Governor

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GOVERNOR
  1. constitution Head of the State.
  2. Appointed by the President and holds office during the pleasure of President.
  3. Normally appointed for a period of 5 years., but can be removed earlier or vacate the office by resignation, due to his death [before the completion of 5 years term.]
  4. President can ask government to continue in the office beyond 5 years till his successor enters upon his office.
  5. After the 7th Amendment Act 1956 a common Government can be appointed for 1 or more states (or) 1 or more UT’s or states & UT’s.
He can be transferred from one state to another by president.
6.                   He performs Dual FC’s
a.       c’nal head of the state
b.       agent of the center in the state [by virtue of holding a pleasure tenure i.e. can be removed without assigning any reason].
      • Sarkaria Commission Recommendations:-
                           (rel. to office of government)
  1. That the government must be an eminent person in certain walks of life.
  2. The present practise of appointment of government’s from various sections of minorities must be continued.
  3. The government must normally be allowed to complete his 5 years terms so that he confirm in an impartial & neutral manner.
  4. A person who has ever been politically active in a state should not be appointed as the government of that state.
My a person who has been active politically at national level for 5 years should not be considered for the office of government.
5.                   He shall be appointed by the president in consultation with the chief minister of that state.
6.       The present practise of government sending a fortightly report upon the administrative of the state to the president should be continued.
7.       A politician belonging to the ruling party at the center should not be appointed as government to the state ruled by opposition party.
8.       The government should not come to a subjective conclusion on the majority enjoyed by the COM in the assembly.

                        It is the assembly which is the constitution’nally ordained forum to test the majority enjoyed by the COM.

(These recommendations did not come into practise completely).

      • Constitutional practise of the government (See pointed material)
  1. Government is the constitution’nal head of the state. His position is comparable to that of president at the central level. However his position vis-à-vis the state com is better secured under the constitution than that of the president.
  2. The president’s office is largely one of influence & not authority. His office is largely ceremanial but not functional. But the Government wields both influence & authority. His office is both ceremanial & functional.
  3. A president cannot exist & exercise his functions without aid & advise of the COM.
A government can discharge his executive FC’s even in the absence of a COM.
4.                   President enjoys discretionary powers. It is merely incidental but not deliberate. His discretionary powers are implicit.

Government enjoys discretionary powers U/A 163 (1) explicity give in constitution.

Government also enjoys certain extra discretionary powers they are:-

  1. U/A 163 (1) The government of a state shall exercise his executive FC. On the advice of COM except in so far as under this constitution he is regarding to exercise the FC’s in his discretion.
  2. U/A 163 (2) If any dispute arises whether a power of government is his discretionary power or not, then the decision of the government in this regard is final & binding.
This means whether the power of a government is a discretionary power or not is in itself a discretionary power of the government.
3.                   U/A 200 the government of a state can reserve any bill passed by the state legislature including a money bill for the consideration of the president.
4.       U/A 356 the government of a state can invite the president to taken over the administrative of the state on the ground that the administrative of the state is not carried according to the constitution’nal provisions.
5.       Under the convention, the government of a state sends a fortnightly report to the president about the affairs of the administrative of the state. (He prepares it on his own).
[The Gov’s report is not mandatory for imposition of president’s rule. President can come to a conclusion a his own].
      • Special responsibility of government [U/A 371] onwords

Under special responsibility, the government is constitution’nally obliged to consult the COM while discharging his executive FC, but he is not bound by the advice of COM.

[Discretionary power – Enjoyed by government without aid & advice of COM.]
[Special resp. – to necessarily consult COM but not bound by the advice of COM.]

The special responsibility is enjoyed by government is of certain states.

  1. The Government of M.H. has a s.p.r. to ensure that a developmental Board is formed for the devpt. Of regions of vidarbha & marthwada of the state. [Art 371]
  2. The government of Guajarath has s.p.r. to ensure the establishment of separate developmental boards for the development of Saurashtra, Kutch & other regions of Gujarath.                           [ Art 371]
  3. The Government of Nagaland has a s.p.r. for maintenance of L&O in that state so long as the internal disturbance caused by the Naga lebels continues [Art 371A]
  4. The government of Manipur has a s.p.r to secure the proper functioning of a committee of the legislative assembly consisting of MLA’s elected from the hill areas of that state.   [371C]
  5. The Government of Sikkim has a special respective for peace and for ensuring equitable arrangement for the social and economic for the social and economic advancement of different sections of the population of sikkim. [371 F]
  6. The Government’s of M.P. & Orissa have a s.p.r. to ensure that a separate My for tribal welfare is established.
  7. 371 (H) – Arunachal Pradesh – L&O.

*The Significance of the Government’s constitution’nal Position:-

Even though the government has been theoretically conferred with greater powers, in practise he shall exercise his discretion any powers under the directions of the president because of his pleasure tenure.

Therefore the powers of the government actually are enjoyed & exercised by him under the directions of the union COM. Thus the office of the government is areflection of the type of federation of the constitution. Has provided to the country, where the center is strong and the state are weak.

      • Council of Ministers:-

The State COM are similar to union COM. Under the 91st amendment act 2003. The strength of COM of a state U/A 164 (1) (a) shall not exceed 15% of the strength of the lower house of the state, subject to a min. strength of 12.

[in case of Goa, Sikkim – smaller states etc., Delhi – 69 Amendment Act  1/10th]

Art 163 – COM to aid & advise Governor 163 164 165-advocate 166- business 167 *

  1. There shall be a COM with the Chief Minister as the head to aid & advise the governor in the exercise of his functions, except in so far as he is by or under this constitution required to exercise his fC”s or any of them in his discretion.
  2. If any qu. Arises whether any matter is or is not a matter as respects which the governor is by or under this constitution regarding 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 qn an the ground that he ought or ought not to have acted in his discretion.
  3. The qn whether any and is so that, advice was tendered by ministers to the governor shall not be inquired into in any court.
Art 164: Other Provisions as to Ministers:-
    1. The Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by the Governor on the advice of the Chief Minister, and the Ministers shall hold office during the pleasure of the Governor.

Provided that in the states of Bihar, M.P. & Orissa, there shall be a minister incharge of tribal welfare who may in addition be in charge of the welfare of the SC’s & BC’s or any other work.

(1a) 15% of leg. Assembly COM.} 91st constitution Amendment 2003
          Subjected to < 12.

Smaller States like Delhi, Sikkim } 1/10th of leg. Assembly 69th Amendment.

2.                   The COM’s shall be collectively resp. to the leg. Assembly of the state.
3.       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 3rd schedule.
4.       A Minister who for any period of 6 consecutive months is not a member of the leg. Of the state shall be at the expiration of that period case to be a Minister.
5.       The Sal. & 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 II schedule.

Art 165: Advocate General for the State:-

Art 166: Conduct of Business of the Government of a State:-

Art 167: Duties of C. M. as respects the furnishing of information to Governor, etc:-

It shall be the duty of the C.M. of each State –

a.                   To communicate to the government of the state all decisions of the COM rel. to the administrative of the affairs of the state and proposals for legislation;
b.       To furnish such info. Rel. to the administrative of the affairs of the state and proposals for legislation as the government may call for; and
c.        If the government so requires, to submit for the consideration of the COM’s any matter on which a decision has been taken by a minister but which has not been considered by the council.

20 Advocate General for the State

Art 165: Advocate General for the State:-

  1. The Governor of each state shall appoint a person who is qualified to be appointed a Judge of a HC 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 the perform such other duties of a legal charaites 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 government may determine.
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