Long story short
The State Executive
Article 153 stipulates that there shall be a Governor for each State. However, the same person can be appointed as the Governor for two or more States. The Governor is a crucial member of a State’s legislature and the executive power of the State is vested in him.
Article 154 states that 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. The article also clarifies that nothing in this article shall transfer to the Governor any functions conferred by any existing law on any other authority or prevent Parliament or the Legislature of the State from conferring by law functions on any authority subordinate to the Governor.
Article 155 deals with the appointment of a Governor. It mentions that the Governor of a State shall be appointed by the President by warrant under his hand and seal.
Article 156 deals with the term of office of the Governor. It states that the Governor shall hold office at the pleasure of the President and can be removed by him at any time. The article also states that the Governor may resign by writing to the President. The article further states that subject to the foregoing provisions, a Governor shall hold office for a term of five years from the date he enters his office, but shall continue to hold office until his successor enters his office.
Article 157 is about the qualifications for appointment as Governor of a state. It says that no person shall be eligible for appointment as Governor unless he or she is a citizen of India and has completed the age of thirty-five years.
Article 158 is about the conditions of the Governor’s office. It says that:
- 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 or she shall be deemed to have vacated his or her seat in that House on the date on which he or she enters upon his or her office as Governor.
- The Governor shall not hold any other office of profit.
- The Governor shall be entitled without payment of rent to the use of his or her 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 and privileges as are specified in the Second Schedule.
- 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.
- The emoluments and allowances of the Governor shall not be diminished during his or her term of office.
Article 161 is about the power of the Governor to grant pardons, etc., and to suspend, remit or commute sentences in certain cases. This means that the Governor has the power to show mercy and reduce or cancel the punishment of a person who has committed a crime under state law. The Governor can exercise this power only in cases where the executive power of the state is involved.
Article 162 deals with the extent of the executive power of the State. It says that 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 the power to make laws. However, if there is a matter with respect to which both the State Legislature and Parliament have the power to make laws, then the executive power of the State shall be subject to and limited by the executive power conferred by the Constitution or by any law made by Parliament upon the Union or authorities thereof.
Article 163 deals with the council of ministers to aid and advise the Governor. It says that there shall be a council of ministers with the Chief Minister at the head to aid and 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 functions or any of them in his discretion. It also says that if any question arises whether any matter is or is not a matter as respects which the Governor is 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. Furthermore, it says that the question of whether any and if so what, advice was tendered by ministers to the Governor shall not be inquired into in any court.
The 42nd C(A)A of 1976 amended Article 74 to provide that the president “shall” act in accordance with the council of ministers, however, such an amendment is not made for Article 163. There are certain areas where the Governer may have to use his own wisdom and discretion, e.g. in (a) appointing a new chief minister where no party hold the majority (b) dismissing a ministry that is not resigning even though they lose the confidence of the house (c) dissolution of the assembly on the advice of chief minister (d) advising the president for president’s rule in case of failure of constitutional machinery (e) giving or withholding assent to bills, returning a bill for reconsideration of the house or reserving it for the consideration of president.
Article 164 deals with the other provisions for ministers. It says that 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 at the pleasure of the Governor. It further says that a member of the Legislative Assembly of a State or either House of the Legislature of a State having a Legislative Council belonging to any political party who is disqualified for being a member of that House under paragraph 2 of the Tenth Schedule shall also be disqualified to be appointed as a Minister. Moreover, it says that the Council of Ministers shall be collectively responsible to the Legislative Assembly of the State.
Article 165 deals with the Advocate-General for the State. It says that 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. It also says that 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. Moreover, it says that the Advocate-General shall hold office at the pleasure of the Governor, and shall receive such remuneration as the Governor may determine.
Article 166 deals with the conduct of business of the Government of a State. It says that all executive action of the Government of a State shall be expressed to be taken in the name of the Governor. It also says that 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. Furthermore, it says that 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.
Article 167 states that it shall be the duty of the Chief Minister of each State 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; to furnish such information relating to the administration of the affairs of the State and proposals for legislation as the Governor may call for; and 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.
Article 168 states that for every State there shall be a Legislature which shall consist of the Governor, and in some States, two Houses (known as the Legislative Council and the Legislative Assembly), and in other States, one House (known as the Legislative Assembly).
