Articles 152 to 167 - The State Executive
- Legal Journey
- Oct 29
- 12 min read
The States
Part VI
(Articles 152 to 237)
General
Chapter I
(Articles 152)
Article 152. Definition
- In this part, unless the context otherwise requires, the expression “State” does NOT include the State of Jammu and Kashmir.
- Following the abrogation of Article 370 on 5th August 2019 and the enactment of the Jammu and Kashmir Reorganisation Act, 2019 (effective from 31st October 2019), the erstwhile State of Jammu and Kashmir was reorganised into two Union Territories: Jammu & Kashmir and Ladakh.
- Consequently, while Article 152 remains unamended in text, its contextual relevance has changed and this exclusion no longer holds practical significance.
- The Indian Constitution now applies to these territories in its entirety, without exception.
The Executive
Chapter II
(Articles 153 to 167)
- Similar to the Union, the States also follow the Parliamentary system of Governance.
- Hence, similar to the position of the President at the Union, a similar position exists at the level of the States which is known as the Governor.
- The Governor is the Constitutional head of the State but only acts on the aid and advice of the Council of Ministers who exercise the Executive powers of the Governor.
Article 153. Governors of States
- There shall be a Governor for each State.
- Provided a Governor can be appointed for 2 or more States.
Article 154. Executive power of State
Clause (1) - The Constitution vests all the executive power of the State in the Governor.
- The power shall be exercised by him either directly, or through subordinates.
Clause (2) - If any function has been conferred on any other authority by any existing law, then such function shall NOT vest on the Governor,
- Also, the Parliament or the State Legislature can confer the functions of the Governor on any other authority subordinate to him.
What is meant by “Executive Power”?
- “Executive power” has NOT been defined in the Constitution. However, Article 162 provides the extent to which the executive power of the State shall extend.
Article 162. Extent of executive power of the State
- The executive power of the State shall extend to matters to which the Legislature of the State has power to make laws.
- Provided where the Parliament and States both have power to make laws, the Executive power of the State shall be subject to, and limited by, the executive power of the Union or authorities thereof which are :-
expressly conferred by this Constitution, or
by any law made by Parliament.
Article 155. Appointment of Governor
- Appointed by the President of India.
- Hence, the Governor is a nominee of the Central Government.
Hargovind Pant v. Dr. Raghukul Tilak (1979 SC)
- It was held that the office of the Governor is an independent constitutional office and is NOT under the control or subordinate to the Government of India, despite being appointed by the President.
Article 156. Term of office of Governor
- The Governor holds his office during the pleasure of the President.
- He may resign to the President.
- 5 years from the date of entering upon his office.
- Provided, The Governor shall continue to hold office, even after expiration of his term (5 years), until his successor enters upon his office.
- Note - There is NO specific ground for the removal of the Governor.
Article 157. Qualifications for appointment as Governor
- He must be :-
A citizen of India, and
35 years of age.
Article 158. Conditions of Governor’s office
Clause (1) - The Governor shall NOT be a member of either :-
Lok Sabha | Rajya Sabha | Legislative Assembly | Legislative Council |
- If he is such a member, he shall be deemed to have vacated such a seat in that House on the date on which he enters upon his office.
Clause (2) - The Governor shall NOT hold any other office of profit.
Clause (3) - The Governor shall be entitled to such emoluments, allowances and privileges as may be determined by the Parliament.
- Until such provisions are made, 2nd Schedule is to be followed.
Clause (3A) - Where one person is appointed as Governor for 2 or more States, the emoluments, allowances shall be allocated among the States in such proportion as the President may by order determine.
Clause (4) - The emoluments and allowances of the Governor shall NOT be diminished during his term of office.
Article 159. Oath or affirmation by the Governor
- Oath or affirmation of the Governor is administered by the Chief Justice of the High Court or Senior most Judge of the High Court.
- Key components of the oath are :-
To faithfully execute the office of Governor
Preserve, Protect and defend the Constitution.
To devote himself to the Service and well-being of the People of the State.
Article 160. Discharge of the functions of the Governor in certain contingencies
- The President may make provisions for the discharge of the functions of the Governor in case of any contingency.
Article 161. Power of Governor to grant pardons, etc. and to suspend, remit or commute sentences in certain cases
- This Article provides for the pardoning power of the Governor.
- Pardon means that the person is completely absolved from the punishment.
- Reprieve means temporary suspension of a death sentence.
- Respite means awarding of lesser punishment on some special grounds like pregnancy.
- Remission means reduction of the amount of sentence without changing its character.
- Commutation means exchange of one form of punishment for another category of punishment.
- Article 161 empowers the Governor to grant pardons etc. for sentence OR for punishment.
- Sentence is the decision which outlines the punishment to be applied, and
- Punishment is the application of that sentence.
