UNIVERSITY INSTITUTE OF LEGAL STUDIES

PANJAB UNIVERSITY

A Project Report Submitted as a part of curriculum of B. Com LLB

(Hons.) in the Subject of Constitutional Law
on the topic

THE STATE EXECUTIVE (Articles 153-167 And 213)

Submitted To- Submitted by-

Dr. Shruti Bedi Jayant Singla
Professor of Law B. Com LLB(H.)
UILS, Panjab University, Sem-4 (Sec E)
Chandigarh Roll No. 249/20

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 Acknowledgement
The success and final outcome of this project required a lot of guidance and assistance from
many people and I am extremely fortunate to have got this all along the completion of my
project. Whatever I have done is only due to such guidance and I would never forget to thank
them.

I take this opportunity to record deep sense of gratitude to my teacher,

Dr. Shruti Bedi Ma’am, University Institute of Legal Studies, Chandigarh for her incontestably
perfect unmatched guidance, encouragement, valuable suggestions and efforts made during the
preparation of this project and during her lectures which enabled me to complete this project
successfully on the topic,

“The State Executive (Articles 153-167 And Article 213)”

I owe my regards to the entire faculty of the Department of Legal Studies from where I have
learnt the basics of law and whose informal discussions, intellectual support helped me in the
entire duration of this work.

Jayant Singla
B. Com LLB (Hons.)
Semester- 4 (Sec-E)
Roll No.- 249/20

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 Table of Contents
Serial No. Heading Page No.
1. Introduction 04
2. The Governor 05
• Appointment 05
• Qualification 06
• Conditions 06

• Tenure and Removal 07

• Oath 07

3. Can the governor be dismissed arbitrarily? 08

4. Discharge of his functions in certain 09
contingencies: Article 160
5. Powers 10
Article 154: Power in relation to the Executive 10
Article 168 (1): Power in relation to the 11
Legislature
Article 213: Ordinance- Making Power 12
Article 161: Power to grant Pardons 13
6. Discretionary powers of the Governor 14
(1) Specific discretionary powers, 15
(2) Circumstantial discretionary power. 15
7. The Council of Ministers 19
8. Other Provisions as to Council of Ministers 23
9. The Advocate-General for the State 23
10. Conduct of Government Business 24
11. Duties of Chief Minister of The State 24
12. Conclusion 25
13. Bibliography 26

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 Introduction
“The Legislature, Executive and Judiciary should work in tandem for the success of democracy.”
According to him, the Constitution is above all others and these organs do not have the authority
to transgress it or cross the ‘lakshmana rekha’ drawn by it. This division is also termed as
‘separation of powers.’1

The executive is growing in importance as it provides leadership to the government. With the ever-
widening sphere of its activities, the executive has naturally become the most important branch of
government formally, supremacy may rest with the legislature but in practice, it is the executive
which is all-important. The Ministries and the department help running the government
successfully along with the bureaucracy and the legislature.

The State Executive consists of the Chief Minister, the Council of Ministers and the Governor. It
has the same Parliamentary pattern as followed by the Union Government with the upper hand
being given to the Union in certain matters. This has been done to maintain the unitary spirit of
the structure of the country. The Governor plays the twofold role of being the constitutional head
at the stage level as well as being a link between the state government and the centre. He/She acts
on the advice of the Council of Ministers and all executive actions are taken in his name.

The provisions related to the state governments of the country are dealt with by the articles 153-
167 of the Indian Constitution.

1
By The Former Chief Justice of Karnataka High Court, Cyriac Joseph

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 The Governor
The pattern of the Government in the State is the same as that for the Union, that is, a parliamentary
system. The Executive Head is Constitutional Head, who is to act according to the advice of the
Council of Ministers. The Constitution of India, by Art. 153, creates the office of the Governor.
Thus, each State shall have a Governor. However, on person can be appointed Governor for two
or more States2 (Art. 153 Proviso)].
The executive power of the State is vested in the Governor. He shall exercise the executive power
either directly or through office subordinate to him (Art. 154). The expression “officer subordinate
to him” include a Minister of the State.!3 The Governor has a dual role. The first is that of a
Constitutional Head of the State, bound by the advice of his Council of Ministers. The second role
is to function as a vital link between the Union Government and the State Government,
B.P. Singhal v. Union of India4.

