1

A
PROJECT WORK OF INDIAN CONSTITUTION
FOR PARTIAL FULFILMENT OF
EVEN SEMESTER INTERNAL EVALUATION
TITLE OF THE PAPER:

“STATE EXECUTIVE”

Under the Supervision of. Submitted by

Ms. Priya Chanana. DEEPAK Kumar
Assistant Professor BALL.B(Hons)
ICFAI Law School.
ID:18FLICDDN02043
The ICFAI University, Dehradun. Section: A

To

The ICFAI University, Rajawala Road, Selaqui, Dehradun, 248011

(Uttarakhand)
 2

Table of Conten

CONTENTS. Page No.

Preface............................................................................................... 03
Acknowledgment............................................................................... 04
Introduction........................................................................................ 05
State Executive .................................................................................. 05
What is Executive............................................................................... 06
Governor ............................................................................................ 08
Recommendation of various committee on
Removal of Governors....................................................................... 12
List of Governor of State of
India................................................................................................... 13
List of Lieutenants Government
Of Union Territories.......................................................................... 14
Powers of Governor .......................................................................... 15
Miscellaneous Provisions.................................................................. 24
Conclusion......................................................................................... 25
Bibliography ..................................................................................... 26

2
 3

Preface
The work presented in this thesis has been given by my respected faculty
Ms.Priya chanana.
The Assignment originally consisted of few topic, related to state
executive,governor their power and functions.
I am indeed very delighted to present this legal assignment with elaborated
concept supported with all the facts and arguments ,as we all know that law is
one of the most significant and magnificent subject which makes it quite
interesting .
This project is presented in a lucid and comprehensible manner.This project has
been written systematically in a simple language as used by me . the manner in
which i have tried to present this project before the faculty will definitely create
curiosity and interest and will meet the requirement . I have tried my best to
keep the errors out. All constructive criticism and feedback is cordially invited.
I shall be grateful to the faculty who make constructive suggestion for further
improvement of this project. I also express the sence of gratefulness for
bringing this project out well in a very short time.

3
 4

Acknowledgment
I felt immense pleasure in presenting this legal assignment which has been created as to
fulfill the requirements of the faculty. I aspire so that this project shall be appreciated by the
faculty and also by our colleagues. I express my sense of gratefulness to the faculty for
bringing this project out ,well in time. i would also like to express my heartiest gratitude to
my parents A renowned teacher and and guru under whose utmost care I have grown up as a
student . last but not the least I express my deep regard to my friends Who always encouraged
,inspired & stimulated me in escalating situation and whose off & on interaction makes me
free from tension and whose blissful hand are always on my shoulder .

4
 5

INTRODUCTION

The constitution of a country is sacrosanct. It must not be disturbed except according to due process
of law and doing so may spell trouble. Almost every constitution has been amended from time to time
to up pace with the running time and India is no exception to this 1 As a matter of fact, the will of the
people is supreme. If the subjects wish to change their own constitution handed down to them
generation after generation, pray what can stop them from doing so.

The Indian Constitution is the longest written constitution in the world. It contains some unique and
distinct features as and when compared to the other constitutions of the world. In its original form, it
consisted of 395 Articles and 8 Schedules to which additions have been continuously made through
subsequent amendments. At present, it contains 395 Articles and 12 Schedules, and more than 90
amendments. There were various intervening factors that lead to such a long sized constitution, one of
them surely being the borrowed provisions form several sources and several other constitutions of the
world by its framers.

As the Chairman of the Drafting Committee Dr. BR Ambedkar puts it, the framers had tried to
accumulate and accommodate the best features of other constitutions, keeping in view the peculiar
problems and needs of our country. Seems cleverness has been in the blood of lazy Indians since
generations. The present Constitution is a reproduction of Government of India Act, 1935 in case of
matters of administrative detail.

Cyriac Joseph2 said that “The Legislature, Executive and Judiciary should work in tandem for the
success of democracy.” According to him, the Constitution is above all others and these organs do not
have the authority to transgress it or cross the ‘lakshmana rekha’ drawn by it. This division is also
termed as ‘separation of powers.’

