Summer Internship Program 2020

Student’s Name: SURYANSH PANDEY

Enrolment No: 17FLICDDN02141

Batch Name & Year: B.A. LLB(H.) (2017-22)

Project Title: Data protection: THE STATE EXECUTIVE

Submitted By Submitted To

Suryansh Pandey Mr. Saurabh Sidharth,

B.A. LLB(H.) Faculty of Law,
2017-22. ICFAI Law School,
Dehradun.

1
 ACKNOWLEDGEMENT

With profound gratitude and sense of indebtedness I place on record my sincerest thanks to

Faculty of Law, ICFAI LAW SCHOOL, for his guidance, sound advice and affectionate attitude

during the course of the study work.

There is no hesitation in saying that he molded raw clay into whatever we are through his

incessant efforts and keen interest shown throughout the academic pursuit. It is due to his patient

guidance that I have been able to complete the task.

Finally, I thank my beloved parents for supporting me morally and guiding me throughout the

project work.

Suryansh Pandey
B.A. LLB [HONS.]

2
 TABLE OF CONTENTS

INRODUCTION ………………………………………………………………….. 04

RELATED ARTICLES……………………………………………………………06

THE GOVERNOR..………………………………………...……………… …….. 09

THE COUNCIL OF MINISTERS…………………………..……………………. 15

CONCLUSION ………………………..……………………………………………. 21

BIBLIOGRAPHY……………………………………………………………….……22

3
 INTRODUCTION

State governments in India are the governments ruling 28 states and 8 union territories of India
and the head of the council of ministers in a state is chief minister. Power is divided between
the union government and state governments. While the union government handles military and
external affairs etc., whereas the state government deals with internal security (through
state police) and other state issues. Income for the union government is from customs
duty, excise tax, income tax etc., while state government income comes from sales
tax (VAT), stamp duty, now these have been subsumed under CGST, SGST—components of
GST.
Each state has a legislative assembly. A state legislature that has one house, known as State
Legislative Assembly (Vidhan Sabha), is a unicameral legislature.
A state legislature that has two houses known as State Legislative Assembly and State
Legislative Council (Vidhan Parishad), is a bicameral legislature. The Vidhan Sabha is the lower
house and corresponds to the Lok Sabha, the Vidhan Parishad is the upper house and
corresponds to the Rajya Sabha of Indian Parliament.
The Sarkaria Commission was set up to review the balance of power between states and the
union. The union government can dissolve a state government in favour of President's rule if
necessary.
State Executive consists of Governor and Council of Ministers with Chief Minister as its head.
The Governor of a State is appointed by the President for a term of five years and holds office
during his pleasure. Only Indian citizens above 35 years of age are eligible for appointment to
this office. Executive power of the State is vested in Governor.
Council Of Ministers
The Chief Minister is appointed by the Governor who also appoints other ministers on the advice
of the Chief Minister. The Council of Ministers is collectively responsible to legislative assembly
of the State.
Council of Ministers with Chief Minister as head aids and advises Governor in exercise of his
functions except in so far as he is by or under the Constitution required to exercise his functions
or any of them in his discretion. In respect of Nagaland, Governor has special responsibility
under Article 371 A of the Constitution with respect to law and order and even though it is
necessary for him to consult Council of Ministers in matters relating to law and order, he can
exercise his individual judgement as to the action to be taken.
Similarly, in respect of Arunachal Pradesh, Governor has special responsibility under Article
371H of the Constitution with respect to law and order and in discharge of his functions in
relation thereto. Governor shall, after consulting Council of Ministers, exercise his individual

4
judgement as to the action to be taken. These are, however, temporary provisions if President, on
receipt of a report from Governor or otherwise is satisfied that it is no longer necessary for
Governor to have special responsibility with respect to law and order, he may so direct by an
order.
Likewise, in the Sixth Schedule which applies to tribal areas of Assam, Meghalaya, Tripura and
Mizoram as specified in para 20 of that Schedule, discretionary powers are given to Governor in
matters relating to sharing of royalties between district council and state government. Sixth
Schedule vests additional discretionary powers in Governors of Mizoram and Tripura in almost
all their functions (except approving regulations for levy of taxes and money lending by non-
tribal by district councils) since December 1998. In Sikkim, Governor has been given special
responsibility for peace and social and economic advancement of different sections of
population.
All Governors while discharging such constitutional functions as appointment of Chief Minister
of a state or sending a report to President about failure of constitutional machinery in a state or in
respect of matters relating to assent to passing a bill in the state assembly.
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.
This article extensively studies the relation between these various state functionaries, the
distribution of power between them and their accountability. 

