basic principle of this type of
government is that the President and Governors are Constitutional heads. The real
executive power is vested in the Council of Ministers.
2)
Financial powers: -
A money bill cannot be introduced in the Legislative Assembly of the
3AIR. 1955 SC 549.
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Prof. Santosh D. Bhosale 120
State without the recommendation of the Governor (Art. 203 (3)). The Governor
is required to cause to be laid before the House of the Legislature's annual financial
statement’, known as ‘Budget’ (Art. 202).
3)
Legislative powers (Art.168 (1)): -
The Governor summons both the Houses or each House of the State
legislature 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 in the next
session. He may prorogue the Houses or either House and dissolve the Legislative
Assembly (Art.174 (1) and (2)). He has a right to address the state legislature. No
bill can become law without the assent of the Governor. He has a right to reserve
certain bills for the assent of the President (Art. 200). He nominates 1/6 of the
legislative council members (Art. 171).
The most important power of the Governor is his ordinance-making power.
Ordinance-making power (Art. 213):-
The ordinance-making power of the Governor under Art. 213 is
similar to that of the President under Art.123. The Governor only can issue an
ordinance when: -
i.
The Legislative Assembly of the State is not in session or where there exist
two Houses in the State, and both Houses are not in session.
He is satisfied that circumstances exist which render it necessary for him to
take immediate action.
ii.
The court cannot question the validity of the ordinance on the ground
that the governor did not have a necessity or sufficient grounds for issuing it. The
Governor exercises ordinance-making power not at his discretion but on the advice
of the Cabinet.
The ordinance shall be laid before the Legislative Assembly or where
there is a legislative council in the State before both the Houses and shall cease to
operate at the expiration of six weeks from the re-assembly of the legislature if not
approved. The governor may withdraw the ordinance at any time. He can only
issue an ordinance on the subject on which the state legislature is empowered to
make laws. i.e., State List and Concurrent List. The Governor cannot issue
ordnance without instruction from the President in the following cases:-
a.
If the bill containing the same provisions would, under the Constitution,
require the previous sanction of the President for the introduction thereof.
If the Governor deems it necessary to reserve the bill for consideration by
the President.
b.
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“The State Executive”
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c.
If an Act of the State legislature containing the same provisions had been
invalid unless it had been reserved for the consideration of the President and
had received the assent of the President,
Facts: The petitioner has challenged Bihar state's practice of promulgating and
re-promulgating ordinances on a large scale without enacting them into Acts of the
legislature and keeping them alive for an indefinite period of time.
The Supreme Court held that such practice is a subversion of the democratic
process, a colourable exercise of power, and amounts to fraud upon the
Constitution, and is, therefore, unconstitutional.
4. Power to grant pardon (Art. 161):-
Art. 161 confers on the Governor the power to grant pardon, reprieve,
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 matters to which
the executive powers of the State extend.
Differences between the President’s power and the Governor’s power to grant
pardon: -
The Governor's power is similar to that of the President conferred
under Art. 72. But there is a difference between these two powers in the following
respect-
Firstly, the President’s power is wider than that of the Governor of the State
because the President has exclusive power to grant pardon in cases where the
sentence is even a death sentence. In contrast, the Governor cannot grant a pardon
in case of a death sentence.
Secondly, the President can pardon punishments for sentences inflicted by the
court martial, whereas the Governor has no such power.
A pardon is an act of grace; therefore, it cannot be demanded as a matter of
right.
In K. M. Nanavati
V
Facts- Petitioner Nanavati, an officer in Nevi, was convicted of murder and
sentenced to life imprisonment, and the Bombay High Court confirmed the same.
At the time of the decision of the High Court, the petitioner was in Naval custody
and made an application for leave to appeal to the Supreme Court. On the same
day, the Governor suspended the sentence subject to the order that the accused
4 (1987) 1 SCC 378.
5 AIR 1961 SC 112.
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shall remain in Naval Custody till the disposal of his appeal by the Supreme Court.
The warrant issued by the Supreme Court was returned un-served. The question
was, should the accused surrender himself to the Supreme Court as required in its
rule, or should he remain in Naval Custody in pursuance of the order made by the
Governor under Art. 161.
The Supreme Court Held: The governor can grant a full pardon at any time, even
during the pendency of the case in the Supreme Court. However, he cannot
exercise his power to suspend the sentence during the pendency of the suit before
the Supreme Court.
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B]
THE STATE LEGISLATURE: -
Like the central government, the state government is also of the
parliamentary and cabinet types and closely follows the model of the central
government. The Constitution provides for the legislature in every State in the
Union of India. The legislature of every State consists of the Governor and House
((i.e., Legislative Assembly/Vidhan Sabha) or Houses (i.e., Legislative Assembly
and Legislative Council, i.e., Vidhan Parishad). The legislature in the State is either
a bicameral (i.e., consisting of two Houses) or a unicameral (consisting of one
House only, i.e., Legislative Assembly).
The legislatures in Bihar, Tamilnadu, Maharashtra, Karnataka, and
Uttar Pradesh are bicameral. In the remaining states, they are unicameral. The
Legislative Assembly (i.e., Vidhan Sabha) is similar to the Lok Sabha in
Parliament, and the Legislative Council, i.e., Vidhan Parishad, is similar to the
Rajya Sabha in Parliament.
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