State Executive

The executive power of the state is vested in the Governor and the state council of minister. Article
153 provide that there shall be a Governor for each state. Provided that nothing in this article cell
prevent the appointment of the same person as a Governor for two or more States.

What is state?

“state" Article 12 of the Indian Constitution says that,

1
http://www.merinews.com/article/pillars-of-democracy/15796525.shtml
2
The Former Chief Justice of Karnataka High Court

5
 6

“Definition in this part, unless the context otherwise requires, the State includes the
Government and q of India and the Government and the Legislature of each of the States and
all local or other authorities within the territory of India or under the control of the
Government of India.”

In other words, for the purposes of Part III of the constitution, the state comprises of the
following:

1. Government and Parliament of India i.e the Executive and Legislature of the Union

2. Government and Legislature of each State i.e the Executive and Legislature of the
various States of India

3. All local or other authorities within the territory of India

4. All local and other authorities who are under the control of the Government of India

Who is the ‘Executive’?(Article 153-167 & Art. 213)

In constitutional democracies, executive authority is generally limited in three ways: by separation of

powers, among the national government’s executive, legislative, and judicial branches, with the
legislature and judiciary able to check the power of the executive branch; by the constitutional
guarantees of fundamental rights, and by periodic elections 3 In the modern democracies, the executive
authority is commonly structured in one of the two ways, either parliamentary or a presidential
system.

Talking about both of these systems, the parliamentary system is the one where the majority party in
the legislature forms the executive branch of the government, headed by the Prime Minister. The
executive and the legislature are not entirely distinct from each other in this system since both the
Prime Minister and the members of the cabinet are drawn from the parliament, even though the PM is
the national leader.

By contrast, in the Presidential system, the President is elected separately from the members of the
legislature. Both the legislature and the President in this system have their own power bases and
constituencies, which somehow serves to keep on checking and balancing each other.   Both of these
systems have their own pros and cons and one cannot supersede others on an allover basis.

3
“Three Pillars of Government”
6
 7

executive. It has been stated in Article 53 (1) of the Constitution that “the executive power of
the Union shall be vested in the President and shall be exercised by him directly or through
officers subordinate to him in accordance with the Constitution.” This makes it evident that
the President is the head of the Government. The executive power of the Union extends to all
the matters upon which the Parliament can make laws and also to exercise those powers that
accrue to the government of India from any International treaty or agreement.4

CASE: Ram jawaya kapur v. State of punjab5

Even the supreme court also finds it difficult to explain the context of the executive power.
The court has observed, “it may not be possible to frame and exhaustive definition of what
executive function mean and Imply. Ordinarily, the executive power of the Residue of the
government functions that remain after the legislative and judicial function are taken away.

Another important provision is Article 74 (1) which states that “there shall be a council of
ministers with the Prime Minister at the head to aid an advice the President in the exercise of
his functions.” The President of India is also the supreme commander of defense forces of the
Union. Some of the other powers of President are that he/she summons, addresses, prorogues,
sends message to Parliament and dissolves the Lok Sabha, promulgates ordinances at any
time apart from when both the houses i.e. Rajya Sabha and Lok Sabha are in session, makes
recommendations for introducing financial an money bills and gives final assent to bills,
grants pardons, reprieves, respites or remissions of punishment or suspends, and remits or
commutes sentences in certain cases.

The President of India holds his/her office for a term of 5 years beginning from the date of his
joining the office. Any time before that he may resign by addressing the resignation letter to
the Vice President of the Country. The president may also be impeached from his office
under the provisions of Article 61 on grounds of violation of Constitution.

On the other hand, the state executive is the Governor of the concerned state. Usually, each
State has a Governor of its own but it is even possible to appoint a common Governor for two
states as per the provisions of Article 153. Governor is appointed by the President of India
and commands office as per the pleasure of the President. Though the statutory appointment

4
http://www.indianetzone.com/45/indian_union_executive.htm
5
AIR 1955 SC 549

7
 8

is for a term of five years, but the tenure could be relinquished earlier by tendering the
resignation to the President.

