LC 0802 Module 02 Jurisprudence - Sources of Law

Jurisprudence - Sources of Law

    Jurisprudence, the study of law and its principles, provides insight into the foundations and workings of legal systems. To fully grasp the dynamics of law, it is essential to understand the sources from which it derives. This article aims to delve into the various sources of law, including legislation, precedent, customs, and juristic writings. By examining their merits, demerits, and significance within legal practice, we can gain a comprehensive understanding of the subject.

LC 0802 Module 02 Jurisprudence - Sources of Law - Notes 2

Jurisprudence - Sources of Law - Notes

Introduction 

    The study of jurisprudence involves a comprehensive examination of the sources of law, which are the origins from which legal rules and principles are derived. In this article, we will explore the concept of sources of law, their significance, and the different types of sources that contribute to the formation of a legal system.

2.1 Definition and Significance of Sources of Law: 

LC 0802 Module 02 Jurisprudence - Sources of Law - Notes

LC 0802 01 Jurisprudence - Sources of Law - Notes

1. Introduction: 

    Jurisprudence is the study of law and its principles. Understanding the sources of law is crucial in comprehending how legal systems function. In this article, we will explore the various sources of law, including legislation, precedent, customs, and juristic writings, highlighting their merits, demerits, and significance in legal practice.

LC 0803 Module 03 Law of Evidence - Relevancy of Facts II - Short Note

Law of Evidence - Relevancy of Facts II

Short Note

Introduction

    The law of evidence plays a crucial role in determining the admissibility and relevancy of facts presented in legal proceedings. In our previous article, we explored the concept of relevancy of facts in the law of evidence. In this article, we will delve further into the topic by examining the relevancy of facts related to statements made by persons who cannot be found, statements made under special circumstances, and judgments. Understanding these sections of the law is essential for anyone involved in legal proceedings. Let's explore each of these areas in detail.

LC 0803 Module 02 Law of Evidence - Relevancy of Facts I

Law of Evidence - Relevancy of Facts I

    The Law of Evidence is a set of rules that determine the admissibility of evidence in legal proceedings. One of the fundamental principles of the law of evidence is the relevancy of facts. In this article, we will discuss the relevancy of facts under Sections 6-16 of the Indian Evidence Act, along with the relevancy of admissions and confessions.

LC 0803 Module 02 Law of Evidence - Relevancy of Facts I - Short Note

Law of Evidence - Relevancy of Facts I

Short Note 

1. Introduction

2. What Facts are Relevant (Sections 6-16)

3. Relevancy of Admissions (Sections 17-23 and 31)

4. Relevancy of Confessions (Sections 24-30)

5. Conclusion

6. References

LO 0807 Module 02 The Protection of Civil Rights Act, 1955

The Protection of Civil Rights Act, 1955

Combating Untouchability and Discrimination

1. Introduction

2. Social menace of Untouchability

3. Legislative history, objectives, and scope of the Act

4. Practices of untouchability and its Punishment (sec 3 to sec 7)

5. Presumption of courts in some cases (sec 8)

6. Power of court to impose a collective fine (sec 10A)

7. Nonapplication of Probation of Offenders Act (sec 16A)

8. Conclusion

9. References

1. Introduction

    The Protection of Civil Rights Act, 1955, is a pivotal legislation in India that addresses the societal issue of untouchability and strives to promote equality and dignity for all individuals. Enacted with the aim of eradicating discrimination and social exclusion, this Act serves as a robust legal framework to safeguard the civil rights of marginalized communities, particularly the Dalit community, which has long endured oppression based on their caste or social status.

0801 Module 02 Settlement of Industrial Disputes

Settlement of Industrial Disputes

Synopsys

1. Introduction

2. History Scope and objective of The Industrial Disputes Act, 1947

3. Important Definitions

4. Forms of Industrial Disputes

4.1 Interest disputes

4.2 Grievances of Right disputes

5. Types of Industrial disputes

5.1 Strike

5.2 Lock out

5.3 Lay off

5.4 Retrenchment

5.5 Gherao

5.6 Recovery of Dues

6. Modes of settlement of Industrial disputes

6.1 Authorities and Procedures

6.2 Works Committees

6.3 Conciliation

6.4 Arbitration

6.5 Adjudication

7. Conclusion

8. Reference

LC 0701Constitutional Law II : Module 02 Structure Powers and Functions Union and State Executive Part 1

LC 0701Constitutional Law II : Module 02 Structure Powers and Functions Union and State Executive 

Syllabus  

Module 02

Structure Powers and Functions Union and State Executive :   Video 1 1.     Union Executive  (Articles 52 to 78)   Video 2 2.     State Executive  (Articles 152 to 167) Video 2

Below  article is written by Devansh Sharma, 1st-year Student, at Law School, Banaras Hindu University. This article deals with the provisions related to the Union Executive. State Executive Atrocle 152 t0 167 will be covered in next article

