LECTURE 25 - STATE EXECUTIVE (31st October)

➢ Governor at State level ~ President at Central Level

➢ They are called corresponding officers because both are:

o Constitutional Heads of the State
o Formal Head Executives

➢ The difference between Governor & President lies in the fact that the Governor has a dual role:
o He is the constitutional head of the state
o He is also the representative of the Union at the level of the State (neither directly nor indirectly elected;
but appointed by the Union)

Hence, Office of the governor is called a grey area of the constitution; because he neither belongs to the Union or
to the state completely

➢ As the Constitutional Head of the state, he is bound by the advice of the SCoM. However, he is the link between
the Centre & the States

➢ Governor’s position is given in Article 153- There shall be a Governor for each state. However, it was still not that
simple because through 7th CAA 1956, it was provided that there can be one governor for more than one state &
there can be one governor for more than one state as well as the adjacent UT

➢ Article 154- All the executive power of the state shall be vested in the governor who shall exercise them either
directly or through officers subordinate to him (vs Article 53 in case of President)

➢ Officers Subordinate shall include:

o SCoM to be headed by the Chief Minister- Article 163- There shall be a SCoM to be headed by the CM,
whose duty is to aid & advice the Governor (vs Article 74 in case of President) in discharge of his duties;
except in so far as provided in the Constitution of India, he is required to exercise his functions in his
discretion (i.e., aid & advice not binding in certain cases which are mentioned in COI itself; vs binding in
case of President, through 42nd CAA 1976). This means, that the Position of President is made weaker
through 42nd CAA; however, the position of Governor had been made stronger through discretionary
powers provided in the constitution itself
▪ In case of dispute whether aid & advice is binding or at discretion of Governor? It is contained
further in Article 163 that in such cases, the final decision will be of the governor himself (This
provision of discretionary power is contained in the COI itself) (The founding fathers wanted
Union to control states through the office of the Governor. Hence, Governor is also criticized as
Agent of the Union; not to be mentioned in exam). Hence, office of Governor is the weapon of
the Union against the State; and this is the reason why Governor is not defined well (another
reason of India being a Quasi Federal State with Unitary Tilt)

➢ Qualifications of a Governor:
o Citizen of India
o At least 35 years of age
o Not be an MP or MLA
o Not hold any office of profit
➢ Term of the Governor- Usually 5 years; i.e., occupation of the office at the pleasure of the President. This means
the governor could be removed, at President’s discretion

➢ Grounds for Removal- COI is silent about grounds for removal. Governor can be removed whenever the President
so desires. This is why, office of governor is a grey area
o During VP Singh Government in 1989, he immediately removed all those Governors whose political
affiliation were not with his Coalition Party. This Arbitrary action was challenged in SC & SC held that
Governor could be removed but only in cases of constitutional impropriety (i.e., severe conditions like
bribery, corruption, treason etc.) (Role of the SC as the final preserver of COI; also refer Judiciary Notes)

o Further, the guidelines of Sarkaria Commission & Panchhi Commission recommended the procedure for
removal of Governor in a way that it remains visible as an independent office, rather than appearing to
be the Agent of the Union (SC & PC to be covered in later lectures)

➢ If president is indirectly elected, then why not governor?

o No, because India is a Union & if governor is indirectly elected; then the state will become complete unit
in itself; & it will give Separatist tendency to the states
o India, at independence, was an unstable union with no agreement unlike USA (True Federation). Also, the
Britishers used to control states through Governors (Such Governors were often referred as - by the Raj,
of the Raj, for the Raj; since, their loyalty was never with people, but rather Britishers). Hence, Governor
is an old mechanism through which states can be kept under control
o However, there is no extent to determine whether governor is controlling the state or violating the spirit
of federalism. Therefore, the extent to which office of governor will be used by the union is left to the
discretion of the Union (Hence, Prone to misuse). So, the office of governor is highly criticized for being
called as Agent of the Union