Governor

The pattern of the government in the state is the same as for the union, that is, a parliamentary
system. The executive head is Constitutional head, who is to act according to the advice of
Council of Ministers. The constitution of India, by article 153 creates the office of the
Governor. Thus each state shall have a Governor. However, one person can be appointed
Governor for two or more States (article 153).The executive power of the state is vested in
the governor. He.shall exercise the executive power either directly or through office
subordinate to him article 154. The expression officer subordinate to him include a Minister
of the state

The Governors in India are the constitutional heads and all executive actions of a state are
taken in their name

They are the figurative heads of the state government

The Governors head India's 29 states and 7 union territories

A governor must act according to the advice of council ministers, headed by the chief
minister.

Appointment & qualification of Governor

The governor is appointed by the president by warrant under his hand and Seal article 155.
The president appoints him on the advice of the Prime Minister of India. In this way, he is
also a representative of the centre in the state. However, he is not in the employment under
the Government of India. It has been held that the Governor office is an independent office
and is not under the control of or subordinate to the Government of India.

The candidate shall fulfil the listed criteria given below to be appointed as Governor of the
state enshrined in Article 157 of Indian Constitution which is as follows:

He ought not to be the individual from either house of parliament or a place of the state
governing body.

8
 9

He ought not to hold any office of profit.

He can utilise his official home for other purposes, however, ought not to charge rent for that.

If an individual is named as the overseer Governor of other states, he is qualified to get the
compensation of both state’s Governor (chosen by the President of India).

His payments and remittances can’t be diminished amid his term.

Since, the Article is silent about the direct and indirect election of the governor, the mode of his
appointment is by way of nomination by the Central Government which is approved by the President
of India, but after such appointment Governor is free to act on his own wisdom and perform his duties
for the betterment of the society. However, due to the powers of governor, he is sometimes used as a
tool for disruption by the central government in a situation when there is no coordination between the
state and central government. Thus, sometimes in cases of UT where Lt. Governor has more powers,
he/she becomes a tool to disrupt by the Central government.

CASE: Hargovind v Raghukul Tilak6

The court elaborated saying that the Governor is not available to the direction of Government
of India 9 is he accountable to them for the manner in which he carried out his function and
duties. The Governor is the head of the state and holds the Hai constitutional office which
carries with it important constitutional function and duties and he cannot, therefore, be
regarded as an employee for servant of the Government of India.

TERM OF OFFICE OF GOVERNOR7

(1) The Governor shall hold office during the pleasure of the President.
(2) The Governor may, by writing under his hand addressed to the President, resign his
office.
(3) Subject to the foregoing provisions of this article, a Governor shall hold office for a term
of five years from the date on which he enters upon his office:
Provided that a Governor shall, notwithstanding the expiration of his term, continue to hold
office until his successor enters upon his office.

OATH OR AFFIRMATION BY THE GOVERNOR8

6
AIR 1979 SC 1113
7
Art. 156 of Indian Constitution
8
Art. 159 of Indian Constitution

9
 10

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 in the following form, that is to say—
“I, A. B., do swear in the name of God that I will solemnly affirm
faithfully execute the office of Governor (or discharge the functions of the Governor) of
………….(name of the State) and will to the best of my ability preserve, protect and defend
the Constitution and the law and that I will devote myself to the service and well-being of the
people of ..………(name of the State) .”

Tenure
The Governor hold office for a term of five years from the date on which he enters upon his
office. Also continue to hold office until his successor enters upon his office[Art.156(3)-(4)]

Removal
The term of 5 years specified in Cl.(3) is subject to the pleasure of the President under Cl.(l),
so that if the Governor is dismissed by the President before the expiry of 9 that term, there
shall be no legal remedy, and the President's order is conclusive on the point, and is non-
justiciable. The High Court of Rajasthan held that it lies within the power of the President to
terminate, in his discretion10, the term of office of the Governor at his pleasure.The President
may dismiss a Governor, at any time, on any grounds, and without showing any cause. The
courts cannot interfere on the ground that the Governor has been dismissed 11 without
sufficient cause.The President of India, who holds office for a term of five years can be
removed from office only byk impeachment for violation of the Constitution, after following
the elaborate procedure provided in Article 61 of the Constitution. A Judge of the Supreme
Court or a Judge of a High Court can be removed from his office only on the ground of
proved misbehaviour or incapacity and after ajn address by each House of Parliament,

9
S.B. Civil Writ Petition No. 1309 of 1981, dt. 28.8.1981(Rajasthan) (Surya Vs. Union of
India, AlR 1982 Raj).
10
Ibid
11
. State of Orissa Vs. Vidyabhusan, AIR 1963 S.C. 779.

