State Executive - Part 3

State Executive - Part 3

Art. 164
Art. 164 says the following:
(1)    The Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by the Governor on the advice of the Chief Minster, and the Ministers shall hold office during the pleasure of the Governor:
•    Provided that in the States of Bihar, Madhya Pradesh and Orissa, there shall be a Minister in charge of tribal welfare who may in addition be in charge of the welfare of the Scheduled Castes and backward classes or any other work.

The Nature of the Office of Governor:
•    Constitutional provisions concerning the Governor and the Scope of these provisions shows that there are three main facets of Governor‘s role. The three facets so pointed out are
•    Governor‘s office is of vital importance having multi-faceted role.
•    He is the linchpin of constitutional apparatus and assures continuity of Government.
•    The Committee of Governors appointed by President V.V. Giri affirmed in its report (1971):Under the Constitution, just as a State is a unit of the Federation and exercises its executive powers and functions through a Council of Ministers responsible to the Legislature and none else, the Governor, as the Head of  the State, has his functions laid down in the Constitution itself, and is in no sense an agent of the President.
•    The Rajamannar Committee Report (1971) recommended: the Governor should not be liable to he removed except under proved misbehavior or incapacity after inquiry by the Supreme Court.
•    The Sarkaria Commission Report on Centre-State Relations (1988) noted:
•    Frequent removals and transfers of Governors before the end of their tenure have lowered the prestige of this office.
•    Criticism has been leveled that the Union government utilities the Governors for its own political ends.
•    Many Governors looking forward to further office under the Union or active role in politics after their tenure came to regard themselves as agents of the Union.
•    Supreme Court went into the constitutional position of governorship. In Hargovind Pant vs. Dr. Raghukul Tilak (AIR 1979, SC), a Constitution Bench observed.The Governor is the head of the State and holds a high constitutional office.He cannot be regarded as an employee or servant of the Government of India.
•    His office is not subordinate or subservient to the Government of India. He is not amenable to the   directions of the Government of India, nor is he accountable to them for the manner in which he carries out his functions and duties.
•    He is an independent constitutional office, which is not subject to the control of the Government of India
•    He is constitutionally the head of the State in whom is vested the executive power of the State.
•    The Sarkaria Commission’s recommendations related to Governor.
•    A Commission headed by Justice R.S. Sarkaria, a former Judge of the Supreme Court, was constituted to examine and review the working of the existing arrangements between the Union and States in regard to powers, functions and responsibilities in all spheres and recommend such changes or other measures as may be appropriate. It gave its recommendations in 1987.

Recommendations of the Sarkaria Commission in regard to the institution of Governor are briefly the following. The person to be appointed as a Governor
•    Should be an eminent person;
•    Must be a person from outside the State;
•   Must not have participated in active politics at least for some time before his appointment;
•    he should be a detached person and not too intimately connected with the local politics of the State;
•    he should be appointed in consultation with the Chief Minister of the State, Vice-President of India and the Speaker of the Lok Sabha. His tenure of office must be guaranteed and should not be disturbed except for extremely compelling reasons and if any action is to be taken against him he must be given a reasonable opportunity for showing cause against the grounds on which he is sought to be removed.
•    In case of such termination or resignation by the Governor, the Government should lay before both the Houses of Parliament, a statement explaining the, circumstances leading to such removal or resignation, as the case may be;
•    After demitting his office, the person appointed as Governor should not be eligible for any other appointment or office of profit under the Union or a State Government except for a second term as Governor or election as Vice-President or President of India, as the case may be; and
•    At the end of his tenure, reasonable post-retirement benefits should be provided.
Sarkaria Commission further recommended that in choosing a Chief Minister, the Governor should be guided by the following principles, viz.:
•    The Party or combination of parties which commands the widest support in the Legislative Assembly should be called upon to form the government
•    The Governor‘s task is to see that a government is formed and not to try to form a government which pursue policies which he approves.
•    If there is a single party having an absolute majority in the Assembly, the leader of the party should automatically be asked to become the Chief Minster.
•    If there is no such party, the Governor should select a Chief Minister from among the following parties or groups of parties by sounding them, in turn, in the order of preference indicated below:
•    an alliance of parties that was formed prior to the Elections.
•    the largest single party staking a claim to form the government with the support of others, including ‘independents‘.
•    a post-electoral coalition of parties, with all the partners in the coalition joining the government.
•    a post-electoral alliance of parties, with some of the parties in the alliance forming a Government and the remaining parties, including independents‘ supporting the government, from outside.
•    The Governor while going through the process described above should select a leader who in his (Governor‘s) judgment is most likely to command a majority in the Assembly.
•    It was also recommended that a Chief Minister, unless he is the leader of a party which has absolute
majority in the Assembly, should seek a vote of confidence in the Assembly within 30 day‘s of taking over.
•    The other recommendations made by the Sarkaria Commission are that the issue of majority support should be allowed/directed to be tested only on the floor of the House and no where else and that in the matter of summoning and proroguing the Legislative Assembly, he must normally go by the advice to Council of Ministers but where a no confidence motion is moved and the Chief Minister advises proroguing the Assembly, he should not accept it straightaway and advise him to face the House.