Tribes in India(Tricks to remember Tribes in India)

STATE GOVERNMENT

Our constitution provides for a Federal Government, having separate system of administration for the Union and its units, namely the States. The Constitution contains provisions for the government of both.

The Constitution Makers had decided to adopt the same pattern of Parliamentary system of Government in the States i.e. a replica of Government at the Union. The only difference is that the Constitutional Head of the Government in the State (i.e. Governor) is not elected, either directly or indirectly, rather be is appointed by the President.

The Constitution lays down a uniform structure for the State Government, in Part–VI of the Constitution, which is applicable to all the states except the state of Jammu & Kashmir which has a separate Constitution for the its State Government. Article 153 to 167 of Indian Constitution deals with the State executive.

Articles	Provisions
Article 153-162	The Governor
Article 163-164	Council of Ministers
Article 165	Advocate General for the State
Article 166-167	Conduct of Government Business

The pattern of Government in the States is the same as that for the Union, namely a Parliamentary System — the executive had being a constitutional ruler who is to act according the advice of Ministers responsible to the State Legislature.

STATE EXECUTIVE

GOVERNOR:

Article 153 states that there shall be a Governor for each state. Same person can be appointed as Governor for 2 or more states (7th amendment act 1956).

Article 154 states that the executive power of the state is vested in him and is exercised by him either directly or through officers subordinate to him.

IDIAN POLITY & GOVERNANCE

Appointment & Tenure (Article 155 & 156):

•• Governor is the executive Head/Nominal Head of the State.

•• Governor of a State is appointed by the President.

•• Hold office during the pleasure of the President.

•• May resign by submitting his resignation to the President. Otherwise the normal term of his office is 5 years.

•• Grounds for removal of the Governor are not mentioned in the Constitution; however he must be involved in the gross deliquency like bribery, treason or violation of the Constitution for such an action.

•• A President may transfer a Governor appointed to one State to another State for rest of the term.

•• A Governor whose term has expired may be reappointed in the same State or any other State.

Qualifications & Conditions for office (article 157 & 158) of Governor:

•• He must be –

1.      ƒ. A citizen of India.

2.      ƒ. Has attained 35 years of age.

3.      ƒ. Not a member of parliament or state legislature.

4.      ƒ. Not hold any office of profit under the government.

•• His emoluments, allowances and privileges are determined by parliament by law.

•• The emoluments are charged on the Consolidated Fund of India and cannot be diminished during his term of office.

•• If the same person acts as Governor of 2 or more states, the Constitution provides that President may decide about the allocation of emoluments of Governor among states proportion wise (Article 158(3A)).

Oath:

Article 159 says that the Governor and every person discharging the functions of the Governor is to take an oath or affirmation before the Chief Justice of the High Court of that state, or in his absence, the senior-most judge of that court available.

Article 160 gives the president the power to make such provision as he thinks fit for the discharge of the functions of the Governor in any contingency not provided for in the Constitution.

Executive Powers of Governor:

•• Article 166: All executive actions of the state are to be taken in the name of the Governor. He acts as a representative of President in the state. He has power to recommend President that the government of the state cannot be carried on in accordance with the provisions of the Constitution.

This leads to the imposition of President rule in the State under Article 356.

•• All major appointments in the state are made by the Governor – those of CM, Ministers, and Advocate-General (and decide his remuneration), Chairman & members of State Public Service Commission (PSC), State Election Commissioner and Finance Commission. Members and Chairman of State PSC are however removed by President.

•• He is the Chancellor of various universities in the state and appoints their Vice-Chancellors.

Legislative Powers of Governor:

•• He is an integral part of the state legislature, though not a member of it, he discharges some important legislative

functions.

•• He summons the house(s) of the legislature of state to meet at such a time and place as he thinks fit.

•• He may prorogue the house(s) and dissolve the legislative assembly.

•• He has right to reserve certain bills for the assent of the President [Article 200].

•• He nominates 1/6th of the members of Legislative Council having special knowledge in literature, science, arts, cooperative movement and social service.

•• He decides on the question of disqualification of a member of State Legislature in consultation with Election Commission.

•• His most important power is the ordinance making power [Article 213].

•• But the Governor cannot issue an ordinance without the previous instructions from the President in cases in which–

(a) Bill would have required his previous sanction.

(b) R equired to be reserved under the Constitution for the assent of the President.

•• The ordinances have to be approved by the state legislature, in the same way as the Parliament does in case of Presidential ordinances.

