STATE EXECUTIVE

STATE EXECUTIVE

GOVERNOR

Governor is a nominal executive head of the state. He forms an important part of the state executive where he acts as the chief executive head. Central Government nominates the governor for each state.

Constitutional Provisions

1. Article 153: There shall be a Governor for each State but the same person can be governor for 2 or more states.
2. Article 154: He is the executive head of the state. All the executive functions will be performed by him or by the officers subordinate to him in accordance with the Constitution.
3. Article 155: The Governor of a State shall be appointed by the President by warrant under his hand and seal.
4. Article 156: The Governor shall hold office during the pleasure of the President.
5. Article 157 and Article 158: Specify eligibility requirements for the post of governor.
6. Article 160: Discharge of the functions of the governor in certain contingencies.
7. Article 163: He will be aided and advised by the Chief Minister and Council of Ministers unless he is performing a function at his discretion.
   • 42nd Amendment Act: Made the advice of the Council of Ministers binding on the President but not on the Governor in the state.

Envisaged Role of Governor

• Vital link: Between the Centre and the States.
• Maintenance of national interests, integrity, and internal security advocates central supervision for which the governor is required.
• Responsible government: For creating ‘responsible government’ in the states.
• Smooth functioning: Crucial in the smooth functioning of democracy.
• Check arbitrariness: Governor is to check the arbitrariness of the State government.

Discretionary Powers of Governor

1. Constitutional discretion
   • Seeking information from the CM with regard to the administrative and legislative matters of the state.
   • Reservation of a bill for the consideration of the President.
   • Recommendation for the imposition of the President’s Rule in the state.
   • Special powers in the context of the 5th and 6th Schedule.
2. Situational discretion
   • Appointment of CM when no party has a clear-cut majority in the state legislative assembly or when the CM 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.

Controversial issues

1. Misuse of Article 356 (President’s Rule): This power has been abused by political parties at the centre to dismiss state governments governed by opposition parties.
   • For example: 59 times between 1971 – 1984 and 125 times till now, recently being Maharashtra and Jammu and Kashmir (2019).
2. Power of Reserving bill: Governor can reserve the bill for consideration of President. Centre exercises this power by vetoing or delaying any legislation through President’s refusal to assent to state’s legislation.
3. As an agent of political party in power at centre: Governors are not shy of revealing their partisan preference. For instance, in recent times Governors have exhorted voters to vote for a particular party.
4. Partisan role in Hung assemblies: This discretion is abused by Governors in a partisan manner at the instruction of the centre.
5. Arbitrary Removal of Governors: There have been instances of removal of governors in States with Government change at the centre.
6. Biased ideology: In several cases, politicians and former bureaucrats identifying with a particular political ideology have been appointed as the Governors by the central government.

Issues with the Post

• Appointment: The post has been reduced to becoming a retirement package for politicians and bureaucrats for being politically faithful to the government of the day.
• No fixed tenure: In Surya Narain vs. UOI case, 1982, SC held that governor tenure at the pleasure of the president is not justifiable and there is no security to it.
• Conventional qualifications: Governor must be an outsider of the state and the president must consult the CM before appointing him. There are no mandated qualifications as per the constitution.
• Rubber Stamp: Governor’s work is bound by the aid and advice of his council of ministers; this has brought down the significance of the office to a mere rubber stamp.
• Arbitrary removal: This has left the Governor at the mercy of the Centre which has influenced him to act in favour of the centre.
• Power: He has to perform the duties as head of the state and as an agent of the central government, and use this discretionary power within the context of our quasi-federal Constitution. This leaves little or no space to act on his own.

Important Supreme Court Judgements

1. S.R Bommai vs. UOI, 1994:
   • The floor of the Assembly is the only forum that should test the majority of the government of the day, and not the subjective opinion of the Governor.
   • SC issued the historic order, which in a way put an end to the arbitrary dismissal of State governments under Article 356 by spelling out restrictions.
2. Nabam Rebia Case 2016: Using discretionary powers to summon or dissolve Assembly sessions without the aid and advice of the Chief Minister and his Cabinet is unconstitutional.

Recommendations by Committees

1. Administrative Reforms Commission (1968):
   • Report of the governor regarding the president’s rule has to be objective.
   • Governor should exercise his own judgment in this regard.
2. Rajamannar Committee (1971):
   • Recommended deletion of Articles 356 and 357.
   • The necessary provisions for safeguards against arbitrary action of the ruling party at the Centre under Article 356 should be incorporated into the constitution.
   • Emphasized that the governor should not consider himself as an agent of the centre but play his role as the constitutional head of the State.
3. Sarkaria Commission (1988):
   • Article 356 should be used in very rare cases when it becomes unavoidable.
   • Before taking action under Article 356, a warning should be issued to the state government.
4. Justice V. Chelliah Commission (2007):
   • Article 356 must be used sparingly and only as a remedy of the last resort after exhausting all actions under Articles 256, 257, and 355.
5. Punchhi Commission (2007):
   • Articles 355 & 356 should be amended. It sought to protect the interests of the States by trying to curb their misuse by the Centre.