Appointment of Governor
The governor is appointed by the President. Under the 7th Constitutional Amendment, it was
stated that there can be the same governor for two different states.

The Governor of a State is appointed by the President of India under his hand and seal (Art. 155).
He is neither elected by the direct vote of the people nor by an indirect vote by a specially
constituted Electoral College as in the case with the President. He is a nominee of the Central
Government.

2
Added by the Constitution (Seventh Amendment) Act, 1956, S. 6 (w.e.f. 1-11-1956).
3
Emperor v. Sibnath Banerjee, AIR 1942 PC 102.
4
(2010) 6 SCC 331

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Qualifications of Governor
Article 157 states the two qualifications to be fulfilled for a person to be appointed Governor.
The two provisions are:
1. He / She should be an Indian citizen.

2. He / She should have completed 35 years of age.

Conditions of Governor's Office

Along with the above-mentioned preliminary qualifications, there are a set of other criteria which
need to be met. These are stated under Article 158. They are:

- He / She should not be holding any office of profit.

- He / She should not be a member of the Parliament or any other State Legislature.
However, if someone holding these positions is appointed Governor, he/she would have
to vacant their previously held office.

- He / She is provided with such allowances, emoluments and privileges which the
Parliament provides by law and in case these provisions are absent, they are provided to
him/her as per Schedule II.

The above- mentioned allowances, emoluments and privileges would not be diminished during his
term. Further, if two states come under him/her, such expenses would be shared between them in
accordance with the President's decision. The Governor, before entering upon his office, is
required to take an oath or affirmation in the presence of the Chief Justice of the High Court or if
he is not present, in the presence of the senior most Judge of the High Court.

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Tenure and Removal
Article 156 of the Constitution says that the Governor shall hold office during the pleasure of the
President. Subject to this rule, the tenure of the office of the Governor is fixed for five years from
the date on which he enters upon his office. He may be removed from his office at any time by the
President. The President acts on the advice of the Cabinet. The Governor may, however, resign his
office by writing to the President. The five-years term provided for the Governors under clause (3)
is subject to exercise of pleasure by president under clause 1 of art. 156. Thus, it lies within the
power of the President to terminate in his discretion the term of the office of the Governor at his
pleasure. The Rajasthan High Court while upholding dismissal of Governor of Rajasthan5 by the
President pointed out—The Governor has no security of tenure and no fixed term of office. He
may be removed by an expression of Presidential displeasure before the normal term of five years.6

Oath
Every Governor, before entering his office is bound to take an oath before the Chief Justice of the
High Court or the senior most judge, in the former’s absence. This is mentioned under Article 159.
The oath is as follows:

“I, A. B., do swear in the name of God that I will solemnly affirm faithfully execute the office of
Governor (or discharge the functions of the Governor) of ………..(name of the State) and will to
the best of my ability preserve, protect and defend the Constitution and the law and that I will
devote myself to the service and well-being of the people of..………(name of the State). ”

5
Raghukul Tilak.
6
Surya Narain v. Union of India, AIR 1982

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Can the governor be dismissed arbitrarily?

As per Articles 155 & 156 of the Constitution, the Governor is an appointee of the President and
holds office as long as he continues to enjoy his pleasure. This essentially means that the Governor
can hold his office for the prescribed term of 5 years if he continues to enjoy the pleasure of the
President. Article 74 states that the President is bound to act upon the aid and advice of the Council
of Ministers. Therefore, the President's decision to remove the Governor. in effect. is actually the
decision of the Centre. In the case of B.P. Singhal vs UOI (2010), the Hon'ble Court's
constitutional bench held that even though the Central Government holds the power to remove the
Governor, they cannot do so arbitrarily and would have to prove the facts of the case and grounds
for his/her removal. Thus, the Governor cannot be removed simply because the Union government
has lost confidence in him/her.