The Union Executive: Articles 52 to 78 and 123 Under Indian Constitution 
by Devansh Sharma  dated January 10, 2020

Table of Contents

1. Introduction 
2. Parliamentary form of Government
3. The President (Article 52)
1. Qualifications: Article 58
2. Condition of President’s Office: Article 59
3. Official residence, emoluments, and allowances of President
4. Election of President: Article 54
1. Mode of Voting
5. Disputes regarding the election: Article 71
6. Oath by the President: Article 60
7. Term of office of the President: Article 56
8. Time of holding the election on expiry of the term and filling casual vacancies
4. Procedure for impeachment of the President: Article 61
5. Privileges of the President: Article 361
6. Powers of the President
1. Executive powers
2. Military powers
3. Diplomatic powers
4. Legislative powers
5. Ordinance making power of the President: Article 123
6. Financial Roles
7. Judicial powers
8. Pardoning power: Article 72
1. Clemency Power not unbridled
2. Nature of Pardoning Power
3. Pardoning Power: subject to judicial review 
4. Articles 72 and 161 of Constitution
5. Emergency Powers
9. Position of the President 
1. Prior to the 42nd Amendment Act of 1976
2. After the 42nd Amendment Act, 1976
3. 44th Amendment Act, 1978
7. The Vice President (Article 63)
1.  Functions of the Vice-President
8. The Council of Ministers 
1. Size of Ministries
2. Disqualification on defection on the ground of split in a political party
3. A non-member can become a Minister
4. A convicted person cannot be appointed Chief Minister
5. Dissolution of Parliament 
6. Principle of Collective Responsibility
7. Minister’s Individual Responsibility
9. Appointment of Prime Minister
1. Constitutional Duties of Prime Minister
1. Rights and powers regarding Appointments:
2. Rights/Powers with regard to Parliament of India:
2. Dismissal of a Minister
3. Dismissal of the Cabinet
4. The Attorney-General of India
1. Term and Appointment
2. Qualification
5. Functions and Duties of Attorney-General
10. Conclusion 

Introduction 

A few days ago, helping my younger brother at the subject of civics, I was bombarded with questions like why is the president not the real head?, Why are all leaders not allowed to ministers?, Why is there a need for a party election and not individuals standing face to face? And many more. Though I was able to answer many, some really made me scratch my head. Though the concept of Parliament and Union Executive seems simple, it has its own intricacies. This made me look through all the provisions and laws relating to the executive. 

So, let us discuss the provisions and try to understand the form of the executive wing of the government of our country.

Parliamentary form of Government

Before talking of the Parliament and Union Executive, let us understand the form and nature of the Indian government. The Structure of the Indian government can be understood by the following flow chart:

India is a form of Parliamentary Government. It is a form of government in which the executive is responsible and answerable to the legislative. It is also called the Cabinet Government due to the concentration of executive powers in the Cabinet. The Executive is a part of the Legislative.

This form of government was basically preferred by the leaders as:

• Leaders were aware of such a form of government.
• This government was considered a more responsible government as in this form of government, the executive is answerable to legislative and the legislative is answerable to the citizens.
• This type of government prevents Authoritarianism.
• This form helps to get representation from a Diverse Group of people.
• This form of government remains laden with the availability of Alternate Government.
• In this form of government, the head of the state holds a ceremonial position and is the nominal executive. For example, the President
• The real head of the State is the Prime Minister, who is the real executive. 
• There is a majority party rule in such a form of government.
• There is always a Parliamentary Opposition to maintain a check on the actions of the ruling government.
•  In this form of Government Civil Servants are Independent.

This is a famous concept of government followed in other countries like Japan, Canada, Britain. This form of government in India was majorly inspired by Britain.

Opposite of such a form of government is the Presidential form of Government. In this government, the President is answerable to citizens rather than the legislative.

If we dwell deep inside, we find further subdivision of the Executive Organs of the State. These subdivisions are:

The President (Article 52)

The first and foremost part of the Executive is the President. Article 52 states that there shall be a President of India. The President is considered the Executive head of the country. All the Executive business of the country is carried out in the name of the President.

So the question arises that if President is the executive head and all actions are in his name, and the President has to carry out many functions, then can there be the performance of an act not mentioned in any specific legislation by the Executive? 

The same was answered in the case of Ram Jawaya Kapoor v. the State of Punjab, the Government invited textbooks from authors for approval. When textbooks were approved, the authors were made to enter an agreement. According to this agreement, the copyright of these books vested solely in the Government. The authors only got  5% royalty on the sale of the textbooks. The Government took all the publishing, printing and selling rights of the books in their own hands.

The Court held that these provisions were ultra-vires to the constitutional power. The government being an executory body did not possess the power to enter into that activity or trade without specific legislations.