•• The scope of the ordinance making power of the Governor is co-extensive with the legislative powers of the State Legislature and is confined to the subjects mentioned in state List and Concurrent List.

•• Submission of reports from Auditor General, State Public Service Commission, State Finance Commission, etc. before the Legislature.

Discretionary powers of governor:

•• Discretion of the Governor is wider than that of the President. Article 163 (2) provides that as to the question of matter of discretion, it is the Governor himself who decides which matter falls in his discretion. And his action based on such discretion shall not be called in question.

•• Though in most of the matters he has to act on the advice of Council of Ministers, but there are some matters in which he can act according to his discretion.

•• He selects the CM if no party has clear-cut majority.

•• Dismissal of Ministry if he is convinced that it has lost majority support. But SC in S.R. Bommai Vs UOI (1994) case directed that his opinion must not be subjective and compulsory floor-testing must be done.

•• Dissolving the Legislative Assembly.

•• Submission of report to the President regarding failure of constitutional machinery in the State.

•• Reservation of certain bills for the consideration of the President (Article 200). He must reserve the bill that endangers the position of high court. In addition, he can also reserve the bills that are against the provisions of Constitution, are against larger national interest or DPSP and those which deal with compulsory acquisition of property under Article 31A.

Financial Powers of Governor:

•• A money bill cannot be introduced in the Legislative Assembly of the State without the recommendation of the Governor.

•• No demand of grants can be made except on the recommendation of the Governor.

•• The Governor is required to cause to be laid before the house or houses of the legislature “annual financial statements”, that is “Budget” [Article 202].

•• He constitutes a finance commission after every five years to review the financial position of the panchyats and the municipalities.

Judicial powers of governor:

•• Governor appoints judges of the courts below HC.

•• He is consulted by the President before appointing judges of the HC.

•• Under Article 161 he can grant pardons, reprieves, remission of punishment to the persons convicted under state laws. However he has no power to pardon a sentence of death or remit sentence by the court martial (military court).

Other Powers:

The Governor receives the report of the Auditor General and places it before the State Legislature. He places the report of the state Public Service Commission along with the observations of the Council of Ministers before the State Legislature.

Comparison b/w President and Governor

President	Governor
The President is not only the Head of the State and the Government, he is also the Commander-in-Chief of the Armed Forces.	Each state has its own laws and the Governor, who looks after internal governance of every state. He finalises the budget of the state and also appoint judges in the Courts.
The President cannot function without the aid and advise of the Council of Ministers.	Governor can exist without the aid and advice of the Council of Ministers.
The President can grant pardon, reprieve, respite, suspension, remission of commutation in respect to punishment or sentence by a Court Martial.	Governor can suspend, remit or commute a death sentence. The Governor does not enjoy power of pardoning a death sentence.
Every Ordinary Bill, after it is passed by both the houses of the Parliament is presented to the President for his assent.	Every Ordinary bill after it is passed by the Legislative Assembly in case of a Unicameral Legislature or both the Houses in case a Bicameral Legislature either in the first instance or in the second instance is presented to the Governor for his assent.
Every Money Bill after it is passed by both the House of the Parliament is presented to the President for his assent.	Every Money Bill after it is passed by the State Legislature is presented to the Governor for his assent.
A President needs no instructions for making an ordinance	Governor can make an ordinance without the instructions from the President in certain cases.

Chief Minister

The Governor is assisted in the discharge of his functions by a Council of Ministers headed by the Chief Minister. He is the Real Executive Authority (de facto executive). The Chief Minister is appointed by the Governor. Generally, the leader of the majority party in the State Assembly is appointed Chief Minister, who holds position identical to that of the Prime Minister at the Centre. He enjoys a term that runs parallel to that of the State Legislature i.e., five years. However, if the term of the State Legislature is extended, the tenure of the Chief Minister is also extended. The Chief Minister recommends to the Governor the names of persons to be appointed as members of the Council of Ministers, and allocates portfolios among them. He can ask any minister to resign from the Council or drop him from the Council by reshuffling it. He coordinates the working of various ministers and ensures that the Council works as a team.

The Chief Minister is the link between the Governor and the Council of Ministers and keeps the former informed of all decisions of the Council. The Chief Minister takes active part in the deliberations of the State Legislature.

He makes all important policy announcements on the floor of the legislature and defends the policies of his government in the house. He can recommend dissolution of the Legislative Assembly to the Governor even before the expiry of its term. Generally this advise is accepted by the Governor.