10
 11

supported by a majority of the total membership of the House and by a majority of not less
than
two thirds of the members of that House present and voting,has been presented to tlPe
President in the same session for his removal (Article 124(4); 217). The Comptroller and
Auditor-General of India and the Election Commissioner canonl^e removed from office in
like manner and on like grounds as a judge of the Supreme Court (Article 148? 324). The
Chairman or any other member of the Public Service Commission in normal course, may be
removed from his office on the ground of misbehaviour after the Supreme Court, on a
reference being made to it by the President, has on inquiry arrived at a finding of
misbehaviour (Article. 317). Any member of a Civil Service of the Union or of a State,
however low in the hierarchy, cannot be removed without being accorded a reasonble
opportunity of being heard, barring certain exceptional cases specified in the Constitution.Yet
a Governor - the Head of a State - has no security of tenure, nor any safeguard against the
removal.The Governor is the only non-elective constitutional authority who has no truly
assured tenure. “This could lead to the erroneous inference that the Governor of a State can
be removed at will by the President on the advice of the Union Council of Ministers. The
spirit of the Constitution does not appear
Case: B.P. Singhal v Union of india12
A constitutional bench of the Supreme Court had interpreted these provisions and laid down
some binding principles:

1. The President, in effect the central government, has the power to remove a Governor
at any time without giving him or her any reason, and without granting an opportunity to be
heard.

2. However, this power 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.

3. The mere reason that a Governor is at variance with the policies and ideologies of the
central government, or that the central government has lost confidence in him or her, is not
sufficient to remove a Governor. Thus, a change in central government cannot be a ground
for removal of Governors, or to appoint more favourable persons to this post.

12
[(2010)6 SCC 331]

11
 12

4. A decision to remove a Governor can be challenged in a court of law. In such cases,

first the petitioner will have to make a prima facie case of arbitrariness or bad faith on part of
the central government.  If a prima facie case is established, the court can require the central
government to produce the materials on the basis of which the decision was made in order to
verify the presence of compelling reasons.

5. In summary, this means that the central government enjoys the power to remove
Governors of the different states, as long as it does not act arbitrarily, without reason, or in
bad faith.

Recommendations of Various Commissions on removal of Governor

Three important commissions have examined this issue

Sarkaria Commission (1988)

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.  If such rare and compelling circumstances did exist, the
Commission said that the procedure of removal must allow the Governors an opportunity to
explain their conduct, and the central government must give fair consideration to such
explanation.  It was further recommended that Governors should be informed of the grounds
of their removal.
Venkatachaliah Commission (2002)
The Venkatachaliah Commission (2002) similarly recommended that ordinarily 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.

Punchhi Commission (2010)

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 central government; instead he or she should be removed only by a
resolution of the state legislature.

12
 13

The above recommendations however were never made into law by Parliament.  Therefore,
they are not binding on the central government.

List of Governors in India – States

State Governor

Andhra Pradesh Shri Biswa Bhusan Harichandan

Arunachal
Pradesh Brig. (Dr.) B. D. Mishra (Retd.)