No restriction on the executive powers is defined in the Indian Constitution. The Court held that the executive cannot be restricted to mere implementations of legislations. There is a strict separation of powers but no strict separation of functions.

Qualifications: Article 58

After knowing that President is the Executive Head of the entire nation, you might too aspire to become a president. So let’s analyze the eligibility and all the specific requirements, you would be needing to become the President of India?

Article 58 talks about the eligibility of a person to become President of India. It says that a person is eligible for election as President if he:

• is a citizen of India;
• has completed the age of thirty-five years;
• is qualified for election as a member of the House of the People.

A person can be disqualified for election as President if he holds any office of profit under 

• the Union of India  or;
• the Government of any State or;
• under any local or other authority subject to the control of any Government of India.

Condition of President’s Office: Article 59

The eligibility to become the President might seem simple but the conditions his office are quite strict. Article 59 of the Indian Constitution talks about the conditions of the President’s office. It says:

• The President cannot be a member of either House of Parliament or of any other House of the Legislature of any State.
• If he is a member of either House of Parliament or a member of a House of the Legislature of any State, he will need to vacate his seat in that House on the date of entering into his office as President.
• The President shall not hold any other office of profit.
• The President shall be authorized to the use of his official residences without rent.
• He shall be also authorized to emoluments, allowances, and privileges determined by Parliament.
• The emoluments and allowances of the President cannot be diminished or reduced during his term of office.

Official residence, emoluments, and allowances of President

Apart from all these conditions and rules, you might crave for some advantage of being the President. Well, the President of India is also entitled to certain allowances and privileges, as he is the first citizen of the country. The President of India is entitled to rent-free accommodation, allowances, and privileges by law. He is also entitled to:

• Free medical facilities;
• Free accommodation;
• Free treatment for life;
• The official state car of the President.

The salary of the President has undergone several changes since independence. Some of these changes were:

• In 1951, the President of India used to get a salary of Rs. 10,000 and 15000 rupees as an allowance.
• In 1985, the President of India used to get a salary of Rs. 15,000 and 30000 rupees as an allowance.
• In 1989, the President of India used to get a salary of Rs. 20,000 and 10000 rupees as an allowance.
• In 1998, the salary was increased to Rs. 50,000In 2008, the salary was increased to Rs. 1,50,000.
• In 2016, the salary was increased to Rs. 5,00,000.

Rashtrapati Bhavan is the President’s official residence, including reception halls, guest rooms, and offices. It is the largest residence of any head of state in the world (You will get to live in it. After all, you have become the President of the largest democracy of the world).

Election of President: Article 54

So, if you think that who would vote for you in the Presidential elections? 

The answer lies in Article 54 of the Constitution. It deals with provisions relating to the election of the President. It says that the President must be elected by the members of an electoral college. The electoral college consists of the elected members of both Houses of Parliament and the state Legislative Assemblies.

Mode of Voting

As per Article 55(3) of the Constitution of India, the election of the President should be held according to the system of proportional representation by means of a single transferable vote. The voting at the presidential election shall be by secret ballot.

Disputes regarding the election: Article 71

What if people raise issues regarding your elections as president? Who would clarify the dispute?

Well, Article 71 deals matters relating to the election of the President. It states that any dispute arising with respect to the election of the President will be adjudicated by the Supreme court and its decision will be considered final.

• If the election of a person as President is declared void, acts done by him in the exercise of the powers of the office of President will not be considered invalid by reason of the order of the Supreme Court.
• Parliament can formulate any law regarding the election of a President in consonance with the provisions of the Constitution.
• The election of a person as President or Vice President shall not be called in question on the ground of the existence of any vacancy for whatever reason among the members of the electoral college electing him.

Oath by the President: Article 60

So, after you are elected, it is time to make an oath and get familiar with the term of office of the President. 

Any person holding the office of the President or delivering the functions of the President must, before entering into the office of the President, be made to subscribe in the presence of the Chief Justice of the country or any other senior-most judge of the Supreme Court, to an oath or affirmation in the name of God to faithfully execute the office of president of India and to preserve, protect and defend the Constitution and the law to the best of his abilities and that he would devote himself to serve the people of India and ensure their well being.

Term of office of the President: Article 56

Article 56 defines the term of the office of the President to be of five years unless:

• A new President enters the office, the incumbent President shall hold it;
• President resigns before the expiry of the term by writing it to the Vice President;
• The President is removed from his office, for violation of the Constitution, by the process of impeachment provided under article 61.

The article also states that any resignation made by the President to the Vice President must be communicated to the Speaker of the Lok sabha by the Vice President himself.

Time of holding the election on expiry of the term and filling casual vacancies

Article 62 provides for the filling up of the vacancy to the office of the President. It defines the terms of office of the person filling the casual vacancy as well as the time of holding elections to fill the vacancy.

