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Chapter 08. The State Executive (Polity & Constitution of India Notes)

THE STATE EXECUTIVE

➤ In India, except Jammu and Kashmir all the states have the same pattern of government as the centre.
➤ Articles 153 to 167 deal with the state executive.
➤ Unlike Vice President at centre, there is no provisions for office of Vice-Governer in the state.

GOVERNOR

➤ According to Article 153 the constitution provides for an office of the Governer in the states.
➤ 7th amendement Act, 1956 facilitated the appointment of the same person in two or more states.
➤ A governor is the chief executive head of a state.
➤ He is the nominal executive head.
➤ Governor acts as an agent of the central goverment.
➤ The office of the governor has a dual role.
➤ The Constitution lays down the following two qualifications for the appointment of a person as
(i) He should be a citizen of India.
(ii) He should have completed the age of 35 years.
➤ The constitution lays down the following conditions for the Governor’s office (Article 158).
(i) He should not be a member of either House of the Parliament or of the House of the State Legislature.
(ii) He should not hold any other office of profit.
(iii) His emoluments, allowances and privileges shall be determined by the Parliament of India.
(iv) When the same person is appointed as the Governor of two or more States, the emoluments and allowances payable to him shall be allocated among the States in such proportion as determined by the President of India.
(v) His emoluments and allowances should not be diminished during his term of office.
➤ The Governor appoints judges of courts below the High Court.
➤ While appointing High Court judges, President consults the Governor.
➤ By Article 161, the Governor can grant pardons, reprieves, remissions of punishment to persons convicted under state laws.
➤ The Governor has no power to pardon a sentence of death or remit sentence by court martial.
➤ Article 162 defines the extent of executive powers of a state.
➤ Article 166 stipulates that all executive actions of the state are to be taken in the name of the Governor.
➤ All major appointments of the state are made by the Governor.
➤ The Governor can recommend ➤ During President’s rule, he acts as President’s representative and assumes wide powers.
➤ He can dismiss a Legislative Assembly if he is convinced it has lost majority support.
➤ He can dissolve the Legislative Assembly.
➤ He can reserve certain bills for the consideration of the President.
➤ He can submit a report to the President in the wake of Constitutional machinery failure in the state.
➤ Article 163 says that the courts can not call in question the matters in which the Governor chooses to use his discretionary any powers.
➤ He can also nominate one member of the Anglo-Indian community to the Legislative Assembly.
➤ In states having legislative councils, he has the power to nominate One-sixth members from amongst distinguished persons in art, literature, science and social services (Article 171).
➤ Article 200 states that the Governor’s assent is necessary for bills passed by the state legislature to become laws.
➤ Article 213 empowers the Governor to issue ordinance.
FINANCIAL POWERS OF THE GOVERNOR
➤ According to Article 203, no demand for grant can be made except on the recommendation of the Governor.
➤ The Governor administers the contingency fund of the state and can advance money out of it to meet unforeseen expenses.
DISCRETIONARY POWERS OF THE GOVERNOR
➤ Reservation of a bill for the consideration of the President.
➤ Recommendation for the imposition of the President rule in the ➤ While exercising his functions as the administrator of an adjoining Union Territory (in case of additional charge).
➤ Appointment of the Chief Minister when no party has clear cut majority in the State-Legislature.
➤ Seeking information from the Chief Minister with regard to the administrative and legislative matters of the State.
➤ Dismissal of the Council of Ministers when it can not prove the confidence of the State Legislative Assembly.
➤ Dissolution of the State Legislative Assembly if the Council of Ministers has lost its majority.
➤ Determining the amount payable by the State of Assam to the autonomous Tribal District Council as royalty accruing from licenses for mine exploration.
➤ The Governor has certain special responsibilities to discharge according to the directions issued by the President. In this regard, the Governor though has to consult the Council of Ministers, acts finally in his individual judgement and discretion.
SARKARIA COMMISSION REPORT ON THE OFFICE OF GOVERNOR
➤ The State must be consulted before the appointment of a person to the office of the Governor.
➤ The Governor should not belong to the same State.
➤ He should be an eminent figure in any walk of life.
➤ He should be a detached figure and not too intimately connected with the local politics of the states.
➤ He should not have been actively involved in politics in recent past.
➤ He should not be a politician of the ruling party at the Centre, if the State to which he appointed is ruled by some other party (parties).
➤ Persons of the minority groups should continue to be given a chance.
➤ System of sending fortnightly report to the President by the Governor must continue.
➤ The power of the the Governor to refer any Bill to the Centre for the President’s assent must continue.
ARTICLES RELATED WITH GOVERNOR
Article-153 : Provision for the office of the Governor.
Article–154 : Executive powers of Governor.
Article-155 : Appointment of the Governor.
Article-156 : Terms of the office.
Article-157 : Qualifications for the appointment of the Governor.
Article-158 : Conditions for the Governor’s office.
Article-159 : Oath of the office to the Governor.
Article-161 : Judicial powers of the Governor.
Article-164 : Appointment of Ministers by the Governor.
Article-165 : Appointment of the Advocate-General.
Article-166 : All executive actions of state are formally taken in his name.
Article-168 : Governor is an integral part of the state legislature.
Article-174 : Right of summoning, proroguing and dissolving.
Article-200 : Reservation of Bill for President’s consideration.
Article-202 : Laying of state budget before the legislature.
Article–213 : Power to promulgate Ordinances.
Article-233 : Appointment and posting of District Judges by the Governor.