Assam Prof. Jagdish Mukhi

Bihar Shri Phagu Chauhan

Chhattisgarh Sushri Anusuiya Uikey

Goa Shri Satya Pal Malik

Gujarat Shri Acharya Dev Vrat

Haryana Shri Satyadeo Narayan Arya

Himachal Pradesh Shri Bandaru Dattatraya

Jharkhand Shrimati Droupadi Murmu

Karnataka Shri Vajubhai Vala

Kerala Shri Arif Mohammed Khan

Madhya Pradesh Shri Lal Ji Tandon

13
 14

Maharashtra Shri Bhagat Singh Koshyari

Manipur Dr. Najma Heptulla

Meghalaya Shri Tathagata Roy

Mizoram Shri P.S. Sreedharan Pillai

Nagaland Shri R. N. Ravi

Odisha Prof. Ganeshi Lal

Punjab Shri V.P. Singh Badnore

Rajasthan Shri Kalraj Mishra

Sikkim Shri Ganga Prasad

Tamil Nadu Shri Banwarilal Purohit

Telangana Dr. Tamilisai Soundararajan

Tripura Shri Ramesh Bais

Uttar Pradesh Smt. Anandiben Patel

Uttarakhand Smt. Baby Rani Maurya

West Bengal Shri Jagdeep Dhankhar

14
 15

List of Lieutenant Governors in India – Union Territories

Union Territories Lt. Governor/ Administrator

Andamans & Nicobar

Islands Devendra Kumar Joshi

Chandigarh V. P. Singh Badnore

Dadra & Nagar Haveli Praful Khoda Patel

Daman & Diu Praful Khoda Patel

Lakshadweep Dineshwar Sharma

Delhi Anil Baijal

Puducherry Kiran Bedi

Jammu and Kashmir Girish Chandra Murmu

Ladakh Radha Krishna Mathur

Powers of Governor

The Powers of the Governor can be classified under four heads viz. Legislative, Executive,
Judicial and financial powers which are as follows.

15
 16

Legislative Powers

Even though the Governor isn’t the member from either House of the State Legislature, yet
he is vested with some significant powers and obligations in the authoritative space.

 He is to bring the House or each House of the State Legislature, if it is a bicameral

governing body, to meet at such time and spot as he deems fit. There must not be a
difference of more than 6 months between the first and the last session of the house
 He ensures that the balance is maintained.He may prorogue the Houses or either
House and break up the Legislative Assembly. For example, on March 12, 1967, the
Punjab Governor, Dr D.C. Pavate, prorogued the State Vidhan Sabha (Legislative
Assembly) which was deferred by the Speaker for two months on March 7, 1967,
preceding the House could think about the Budget. This was an initial move towards
an answer of established emergency that held the State. The disintegration of the
Assembly has been finished by the Governors numerous periods.

 He can address either or both of the Houses, amassed together at the beginning of the
first session after each General Election and furthermore, at the initiation of the main
session every year.
 The Bills passed by the State council require his consent. He can retaihn his consent
and return the Bill (other than a Money Bill) to the State governing body for re-
examination. In any case, if the House ends, with or without alteration, he should
accord his consent to it.
 He is engaged in saving specific Bills for the consent of the President. For example,
the Bills accommodating obligatory procurement of the property or diminishing the
forces of the High Court must be so saved for President’s assent.
 He designates people, having extraordinary learning or pragmatic involvement
concerning such issues, like Literature, Art, Science, Co-usable Movement and Social
Service.
 He designates a few individuals from the Anglo-Indian Community if he finds the last
insufficiently spoke to.
 On the guidance of the Election commission, he is approved to choose questions
emerging about the exclusion of any individual from either House.

16
 17

 He can issue statutes amid the opening of the governing body if some projection
emerges. These mandates stop to work at the lapse of about a month and a half from
the reassembly of the Legislature, or prior if a goal objecting such a law is passed by
the Legislative Assembly and consented to by the Legislative Council. Governor’s
mandates are liable to specific confinements. On the off chance that they identify with
any issue in regard of which a Bill would have required the President’s prior approval
or his conksent after reservation, the Governor cannot issue them aside from on the
President’s guidance.
 He may likewise send messages and ask for updates to the House or Houses on a Bill
pending in the council or something else.
 He can get the State Assembly suspended while prescribing to the President the taking
over of the State Administration. Such a stage is taken with the plan to reinstall
mainstream service at an early date. This was finished by the Governor of Uttar
Pradesh on June 13, 1973, and Governor of Punjab on October 4, 1983.

Executive Powers

The executive powers vested to the Governor of the state under the Indian Constitution are as
follows:

 His powers to stretch out to the issues counted in the State list. On account of issues
gave in the Concurrent List, Governor practices to control over them at the same time,
subject to the official advice of the President
 He makes rules for the exchange of the matters and portfolios of the legislature of the
State for its allotment among Ministers.
 He has the privilege to look for data from the Chief Minister, and the Chief Minister
of the State must notify and answer him regarding all choices of his service.
 He can likewise require the Chief Minister to present any individual Minister’s choice
for the thought of the Council of Ministers,
 He is enabled to make arrangements of the Council of Ministers and on the
recommendation of different Ministers.
 He is consulted by the President in the appointment of the Judges of the state High
Court.
 The Governor appoints Judges of the District Courts.