Council of Ministers (COM)

•• Article 163 (1) provides that there should be COM with Chief Minister as the head to aid and advise the Governor in exercise of his functions.

•• The real executive authority of the state is vested in the COM, the Governor, however is not bound to act by the advice of COM in all cases, as he can exercise his discretionary powers.

•• Any person may be appointed as a minister, but he ceases to be a minister if he doesn’t become a member of the state legislature within 6 months (Article 164).

•• Salaries and allowances of ministers are governed by laws made by the state legislature.

•• Ministry which loses the confidence of the legislative assembly should resign. The Governor may choose to dismiss the ministry if it does not resign and ask the leader of opposition to constitute an alternative ministry, or if he feels that no stable ministry can be formed, recommend President’s rule in the State.

•• Like at the Centre, in the states too, the Council of Ministers consists of three categories-cabinet ministers, Ministers of State, & Deputy Minister.

•• Article 164 states that the com is collectively responsible to Legislative Assembly of state.

•• The Ministers hold office till the pleasure of the Governor but, the Ministers can be removed only on the advice of

CM. Thus the CM can hold Ministers individually responsible by removing them in case of non-performance.

Functions of Chief Minister & COM:

The Constitution does not assign any formal powers to the Council of Ministers. However, in practice it has a wide range of functions. It formulates the policy of the Government and implements it. It assists the Governor in making all the important appointments. Most of the important bills are introduced in the legislature by members of the Council of Ministers.

It formulates the State budget and submits it to the Legislature for its approval. It can present supplementary demands for grants whenever necessary. It also plays an important role in preparing and implementing State Plans.

Advocate General (Article 165):

•• He is an official of State, corresponding to the Attorney-General of India (Art 76).

•• He advices government of state upon legal matters.

•• Appointed by the Governor, and holds office during his pleasure.

•• A person qualified to be a judge of a HC can be appointed as an Advocate General.

•• His remuneration is determined by the Governor.

•• He can speak and take part in the proceedings of the Legislature of the State but he has no right to vote in it. (Article – 177).

STATE LEGISLATURE (Part VI, Art. 168-212):

•• Legislature of every State consists of Governor and House (state legislative assembly) or Houses (state legislative assembly and council).

•• At present, only 7 states - Maharashtra, Karnataka, Telangana, Bihar, U.P, Andhra Pradesh, J&K have a bicameral (consisting of 2 houses) Legislature.

•• The above list is not permanent in the sense that the Constitution provides for the abolition of the Second Chamber in a state where it exists as well as for the creation of such a chamber in a state where there is none at present, by a simple procedure which does not involve an amendment of the Constitution. The procedure involves a resolution at the Legislative Assembly of the state concerned passed by a majority of the total membership of the Assembly not being less than two-thirds of the members actually present and voting, followed by an Act of Parliament (Article 169).

·         In bicameral legislature there are two houses i.e. Legislative Assembly (Lower house) & Legislative Council (Upper house) whereas in Unicameral legislature there is only one house i.e. Legislative Assembly. Members of Legislative Assembly are directly elected while members of Legislative Council are indirectly elected.

·         The max. strength in Legislative assembly (LA) is 500 whereas in Legislative council (LC) max. strength is 1/3^rd of the total strength of Legislative Assembly.

·         Min. strength of LA is 60 and min. strength of LC is 40.

·         Term of LA is 5 years while the LC is permanent house. However, 1/3^rd members of LC retire after every 2 years.

Legislative Assembly (Vidhan Sabha):

•• It is the lower and popular house of the State. Members are chosen by direct election on the basis of adult suffrage from territorial constituencies (Article 170).

•• The number of members varies between 60 and 500. However certain States like Sikkim, Goa, Mizoram and Arunachal Pradesh have less than 60 members.

•• The Governor may nominate one Anglo-Indian to the house.

•• The reservation of seats has been provided for SCs and STs on the basis of their population.

•• According to Article 172, duration of assembly is normally 5 years. But it may be dissolved earlier by the Governor.

•• Its term may also be extended by one year at a time by parliament during national emergency, though this can in no case be extended beyond 6 months after the proclamation has ceased to operate.

Legislative Council (Vidhan Parishad) (Article 169):

•• It is the upper house.

•• Parliament may by law create or abolish Legislative Council.

•• It can be created, if the Legislative Assembly of the state passes a resolution to the effect by special majority.