RELATED ARTICLES

Article No. 152 for Definition

5
Article No. 153 for Governors of states
Article No. 154 for Executive power of state
Article No.  155 for Appointment of Governor
Article No.  156 for Term of office of Governor
Article No.  157 for Qualifications for appointment as Governor
Article No.  158 for Conditions of Governor’s office
Article No.  159 for Oath or affirmation by the Governor
Article No.  160 for Discharge of the functions of the Governor in certain contingencies
Article No.  161 for Power of the Governor to grant pardons and others
Article No.  162 for Extent of executive power of state
Article No.  163 for Council of Ministers to aid and advice the Governor
Article No.  164 for other provisions as to ministers like appointments, term, salaries, and others
Article No.  165 for Advocate-General for the State
Article No.  166 for Conduct of business of the government of a state
Article No.  167 for Duties of the Chief Minister regarding furnishing of information to the
Governor, and so on
Article No.  174 for Sessions of the state legislature, prorogation and dissolution
Article No.  175 for Right of the Governor to address and send messages to the house or houses
of state legislature
Article No.  176 for Special address by the Governor
Article No.  200 for Assent to bills (i.e. assent of the Governor to the bills passed by the state
legislature)
Article No.  201 for Bills reserved by the Governor for consideration of the President
Article No.  213 for Power of Governor to promulgate ordinances
Article No.  217 for Governor being consulted by the President in the matter of the appointments
of the judges of the High Courts
Article No.  233 for Appointment of district judges by the Governor
Article No.  234 for Appointments of persons (other than district judges) to the judicial service
of the state by the Governor.

Article 152 : Definition

In this Part, unless the context otherwise requires, the expression “State” does not include the
State of Jammu and Kashmir.

ARTICLE 153:  GOVERNORS OF STATES

There shall be a Governor for each State:
Provided that nothing in this article shall prevent the appointment of the same person as
Governor for two or more States.

6
ARTICLE 154: EXECUTIVE POWER OF STATE
(1) The executive power of the State shall be vested in the Governor and shall be exercised by
him either directly or through officers subordinate to him in accordance with this Constitution.
(2) Nothing in this article shall—
(a) be deemed to transfer to the Governor any functions conferred by any existing law on any
other authority; or
(b) prevent Parliament or the Legislature of the State from conferring by law functions on any
authority subordinate to the Governor.

ARTICLE 155: APPOINTMENT OF GOVERNOR

The Governor of a State shall be appointed by the President by warrant under his hand and seal.

ARTICLE 156: TERM OF OFFICE OF GOVERNOR

(1) The Governor shall hold office during the pleasure of the President.

(2) The Governor may, by writing under his hand addressed to the President, resign his office.

(3) Subject to the foregoing provisions of this article, a Governor shall hold office 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.

ARTICLE 157: QUALIFICATIONS FOR APPOINTMENT AS GOVERNOR

No person shall be eligible for appointment as Governor unless he is a citizen of India and has
completed the age of thirty-five years.

ARTICLE 158: CONDITIONS OF GOVERNOR’S OFFICE

(1) 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
Governor.
(2) The Governor shall not hold any other office of profit.
(3) The Governor shall be entitled without payment of rent to the use of his official residences
and shall be also 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

7
and privileges as are specified in the Second Schedule.
(3A) Where 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 determine.
(4) The emoluments and allowances of the Governor shall not be diminished during his term of
office.

ARTICLE 159: OATH OR AFFIRMATION BY THE GOVERNOR

Every Governor and every person discharging the functions of the Governor shall, before
entering upon his office, make and subscribe in the presence of the Chief Justice of the High
Court exercising jurisdiction in relation to the State, or, in his absence, the senior most Judge of
that Court available.

ARTICLE 160: DISCHARGE OF THE FUNCTIONS OF THE GOVERNOR IN

CERTAIN CONTINGENCIES
The President may make such provision as he thinks fit for the discharge of the functions of the
Governor of a State in any contingency not provided for in this Chapter.

ARTICLE 161: POWER OF GOVERNOR TO GRANT PARDONS, ETC., AND TO

SUSPEND, REMIT OR COMMUTE SENTENCES IN CERTAIN CASES
The Governor of a 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 of any
offence against any law relating to a matter to which the executive power of the State extends.