- In other words, The sentence is a judicial pronouncement, whereas punishment is the actual consequence the offender faces.
- Article 161 empowers the Governor to grant pardons etc. for any offence against any law relating to a matter to which the executive power of the State extends.
- It was historically understood that the Governor could NOT pardon death sentences, and only the President had this power.
- This understanding was fundamentally altered by the State of Haryana v. Raj Kumar @ Bittu (2021) judgment, which represents a significant constitutional development clarifying ambiguity about whether the Governor had such power.
The State Of Haryana vs Raj Kumar @ Bittu (2021)
- In this landmark judgment dated 3rd August 2021, the Supreme Court of India held that:
The Governor CAN exercise pardoning powers in death sentence cases, including the power to grant pardons, reprieves, respites, and remissions under Article 161.
The Governor's power overrides Section 433A of CrPC, which mandates that a prisoner's sentence can be remitted ONLY after 14 years of jail.
- This means the Governor can pardon prisoners, including those on death row, even before they have completed 14 years of imprisonment.
This power is exercised on the advice of the State Government: The sovereign power of the Governor under Article 161 is actually exercised by the State Government and not the Governor on his own.
- The advice of the Council of Ministers binds the Governor.
Section 433A CANNOT affect constitutional powers: The Supreme Court clarified that Section 433A of CrPC cannot and does not in any way affect the constitutional power conferred on the Governor to grant pardon under Article 161 of the Constitution.
Difference between pardoning powers of President and Governor
- The scope of the pardoning power of the President under Article 72 is wider than the pardoning power of the Governor under Article 161, which differs in the following ways:
Death Sentence Cases: After the 2021 judgment, Both the President and the Governor can exercise pardoning powers in death sentence cases.
- However, the President's power under Article 72 is broader and can be exercised independently, while the Governor's power is exercised on the advice of the State Government.
- Under Article 72(3), even after a Governor grants pardon/remission in a death sentence case, a mercy petition can subsequently be presented to the President.
Court Martial Cases: In case of a sentence by Court Martial, ONLY the President can exercise these powers.
- The Governor has NO power in Court Martial cases.
Scope of Executive Power: The President's pardoning power extends to all offences against any law to which the executive power of the Union extends.
- The Governor's pardoning power extends only to offences against any law relating to a matter to which the executive power of the State extends.
Article 163. Council of Ministers to aid and advice Governor
Clause (1) - The clause firstly declares that there shall be a Council of Ministers and the Chief Minister at the head.
- Secondly, it declares that it shall be the duty of the Council of Ministers and the Chief Minister to aid and advise the Governor.
- Except, for such functions which, by or under the Constitution, are required to be exercised by him at his own discretion.
Clause (2) - If any question arises whether any function is to be exercised by the discretion of the Governor or NOT, it is to be decided by the Governor.
- Such a decision shall be final.
- The validity of anything done by the Governor shall NOT be called into question on the ground that he ought or ought not to have acted in his discretion.
Clause (3) - Advice by the Ministers given to the Governor shall NOT be inquired into in any Court.
Article 164. Other provisions as to Ministers
Clause (1) - The Chief Minister is appointed by the Governor.
- The other ministers shall be appointed by the Governor on the advice of the Chief Minister.
- The Ministers hold office during the pleasure of the Governor.
- The Chief Minister is the leader of the majority party.
- The only consideration for the Governor in appointment of the Chief Minister is to see that the person chosen by him commands the support of the majority in the House.
Clause (1A) - Inserted by the 91st Constitutional Amendment Act, 2003
- The total number of Ministers including the Chief Minister shall NOT be more than 15% of the Total members of the Legislative Assembly of the State.
- Provided, the total number of Ministers, including the Chief Minister in a State shall NOT be less than 12.
Clause (1B) - Also inserted by the 91st Constitutional Amendment Act, 2003
- Where any member is disqualified from being a member of any house on the ground of defection.
- Then he shall also be disqualified to be appointed as a Minister under clause (1).
Clause (2) - All the ministers are collectively responsible to the Legislative Assembly of the State.
- This means that the Council of Ministers works as a team and all decisions taken by the cabinet are the joint decisions of all its members.
- No matter whatever their personal differences of opinion within the Cabinet, but once a decision has been taken by it, it is the duty of each and every Minister to stand by it and support it both in the Legislature and outside.
- According to the principle of collective responsibility, the Council of Ministers is collectively responsible to the Legislative Assembly of the State, hence as soon as a Ministry loses the confidence of the House or is defeated on any question of policy, it must resign collectively.
- Along with the principle of collective responsibility, the principle of individual responsibility of each minister to the House also exists.
- This means that a minister cannot throw the responsibility of his department either on his officials or another Minister.
- If a Minister has taken action with the approval of the Cabinet, the principle of collective responsibility applies and the whole cabinet should support and defend his actions.
