Notes Milenge



State ExecutivePart VI (Articles 152-167 & 213)Article 152 defines that the expression State does not include the State of Jammu & Kashmir, for the purpose of Part VI.The State executive consists of the Governor, the State Council of Ministers and the Advocate-General of the ernor: Article 153- There shall be a Governor for each State. The Proviso to Article 153, inserted by the 7th Amendment explains that there shall be no prohibition as to the appointment of the same person as Governor of the two or more States.Appointment (Article 155):Governor of a State shall be appointed by the President by warrant under his hand and seal.Hrgovind v. Raghukul, AIR 1979 SC 1109- It has been held that the office of the Governor is an independent office and is not under the control of or subordinate to, the Government of India.Qualifications (Article 157):A person to be eligible for appointment as Governor-Must be a citizen of India, andMust have completed the age of 35 years.Conditions of Governor’s office (Article 158)The Governor shall not be a member of either House of Parliament or of a House of the Legislature of any State specified in the First Schedule, and if a member of either House of Parliament or of a House of the Legislature of any such State be 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 GovernorThe Governor shall not hold any other office of profitThe Governor shall be entitled without payment of rent to the use of his official residences.The Governor is 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 Second ScheduleWhere 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 determineThe emoluments and allowances of the Governor shall not be diminished during his term of officeArticle 160- the President shall make such provisions as he thinks fit for the discharge of the functions of the Governor of a State in any contingency not provided for.Term of Office (Article 156):The Governor shall hold office during the pleasure of the PresidentThe Governor may, by writing under his hand addressed to the President, resign his officeSubject to the foregoing provisions of this article, a Governor shall hold 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.Removal of the Governor:As stated, Governor holds office during the pleasure of the President. It further states that subject to the exercise of pleasure by the President, the Governor shall hold office for a term of five years. It is, therefore, clear that the Governor has no security of tenure and no fixed term of office.In a historic case in B.P. Singhal v. Union of India, 2010- Supreme Court has unanimously held that Governors cannot be dismissed because he does not agree with the policies and ideologies of the Union Government or has lost its confidence.Powers of the Governor:Executive Powers: Article 154(1) vests the Executive power of the State with the Governor. He may exercise this power either directly or through office subordinate to him.In Ram Jawya Kapoor v. State of Punjab, 1955, Supreme Court has defined “executive power” as the “residue of governmental functions that remains after legislative and judicial functions are taken away.”Article 162 provides that the executive power of the State extends to matters with respect to which the Legislature of the State has power to make laws.Article 166- all executive action of the Government of the State is expressed to be taken in the name of the Governor.In the exercise of his executive power, Governor appoints the Chief Minister and other Ministers are appointed by him on the recommendation of the Chief Minister(Article 164). All Ministers hold office during the pleasure of the Governor. The Governor makes certain other appointments in the exercise of his executive power.Legislative Powers:Article 168(1): Governor to be a competent part of the Legislature of the State. The Governor may nominate one person belonging to Anglo-Indian Community, to the Legislative Assembly of the State, if, in his opinion, that Community is not adequately represented in the Assembly (Article333). If the Legislature of the State has the Legislative Council, the Governor is empowered to nominate to the Council, as nearly as, one-sixth of the total members of the Council from amongst persons having special knowledge or practical experience in literature, science, art, cooperative movement and social service (Article 171).The Governor summons the Sessions of the House or each House of the State Legislature to meet at such time and place as he thinks fit. He may prorogue the Sessions of the House or either House and dissolve the Legislative Assembly before the expiry of its term of five years (Article 174). He may send messages to the House or Houses of Legislature with respect to a pending Bill. A House to which any message is so sent is required to consider, with all convenient dispatch, any matter required by the message to be taken into consideration (Article 175).A Bill passed by the Legislative Assembly or by the both Houses (if the Legislature has two Houses) is sent to the Governor for his assent. No Bill can become a law without the assent of the Governor. He may reserve any Bill for the consideration of the President (Article 200 & 201).No money Bill or Financial Bill can be introduced in the Legislative Assembly without the prior recommendations of the Governor (Article 207). It is the Governor, who causes to be laid before the House or Houses of Legislature, the Annual Financial Statement (Annual Budget) (Article 202).Ordinance-Making Power: The Ordinance-making power of the Governor under Article 213 is similar to that of the President under Article 123. The Governor can issue Ordinance only when 2 conditions are fulfilled:When the House(s) in a State are not in session.The Governor must be satisfied that circumstances exist which render it necessary for him to take immediate action.The exercise of Ordinance-making power is not discretionary. The Governor exercises this power on the advice of the Cabinet.The Ordinance shall be laid before the House(s) of the State and shall cease to operate at the expiration of 6 weeks from the re-assembly of the Legislature, unless it is approved earlier by the Legislature.The Ordinance may be withdrawn at any time by the Governor.Article 213(3)- an Ordinance will be invalid to the extent, it makes any provision which would be invalid if enacted by the State Legislature. But such an Ordinance will not be invalid if it has been issued by the Governor in pursuance of instructions from the President.The Governor can’t issue an Ordinance without the instructions from the President:A Bill containing the same provision would have required the provisional sanction of the President for its introduction into the Legislature,He would have deemed it necessary to reserve a Bill for the consideration of the President,An Act of the Legislature of the State containing the same provisions would have been invalid unless having been reserved for the consideration of the President and had received the assent of the President.The case of D.C. Wadhava v. State of Bihar, 1987 is an example of the abuse of the Ordinance-making power by the Executive.Power to Grant Pardons, etc. (Article 161):The Ordinance making power of the Governor is similar to that of the President. The Governor is vested with this power to be exercised only in case the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the State extends.The Governor as of President cannot grant pardon in case of death sentence and has no power to pardon punishments of sentences inflicted by Court Martial.The Council of MinistersArticle 163- there shall be a Council of Ministers with the Chief Minister as the head to ‘aid and advice’ the Governor in exercise of his functions.Article 163 (1A)- the total number of ministers including the Chief Minister in the Council shall not exceed 15% of the total number of members of the Legislative Assembly of that State provided that the number of ministers, including the Chief Minister in a State, Shall not be less than 12 for smaller states.Article 163 (1B)- Where the 1/3 members of the original political party defect from the party their membership of the legislature will automatically come to an end. Such a member cannot be appointed as a Minister.According to Article 164 (1) the Ministers shall hold office during the pleasure of the Governor. Article 174(1)(b) confers power on the Governor to dissolve the Legislative Assembly of the State before the expiration of the term of five years. ................
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