It states that an election to fill the vacancies must be fulfilled before the expiration of the term of the office of the President.

An election to fill the vacancies, occurring due to the death, resignation or impeachment of the President, must be done as soon as possible. The elections, in any case, must be conducted within a time period of six months from the date of occurrence of the vacancy. The new person elected to the office of the President will be subject to all the provisions of Article 56 and will hold his office for a five-year term from the date of entering into the office.

Procedure for impeachment of the President: Article 61

So, you heard me talking about the impeachment process in the above paragraph. So, let’s not be secretive about it and discuss how you can be removed from the post of President through impeachment? 

The President of India can be impeached under Article 61, for the violation of the Constitution, on the basis of charges preferred by either House of Parliament. 

A resolution with the proposal to prefer such charges must be signed by at least one-fourth of the total members of the house. The resolution also needs to be passed by at least two-thirds majority of the house.

When the resolution is passed by one of the Houses, the other House must investigate the charges. The President has been granted the right to be present or to be represented in such investigations.

When the House investigating the charges passes the resolution by a two-thirds majority and declares the charges as sustaining, it results in removing the President from his office from the date of passing of the resolution.

Privileges of the President: Article 361

As President, you also enjoy some degree of immunity. Under Article 361, the President is protected from being answerable to any court for:

• For exercise and performance of his powers and duties of his office;
• For doing any act or claimed of doing any act in the exercise of those powers and duties;

The conduct of the President can be reviewed only if either House of Parliament designates or appoints any court tribunal or any other body to investigate the charges under Article 61.

But it bars no person from bringing any valid proceeding against the Governor or Government of India.

The Article immunes the President against all types of criminal proceedings during the term of his office.

No issuance of any order relating to the arrest and imprisonment of the President can be made by any court during his term of office.

A civil proceeding can be constituted against the president during his term of office if:

• The act is done or alleged to have been done, whether before or entering the office of the President, by him was in his personal capacity;
•  Two months prior notice is provided, to the president or was sent to his office, stating:

1. The nature of the proceeding;
2. The cause of action;
3. The details of the other party including name, description, and place of residence;
4. The relief claimed by the other party;

Powers of the President

The President of India is provided with a wide range of power that we will discuss one by one. Let’s start with the most interesting and important power i.e. the executive powers.

Executive powers

Article 53 of the Indian Constitution states that all the executive powers of the Union will be vested in the President of India. President is allowed to exercise his executive powers through officers subordinate to him, directly or indirectly, in consonance to the provisions of the Constitution.

Under this article, the President has powers regarding:

• Appointment of the high authorities of the Constitution like the Prime Minister and the Council of Ministers;
• Right of being informed about all the national affairs;
• Appointment of the judges of the constitutional courts(Supreme Court and High Courts);
• Appointment of the state Governors, the Attorney General, the Comptroller, and Auditor General, the Chief Commissioner and members of the Election Commission of India;
• Administration of Union territories and appointment of the Chief Commissioners and Lieutenant Governor of the Centrally Administered Areas;
• Removal of the Council of Ministers, the state Governors, the Attorney General.

Military powers

Article 53 also states that the President shall be the Supreme Commander of all the Armed Forces of the Union of India. It also states that no specific provisions can reduce the scope of this general principle.

As the Supreme Commander of the Armed Forces of the Union, President has powers regarding:

• Appointment of all the officers, including the appointment of the chiefs of the forces;
• Wars are waged in the name of the President;
• Peace is concluded in the name of the President.

Diplomatic powers

The President forms the face of Indian diplomacy and helps the nation to maintain cordial relationships with countries across the globe. 

• All the Ambassadors and high commissioners in foreign nations are his representatives;
• He receives the credentials of the Diplomatic representatives of other nations;
• Prior to ratification by Parliament, the treaties and agreements with other nations, are negotiated by the President.

Legislative powers

The President also enjoys certain legislative powers like:

• During the budget session, the President is the first to address the Parliament;
• The President is empowered to summon a joint session in order to break the deadlock in the legislation process between the two Houses of the Parliament;
• President sanction is mandatory in cases of provisions relating to: 

1. creating a new state;
2. changes in the boundary of existing states;
3. a change in the name of a state.

• Legislative provisions relating to fundamental rights of the citizens of India require the President’s consent;
• President’s consent is mandatory in cases of money bill originating in Lok sabha;
• President’s consent is necessary for all the bills passed by the Parliament to become a law;
• President is empowered to promulgate ordinances when the Parliament is not in session;
• President also nominates the members of both the Houses.

Ordinance making power of the President: Article 123

Article 123 talks about the presidential powers to promulgate ordinances. An ordinance can be promulgated if:

• neither of the House of the Parliament is in session;
• and the President feels a need for immediate action.