17
 18

 In case he/she feels that the Anglo-Indian community has not been adequately
represented in the Vidhan Sabha, he or she can nominate one member of the
community to the Legislative Assembly of the state.
 In all the states where a bicameral legislature is present, the Governor has a right to
nominate the members, who are “persons having special knowledge or practical
experience in matters such as literature, science, art, co-operative movement and
social service”, to the Legislative Council.
In like manner, he can expel the Chief Minister or his Council of Ministers just when the
Legislative Assembly passes a demonstration of majority disapproval or reproaches the CoM
or annihilations an important measure. As it were, Governor is not authorised to act and
exercise his duty at his pleasure since it is the Legislative Assembly which upholds the
aggregate obligation of the CoM to itself [Article 164(2)]. The Supreme Court in S.R.
Bommai v. Union of India saw that at whatever point an uncertainty emerges whether a
service has lost the certainty of the House, the primary method for testing is on the floor of
the House.

Clearly, the evaluation of the quality of the Ministry had not been left to the Governor. This
reality was affirmed when Uttar Pradesh Governor rejected Kalyan Singh’s Government on
Feb. 21, 1998 as 25 M.L.As of Lok Tantrik Congress and Janata Dal (Raja Ram) Group
pulled back help, and it was left in the minority. Kalyan Singh would not leave.
Subsequently, he was rejected. Governor did not allow him to look for certainty vote on the
floor of the House. Allahabad High Court in a milestone between time requests reinstalled
Kalyan Singh and left it to the Governor to request a preliminary of solidarity on the floor of
the House.

Financial Powers

Financial powers of the Governor enlisted in the constitution are as follows:

 No money Bill can be presented in the Assembly aside from on Governors’

proposal.
 The Contingency Fund is available to him. He can make signs of progress out
of it to meet unexpected use, pending its approval by the State Legislature.
 No interest for a grant can be made except on the suggestion of the Governor.

18
 19

 Under Article 205, the Governor can request advantageous, expansion or

abundance gifts from the State Legislature.
 Governor is required to see that the yearly financial report or spending plan of
the State is presented before the House or Houses of the Legislature have gone
through it.
 Amendments making arrangements for budgetary issues can’t be moved
without the assent of or on the recommendations of the Governor if any
changes have to be done.
Judicial Powers

Judicial Powers of the Governor are as follows:

 According to Article 161, The Governor can allow pardons, respites, rests or
abatement of disciplines. He can likewise suspend, dispatch or drive the sentence of
an individual indicted for an offence illegal.
 The Governor is consulted by the President in the appointment of the Chief Justice to
the High Court of that specific state.

Emergency Powers

Governor isn’t vested with emergency powers to meet any consequence emerging from
outside animosity or equipped resistance [Article 352(1)] not at all like that of President of
India. Anyway, he is enabled to answer to the President at whatever point he is fulfilled that a
circumstance has emerged in which legislature of the state can’t be carried on as per the
arrangements of the Constitution (Article 356). In the last case, the President expects to be
the apex authority of the State Government. However in the ordinary course of practise it
may be noticed that, Governor accepts the reins of State Government since the state is under
the President’s Rule and in case there is no clear majority of a political party, the Governor
has the discretion to appoint chief Minister of the state.

The Executive’s Power of Clemency

The Constitution of India confers this power on the President of India and Governor of States.
There have been numerous views regarding the rationale behind the granting of pardons to
accused individuals. One of the views, which is the Hegelian view sponsors that the pardons

19
 20

are justified only when they enhance justice 13 There may be cases where justice cannot be
served without the grant of pardon because of the excessively harsh nature of the sentence
given or because of a wrong sentence given to an individual.