B.P. Singhal VS Union of India (2010)7 case

The circumstances leading to this case revolve around the removal of the Governors of Uttar
Pradesh, Gujarat, Haryana and Goa after the 14th Lok Sabha elections. The writ petition was filed
by a former member of Parliament, P. Singhal and the matter was referred to a five judge
constitution bench consisting of the then Chief Justice K.G. Balakrishnan and Justices S.H.
Kapadia, R.V. Raveendran, B. Sudershan Reddy and P. Sathasivam.

Quoting Justice Raveendran, "What Article 156 (1) of the Constitution dispenses with, is the need
to assign reasons or the need to give notice, but the need to act fairly and reasonably cannot be
dispensed with by Article 156(1)."

The bench clarified that the exercise of powers by the President under Article 156(1) should not
be arbitrary.

In case the President withdraws his pleasure, the court will assume that it is for compelling reasons
and where the aggrieved person is unable to point out mala fide reasons for his/her removal, the
court won't interfere. But, in cases where the said person is able to prove that there existed a
malafide intention behind his/her removal, the court would cause the Union government to produce

7
(2010) 6 SCC 331.

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records/material to satisfy itself that the withdrawal of pleasure was for good and compelling
reasons. What constitutes good and compelling reasons would depend upon the facts of the case.
Thus, there won't be any interference from the judiciary unless the executive makes a strong case
based on malafide intentions.

In summary, the Court made it clear that even though the Union and the President held the power
to remove the Governor, such could not be affected in an arbitrary manner or in bad faith even if
his/her policies and ideologies were different from those of the Union Government.

Discharge of his functions in certain contingencies: Article

160
The article means that in case there's a certain eventuality where the President thinks the Governor
needs to discharge certain duties not mentioned in this chapter, then the President can do so via
this provision. As it has already been made clear in the beginning of the article, the position, power
and functions of the Governor are analogous to that of the President. His / Her powers are discussed
below under four heads.

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 Powers
Article 154: Power in relation to the Executive
Article 154 (1) vests the executive power of the state with the Governor. He may exercise his
power either directly or through officers subordinate to him.

The expression "executive power" has been defined by the Hon'ble Supreme Court in Ram
Jawaya Kapoor v. State of Punjab8 to connote "the residue of governmental functions that
remains after legislative and judicial functions are taken away". Article 166 requires that all
executive action of the Government of the State is expressed to be taken in the name of the
Governor. It is not till this formality is observed that the action can be regarded as that of the
State. Once an executive order is issued in the name of the Governor, it cannot be modified or
altered or annulled or cancelled, yet by another executive order, not having been issued in the
name of the Governor. Article 166 is subject to scrutiny by the Apex court in various cases:

In M. Balakrishna Reddy vs. Director C.B.I.9, the Hon'ble Supreme Court discussed the nature
of Article 166, as to whether the provision is discretionary or mandatory, without expressing any
view thereon. It may be stated that it would depend on the facts of each case.

In Pancham Chand v. State of HP10, the apex court ruled that although the State had a general
control, but such control must be exercised strictly in the terms of Article 162. Further the court
observed that the constitution of India does not envisage functioning of the state through the
Chief Minister alone. It speaks of the Council of Ministers. The duties or functions of the
Council of Ministers are ordinarily governed by the provisions contained in the Rules of
Business framed under Article 166.

8
AIR 1955 SC 549
9
Appeal (criminal) 491 of 2008
10
Appeal (civil) 1732 of 2008

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Article 168 (1): Power in relation to the Legislature:

Article 168 (1) Declares the governor to be a competent part of the Legislature of the State. In
case the Legislature of the state has the Legislative Council.

Article 171 (3) empowers the Governor to nominate to the Council, as nearly as, one-sixth of the
total members of the Council from amongst the persons having special knowledge, or practical
experience in literature, science, art, cooperative movement and social service.

