State (UTs) Executive and Legislature

State Executive and Legislature

Executive

Articles 153 to 167 of Part VI of the Constitution deal with the state executive. The state executive consists of the Governor, The Chief Minister, The Council of Ministers and the Advocate General of the State.

Governor

• Usually, there is a Governor for each state, but the 7th Constitutional Amendment Act of 1956 facilitated the appointment of the same person as a Governor for two or more states.
• He is appointed by the President by warrant under his hand and seal. But, as held by the Supreme Court in 1979, the office of governor of a state is not an employment under the Central government. It is an independent constitutional office and is not under the control of or subordinate to the Central government
• A Governor holds office for a term of five years from the date on which he enters upon his office. He can resign at any time by addressing a resignation letter to the President.

Powers and Functions

Executive Powers

All executive action is expresses to be taken in the name of the Governor. He appoints:

• Chief Minister and other ministers with the advice of the Chief Minister. In case of no party having a clear cut majority in the House, the Governor may use his discretion.
• A Tribal Welfare minister in the states of Chhattisgarh, Jharkhand, Madhya Pradesh and Odisha.
• Advocate-General, state election commissioner, Chairman and the members of the State Public Service Commission. Members of the subordinate judiciary (District Judge and below).
• Vice-Chancellors of state universities. The Governor is the Chancellor of the universities run by the state.
• Though the Governor has no power to appoint the Judges of the state High Court, he may be consulted by the President in such appointment.
• He can require the chief minister 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.
• He can recommend the imposition of constitutional emergency in a state to the president. During the period of President’s rule in a state, the governor enjoys extensive executive powers as an agent of the President

Legislative powers

The Governor is a part of the legislature (Art. 168). He performs similar functions as the President does with respect to the Parliament.

As per the Article 200, when a Bill passed by the Legislature of a State is presented to the Governor, he can:

1. assents to the Bill when it becomes an Act
2. withholds assent
3. returns the Bill to the Legislature for reconsideration (In the case of other than Money Bills)
4. reserves the Bill for the consideration of the President

• When a Bill is reserved by a Governor for the consideration of the President, the President shall declare either that he assents to the Bill or that he withholds assent in case of a Money Bill. In other Bills, he may return the Bill for repassage. The repassed Bill need not be assented to by the President and he may return it again and again.
• There is no time limit within which the President should take a decision. There have been instances where Bills have been pending with the President for periods up to six years or more.

Financial Power

Similar to President

Pardoning Power

Similar to President except, the power to grant pardon lies with the President and not the governor. But, the governor can suspend, remit or commute a death sentence. Also, he does not possess any such power in respect to punishment or sentence by a court-martial (military court).

Discretionary powers

There are two types of situations in which the Governor is expected to use his discretion:

Situational

• Appointment of chief minister when no party has a clear-cut majority in the state legislative assembly or when the chief minister in office dies suddenly and there is no obvious successor.
• Dismissal of the council of ministers when it cannot prove the confidence of the state legislative assembly.
• Dissolution of the state legislative assembly if the council of ministers has lost its majority.

Constitutional

• Reservation of a bill for the consideration of the President.
• Recommendation for the imposition of the President’s Rule in the state.
• While exercising his functions as the administrator of an adjoining union territory (in case of additional charge).
• Determining the amount payable by the Government of Assam, Meghalaya, Tripura and Mizoram to an autonomous Tribal District Council as royalty accruing from licenses for mineral exploration.
• Seeking information from the chief minister with regard to the administrative and legislative matters of the state.

While the Constitution envisages the possibility of the governor acting at times in his discretion, no such possibility has been envisaged for the President. After the 42nd Constitutional Amendment (1976), ministerial advice has been made binding on the President, but no such provision has been made with respect to the governor.

The Constitution makes it clear that if any question arises whether a matter falls within the governor’s discretion or not, the decision of the governor is final.

Chief Minister

In parliamentary system of government, the Governor is the nominal executive authority and the Chief Minister is the real executive head.

The Constitution does not contain any specific procedure for the selection and appointment of the Chief Minister. Article 164 only says that the Chief Minister shall be appointed by the Governor.

A person who is not a member of the state legislature can be appointed as Chief Minister for six months, within which time, he should be elected to the state legislature, failing which he ceases to be the Chief Minister.

Powers and Functions

• The Governor appoints only those persons as ministers who are recommended by the Chief Minister.
• He allocates and reshuffles the portfolios among Ministers.
• He can ask a Minister to resign or advise the Governor to dismiss him in case of difference of opinion.
• He presides over the meetings of the Council of Ministers and influences its decisions.
• He guides, directs, controls and coordinates the activities of all the Ministers.
• He can bring about the collapse of the Council of Ministers by resigning from office.
• He is the principal channel of communication between the Governor and the Council of Ministers.
• He advises the Governor with regard to the appointment of important officials like Advocate General, Chairman and members of the State Public Service Commission, State Election Commissioner, and so on.
• He advises the Governor with regard to the summoning and proroguing of the sessions of the State Legislature.
• He can recommend the dissolution of the Legislative Assembly to the Governor at any time.
• He announces the Government policies on the floor of the house.
• He is the chairman of the State Planning Board.
• He acts as a Vice-Chairman of the concerned Zonal Council by rotation, holding office for a period of one year at a time.
• He is a member of the Inter-State Council and the National Development Council, both headed by the Prime Minister.

Council of Minister

Article 163 provides for a council of ministers with the chief minister at the head to aid and advice the governor in the exercise of his functions except the discretionary ones. Article 164 deals with the appointment, tenure, responsibility (both Collective and Individual), qualifications, oath and salaries and allowances of the ministers.