The ordinance which is promulgated by the President will have the same effect as that of an act or law of the Parliament.

The essential conditions to be met by an ordinance are:

• It shall be presented before both the Houses of Parliament for passing when it comes to the session;
• The ordinance shall cease to operate six weeks after the date of reassembling of the parliament;
• The ordinance may also expire if the resolutions disapproving it are passed by both the Houses of Parliament;
• It can be withdrawn at any time by the President;
• The ordinance must be in consonance to the Constitution of India else it shall be declared void.

Financial Roles

• President receives reports of the Finance Commission and acts on its report.
• The Contingency Funds of India are at the disposal of the President.
• He also causes the presentation of audits in the Parliament.

Judicial powers

The President enjoys the following privileges as his judicial powers:

• He can rectify the judicial errors;
• He exercises the power of grant of pardons and reprieves of punishments;
• President can seek the advice of Supreme Courts on:

1. Legal matters,
2. Constitutional matter,
3. Matters of national importance.

Pardoning power: Article 72

Article 72 provides for the provisions relating to the pardoning powers of the President. President can grant pardons, respites, reprieves, and remissions of punishments or remit suspend or commute the sentence given to a person by the court in the following cases:

• When the sentence is granted through a court-martial;
• When the sentence or punishment is given for offense of violation of any law relating to matters that fall in the ambit of Union’s executive powers;
• When a death sentence is passed by a court.

Clemency Power not unbridled

Unbridled Ness of the pardoning powers of the president has always been a highly debated issue. Supreme Court in various cases has laid down provisions for exercising control over the pardoning powers of the Executive.

In Maru Ram Etc. Etc v Union of India, Supreme Court held that pardoning power under Article 72 is to be exercised by the President, on the advice of Central Government and not on his own will and that the advice is binding on the head of the Republic.

In Dhananjay Chatterjee alias Dhana v State of West Bengal, the Supreme Court reiterated the same.

Nature of Pardoning Power

Indian Presidents are known for the generous grant of pardons. Pardon is an act of grace and not a form of a right to be demanded by any person. Unlike the Constitutional provision, Pardon is granted by the executive as a whole and not by the President alone. This is done as it is necessary for the President to act on the aid and advice of the Council of Ministers.

A pardon completely sets free an offender of all his guilt. A full pardon makes the person innocent in the eyes of law as if he has never committed a crime. It gives him the identity as that of a new man with a new set of capacities.

The pardoning power comes with discretion on the part of the President. The practice to confer the right of pardon on some authority has long existed. It is also practised in other countries, for example, the U.S. Constitution prescribes for the power of pardon to the President whereas, In the United Kingdom, the same is conferred to the Crown.

Pardoning Power: subject to judicial review 

The question that arises is whether the pardoning power of the president can be brought under the judicial review. Can the judicial review of such an order be done? What could be the grounds for judicial review of such orders?

In Kuljit Singh Alias Ranga Vs Lt. Governor of Delhi & Ors the court held that the pardoning powers of the president

under Article 72 can be examined according to the facts and circumstances of each case. The Court has the power of judicial review even on a matter which the Constitution has vested solely in the Executive.

The most significant case of Kehar Singh And Anr. Etc Vs. Union of India And Anr. dealt with the concept of judicial review of the President’s pardoning power on grounds of its merit. In this case, the Supreme Court held that

The terms and history of Article 72 as well as the specific guidelines and case laws relating to Article 72 clearly indicate that the ambit of Article 72 very wide. The powers under this article cannot be clearly defined or channelized with specific guidelines. The term “pardon“ itself signifies it to be discretionary. Hence, the grant or rejection of pardons cannot be reasoned and the order of President cannot be brought under judicial review with respect to its merits.

Whereas In Epuru Sudhakar Case, where a Congress activist faced ten years in prison in connection with the killing of two persons including a TDP activist. His punishment was remitted by the Governor of Andhra Pradesh. Contentions were raised regarding the immunity of the pardoning power. The  Supreme Court bench stated that the exercise of pardoning powers would be subject to judicial review by the court against the maintenance of Rule of Law.

Exercising powers of clemency is a matter of discretion but still subject to certain standards and not a matter of privilege. The power of executive clemency is a matter of performance of official duty and not only for benefiting the convict. During exercising such powers the President must also consider the effect of his decision on the family of the victims, the society and the precedent it sets for the future.

Thus this judgment settled position of law that immunity from the judicial review can not be granted to the President for exercise or non-exercise of the pardoning power.

Articles 72 and 161 of Constitution

Article 161 grants the power to the Governor of the state to suspend, remit or commute sentences of the offenders in certain cases relating to a violation of provisions or laws to which the executive power of the state extends.