Article 174(2) 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 300 provides that A Bill passed by the Legislative Assembly or by both the 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 207 provides No Money Bill or Financial Bill can be introduced in the Legislative
assembly without the prior recommendations of the Governor. Article 202 provides that it is the
Governor, who causes to be laid before the House of Houses of Legislature, the Annual financial
statement (Annual Budget).

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Article 213: Ordinance- Making Power

Article confers on the Governor; power to promulgate Ordinances during recess of Legislature.
The Governor can promulgate an Ordinance only when following two conditions are fulfilled:

1. When the legislative assembly of the State is not in Session or where legislative there are two
houses in the legislature, when both Houses are not in Session.

2. The Governor must be satisfied that circumstances exist which render it necessary for him to
take immediate action.

Article 213(3) provides that Ordinance-making power of the Governor is co-extensive with the
power of the State legislature to make laws. Thus, the Governor may promulgate an Ordinance
on any matter with respect to which the Legislature of the State has power to make laws.

The Governor cannot promulgate an Ordinance without instructions from the President in the
following cases:

1. If a bill containing the same provisions would have required the previous sanction of the
President for its introduction in the Legislature.

2. If he would have deemed it necessary to reserve a Bill containing the same provisions for the
consideration of the President.

3. If 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, it had received the
assent of the President.

In State of Orissa v. Bhupendra Kumar11, the power of Governor to promulgate an Ordinance

under Article 213 has been held to be absolute and no limitation can be read into the legislative
power of the executive.

11
1962 AIR 945

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In D.C. Wadhwa vs. State of Bihar, the exceptional power of ordinance making, however,
cannot be used as a substitute for the law-making power of the State Legislature. Accordingly,
the Court would invalidate an ordinance if promulgated in a colourable manner.

Article 161: Power to grant Pardons

Article 161 provides "The Governor of State shall have the power to grant pardons, reprieves,
respites or remissions of punishment or to suspend, remit or commute the sentence of any person
convicted for any offence against any law relating to a matter to which the executive power of
the State extends".

The expressions "pardon" "respite" "reprieve" "remission" "suspension", "remittance" or

"commutation" carry the same meanings as under Article 72.

The Governor is vested with this power to be exercised only in the case punishment or sentence
is for an offence against any law relating to a matter to which the executive power of the State
extends.

In Maru Ram vs. Union of India12, the Governor shall not be deprived of an opportunity to
exercise his powers in a fair and just manner. Also, it cannot be fettered by any statutory
provision, such as, Sections 432, 433, 433 A of the Criminal Procedure Code, 1974.

In State of Haryana vs. Balwan13, the Supreme Court has ruled that if the Government has
framed any rule or made a scheme for early release of life convicts, then those rules or schemes
will have to be treated as guidelines for exercising its powers under Article 161.

12
(1981) 1 SCC 107
13
1999 SCC 847

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Discretionary Power of Governor
Discretionary powers of the Governor mean the powers of the Governor which he exercises as
per his own individual judgement or without the aid and advice of the Council of Ministers14. In
the discharge of his responsibilities as the Head of the State, the Governor exercises his powers
similar to that of the President as the Head of the Union. Our Constitution provides that there
shall be a Council of Ministers with the Chief Minister at the head to aid and advice the
Governor in the exercise of his functions15.

The entire administration of the State is carried out in the name of the Governor but practically
the real authority is exercised by the Council of Ministers. During the normal circumstances,
Governor acts according to the advice of his Council of Ministers. However, Constitution has
also vested the Governor with certain discretionary powers, which he can use without the aid and
advice of the Council of Ministers or in other words, in the discharge of these functions the
Governor concerned is not bound to seek or accept the advice of his Council of Ministers. About
the discretionary powers granted to the Governors, Dr. B.R. Ambedkar, the Chairman of
Constituent Assembly expressed his views that, “Because the Provincial Governments are
required to work in subordination to the Central Government and therefore, the Governor will
reserve certain things in order to give the President the opportunity to see that the rules under
which the Provincial Governments are supposed to act according to the Constitution or in
subordination to the Central Government are observed.”16But the occasions to exercise such
discretionary powers are few and far. Madras High Court in the case of S. Dharma lingam vs
Governor of Tamil Nadu17 held that certain powers are available to the Governor under
Article16318 which he would exercise in his sole discretion. The immunity of the Governor is
absolute, when he acts in his own discretion.