Article 200 deals with the assent to Bills by the Governor. When a Bill has been passed by the Legislative Assembly of a State or, in the case of a State having a Legislative Council, has been passed by both Houses of the Legislature of the State, it shall be presented to the Governor and the Governor shall declare either that he assents to the Bill or that he withholds assent therefrom or that he reserves the Bill for the consideration of the President.
The Governor may, as soon as possible after the presentation to him of the Bill for assent, return the Bill if it is not a Money Bill together with a message requesting that the House or Houses will reconsider the Bill or any specified provisions thereof and, in particular, will consider the desirability of introducing any such amendments as he may recommend in his message and, when a Bill is so returned, the House or Houses shall reconsider the Bill accordingly, and if the Bill is passed again by the House or Houses with or without amendment and presented to the Governor for assent, the Governor shall not withhold assent therefrom.
The Governor shall not assent to but shall reserve for the consideration of the President, any Bill which in the opinion of the Governor would, if it became law, so derogate from the powers of the High Court as to endanger the position which that Court is by this Constitution designed to fill.
Article 211 lays down the restriction on discussion in the Legislature of a State. It states that no discussion shall take place in the Legislature of a State with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties. This is to ensure the independence and impartiality of the judiciary and to prevent any undue influence or interference from the executive or legislative branches of the government.
Article 212 deals with the courts not to inquire into proceedings of the Legislature of a State. It states that the validity of any proceedings in the Legislature of a State shall not be called into question on the ground of any alleged irregularity of procedure. It also states that no officer or member of the Legislature of a State in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in the Legislature shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers. This is to ensure the autonomy and sovereignty of the State Legislatures and to prevent any judicial interference or review of their internal affairs.
Article 213 deals with the power of the Governor to promulgate Ordinances during recess of the Legislature of a State. It states that if the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require, subject to certain conditions and limitations. An Ordinance promulgated under this article shall have the same force and effect as an Act of the Legislature of the State assented to by the Governor, but it shall be laid before the Legislature and shall cease to operate after six weeks from the reassembly of the Legislature, or if it is disapproved by the Legislature earlier. This article gives the Governor the legislative power to deal with unforeseen or urgent situations when the Legislature is not in session.
Union Territories
Article 239 deals with the administration of Union territories. According to this article, every Union territory shall be administered by the President acting through an administrator appointed by him with such designation as he may specify. The President may also appoint the Governor of a State as the administrator of an adjoining Union territory. The administrator shall exercise his functions independently of his Council of Ministers.
Article 239AA grants special provisions with respect to Delhi. It was introduced by the 69th constitutional amendment in 1991. According to this article, Delhi shall be called the National Capital Territory of Delhi and the administrator thereof appointed under Article 239 shall be designated as the Lieutenant Governor. There shall be a Legislative Assembly for the National Capital Territory and the seats in such Assembly shall be filled by members chosen by direct election from territorial constituencies in the National Capital Territory. The Legislative Assembly shall have power to make laws for the whole or any part of the National Capital Territory with respect to any of the matters enumerated in the State List or in the Concurrent List in so far as any such matter is applicable to Union territories except matters with respect to Entries 1, 2 and 18 of the State List and Entries 64, 65 and 66 of that List in so far as they relate to the said Entries 1, 2 and 18. The President may, on the advice of the Lieutenant Governor, make regulations for the peace, progress and good government of the National Capital Territory.
Article 240 deals with the power of the President to make regulations for certain Union territories. It is outlined in Part VIII of the Constitution of India which covers the Union Territories. According to this article, the President may make regulations for the peace, progress and good government of the Union territories of (a) the Andaman and Nicobar Islands; (b) Lakshadweep; (c) Dadra and Nagar Haveli; (d) Daman and Diu; (e) Puducherry. Any regulation so made may repeal or amend any Act made by Parliament or any other law which is for the time being applicable to the Union territory and, when promulgated by the President, shall have the same force and effect as an Act of Parliament which applies to that territory.
The difference between an act and a regulation is that an act is a broader piece of legislation that outlines the general principles and rules of law, while a regulation is a more specific set of rules and requirements created by a government agency to enforce the provisions of the act. An act is passed by the legislature after following a procedure of introducing a bill, debating it, voting on it and getting the assent of the President. A Regulation is made by the executive authority under the power conferred by the act itself. An act is primary legislation and has a wider scope and applicability, while a regulation is secondary legislation and has a narrower scope and applicability. An act is a public document and can be accessed by anyone, while a regulation may not be easily accessible to the public.