ARTICLE 162: EXTENT OF EXECUTIVE POWER OF STATE

Subject to the provisions of this Constitution, the executive power of a State shall extend to the
matters with respect to which the Legislature of the State has power to make laws:
Provided that in any matter with respect to which the Legislature of a State and Parliament have
power to make laws, the executive power of the State shall be subject to, and limited by, the
executive power expressly conferred by this Constitution or by any law made by Parliament
upon the Union or authorities thereof.

THE GOVERNOR

Article 153 of the Indian Constitution provides for every State to have a Governor. Just like the
President is the nominal head of the republic, the Governor is the nominal head of a state. This
means that he/she has powers and functions similar to the President of India but operates at the

8
state level, with the real power lying in the hands of the State Chief Minister and his/her council
of ministers. Further, the 7th Constitution Amendment Act of 1956 has added a provision
under Article 153 which provides for the same person to act as the Governor of two states
simultaneously. The term of office of the Governor is 5 years. 

Appointment, Tenure and Removal of a Governor

Appointment of a Governor is talked about under Article 155 and information regarding his

tenure and removal are provided under Article 156. It states that the President appoints the
Governor by warrant under his hand and seal i.e., bearing his seal and signature. The Governor
shall hold office as long as he/she enjoys the pleasure of the President. The Governor may resign
his office by writing under his hand i.e., a written letter undersigned by him addressed to the
President. In accordance with the foregoing provisions of this article, the Governor’s term of
office shall be five years from the date on which he/she enters upon his office, provided that the
Governor shall continue to hold office until his/her successor enters upon his office,
notwithstanding the expiration of his term.

Qualifications

Article 157 states the two qualifications to be fulfilled for a person to be appointed Governor.
The two provisions are:

● He/She should be an Indian citizen.

● 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. 

9
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 oath1 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). ”

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 India2 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, B.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. 

Quoting3, “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 mala fide intention behind his/her removal, the court would cause the Union

1 Article 159
2 2010
3 Justice Raveendran

10
government to produce 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 effected 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. 

Powers of Governors

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. 

Executive power

Under Article 154(1), the executive powers have been vested to the Governor and he can choose
to exercise them either directly himself or indirectly through his Council of ministers. 

● As such, the Governor makes important appointments of the state such as the Chief
Minister and Council of Ministers, Chairman and members of State Public Service
Commission, State election commissioner, Advocate General, Chief Justice of the
High Court, District judges and the Vice chancellors of Universities.
● Under Article 356, the Governor can recommend the President for the imposition of a
State Emergency and during such emergency he/she enjoys extensive executive
powers as an agent of the President.
● He/She runs the state administration by extending control over the subjects in the state
list and deciding the policies and portfolios of the various ministers. 

Financial power

● A money bill cannot be introduced in the state legislature without prior approval of
the Governor.
● The state Contingency Fund is at his/her disposal and he/she can make withdrawals
out of it to meet unforeseen expenditures.
● He/She makes sure that the Annual state budget is discussed and put before the State
Legislature. 

11
Legislative power

● The Governor has the power to summon and prorogue both houses of the Legislature.
He/She has to make sure that the maximum gap between the two sessions of the
houses is 6 months.
● Under Article 192, the Governor has the authority to disqualify any legislator who
fails to comply with the conditions given under Article 191.
● The Governor has to address the state legislature at the beginning of the first session
every year and after the state assembly elections.
● The Governor can hold a bill and send it to the President for his consideration. Other
than this, the Governor can either give assent to a bill or withhold it or send it back for
reconsideration (except for money bills).

Pardoning power

According to Article 161, the Governor can grant pardons, reprieves, respites and remissions of
punishment or suspend, remit and commute the sentence of any person convicted of any offence
relating to matters under the state executive power, exception being cases decided by a court
martial. However, in cases where a death penalty has been granted the Governor cannot pardon
it. 

Is this power subject to judicial review?

According to the Constitution, the judiciary should not encroach upon the powers of the
executive. However, in certain cases this has been seen.

In the case4, the issue of whether the pardoning power of the Governor is subject to judicial
review or not came up. The Hon’ble Supreme Court set aside the decision of the then Andhra
Pradesh Governor, Sushil Kumar Shinde. The Governor had advised for remitting the
punishment of a Congress activist in connection with the murder of two persons, one of whom
was a TDP activist. The division bench consisting of Justices S.H. Kapadia and Arijit Pasayat
expressly mentioned that the exercise of the pardoning power should be in compliance with the
Rule of Law.