In Pratap Singh Raojirao Rane vs Governor of Goa19, court held that the Governor is not
answerable to the court even in respect of charge of malafide.

14
S.R Bommai v. Union of India (1994 AIR 1918)
15
Article 163 (1) of Constitution of India.
16
Vol. VIII, CAD at 502.
17
AIR 1989 Mad. 48
18
Constitution of India.
19
AIR 1999 Bom. 53

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Discretionary powers of the Governor may be divided into two parts:

(I) Specific discretionary powers,

(ii)Circumstantial discretionary power.

Specific Discretionary Powers

Circumstances, which are mentioned in the Constitution, under which the Governor may use his
discretion, are called specific discretionary powers. By specific Articles in the Constitution
certain responsibilities are conferred on the Governor and to fulfill these responsibilities
Governor acts in his discretion. In discharging these responsibilities, he is not bound to seek or
accept the advice of his Council of Ministers. In the case of Ganamani vs Governor of Andhra20
the court observed that “All the powers exercisable by the Governor can be exercised on the
advice of the Council of Ministers except in so far as the Constitution expressly or perhaps by
necessary implication says that he can exercise those powers in his individual discretion”

The Articles which give specific discretionary powers to the Governor are as under:

Article239 provides that a Union Territory shall be administered by the President through an
Administrator with such designation as he may specify or a Governor of a State, adjoining Union
Territory, may be appointed as the Administrator of that Union Territory. Where the Governor of
a State is appointed as the Administrator of an adjoining Union Territory, he shall exercise his
functions as the Administrator without the aid and advice of his Council of Ministers. Or in other
words, Governor as an Administrator can act independently without his Council of Ministers.

Article 371 is covered under part XXI (Temporary, Transitional and Special Provision) of
the Indian constitution. Article 371 specifically deals with special provisions for the states of
Maharashtra and Gujarat which further accommodated 371A to 371J (mostly for North-Eastern

20
AIR 1954 A.P. 9

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states). Article 371A to Article 371J gives special provisions for the states of Nagaland, Assam,
Manipur, Andhra Pradesh, Sikkim, Mizoram, Arunachal Pradesh, Goa and Karnataka.

So, in discharging the obligations the Governor is not bound to seek the advice of the Council of
Ministers and his role is not controversial, when he acts in his discretion to fulfill his obligations.
However, the Sarkaria Commission recommended that “before taking a final decision in the
exercise of his discretion, it is advisable that the Governor should, if feasible consult his
Ministers even in such matters, which relate essentially to the administration of a State”. Such a
practice will be conducive to the maintenance of healthy relations between the Governor and his
Council of Ministers. 21

Circumstantial Discretionary Powers

Circumstantial discretionary powers are not defined by the Constitution. These powers are
implied powers, which are exercised according to the situations which may vary. When
Governor acts in such circumstances, his role becomes controversial many a times. This raises a
question that whether the Governor is merely a figure head, who is to exercise his powers in
accordance with the advice of his ministers, responsible to the Lower House or he has some real
power. If any question arises as to whether any matter is or is not a matter as respects which the
Governor is by or under this Constitution required to act in his discretion, the decision of the
Governor in his discretion shall be final and the validity of anything done by the Governor shall
not be called in question on the ground that he ought or ought not to have acted in his
discretion.22

Appointment of Chief Minister

Article 164(1) provides for the appointment of the chief minister by the governor. However, the
choice of the governor is limited by the provision of Article 164(2) that says: ‘The Council of
Ministers shall be collectively responsible to the Legislative Assembly of the State’. In normal
circumstances, the governor appoints the leader of the party that commands the majority in the