THE STATE LEGISLATURE

➤ The Legislature of every State consists of Governor and one or two Houses.
➤ The Legislatures of Jammu and Kashmir, Bihar, Maharashtra, Telangana, Andhra Pradesh, Karnataka and Uttar Pradesh are bicameral i.e., having both the Legislative Assembly and the Legislative Council. And all the other states having unicameral legislatues i.e., there exists only the State Legislative Assembly.
The Legislative Council (Vidhan Parishad)
➤ As per the Constitution, the number of members of the Legislative Council is not to exceed one-third of the total strength of the State legislative Assembly. However, its strength should not be less than 40 either.
➤ The members of the Legislative Council are derived from various sections and streams of the society.
(a) Not less than one-third to be elected by the Panchayats, Municipalities, District Boards, etc.
(b) Not less than one-third to be elected by the Legislative Assembly.
(c) Not less than one-twelfth to be elected by the graduates of three years standing residing in the State.
(d) Not less than one-twelfth to be elected by the persons having teaching experience of three years in educational institutions.
(e) The remainder one-sixth to be nominated by the Governor from among the distinguished persons of the society in the field of literature, science, arts, co-operative movement and social services.
➤ Just like the Upper House at the Centre, the Legislative Council in a State is never dissolved. The members are elected for a term of 6 years and One-third of its members retire every two years.
➤ The council elects a chairman and vice chairman among its member.
➤ The Parliament, under Article 169, is empowered to create or abolish the Legislative Council in a State.
Creation and Abolition
➤ The Parliament under Article 169, is empowered to create or abolish the Legislative Council in a state.
➤ If the Legislative Assembly passes a resolution for abolishing or creation of the Legislative Council by a majority of the total membership of the assembly and by a majority of not less than 2/3rd of the members present and voting, the Parliament may approve the resolution by a simple majority.
➤ A resolution passed by the Legislative Assembly for the creation or abolition of its council is not binding on the parliament.
➤ The Parliament may or may not approve such resolution
Legislative Assembly (Vidhan Sabha)
➤ It is also known as lower house, just like the Lok Sabha.
➤ Consists of not more than 500 members and not less than 60 members.
➤ The strength varies according to the population of the state concerned.
➤ However the Legislative assembly of Sikkim has only 30 members.
➤ It has a term of 5 years but can be dissolved by the Governor earlier.
➤ Its term can be extended by one year during national emergency.
➤ The Governor may nominate one member from the Anglo-Indian community to this House, if he thinks that the community is not adequately represented.
➤ The sessions of the state legislature and its officers as well as their functions are almost similar to those at the union level
CHIEF MINISTER
➤ Chief Minister is the real executive head of the state governments.
➤ His position at the state level is analogous to the position of the Prime Minister at the centre.
➤ He is appointed by the governor.
➤ Other ministers are appointed by the governor on the advice of Chief Minister.
➤ The Governor appoints the leader of the party enjoying the majority in the Assembly as the Chief Minister.
➤ A person who in not a member of state legislature can be appointed, but he has to get himself elected within 6 months otherwise he is removed.
➤ The governor administers the oath of office and secrecy to the ministers.
➤ The salaries and allowances of the ministers shall be determined by the state legislature.
Power of Chief Minister
➤ He advices the Governor.
➤ He can ask for the resignation of any minister.
➤ His own resignation brings down fall of the whole council of ministers.
➤ Presides over the meetings of the council of Ministers and influences its decisions.
➤ He advises the governor with regards to the appointment of important officials like Advocate General. The chairman and members of the state public service commission, the state election commissions etc.
➤ He announces Governments policies on the floor of the House.
Council of Ministers in states
➤ In a Parliamentary form of government, the council of ministers headed by the Chief Minister is the executive authority.
➤ The states under the Indian constitution are organised on the pattern as that of the centre.
➤ The Council of Ministers in the state is a replica of the council of Ministers at the centre.
➤ They resemble in formation, function and role in the administration.
➤ The constitution provides a broad and general view of the principles of Parliamentary system of Government in Article 163 and Article 164.
➤ Council of ministers are there to aid and advise the Governor of the state in various matters.