Article 72	Article 161
Grants power to the President of India.	Grants powers to the Governor of state.
The power is wider in scope.	The scope of powers is narrower.
The powers of pardon extend to cases of Court Martial as well.	Power cannot interfere with cases of Court Martial.
Allows President to grant pardon in cases of death sentence.	Governor cannot grant pardon in cases of death sentence.

Emergency Powers

Article 352 of the Constitution of India grants President, three kinds of emergency powers as well:

• When a National Emergency is declared in case of external aggression or internal armed rebellion, the President holds the powers to declare a state of emergency. Thus the President’s rule gets established in the country. However, the prime minister and the Council of Ministers must recommend such an emergency;
• When there exists a constitutional or law and order breakdown situation in a state, the President may declare a state of emergency in such cases. The state would then come under Governor’s rule;
• Whenever the financial stability of the nation or any country is seriously affected, the President has the right to intervene and direct the state to check and maintain public expenditure.

Position of the President 

The position of the President has changed, with respect to his discretion to use his power,  has changed since the inception of the Constitution. The two major changes came through the 42nd and 44th Amendment Act of the Constitution.

Prior to the 42nd Amendment Act of 1976

Prior to the 42nd amendment to the Constitution, the President was free to make decisions based on his wisdom. He may also consider the Council of Ministers for their advice on the action. As the Constitution at that time talks about constituting a Council of Ministers with a Prime Minister, as its head, to aid and advise the President in carrying out his duties. 

After the 42nd Amendment Act, 1976

Later, the Constitution was amended to add the phrase that the President shall act on the aid and advice of the council of ministers. But the provision was still ambiguous whether the advice given by the Council of Ministers is binding on the president or not.

44th Amendment Act, 1978

This amendment was brought it to swipe off the ambiguity created by the 42nd amendment. This provision said that:

• President can send back the advice to the Council of Ministers for reconsideration once;
• If the same advice is sent again without modifications by the Council then President is bound to accept it. 

The Vice President (Article 63)

Article 63 talks about the vice president of India.

 Functions of the Vice-President

There are some important functions and duties to be performed by the Vice-President of India. Article 64 and Article 65 of the Indian constitution talks about the following functions:

• The Vice-President is the ex-officio Chairman of Rajya Sabha(the Council of States);
• The Vice President casts his vote in case of a tie in Rajya Sabha;
• The Vice President represents the Council of States on ceremonial occasions;
• He protects the rights and privileges of the members of the Rajya Sabha;
• He travels, for goodwill missions, to foreign countries;
• The Vice-President shall perform the functions of President, in cases where the President is not able to perform his functions due to absence or illness etc until the President resumes his duty;
• The Vice-President shall act as President, If the vacancy is created for the post of President due to his resignation, removal, and death or otherwise until a new President is elected;
• The period between the Vice-President acting as the President and the election of a new President can be extended for a maximum period of six months.

The Council of Ministers 

Article 74 of the Indian constitution states that:

• There should be a Council of Ministers to aid and advise the president;
• The Council of Ministers must have a Prime Minister at the head to aid and advise the President;
• The President should exercise his functions and act in accordance with advice rendered by the Council of Ministers;
• The Council of Ministers should reconsider any advice sent back by the President;
• The President is bound to act in accordance with the advice tendered by the Council, after reconsideration.

Size of Ministries

The executive powers in India are exercised by the Council of Ministers. These ministers constitute ministries having cabinet minister, junior minister, etc. Before 2003, the size of ministries was not specified under any provision leading to a lot of chaos. 

After the 91st amendment Act of 2003 came into existence, it marked a ceiling limit to the size of the ministries. The amendment stated that the strength of the Council of Ministers cannot exceed more than 15% of the total number of members of the Lok sabha or relevant Legislative Assembly of the state.

An exception was provided to the smaller states like Sikkim, Mizoram, and Goa, having a strength of lesser than 40 members in the legislative assemblies.

Disqualification on defection on the ground of split in a political party

Article 102(2) and Article 191(2) provides for Anti-Defection laws regarding the members of Lok sabha. According to this law, a member of a House, belonging to any political party, shall be disqualified as a member of the House on the following basis-

• If the person voluntarily gives up his/her  membership of the political party to which he/she belongs; or
• If the person votes or abstains from voting in contrary to any direction issued by the political party or by any person or authority authorized to give directions.

In either case, the prior permission of such political party, person or authority must be sought. The voting or abstention must be approved by the political party, person or authority within fifteen days from the date of voting or abstention.

When a member of a House claims that he and any other members of his party have formed a group representing a faction emerging as a result of a split in his original political party. If such a group consists of one-third or more of the members of such a political party then the ministers cannot be disqualified under Anti-Defection laws.

A non-member can become a Minister

Article 75 of the Constitution of India provides for provisions relating to the appointment of the Union Ministers.

At first, the Prime Minister is appointed by the President and then the President appoints other ministers on the advice of the Prime Minister.