21
Sarkaria Commission Report on Centre-State relations
22
Article 163 (2), Constitution of India

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Legislative Assembly. The usual practice is that after the declaration of the result of the
Assembly elections, the Election Commission submits party-wise list of elected members to the
governor who, in turn, invites the leader of the legislature party commanding majority to form
the government. There is a well-established convention in case of a fractured mandate, that is,
the governor will invite first the party or pre-election coalition with the largest number of seats in
the Assembly and in case of his refusal the offer goes to the next party or pre-election coalition.
Sometimes, there are flying claims and counterclaims in the air about the majority in the
Assembly. In such a situation, the governor goes by his judgement, but his decision should be
based on reliable material. Sometimes, such situation emerges during the middle of the tenure of
a government when the majority support of the council of ministers has apparently slipped away.

Governor’s Assent to Bills

Article 200 deals with the power of the governor to give assent to a bill passed by the state
legislature. There are four courses of actions open to the governor: (a) he assents to the bill, (b)
he withholds assent, (c) he returns the bill with message to reconsider, if it is a non-money bill
and (d) he reserves for the assent of the president. The governor exercises the aforementioned
power in his discretion. However, in case of the governor returning the bill for reconsideration of
the legislature and the same is returned after approval by the legislature, with or without
accepting amendments as suggested by the governor, he has to give his assent. The basic premise
is that the governor, as a custodian of the Constitution, has to ensure that a bill passed by the
state legislature is not repugnant to the provisions of the Constitution or exceeds the
jurisdictional limit of the state legislature.

Dissolution of State Assembly

Article 174 deals with the power of the governor to summon, prorogue and dissolve the
Assembly. In normal circumstances, the governor exercises this power only on the advice of the
council of ministers. However, there are situations under which the governor has to take decision
on his own discretion. For example, if there is a notice that the council of ministers has lost the
majority, and is deliberately dodging the floor test by not calling the Assembly, the governor
may on his discretion call the Assembly and ask the council of ministers to face the floor test.

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Similarly, if the council of ministers has lost the confidence of the Assembly, and subsequently,
recommends the dissolution of the Assembly, the governor may refuse to go by the advice of the
council of ministers. If the government commands the majority, and yet recommends dissolution
of the Assembly, the governor has to go by the advice of the council of ministers.

Declaration of state emergency

Article 356(1) provides that if the President, on receipt of a report from the Governor of a State,
or otherwise, is satisfied that a situation has arisen in which the government of the State cannot
be carried on in accordance with the provisions of this Constitution, the President may by
proclamation—(a) assume to himself all or any of the functions of the State…. The governor
sends his report to the president on his own discretion if the view of the council of ministers is
different or contradictory to that of the governor. Once the president’s rule is imposed in a state,
the governor takes decision on his own.

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 The Council of Ministers
Article 163 (1) says that there shall be a Council of Ministers with the Chief
Minister as the Head to "aid and advise the Governor in exercise of his functions. The Council of
Ministers in the States is constituted and functions in the same way as the Union Cabinet.

91st Amendment, 2003—This amendment has added two new clauses 1-A and 1-1
B to Article 164 (1) of the Constitution. The amendment makes two important changes-

(1) Maximum size of ministries- The new Clause (1A) puts a maximum
limit of number of ministers to be appointed to the Council of Ministers—It provides that "the
total number of ministers, including the Chief Minister in the Council of Ministers in a
State shall not exceed 15 per cent 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. In those States where
the total number of ministers is more than 15 per cent at the time of the commencement
of the 91st Amendment Act, 2003 it shall be reduced to 15 per cent within 6 months
from the date on which the President notifies the date for the application of the
amendment.

(2) Disqualification of defection on ground of split

abolished- The new Clause (1B) provides that 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. He cannot be appointed also as
chairman of a corporation or hold any other remunerative political post until he is re-elected
again (Article 361-B added by 91st Amendment).
Both these amendments are to be welcomed. The demands were made from time to

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time for making these amendments in defection law. The committee on Electoral
Reforms and the Law Commission have recommended for implementation of these
reforms.

