State Executive - Part 1

STATE EXECUTIVE - PART 1

Introduction:
•    India is a federal state where the power and authority are divided between the center and the state government by the constitution
•    The Governor is the executive head of the state.

Articles                             Provisions
Article 153 – 162                The Governor
Article 163 – 164                Council of Ministers
Article 165                         Advocate General for the State
Article 166 – 167                Conduct of government business

Governor:
•    Article 153 of the constitution states that ‘there shall be governor for states of the union of India’.
•    The governor is appointed by the President on recommendation of the council of Ministers.
•    The Governor stays in office as long as they enjoys confidence and pleasure of the president.
•    They may quit office by addressing his resignation to the president.
•    The pattern of Government provided for the states is similar to that of the Central Government
•    The reason for the similarity is that at both the levels of government, there is parliamentary system of Government in which a ceremonial head and a real head constitute the executive.
•    For the Union Government, Presidency is ceremonial head and the effective head of the government is the Prime Minister heading the Council of Ministers.
•    For the State Government, Governor is the counterpart of the President of India and the Chief Minister heading the Council of Ministers is the mirror image of the Prime Minister.

Historical background:
•    The Government of India Act 1858 transferred the responsibility of administration of India from the East India Company to the British Crown.
•    It made the Governor of the province an agent of the Crown working through the Governor General.
•    The Montague-Chelmsford reforms (1919) made small changes in the provincial government with insignificant level of responsible government being introduced the Government of India Act 1935 gave provincial autonomy with the Governor being required to act on the advice of the Council of Ministers.
•    However, the Governor continued to exercise substantial discretion for which he was accountable only to the Governor General.
•    After India achieved Independence, The GOI Act 1935 was adapted and enforced till the new Constitution was drafted and adopted.
•    The Adaptation Order 1947 dropped all references to the discretionary powers and made the Governor function completely according to the advice of the Council of Ministers.

Constituent Assembly (1947-49) debated various aspects related to the institution of Governor which essentially can be grouped under two heads
•    Whether the Governor should be elected, or nominated and
•    Discretionary powers of the Governor.

The idea of elected Governor is discarded for the following reasons:
•    It defeats the-very purpose of the institution of Governor as it should be an independent and impartial Constitutional office which is not possible if the Governor is a political office
•    Political deadlock between the offices of the Governor and that of the Chief Minister may arise and can paralyse the Government.
•    In case the Governor and the Chief Minister belong to the same political party, Governor can not perform his discretionary powers objectively.
•    Governor can develop his own populist vested interest which can us compromise the duties involving security of the state from internal and external threats.
•    Jawaharlal Nehru explained to the Constituent Assembly that two more reasons can be cited to ignore the idea of a elected Governor: it may lead to provincial Separatist tendencies; and there will be fewer common Links with the centre.
•    Art, 153 to 167 of Part VI deal with the State executive of which Governor is the titular head and the Chief Minister heading the Council of Ministers is the political and real head.
•    Article 153 of the Constitution requires that there shall be a Governor for each State. It means that there shall not be a vacancy in the office of the Governor.
•    Thus incumbent Governor of the State continues even after the five year tenure over till a new Governor is appointed by the President as the Art.156 mandates.
•    The Constitution (Seventh Amendment) Act, 1956 made a change in the Art. 153 to the effect that one person can be appointed as Governor for two more States.
•    The need for it was felt in the wake of the reorganization of states in 1956.
•    Article 154 vests the executive power of the State in the Governor.
•    Article 155 says that the Governor of a State shall be appointed by the President by warrant under his hand and seal.
•    Article 156 provides that ―The Governor shall hold office during the pleasure of the President‖.The term of the Governor is prescribed as five years.
•    There is a controversy about whether the five year term is more important that the reference to the pleasure of the President of India.
•    In order to understand the debate clear the contents of Art. 156 are to be clearly followed as they are available in the Constitution:
•    Art.156. Term of office of Governor.—
     (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 expiration of his term, continue to hold office until his successor enters upon his office.
•    As can be seen from above conflicts of Art. 156, the meaning of the sequence of the above provisions is that President‘s pleasure is more important that-the five year term
 

Art. 157 lay down two qualifications for the office of the Governor:
•    He should be a citizen of India and
•    Must have completed the age of thirty five years.

Art. 158 stipulate the conditions of Governor’s office as the following:
• Shall not be a member of either House of Parliament or State Legislature, and if such a member is appointed 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.
• Shall not hold any other office of profit.
• Shall be entitled without payment of rent to the use of his official residences and shall be also entitled to such emoluments, allowances and privileges as may be determined by Parliament by law and, until provision in that behalf is so made, such emoluments, allowances and privileges as are specified in the Second Schedule.
•Where the same person is appointed as Governor of two or more states, the emoluments and allowances payable to the Governor shall be allocated among the States in such proportion as the President may by order determine.
•The emoluments and allowances of the Governor shall not be diminished during his term of office.
•In 2008, Government raised the salary of Governor from Rs.36,000 to Rs.75,000 a month. It has also been decided to award pensions, for the first time, to former Governors.
•Art.159 prescribes the oath/affirmation which a Governor has to take before entering upon his office, 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 to faithfully discharge the functions of the Governor of (name of the State) and will to the best of his ability preserve, protect and defend the Constitution and the law and that he will devote himself to the service and well-being of the people of (name of the State)