➢ Powers of Governor (Mnemonic - CLEEM)

o Legislative Powers
▪ The Governor is a part of the State Legislature
▪ The right to address the legislature & to send messages to it
▪ Summon, Prorogue or Dissolve the LA
▪ Causing to be laid before the legislature, the Annual Financial Statement (Budget). Without his
recommendation, no demand for grant can be made by the Legislature

o Executive Powers
▪ The Governor acts at his discretion only when the constitution so requires
▪ Where the constitution requires satisfaction of the Governor, it is not the personal satisfaction of
the Governor but it is the satisfaction of the Council of Ministers

o Mercy Powers (Article 161) (vs Article 72, in case of President)

▪ To grant Pardon, Reprieve, Respite or Remissions of Punishment or to Suspend, Remit or
Commute
▪ 2 Exceptions
• Governor cannot interfere in Court Martial cases
• Governor cannot pardon a Death Sentence

o Consultation Powers
 ▪ It is to be noted that unlike President who appoints the SC Judge, the Governor does not appoint
the HC Judge. HC Judge is also appointed by the President, but in consultation with the Governor
▪ As per Article 217, the Governor will be consulted by the President before an appointment of HC
Judge is made
o Emergency Powers
▪ No Emergency Powers of the Governor; because it is the Presidential Proclamation Power under
Emergency
▪ However, Section 92 of Constitution of J&K, used to give Governor Rule in J&K; but it has now
been turned into 2 UTs
▪ It is to be noted that as per Article 356, the President’s Rule is imposed, based on the report of
the Governor stating “Breakdown of the Constitutional Machinery of the State”. So, in a way, the
governor can invite the President to impose President’s Rule under Article 356

o Military Powers
▪ None (vs Supreme Commander of Armed Forces of India is President)

o Diplomatic Powers
▪ None

➢ SCoM headed by the Chief Minister (Article 163) – There shall be a CoM with the CM at the head to aid & advise
the Governor in the exercise of 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

➢ Appointment
o The CM shall be appointed by the Governor and the other Ministers shall be appointed by the Governor
on the advice of the CM (~ Union)
o The Ministers shall hold office during the pleasure of the Governor (~Union President)

➢ The total number of ministers, including the CM, in the CoM in a state shall not exceed 15% (91st CAA 2003) of the
total number of members of the LA of that state; provided that the number of ministers, including the CM in a
state, shall not be less than 12 (In case of Delhi, it is 10% instead of 15% for states; because for Delhi Article 239
AA is applicable, as it is not a State, rather it is NCT of Delhi)

➢ Anti-Defection
o 1(A) - A member of LA of a state or either house of the Legislature of a state having LC belonging to any
political party who is disqualified for being a member of that house under paragraph 2 of the 10th Schedule
shall also be disqualified to be appointed as a minister [Article 191 (2) for States & MLAs vs Article 102 (2)
for Union & MPs]

➢ Collective Responsibility (Article 164) - CoM shall be collectively responsible to the LA of the State (~ UCoM, under
Article 75, responsible to the LS)

➢ Oath or Affirmation (CM, CoM)- Governor shall administer the Oaths of Office & Oath of Secrecy and Allegiance
according to the forms set out for the purpose in the 3rd Schedule
➢ Oath or Affirmation (Governor) – Article 159 – Oath to Protect, Preserve & Defend the Constitution

➢ Provision of 6 months - A person can be a CM despite not being an MLA or MLC, for a maximum period of 6
months. Minister who for any period of 6 consecutive months is not a member of the legislature of the state shall
at the expiration of that period cease to be a minister [~ Article 75 (5) in case of Union]

➢ Relationship of CM with SCoM (~ PM at Union Level)

o CM is the Primus Inter Pares
o He is the leader of the House
o He is the chief spokesperson of the State Government
o He is the Head of the State Cabinet

➢ There is no specific provision for Deputy CM in the constitution. It is also a political gimmick, just like Deputy PM