The Chief Minister is appointed by the Governor23. As a matter of a well-established

Convention, it is leader of the Legislative Assembly who should
be appointed as the Chief Minister. Thus, in normal circumstance the choice of the
Governor is limited to the leader of the majority party. But there may be circumstances
where the Governor would have to exercise his discretion in selecting the Chief
Ministers. The other Ministers are appointed by the Governor on the advice of the Chief
Minister. In the appointment of other Ministers, the Chief Minister has the final say
because it is the Chief Minister who has to run the Government. That is, indeed,
necessary in order to ensure the successful operation of the rule of collective responsibility.

Can the Governor sanction for Prosecution of Ministers

under Corruption Act?

The Governor can sanction for the prosecution of the ministers but the proof for the same needs to
be satisfactory. There have been many cases where the Governor has ordered a sanction for the
prosecution of a Minister, sometimes with the advice of the Council of Ministers and at times on
his own discretion and one such case has been discussed below.

M.P. Special Police Establishment v. State of M.P., 200524

In this case, the issue was whether or not the Governor should give the sanction for the prosecution
of the Chief Minister without the aid and advice of the Council of Ministers. The Supreme Court
held that the Governor could make use of his discretionary powers in this case and is not bound

23
Article 164
24
2004 SSC Online SC 1424

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by the aid and advice of the Council of Ministers. Thus, Governor sanctioned for the prosecution
of the Chief Minister.

Non-legislator can be appointed as Minister

Going by the established practices, it is mostly a legislator who is appointed minister. But an
exception to this rule exists under Article 164(4). This provision provides that if a non-member is
appointed minister, he/she must get elected within the next 6 months. This has happened in
numerous cases, for e.g., Kamaraj Nadar in Madras in 1954, T.N. Singh in U.P. in 1971.

A non-member cannot be reappointed Minister without

getting himself elected

In 2001, the then Governor of Tamil Nadu had appointed Jayalalitha as the Chief Minister of Tamil
Nadu. Now, Jayalalitha was not an elected member of the house and additionally had corruption
charges against her which caused her nomination papers to be rejected.

The Hon’ble Supreme Court ruled that it would be a clear violation of the Constitution if it allowed
any individual to be appointed Minister for a second term of “six consecutive months” without
getting elected to the legislature. The court also held that Article 164(4) can be put to the best use
when its effectiveness restricted to a short period of six consecutive months. Quoting the
judgement: “The clear mandate of Article 164(4) that if an individual concerned is not able to get
elected to the legislature within the grace period of six consecutive months, he shall cease to be a
Minister, cannot be allowed to be frustrated by giving a gap of few days and re-appointing the
individual as a Minister, without his securing the confidence of the electorate in the meanwhile.”25

25
B.R. Kapur v. State of Tamil Nadu & Anr. (2001 SCC Online SC 1135)

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A convicted person cannot be appointed as Chief Minister:

After the Supreme Court verdict in Lily Thomas vs. Union of India, striking down Section 8(4) of
the Representation of the People Act, legislators have lost their protection from immediate
disqualification. The SC held that “a person who is convicted for a criminal offence and sentenced
to imprisonment for a period of not less than two years cannot be appointed the Chief Minister of
a State under Article 164(1) read with (4) and cannot continue to function as such.

Relationship between the Governor and Council of

Ministers

The relationship between the Governor and the Council of Ministers is analogous to that between
the President and the Council of Ministers. Article 163 says that there shall be a Council of
Ministers to aid and advise the Governor. These group of ministers hold office during the pleasure
of the Governor and are directly responsible to the Legislative Assembly. Under normal
conditions, the Governor is bound by the advice and opinions of the Council of Ministers but there
are certain circumstances under which the Governor functions according to his/her own discretion.

1. appointment of the Chief Minister,

2. the dismissal of a Ministry,
3. the dissolution of Legislative Assembly,
4. advising the President for the proclamation under Art. 356 of the Constitution.