“Rule of Law is the basis for evaluation of all decisions (by the court)… That rule cannot be
compromised on the grounds of political expediency. To go by such considerations would be
subversive of the fundamental principles of the Rule of Law and it would amount to setting a
dangerous precedent,” the bench warned.

Justice Kapadia, while concurring with the main ruling delivered by Justice5, sought to remind
“exercise of executive clemency is a matter of discretion and yet subject to certain standards. It is
not a matter of privilege. It is a matter of performance of official duty… the power of executive

4 Epuru Sudhakar & Anr. v. Govt. of AP & Ors.

5 Justice Pasayat

12
clemency is not only for the benefit of the convict but while exercising such a power the
President or the Governor as the case may be, has to keep in mind the effect of his decision on
the family of the victims, the society as a whole and the precedent it sets for the future.”

He also said “An undue exercise of this power is to be deplored. Considerations of religion, caste
or political loyalty are fraught with discrimination”. Thus, this judgment gave a final conclusion
that the settled position of law that exercise or non-exercise of the pardoning power by the
Governor would not be immune from judicial review.

Ordinance making power of the Governor

Under Article 213, the Government can issue an ordinance if the circumstances compel him to
do so, when either houses of the legislative assembly are not in session. However, there are two
circumstances under which the Governor cannot issue an ordinance. They are:

● If the ordinance has certain provisions which the Governor would have reserved for
the President in case it were a Bill.
● If the State Legislature has an act with similar provisions and the same would be
declared invalid without the President’s assent.

Under article 162 the executive authority of the State is executive in respect to matters
enumerated in List II of Seventh Schedule. The authority also extends to the Concurrent List
except as provided in the Constitution itself or in any law passed by the Parliament.
Similarly, article 73 provides that the executive powers of the Union shall extend to matters with
respect to which the Parliament has power to made laws and to the exercise of such rights,
authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or
any agreement.

13
 THE COUNCIL OF MINISTERS

The Council of Ministers is appointed by the Governor. It along with the Chief Minister exercise
the real power and implement policies and rules in the State. Hence, together they form the
executive head of the State.

Maximum size of ministries

The total number of Ministers, including the Chief Minister, in the Council of Ministers in a
State shall not exceed fifteen 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 twelve; And that where the total number of Ministers including the
Chief Minister in the Council of Ministers in any State at the commencement of the Constitution
(Ninety-first Amendment) Act, 2003 exceeds the said fifteen per cent then the total number of
ministers in that State shall be confined to such number within six months from such date. 

Disqualification of defection on the ground of split abolished

In order to protect the true essence of democracy, the Anti-defection law was introduced in the
10th schedule. It was a measure to reduce the rampant horse trading that was happening under
the popular phenomenon of6 in the political parties. Initially, the law allowed defection if 1/3rd
of the party members agreed to split their party. But this provision backfired and resulted in mass
defections. So this was subsequently changed in the 91st amendment and the bar was raised to
2/3rd. Under the new provisions, a member won’t be disqualified in case of a split in the
following two conditions:

● that he/she has willingly given up his membership in his original political party; or
● that he/she has voted or not voted in the House contrary to the instructions by such
political party or by any person or authority authorised by it and such an act has not
been condoned by such political party, person or authority within fifteen days.

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. 

6 “Aaya Ram Gaya Ram”

14
M.P. Special Police Establishment v. State of M.P.7,

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 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 Madras8, T.N. Singh in U.P9.

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.”

A convicted person cannot be appointed as Chief Minister: Constitution Superior, not mandate.

After the Supreme Court verdict last year 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. In the light of this ruling, Ms. Jayalalithaa will be disqualified
as an MLA the moment conviction is awarded, say legal experts. 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.

7 200
8 1954
9 1971

15
A question very similar to that in the present case did arise for consideration before a Full Bench
of the Allahabad High Court in a case10. The point canvassed there was whether the Government
of a State has power under the Constitution to carry on the trade or business of running a bus
service in the absence of a legislative enactment authorising the State Government to do so.
Different views were expressed by different Judges on this question. Chief Justice Malik was of
opinion that in a written Constitution like ours the executive power may be such as is given to
the executive or is implied, ancillary or inherent. It must include all powers that may be needed
to carry into effect the aims and objects of the Constitution. It must mean more than merely
executing the laws. According to the chief Justice the State has a right to hold and manage its
own property and carry on such trade or business as a citizen has the right to carry on, so long as
such activity does not encroach upon the rights of others or is not contrary to law.

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. 