The total number of Minister, including the Chief Minister, in the Council of Minister in a state shall not exceed 15 per cent of the total strength of the Legislative Assembly of that state. But, the number of Ministers, in a state shall not be less than 12 (including Chief Ministers). This provision was added by the 91st Amendment Act of 2003.

Legislature

• Articles 168 to 212 in the Part VI of the Constitution deals with the State Legislature. We will only focus on the differences from the Parliament.
• Most of the states have a unicameral system, while others have a bicameral system. At present, only six states have two Houses (bicameral). These are Andhra Pradesh, Telangana, Uttar Pradesh, Bihar, Maharashtra and Karnataka.
• The Constitution provides for the abolition or creation of legislative councils in states. Accordingly, the Parliament can abolish a legislative council (where it already exists) or create it (where it does not exist), if the legislative assembly of the concerned state passes a resolution to that effect. Such a specific resolution must be passed by the state assembly by a special majority and in Parliament, by simple majority.

Legislative Assembly

Its maximum strength is fixed at 500 and minimum strength at 60. However, in case of Arunachal Pradesh, Sikkim and Goa, the minimum number is fixed at 30 and in case of Mizoram and Nagaland; it is 40 and 46 respectively. Further, some members of the legislative assemblies in Sikkim and Nagaland are also elected indirectly.

Council

Unlike the members of the legislative assembly, the members of the legislative council are indirectly elected. The maximum strength of the council is fixed at one-third of the total strength of the assembly and the minimum strength is fixed at 40.

Of the total number of members of a legislative council:

• 1/3 are elected by the members of the legislative assembly of the state from amongst persons who are not members of the assembly,
• 1/3 are elected by the members of local bodies in the state like municipalities, district boards, etc.,
• 1/12 are elected by graduates of three years standing and residing within the state,
• 1/12 are elected by teachers of three years standing in the state, not lower in standard than secondary school,
• The remainder (1/6) are nominated by the governor from amongst persons who have a special knowledge or practical experience of literature, science, art, cooperative movement and social service.
• Thus, 5/6 of the total members of a legislative council are indirectly elected and 1/6 is nominated by the governor.

Constitutional position of the council

Equality with Assembly

• Introduction and passage of ordinary bills. However, in case of disagreement between the two Houses, the will of the assembly prevails over that of the council.
• Approval of ordinances issued by the governor.
• Selection of ministers including the chief minister.
• Consideration of the reports of the constitutional bodies like State Finance Commission, state public service commission and Comptroller and Auditor General of India.
• Enlargement of the jurisdiction of the state public service commission.

Inequality with Assembly

• The very existence of the council depends on the will of the assembly (Unlike Rajya Sabha).
• In case of disagreement between the two Houses over ordinary bills, the will of the assembly prevails over that of the council. There is no provision for joint sitting. At the most, the council can detain or delay the bill for the period of four months–three months in the first instance and one month in the second instance. If any bill, originated in the Council, is rejected by the assembly, the bill ends and becomes dead (Unlike Rajya Sabha).
• A Money Bill can be introduced only in the assembly. It has to return the bill to the assembly within 14 days, either with recommendations or without recommendations.
• The council can only discuss the budget but cannot vote on the demands for grants.
• It cannot initiate no-confidence motion.
• In the case of the ratification of a constitutional amendment bill, the will of the assembly prevails over that of the council (Unlike Rajya Sabha).

Although it checks the hasty, defective, careless and ill-considered legislation made by the assembly, the council is a secondary chamber unlike Rajya Sabha, which is a second chamber of the Parliament,

Union Territories

The States are the members of the federal system in India and share a distribution of power with the Centre. The union territories, on the other hand, are those areas which are under the direct control and administration of the Central government. Hence, they are also known as ‘centrally administered territories’.

At present, there are twenty-eight States, 8 union territories (including newly added- J&K and Ladakh) and no acquired territories. The UTs are: Andaman & Nicobar Islands, Chandigarh, Dadra & Nagar Haveli and Daman & Diu, Delhi (with Legislature), Jammu & Kashmir (with Legislature), Ladakh, Lakshadweep, and Puducherry (with Legislature).

Administration of Union Territories

• Articles 239 to 241 in Part VIII of the Constitution deal with the union territories.
• Every union territory is administered by the President acting through an Administrator appointed by him. An administrator of a union territory is an agent of the President and not head of State like a governor.
• The President can specify the designation of an administrator; it may be Lieutenant Governor or Chief Commissioner or Administrator. The President can also appoint the Governor of a State as the Administrator of an adjoining Union Territory. In that capacity, the Governor is to act independently of his council of ministers.
• The Parliament can make laws on any subject of the three lists (including the State List) for the union territories. The legislative assembly of Puducherry and Jammu & Kashmir can also make laws on any subject of the State List and the Concurrent List. Similarly, the legislative assembly of Delhi can make laws on any subject of the State List (except public order, police and land) and the Concurrent List.
• The Parliament can establish a high court for a union territory or put it under the jurisdiction of the high court of adjacent State. Delhi was the only union territory that has a high court of its own (since 1966), but after the enactment of the Jammu and Kashmir Reorganisation Act, 2019, both the Union territories Jammu & Kashmir and Ladakh have a common high court.
• The Bombay High Court has got jurisdiction over one union territory—Dadra & Nagar Haveli and Daman & Diu.
• Andaman and Nicobar Islands, Chandigarh, Lakshadweep and Puducherry are placed under the Calcutta, Punjab and Haryana, Kerala, and Madras High Courts respectively.

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