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Other Provisions as to Council of Ministers

• The Council of Ministers shall be collectively responsible to the Legislative Assembly of

the State.
• Before a Minister enters upon his office, the Governor shall administer to him the oaths
of office and of secrecy according to the forms set out for the purpose in the Third
Schedule.
• A Minister who for any period of six consecutive months is not a member of the
Legislature of the State shall at the expiration of that period cease to be a Minister.
• The salaries and allowances of Ministers shall be such as the Legislature of the State may
from time to time by law determine and, until the Legislature of the State so determines,
shall be as specified in the Second Schedule.

The Advocate-General for the State26

(1) The Governor of each State shall appoint a person who is qualified to be appointed a Judge of
a High Court to be Advocate-General for the State.

(2) It shall be the duty of the Advocate-General to give advice to the Government of the State
upon such legal matters, and to perform such other duties of a legal character, as may from time
to time be referred or assigned to him by the Governor, and to discharge the functions conferred
on him by or under this Constitution or any other law for the time being in force.

(3) The Advocate-General shall hold office during the pleasure of the Governor, and shall
receive such remuneration as the Governor may determine.

26
Article 165 of Constitution of India

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Conduct of Government Business27
(1) All executive action of the Government of a State shall be expressed to be taken in the name
of the Governor.

(2) Orders and other instruments made and executed in the name of the Governor shall be
authenticated in such manner as may be specified in rules to be made by the Governor, and the
validity of an order or instrument which is so authenticated shall not be called in question on the
ground that it is not an order or instrument made or executed by the Governor.

(3) The Governor shall make rules for the more convenient transaction of the business of the
Government of the State, and for the allocation among Ministers of the said business in so far as
it is not business with respect to which the Governor is by or under this Constitution required to
act in his discretion.

Duties of Chief Minister of The State28

(1) to communicate to the Governor of the State all decisions of the Council of Ministers relating
to the administration of the affairs of the State and proposals for legislation;

(2) to furnish such information relating to the administration of the affairs of the State and
proposals for legislation as the Governor may call for;

(3) if the Governor so requires, to submit for the consideration of the Council of Ministers any
matter on which a decision has been taken by a Minister but which has not been considered by
the Council.

27
Article 166 of Constitution of India
28
Article 167 of Constitution of India

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 Conclusion

The Indian Government’s structure is Quasi-Federal in nature. The President operates at the
National Level, the Governor operates at the State Level. The Governor being the nominal head
doesn’t possess any real power but does have some important discretionary functions. This
distribution of power between the Governor and the Chief Minister helps maintain balance in a
state and also to keep a check on the functioning of the individual machineries.

Thus, in the light of the above-mentioned provisions and explanations, it can be concluded that the
Governor occupies the position of the head of the executive in the State, but it is virtually the
Council of Ministers in each State that carries the Executive Government. But in comparison to
the President, Governor do have more discretionary powers which have been discussed in detail
in the project report. It will not be wrong to say that the most important function delivered by the
governor of a state is that of as a link between the center and state government, which sometimes
can be a reason of controversy between the federal system itself. If a balance is maintained between
the two, smooth functioning of the states can be ensured.

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 Bibliography
• Dr. J.N. PANDEY’S Constitutional Law of India (58th Edition)
• MP Jain- Indian Constitutional Law (8th Edition)
• Narendra Kumar- Constitutional Law of India (10th Edition)
• SCC Online Legal Research | Search By Citation, Party Name, Section, Topic & Statutes Guide
• Lexis Advance® India Home (slimkm.org)
• https://blog.ipleaders.in/importance-preamble-indian-constitution/
• https://legislative.gov.in/sites/default/files/coi-4March2016.pdf
• https://lawpreneurz.com/course_topic/state-executive
• https://journals.sagepub.com/doi/full/10.1177/0019556117735447
• https://shodhganga.inflibnet.ac.in/bitstream/10603/3695/12/12_chapter%206.pdf
• https://www.lawctopus.com/academike/executive-power-union-state/#_ednref2

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