Union State Relations
Article 245 states that “Subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State.” This means that Parliament has the power to make laws for the entire country or any part of it, while the state legislature can make laws for their respective states.
Article 246 states that “Subject-matter of laws made by Parliament and by the Legislatures of States.” This means that Parliament and state legislatures have different powers to make laws on different subjects, which are divided into three lists:
- List I or the Union List, which contains subjects on which only Parliament can make laws, such as defence, foreign affairs, currency, etc.
- List II or the State List, which contains subjects on which only state legislatures can make laws, such as public order, police, local government, etc.
- List III or the Concurrent List, which contains subjects on which both Parliament and state legislatures can make laws, such as education, health, labour, etc.
However, in case of a conflict between a law made by Parliament and a law made by a state legislature on a subject in the Concurrent List, the law made by Parliament prevails.
Article 248 states that “Residuary powers of legislation.” This means that Parliament has the exclusive power to make laws on any subject that is not mentioned in the Concurrent List or State List, such as cyber laws, space laws, etc. This also means that Parliament can impose any tax that is not mentioned in either of those lists, such as service tax, wealth tax, etc.
Article 249 states that “Power of Parliament to legislate with respect to a matter in the State List in the national interest.” This means that Parliament can make laws on any subject that is mentioned in the State List, such as agriculture, health, police, etc., if the Council of States (Rajya Sabha) passes a resolution by a two-thirds majority of the members present and voting that it is necessary or expedient in the national interest to do so. Such a resolution can remain in force for up to one year and can be extended by another resolution for another year. A law made by Parliament under Article 249 will cease to have effect six months after the resolution expires, unless it is repealed earlier.
Article 250 is about the power of Parliament to legislate with respect to any matter in the State List if a Proclamation of Emergency is in operation. It states that while a Proclamation of Emergency is in operation, Parliament shall have the power to make laws for the whole or any part of the territory of India with respect to any of the matters enumerated in the State List. A law made by Parliament under this article shall cease to have an effect on the expiration of a period of six months after the Proclamation has ceased to operate, except with respect to things done or omitted to be done before the expiration of the said period.
Article 251 is about the inconsistency between laws made by Parliament under articles 249 and 250 and laws made by the Legislatures of States. It states that nothing in articles 249 and 250 shall restrict the power of the Legislature of a State to make any law which under this Constitution it has the power to make, but if any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament has under either of the said articles power to make, the law made by Parliament, whether passed before or after the law made by the Legislature of the State, shall prevail, and the law made by the Legislature of the State shall to the extent of the repugnancy, but so long only as the law made by Parliament continues to have an effect, be inoperative.
Article 252 is about the power of Parliament to legislate for two or more States by consent and adoption of such legislation by any other State. It states that if it appears to the Legislatures of two or more States to be desirable that any of the matters with respect to which Parliament has no power to make laws for the States except as provided in articles 249 and 250 should be regulated in such States by Parliament by law, and if resolutions to that effect are passed by all the Houses of the Legislatures of those States, it shall be lawful for Parliament to pass an Act for regulating that matter accordingly, and any Act so passed shall apply to such States and to any other State by which it is adopted afterwards by resolution passed in that behalf by the House or, where there are two Houses, by each of the Houses of the Legislature of that State. Any Act so passed by Parliament may be amended or repealed by an Act of Parliament passed or adopted in like manner but shall not, with respect to any State to which it applies, be amended or repealed by an Act of the Legislature of that State.
Article 253 deals with the law to give effect to international agreements. It states that Parliament has the power to make laws for the whole or any part of the country for carrying into effect the agreements with one or more countries. It also empowers Parliament to make laws for implementing any decision made at any international conference, association or other body. This article is contained in Chapter XI of the Indian Constitution.
Article 254 of the Constitution of India deals with the inconsistency between laws made by the Parliament and laws made by the Legislatures of States. It states that if any provision of a law made by the State Legislature is repugnant to any provision of a law made by Parliament or an existing law with respect to one of the matters enumerated in the Concurrent List, then the law made by Parliament or the existing law shall prevail and the law made by the State Legislature shall be void. However, it also provides an exception that if the State law has been reserved for the consideration of the President and has received his assent, then it shall prevail in that State. This exception is subject to the proviso that Parliament can at any time enact a law with respect to the same matter and override the State law. This article is intended to resolve any conflict between the Union and the State laws on subjects in the Concurrent List.