- However, if the Minister has taken action without the Cabinet’s approval, the Cabinet may or may not support him.
- If the cabinet does NOT support his action, in that case, the Minister has to go and NOT the whole cabinet.
- But, the Cabinet cannot retain the Minister and at the same time contend that the responsibility is all his.
Note - There is NO provision in the Constitution which makes the Governor responsible to the State Legislative Assembly.
Clause (3) - Before a Minister enters upon his office, the Governor shall administer to him the oath of office and of secrecy in accordance with the 3rd Schedule.
Clause (4) - It provides that even a non-member of any House of Legislature of State can become a Minister.
- Granted, such Minister subsequently must become a member of the Legislature of State within 6 months.
- If he is NOT elected within the time mentioned above, he is bound to resign.
Clause (5) - The Salaries and allowances of Ministers shall be such as the Legislature of State may by law determine.
- Until it is so determined, it shall be governed by the 2nd Schedule.
Article 166. Conduct of business of the Government of a State
- All executive actions of the Government of State shall be expressed to be taken in the name of the Governor.
- Authentication of any order or other instruments signed by the Governor shall be done according to the rules specified by the Governor.
- Validity of any order or other instrument which has been so authenticated shall NOT be called in question on the ground that such order or instrument has not been made or executed by the Governor.
- The Governor shall make rules for more convenient transactions of the business of the State Government, and
- Also for allocation of the said business among the Ministers.
- But only on such matters over which he is NOT required to exercise his own discretion.
Article 167. Duties of Chief Minister as respects the furnishing of information to Governor etc.
- It provides a few duties of the Chief Minister.
(a) All decisions of the Council of Ministers relating to the administration of the affairs of the State and Legislative initiatives shall be communicated to the Governor by the Chief Minister.
(b) The Chief Minister shall be responsible for providing any information regarding the management of Union affairs and legislative initiatives that the Governor may request.
(c) The Chief Minister shall upon the request of the Governor, submit for consideration to the Council of Ministers any matter on which a Minister has reached a decision but which has NOT yet been subject of discussion by the Council of Ministers.
- Clause (c) is essential for the principle of collective responsibility.
Article 213. Power of Governor to promulgate Ordinances during recess of Legislature
- The Governor can legislate by ordinance at a time when the State Legislature is NOT in session in case of unforeseen/urgent matters.
- Immediate action must be needed for such matters.
- Ordinance made when the State Legislature is in session will be VOID.
- The Ordinances issued by him shall have the same force as an act of the State Legislature.
- The Ordinance must be laid before the State Legislature.
- Ordinance stays in operation for 6 weeks from the date of re-assembly, unless a resolution disapproving it is passed by the State Legislature before the expiration of 6 weeks. If the Legislature is in session continuously (no recess), the ordinance ceases to operate.
- An Ordinance may be withdrawn at any time by the Governor.
Note - In case a State only has a Legislative Assembly, an ordinance can only be passed when the Legislative Assembly is NOT in session.
- Where in a State, there is also a Legislative Council, then an ordinance can be passed in two scenarios namely,
- Where, both the Houses are NOT in session, or
- Where either of the Houses are NOT in session.
- An Ordinance will be VOID if it makes any provision which under the Constitution the Parliament is also NOT competent to make.
- Thus, an Ordinance cannot violate the Fundamental Rights.
PROVIDED A Governor CANNOT promulgate an Ordinance, without the instruction of President where :-
- If such ordinance was a Bill, it would’ve been required the previous sanction of the President for introduction thereof into the Legislature, OR
- He would have deemed it necessary to reserve a Bill containing the same provisions for the consideration of the President, OR
- If such a Bill would have been passed by the State Legislature but would’ve been invalid until it has been reserved for the consideration of the President and it had subsequently received the assent of the President.
Frequently Asked Questions
Q) Who is the Constitutional Head of a State?
A) The Governor is the Constitutional Head of the State, similar to the President at the Union level. However, the Governor acts on the aid and advice of the Council of Ministers.
Q) Can a non-member of the State Legislature become a Minister?
A) Yes. Under Article 164(4), a non-member can be appointed as Minister but must become a member of the Legislature within six months, failing which he must resign.
Q) What are the duties of the Chief Minister under Article 167?
A) The Chief Minister must communicate decisions of the Council of Ministers to the Governor, furnish information when required, and submit matters for reconsideration as directed by the Governor.
Q) Can the Governor issue ordinances?
A) Yes. Under Article 213, the Governor can promulgate ordinances when the Legislature is not in session, which have the same effect as laws but must be approved within six weeks of reassembly.
Q) What is meant by the 'dual role' of the Governor?
A) The Governor serves as the Constitutional Head of the State and also acts as a link between the Centre and the State, ensuring smooth coordination in India’s federal system.
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