Way forward

• Impartial nature: To strengthen the spirit of federalism, it is important that the governor must act judiciously and impartially while exercising his discretion and personal judgment.
• Localised emergency: The Punchhi Commission recommended the provision of ‘Localized Emergency’, which means that the Central government can tackle issues at the town/district level without dissolving the state legislative assembly.
• Inclusion of reasons for presidential rule: The Proclamation should include the ‘reasons’ as to why the State cannot be run as per the normal provisions of the Constitution.
• Amending Article 356: Article 356 should be amended so that the President is empowered to dissolve the State Legislature only after approval by the Parliament.
• Non-political appointees: The Governor post should be a non-political appointee.
• Code of conduct: To enable the governor to successfully discharge his functions under the constitution, an agreed ‘Code of Conduct’ should be approved.
• National panel: A national panel including opposition, ruling party, civil society, and the judiciary in the selection process.
• Report of the Committee of Governors (1971): It laid down the responsibility of the governor to ensure that the administration of the state does not break down due to political instability and that he must send a regular report about the political situation of the state.

The role of the governor is indispensable for the successful working of constitutional democracy. He must refrain from aligning himself with any political ideology. The virtue of impartiality must be maintained to ensure the smooth functioning of a democracy.

LEGISLATIVE COUNCIL/VIDHAN PARISHAD

India has a bicameral system both at the Union and in 6 of its 28 states. The Lok Sabha and Rajya Sabha at the Centre, and the Vidhan Sabha and Vidhan Parishad in the States, form the bicameral legislature. The Legislative Council or Vidhan Parishad is the upper house in those states that have a bicameral legislature; the lower house being the State Legislative Assembly.

Constitutional Provisions

• Article 169: Parliament may by law create or abolish the second chamber in a state if the Legislative Assembly of that state passes a resolution to that effect by a special majority.
• Article 171(1): A Council cannot have more than a third of the number of MLAs in the state, and not less than 40 members.

Legislative assemblies of Rajasthan, Assam and Odisha have passed resolutions for the formation of the Council.

Arguments in Favour of Legislative Councils

• Checks hasty legislations: To act as a check on hasty actions by the popularly elected House.
• Checks despotic tendencies of lower house: If there are two chambers, the measures passed by one would be scrutinized by the other minutely.
• Hardly a barrier: As the Legislative Council (LC) can delay the Bills only for a period of 4 months. Such delay is essential to crystallize public opinion on all Bills before they become an Act.
• Reduce workload: Bills of non-controversial nature can start their course in the Councils first, lessening the burden of the lower House.
• Opportunity to have expertise: To ensure that individuals who might not be cut out for the rough-and-tumble of direct elections can contribute to the legislative process.
• More deliberation: Having a second chamber would allow for more debate and sharing of work between the Houses.
• Accommodation of talent: LCs accommodate elderly, experienced, and sober individuals, not only through the nominated quota but also through quotas reserved for teachers and graduates.
• Political unbiased discussion: Provides a mechanism for a soberer and more considered appraisal of legislation that a State may pass and acts as a revising chamber.
• More inclusion: Members of various communities and ethnic groups that could not be sent to the Assembly could be accommodated in the council for fair representation.

Arguments against having the legislative council

• Superfluous or mischievous: Same party members with the same allegiance may discourage scrutiny, and different parties’ members may delay bills unnecessarily.
• Not an effective check: LCs are limited in imposing any effective checks on the Assemblies.
• Stronghold of vested interests: Serves as a stronghold of vested interests who are not expected to support progressive legislation.
• Backdoor entrance of defeated members: Rather than fulfilling the objective of including intellectuals, it is often used to accommodate party functionaries who fail to get elected.
• Costly institution: An unnecessary financial drain on the exchequer and a luxury for defeated candidates of the ruling party.
• No intellectual guarantee: Graduates are no longer rare; with declining educational standards, a degree does not guarantee intellectual competence.
• A heterogeneous chamber: A blend of direct election, indirect election, and nomination makes the Council a mix of representation.

Way forward

• National plan for creation/abolition: Legislative councils cannot be created or abolished at the whims and fancies of the government; a national plan is needed for their function.
• Second ARC guidelines to be followed: Suggests reducing the role of teachers and graduates and giving more say to local bodies to strengthen their voice.
• More power to be provided: LCs should have powers similar to the Rajya Sabha to shape legislation.

To date, second chambers in our States have been mostly ornamental, which burdens public funds. Legislative councils should be made responsible bodies that contribute to policymaking and development programs for the states.