THE ADVOCATE GENERAL

➤ The Advocate General is the first law officer of a state.
➤ His office and functions are comparable to that of the Attorney General of India.
➤ His remunerations are also determined by the Governor.
➤ He must be qualified to be a judge of supreme court in order to be to the office of the Advocate General.
➤ He has the right to attend and speak in the proceedings of either Houses of the State legislature without any right to vote.
➤ He has the right of audience in

COMPARISON BETWEEN PARLIAMENT & STATE LEGISLATURE

ParliamentState Legislature
A. With Regard to Ordinary Bills
1. Introduced in either house of the Parliament.1. Introduced in either House of the state legislature.
2. Introduced either by a minister or by a private member.2. Introduced either by a minister or by a private member.
3. A deadlock between the two houses takes place when the second house, after receiving a bill passed by the first House, rejects the bill or proposes amendments that are not acceptable to the first House or does not pass the bill within six months.3. A deadlock between the two houses takes place when the Legislative Council, after receiving a bill passed by the Legislative Assembly, rejects the bill or proposes amendments that are not acceptable to the Legislative Assembly or does not pass the bill within three months.
4. The Constitution provides for the mechanism of joint sitting of two houses of the Parliament to resolve a deadlock between them over the passage of a bill.4. The Constitution does not provide for the mechanism of joint sitting of two houses of the state legislature to resolve a deadlock between them over the passage of a bill.
5. The Lok Sabha cannot override the Rajya Sabha by passing the bill for the second time and vice versa. A joint sitting is the only way to resolve a deadlock between the two houses.5. The Legislative Assembly can override the Legislative Council by passing the bill for the second time and vice versa. When a bill is passed by the Assembly for the second time and transmitted to the Legislative Council, if the Legislative Council rejects the bill again or proposes amendments that are not acceptable to the Legislative Assembly, or does not pass the bill within one month, then the bill is deemed to have been passed by both the houses in the form in which it was passed by the Legislative Assembly for the second time.
6. The mechanism of joint sitting for resolving a deadlock applies to a bill whether originating in the Lok Sabha or the Rajya Sabha. If a joint sitting is not summoned by the President, the bill ends and becomes dead.6. The mechanism of passing the bill for the second time to resolve a deadlock applies to a bill originating in the Legislative Assembly only. When a bill, which has originated in the Legislative Council and sent to the Legislative Assembly, is rejected by the latter, the bill ends and becomes dead.
B. With Regard to Money Bills
1. Introduced only in the Lok Sabha and not in the Rajya Sabha.1. Introduced only in the Legislative assembly and not in the Legislative Council.
2. Introduced only on the recommendation of the President.2. Introduced only on the recommendation of the governor.
3. Introduced only by a minister and not by a private member.3. Introduced only by a minister and not by a private member.
4. It cannot be rejected or amended by the Rajya Sabha & returned to the Lok Sabha within 14 days, either with or without recommendations.4. It cannot be rejected or amended by the Legislative Council & returned to the legislative Assembly within 14 days, either with or without amendments.
5. The Lok Sabha can either accept or reject all or any of the recommendations of the Rajya Sabha.5. The Legislative Assembly can either accept or rejedll all or any of the recommendations of the legislative council.
6. If the Lok Sabha does not accept any recommendation, the bill is then deemed to have been passed by both the houses in the form originally passed by the Lok Sabha without any change.6. If the Legislative Assembly does not accept any recommendation, the bill is then deemed to have been passed by both the houses in the form originally passed by the legislative Assembly without any change.
7. If the Rajya Sabha does not return the bill to the Lok Sabha within 14 days, the bill is deemed to have been passed by both the houses at the expiration of the said period in the form originally passed by the Lock Sabha.7. If the Legislative Council does not return the bill to the Legislative Assembly within 14 days, the bill is deemed to have been passed by both the houses at the expiration of the said period in the form originally passed by the Legislative Assembly.

SPECIAL STATUS OF JAMMU AND KASHMIR

➤ The special status of Jammu and Kashmir is guaranteed in Article 370 of the Constitution.
➤ This status has been provided on the basis of an agreement concluded at the time of Jammu and Kashmir’s accession to India.
➤ Jammu and Kashmir has its own Constitution, apart from the Indian Constitution.
Its Constitution was framed by a Constituent Assembly of its own and came into being on the 26th January, 1957.
➤ The Parliament can not make law with regard to Jammu and Kashmir on subjects in the State List.
➤ The residuary power lies with the Legislature of Jammu and Kashmir and not with the Parliament.
➤ It follows dual citizenship, only the citizens of Jammu and Kashmir can take part in the elections to the State Assembly and acquire, own and dispose of immovable property in Jammu and Kashmir.
➤ Only national emergency proclaimed on grounds of war or external aggression shall have automatic extension to Jammu and Kashmir. National emergency proclaimed on the basis of armed rebellion shall not be automatically extended to Jammu and Kashmir.
➤ Apart from the President’s rule, Governor’s rule can also be imposed for a maximum period of six months, in case of constitutional break-down in the State.
➤ The Parliament can not change the name, boundary or territory of Jammu and Kashmir, without the concurrence of the State Legislature.
➤ The State Government shall be consulted by the Centre before appointing a person as the Governor of Jammu and Kashmir.
➤ No preventive detention law made by the Parliament can have automatic extension to Jammu and Kashmir.
➤ The Union has no power to proclaim a financial emergency to Jammu and Kashmir.

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