The case of Kehar Singh14discussed the various grounds on which the power to pardon can be
exercised. In view of the fact that judicial error cannot be prevented due to human
imperfection, recourse from these inaccurate judgments has been provided in the Constitution
in the form of Executives power of pardoning/clemency.

The concept of the power of pardoning is not at all contemporary. This power was exercised
by the monarch, who was the sovereign head of the state during the British era to safeguard
against the judicial errors. This was indisputably accepted by the Supreme Court as the
approach seemed appropriate in the Indian context as well. Basically, the power to pardon
includes the power to commute (when the death sentence is commuted to one of life
imprisonment), the power to reprieve (withdrawal of a sentence for a while thus postponing
the execution of the sentence), power to Remit the punishment, in whole or in part.15

Delving into the actual powers of the Executive wing, President finds the power to grant
pardon under Article 72, whereas the state executive i.e. the Governor finds power under
Article 161 of the Constitution.

Governor’s power to grant Pardons

The power of Governor to pardon under Article 161 runs parallel to that of the President
under Article 72. However, this power of the Governor, dealt with under Article 161 of the
Constitution, is narrower in scope than the power of the President to grant pardons. The
Constitutional provision also empowers the Governor to grant pardons, reprieves, respites or
remissions of punishment, or to suspend, remit or commute the sentence of any person who

13
 M. Strasser, the Limits of Clemency Power on Pardons, Retributivists, and the United
States Constitution, 41 BRANDEIS L. JL. 85 (2002).

14
Kehar Singh v. Union of India, (1984) 4 SCC 693.

15
Pardoning Power under the Indian Constitution”

20
 21

has been convicted of an offence against any law that relates to a matter covered by the
executive power of the State.16

In the case of Swaran Singh v. State of U.P17 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.

Whereas in the case of K.M Nanavati v. State of Bombay, the reprieve granted by the
Governor under Article 161 was held constitutionally invalid since it conflicted with the rules
made by the Supreme Court under Article 145.18

After the decision to grant pardon is taken by the Executives, the result is again available for
judicial review by the Supreme Court. As in Satpal v State of Haryana19, the Court quashed
the order of Governor to pardon the person convicted of murder on the ground that the
Governor had not been advised properly with all the relevant materials. The Court held that
such an order tends to be arbitrary and irrational. The case of Bikas Chatterjee v. Union of
India[xiii]restated the principles of judicial review on the pardon power.

Though the trend towards greater judicial scrutiny of the power of pardon is undoubtedly a
welcome one, the judiciary must leave the executive with a window of discretion in the
exercise of the same. If we do not combine democratic governance with firm governance, we
shall have no one except ourselves to blame for lawlessness resulting from the abuse of the
provisions relating to pardon by criminals guilty of heinous crime.20

16
Article 161, Constitution of India, 1950
17
Swaran Singh v. State of U.P  AIR 1998 SC 2026
18
K.M v. State of Bombay (1961) 1 SCR, p. 541.
19
Satpal v State of Haryana 2000 (5) SCC 170
20
Bikas Chatterjee v. Union of India 2004 (7) SCC 634 at 637

21
 22

The Executive Power of Ordinance-making

“The ordinance-making power of the Executive, needs to be suitably restrained to create a

balance of power between the executive and the legislature in India and to check the misuse
of the same.”21

Another constitutional power given to the State and Union Executives is that of ordinance
making. It must be noted that this is not a new feature added in the Indian Constitution.
Under the Government of India Act, 1935, this power was given to the Governor General in
Articles 42 and 43. Members of the Constituent Assembly, having experience of abuse of
such power, were understandably wary of including the same in the Constitution.

Dr. B.R Ambedkar said that it was very important to “…confer upon the President the power
to promulgate a law which will enable the executive to deal with that particular situation
because it cannot resort to the ordinary process of law…” when the legislature was not in
session.

This makes it quite evident that the Constitution framers envisaged this power only for
unforeseen, sudden situations and where the executive required additional legal sanction to
address the situation. However, the executive decided to completely neglect the requirement
of necessity for immediate action. According to data furnished in the Statistical Handbook of
the Ministry of Parliamentary Affairs, more than 41 ordinances were promulgated during the
term of the first Lok Sabha itself. Indeed, in the pre-Indira Gandhi period, that is, before
1966, more than 75 ordinances were passed by the Central government. The necessity of
taking immediate action by promulgating ordinances has remained debatable at best through
the years.