The provision clearly states that any minister, who is not a member of either House of the Parliament, shall cease to be a minister after the period of six months from the date of his appointment.

The non-member must get elected to either House of the Parliament in order to continue as a Minister of Lok Sabha.

A convicted person cannot be appointed Chief Minister

When the question arose whether a convicted can be appointed as Chief Minister or not. 

The issue was decided in the negative by the Supreme Court in the famous case of  B.R. Kapoor v State of Tamil Nadu and Anr (Famously known as Ms. J. Jayalalitha Case). It was held that any person who is convicted for a criminal offense and sentenced to imprisonment, for a period of two years, or more, cannot be appointed the Chief Minister of any State under Article 164(1) of the Indian Constitution.

Dissolution of Parliament 

In our country, the Lok Sabha has a five-year term but it can be dissolved earlier. Article 83(2) of the Indian Constitution states that at the completion of five years term, from the starting date of Lok sabha meetings, it can be dissolved. In such cases, an election is held to elect the new Members of Parliament. 

The Lok Sabha can also be dissolved by the President on the advice of the Prime Minister before the expiry of its term.

The  President can also dissolve the Lok Sabha, if he feels that a viable government cannot be formed, after the resignation or fall of a regime, as the case may be.

Principle of Collective Responsibility

The principle of Collective Responsibility means that the Council of Ministers is collectively responsible as a body for all the actions, omissions and conduct of the government.

It states that all ministers stand or fall together in Parliament. The Government is considered as a unity of ministers instead of single individuals. It means that the minister should publicly support the decisions made by the cabinet, even if they disagree privately. This support even includes voting for government in the legislature.

Minister’s Individual Responsibility

The Ministerial Individual Responsibility means that a cabinet minister is ultimately responsible for all the actions of his ministry or department.

Whenever there is an individual ministerial responsibility, the party to which the minister is a part is not answerable for the failure of the minister. The minister shall himself take the blame for the actions of his ministry and resign.

Appointment of Prime Minister

The Prime Minister of India is appointed by the President through provisions under Article 84 and Article 75. Prime minister is the leader of the majority party or coalition of parties of Lok sabha. When a party achieves majority the leader of that party is called upon by the President to be the Prime Minister of the country. He is considered as the real head of the country. 

Constitutional Duties of Prime Minister

The constitution envisages the Prime Minister with certain rights and duties. The functions of the Prime Minister are as follows:

• The Prime Minister proposes the names of the members to President for appointment as Ministers of the government;
• Prime minister can reshuffle the Cabinet and decides for the distribution of charges of different ministries as well;
• He presides over the meetings of the Cabinet and can also change the decisions taken by the Cabinet;
• He suggests the President of India about the resignation or removal of any minister from the Cabinet;
• He also directs and controls the functioning of Ministers in the Cabinet;
• The Prime Minister may resign at any time and can even ask the President of India to dissolve the Cabinet.;
• He can advise the President to dissolve entire Lok Sabha to conduct fresh elections;
• The Cabinet stops functioning If the Prime Minister resigns from his post, and spontaneously dissolves after the death of the Prime Minister.

Rights and powers regarding Appointments:

Prime Minister can advise the President for the appointment of the following:

• Comptroller and Auditor General of India;
• Attorney General of India;
• Advocate General of India;
• Chairman and members of UPSC;
• Selection of Election Commissioners;
• Members and chairman of the Finance Commission.

Rights/Powers with regard to Parliament of India:

Prime Minister is the leader of the Lok sabha with rights to exercise the powers as follows:

• The prime minister decides the foreign policy of the country.
• He is the speaker of the Central Government.
• He is the leader of the majority party or coalition of parties in the Parliament.
• The Prime Minister is also is the chairman of various organizations including:

1. NITI Aayog;
2. National Development Council;
3. National Integration Council;
4. Inter-state Council;
5. National Water Resources Council.

• He is also the head of the disaster management team during a political level emergency.
• He is also the political head of all the forces.

Dismissal of a Minister

The minister of the Lok sabha can be removed from his post under the following conditions:

• Upon the death of the minister;
• Upon self resignation from the minister;
• If the minister is dismissal by the President, for unconstitutional his acts as per Article 75(2);
• Article 75 of the constitution states that the minister holds the office at the pleasure of the President;
• Upon direction from the Court for committing the violation of any law;
• If the minister loses the eligibility to be a member of Parliament.

Dismissal of the Cabinet

The Cabinet of Minister dissolves if:

• The Prime Minister asks the President of India to dissolve the Cabinet;
• The Prime Minister advises the President to dissolve entire Lok Sabha to conduct fresh elections;
• If the Prime Minister resigns from his post;
• The cabinet automatically dissolves after the death of the Prime Minister.

The Attorney-General of India

Article 76 and Article 78 speaks of the Attorney General of India. The Attorney General of India is the highest law officer in the country. 