Appointment of the Chief Minister

The Chief Minister is the most powerful functionary at the State Government level and is the
executive head of the state. He/She is appointed by the Governor. Post the general elections, the
party with the majority votes and elects its leader. 

This person is then appointed as Chief Minister. In case, no particular party secures majority
support, the Governor asks the leader of the single largest party to form the Government or in
case of a coalition, the group’s leader is appointed as Chief Minister.

Dismissal of a Minister

10 Motilal v. The Government of the State of Uttar Pradesh 

16
The ministers of a state holds office during the pleasure of the President. However, since the
ministers are chosen by the Chief Minister, in practice it is the Chief Minister who decides whom
to retain and whom to oust. Thus there are two provisions here:

● The Governor cannot dismiss a Minister against the advice of the Chief Minister.
● The Governor cannot retain a Minister against the wishes of the Chief Minister.

Dissolution of the Legislative Assembly

There are two provisions in the Constitution under which the State Legislative Assembly can be
dissolved. One is under Article11 which states that the Governor may dissolve the Legislative
Assembly from time to time. This was recently seen when the Governor of Telangana dismissed
the State’s Legislative Assembly after being advised by the Chief Minister to do so. The other is
under Article 365 which can be applied during a state emergency i.e., President’s Rule. Under
Article 365, if the state government fails to comply with the instructions of the Union
Government, then it is up to the Governor to assess the ground situation and then call for its
dissolution, after approval by both houses of the Parliament. But this decision comes under the
judicial review of both the High Court and Supreme Court and they can declare it invalid if it is
found to be done on mala fide grounds. Since 2000, President’s Rule has been applied 15 times
in the country. 

Advising the President for the Proclamation of an Emergency under Article 356

When the State Government is unable to function in accordance to the constitutional machinery,
then the Governor sends a report to the President briefing him/her about the grievousness of the
situation. This power has been granted to the Governor under Article 356. This may happen
when there is a vote of no confidence in the house or a government breakdown in the state.

Protection of Governor 

Article 361 lays down the provisions for the protection of the Governor. The Governor shall not
be answerable to any court for the performance and disposal of his/her duties. There can be no
criminal proceedings against him/her during the term of his/her office. Neither can there be a
process to arrest him/her during the term of his/her office. Any civil proceedings in which relief
is claimed against the Governor of a State, shall be instituted during his/her term of office in any
court in respect of any act done or purporting to be done by him/her in his personal capacity.

CONCLUSION
11 174(2)(b)

17
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. 

The modern executive is a very powerful institution of government. The executive enjoys greater
powers compared to other organs of the government. This generates a greater need to have
democratic control over the executive. The makers of our Constitution thought with foresight
that the executive must be put firmly under regular supervision and control. Thus, a
parliamentary executive was chosen. Periodic elections, constitutional limits over the exercise of
powers and democratic politics have ensured that executive organ cannot become unresponsive.

The functions of government are often divided into three broad classes— legislative, executive
(or administrative) and judicial. It is not always easy, or indeed possible, to determine under
which head a particular task of government falls, but the organs which mainly perform these
functions are distinguishable. To give an example from one of the oldest tasks of government,
that of taxation: to enact a law authorising a new tax is a legislative function; to operate
machinery for assessing and collecting the tax payable by each taxpayer is an executive (or
administrative) function; to determine disputes between the taxpayer and the tax-collector as to
the tax due in a particular case is a judicial function, involving interpretation of the law and
applying it to the facts. So too in criminal law: creation of a new offence is a matter for
legislation, enforcement of the law is an executive function and the trial of alleged offenders is a
judicial function. But the tasks of government today are complex. The simple model afforded by
taxation and criminal law is not easily applicable to many of the more elaborate processes of
government.

BIBLIOGRAPHY

18
Books Referred:

Author’s Name Book’s Name Publication Edition Year of

Publication

J.N. Pandey The Constitution Central Law 40th Edition 2015

of India Agency

Websites Referred:

Title of Autho Date Link

the r’s &Time
Paper Name of
Publicat
ion

The State Disha Jan https://blog.ipleaders.in/the-state-executive-article-153-167-

Executive Mohan 20,2020 article-213/
: Article ty
153-167
& Article
213

State ---- ---- https://en.wikipedia.org/wiki/State_governments_of_India

governme
nts of
India.

Constitui ---- ----- https://shodhganga.inflibnet.ac.in/bitstream/10603/71955/14/14

on of _chapter%206.pdf
India –
State
Executive

19