Governor’s power of Ordinance making

The State executive i.e. the Governor gets such power from Article 21322 The lawmaking
power in the state is inherently vested in the state assembly. But there may be situations when
state assembly is not in session and it is necessary to make laws for the state. In these

21
Anirudh Barman “Ordinance Route”

22
Article 213, Constitution of India, 1950

22
 23

circumstances, Article 213 of the constitution provides that Governor of the state can
promulgate an ordinance. There are some provisions regarding this:

6. If at any time, when the legislative assembly of the state is not in session, or where
there is a legislative council in the state, when both houses of the legislature are not in
session and the Governor satisfies that it is necessary to make the law then he can
promulgate ordinances.
7. The Governor has powers to pass an ordinance on the matters on which the legislative
assembly has powers.
8. Once an ordinance is passed, it should be placed before Legislative assembly of the
state or where there is a legislative council, before both the houses and approved by
then within six weeks of their respective dates of reassembly.
9. The ordinance lapses if it is not approved within the aforesaid six weeks or if it is
rejected earlier or if the Governor himself withdraws the ordinance.

But there are certain circumstances when the Governor shall not promulgate any ordinance
without the instructions of the President23 This includes instances when the bill contains the
same provisions which require the previous sanction of the president, the Governor would
have deemed it necessary to reserve the bill for the previous consideration of the president or
if an act contains same provisions which has been reserved for the consideration of the
president.

The Executive Power of Dissolution of Legislature

Governor

The Governor has the power to dissolve the Legislative Assembly under Article 174 of the
Constitution. However, this provision is neither explicit not any convention has been
developed in this regard. Clause (2)(b)24 merely says that the Governor from time to time
dissolve the Legislative Assembly and no circumstances have been provided in this regard.
Generally, the Assemble is not dissolved till the expiry of the subscribed period of 5 years,

23
Ordinance Making Powers of President and Governor”

24
Article 174, Constitution of India, 1950

23
 24

nonetheless, in exceptional circumstances; it can be dissolved by the Governor before the

expiry of the normal period.

M.V. Pylee in this regard opined that “it is not a normal practice to dissolve a Legislature
before it has completed its prescribed period of life. Dissolution at an earlier date with a view
to appealing to the electorates and seeking to solve a situation of political instability is an
accepted principle of Parliamentary System of Government.” The circumstances when the
Governor can dissolve the Legislative Assembly are:

i) Chief Minister enjoys the majority support and advises the Governor to dissolve
Legislative Assembly.

ii) Due to the defection of the members of the ruling party or by another reason, the ruling
party comes in minority.

iii) Other party or coalition of parties is not in a position to form the government.

iv) On the basis of the report sent by the Governor that the constitutional machinery of the
State has been failed, the President may dissolve the Legislative Assembly on the
recommendations of the Union Cabinet.25

Miscellaneous provisions

Governor acts as the first person to supervise the Auditor General’s report on expenditure and
income of the state. He is also an agent of the President to oversee the emergency situation
and President rule in a particular state.

Conclusion

25
“Discretionary Powers of the Governor in India”

24
 25

The Governor of a state isn’t just a figurehead. He can practice a few powers in his prudence,
and free of the suggestions made by the state Chief Minister. Governor is anything but a
pointless height. The Governor goes about as the connection between the Union and the state.
He goes about as the operator of the President in the country both when he goes nearly as the
nominal and constitutional head of the state in typical occasions just as when he goes about as
the whole head of the state amid the time of President’s rule operates in the state. The
Governor relies on his prudence in informing the President for the declaration concerning an
emergency in the state. He can make a decision concerning whether there has been a
breakdown of constitutional machinery in the state or not. Thus, the Governor plays an
important in the governance of a state in the country.

Bibliography

25
 26

Books

 J.N pandey's Constitution of India

 V.N Shukla’s Constitution of India

Website

 https://www.examscloud.in/list-of-governors-in-india-2020/

 https://www.prsindia.org/theprsblog/removal-governors-what-does-law-
say

26