Term and Appointment

The Attorney General is appointed by the President and holds the office at the pleasure of the President.

Qualification

The person to be appointed as the Attorney General of India must be qualified to become a judge of the Supreme Court of India.

Functions and Duties of Attorney-General

Article 76(2) and (3) defines the functions and duties of the Attorney General of India. Article 76(2) states that:

• Attorney General can give advice to the Government of India regarding legal matters assigned to him by the President;
• He must also perform other duties of any legal character that are assigned to him by the President;
• He also has to discharge the functions given to him by the Constitution or any other legislation.

Whereas Article 76(3) states that in the performance of his official duties:

• The Attorney General can appear on behalf of the Government of India in the Supreme Court, in cases where the Government of India is a party concerned;
• He also has to appear on behalf of the government, in regards to references made by the President before the Supreme Court under Article 143 of the Constitution;
• He has to appear on behalf of the government in any case in the High Court, where the Government of India is a party in concern.

Conclusion 

Wherefore, the Union Executive is one of the most important organs of the Indian democracy. It forms the soul of our Indian administrative system. Union executive act as the strong shoot for all the branches of administrative and executive bodies. The Constitution-makers have assembled together all the provisions needed to form a strong and responsible executive system for our nation. Thus, it makes it important for the citizens as well to coordinate with the executive for the better functioning of our Indian democratic system.

LC 0701Constitutional Law II : Module 02 Structure Powers and Functions Union and State Executive Part 2

 

LC 0701 Constitutional Law II : Module 02 Structure Powers and Functions Union and State Executive 

संरचनेचे अधिकार आणि कार्ये संघ आणि राज्य कार्यकारिणी

Syllabus  

Module 02

Structure Powers and Functions Union and State Executive :   Video 1 1.     Union Executive  (Articles 52 to 78)   Video 2 2.     State Executive  (Articles 152 to 167) Video 2

In the previous article we have seen the provisions related to the union executive Below article written by Disha Mohanty of National Law University and Judicial Academy, Assam. It gives a very brief idea of the State Executive and landmark judgements regarding the same. 

January 28, 2020

The State Executive: Article 153-167 & Article 213

1. Introduction
2. The Governor
1. Appointment, Tenure and Removal of a Governor
1. Qualifications
2. Conditions of Governor’s Office
3. Oath
2. Can the governor be dismissed arbitrarily?
1. B.P. Singhal VS Union of India (2010) case
2. Discharge of his functions in certain contingencies: Article 160
3. Powers of Governors
1. Executive power
2. Financial power
3. Legislative power
4. Pardoning power
1. Is this power subject to judicial review ?
3. Ordinance making power of the Governor
4. The Council of Ministers
1. Maximum size of ministries
2. Disqualification of defection on the ground of split abolished
3. Can the Governor sanction for Prosecution of Ministers under Corruption Act?
1. M.P. Special Police Establishment v. State of M.P., 2005
4. Non-legislator can be appointed as Minister
5. A non-member cannot be reappointed Minister without getting himself elected 
6. A convicted person cannot be appointed as Chief Minister: Constitution Superior, not mandate
5. Relationship between the Governor and Council of Ministers
1. Appointment of the Chief Minister
2. Dismissal of a Minister
3. Dissolution of the Legislative Assembly
4. Advising the President for the Proclamation of an Emergency under Article 356
6. Protection of Governor 
7. Conclusion 
8. References

Introduction

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. 

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 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. 

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 oath 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 India (2010) 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. 

Quoting Justice Raveendran, “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 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. 

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 case of Epuru Sudhakar & Anr. v. Govt. of AP & Ors., 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 Justice Pasayat, 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 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.

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 of “Aaya Ram Gaya Ram” 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. 

M.P. Special Police Establishment v. State of M.P., 2005

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 Madras in 1954, T.N. Singh in U.P. in 1971.

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.

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

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 Article 174(2)(b) 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 

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. 

References

1. https://blog.ipleaders.in/federalism-in-india-2/
2. https://blog.ipleaders.in/separation-of-powers-and-its-relevance/
3. https://www.thestatesman.com/supplements/law/dissolution-of-the-assembly-1502697823.html
4. https://economictimes.indiatimes.com/news/politics-and-nation/subramanian-swamy-seeks-delhi-l-gs-sanction-to-prosecute-arvind-kejriwal/articleshow/58581948.cms?from=mdr
5. https://www.casemine.com/judgement/in/56097923e4b014971133c603
6. https://www.business-standard.com/about/what-is-president-s-rule
7. http://rajkhushiniti.blogspot.com/2014/09/whether-convicted-person-can-be.html
8. https://www.indiatoday.in/india/south/story/governor-gives-nod-for-yeddyurappas-prosecution-127021-2011-01-21