•• It is not an amendment to the Constitution and therefore it can be passed like an ordinary piece of legislation.

•• Article 171 contains various categories of members. According to this:

·         ƒ. 1/3rd of its members are elected by legislative assembly.

·         ƒ. 1/3rd by local bodies.

·         ƒ. 1/6th nominated by the Governor.

·         ƒ. 1/12th are elected by teachers.

·         ƒ. 1/5th by university graduates.

•• The maximum strength of Legislative Council can be 1/3rd of the total membership of Legislative Assembly, but in no case less than 40.

•• Parliament has the final power to decide about its composition.

•• It is not subject to dissolution. But 1/3rd of its members retire on the expiry of every 2nd year.

Qualifications:

•• Article 173 mentions the qualifications of members as:-

1.      ƒ. A citizen of India.

2.      ƒ. Not less than 25 years of age for legislative assembly and not less than 30 years of age for Legislative Council.

3.      ƒ. Possesses such other qualifications as may be prescribed by the Parliament.

4.      ƒ. Not hold any office under the Union or state government.

•• Article 190: No person shall be a member of both houses of State Legislature and if anyone gets elected to both

Houses, he has to vacate one seat.

•• No person can become a member of legislature of 2 or more states.

Disqualifications for memberships:

•• The disqualifications for memberships of a State Legislature as laid down in Article-191 of the Constitution are analogous to the disqualifications for membership of either House of Parliament (Article-102).

The State of Jammu and Kashmir:

The State of Jammu and Kashmir holds a special position under the Constitution of India. Though it is one of the states specified in the First Schedule and forms a part of the territory of India as defined in Article 1, all the provisions of the Constitution of India relating to the States do not apply to Jammu and Kashmir. The state alone of all the states of the Indian Union has its own Constitution.

The Article 370 in Part XXI of the Constitution grants a special status to state of Jammu and Kashmir. Accordingly, all the provisions of the Constitution of India do not apply to it. It is also the only state in the Indian Union which has its own separate state Constitution.

The ‘Instrument of Accession of Jammu and Kashmir to India’ was signed by Pandit Jawaharlal Nehru and Maharaja Hari Singh on 26 October 1947. Under this, the state surrendered only three subjects (defence, external affairs and communications) to the Dominion of India, the Government of India made a commitment that ‘the people of this state, through their own Constituent Assembly, would determine the internal Constitution of this state and the nature and extent of the jurisdiction of the Union of India over the state, and until the decision of the Constitution of India could only provide an interim arrangement regarding the state.

In pursuance of this commitment, Article 370 was incorporated in the Constitution of India. It clearly states that the provisions with respect to the state of J & K are only temporary and not permanent. It became operative on 17 November 1952, with the following provisions:

In pursuance of the provisions of Article 370, an executive order was issued by the President on the constitutional position of the state and its relationship with the Union. At present, it is as follows:

1. Jammu and Kashmir is a constituent state of the Indian Union and has its place in Part I and Schedule I of the Constitution of India (dealing with the Union and its Territory). But its name, area or boundary cannot be changed by the Union without the consent of its legislature.

2. The state of J & K has its own Constitution. Hence, Part VI of the Constitution of India (dealing with state government) is not applicable to this state. The very definition of ‘state’ under this part does not include the state of J & K.

3. Parliament can make laws in relation to the state on most of the subjects enumerated in the Union List and on a good number of subjects enumerated in the Concurrent List. But, the residuary power belongs to the state legislature except in few matters like prevention of activities involving terrorist acts, questioning or disrupting the sovereignty and territorial integrity of India. Further, the power to make laws of preventive detention in the state belongs to the state legislature. This means that the preventive detention laws made by the Parliament are not applicable to the state.

4. Part III (dealing with Fundamental Rights) is applicable to the state with some exceptions and conditions. The fundamental right to property is still guaranteed in the state.

5. Part IV (dealing with Directive Principles of State Policy) and Part IV A (dealing with Fundamental Duties) are not applicable to the state.

6. A National Emergency declared on the ground of internal disturbance will not have effect in the state except with the concurrence of the state government.

7. The President has no power to declare a financial emergency in relation to the state of J & K.

Constitution of Jammu and Kashmir

The Constitution of Jammu and Kashmir was adopted on November 17, 1957 and came into effect from January 26, 1957.

Some of its important provisions are considered here.

The Legislative Assembly consists of 100 numbers elected directly from territorial constituencies of the state and two women members nominated by the Governor. Twenty-four seats are to remain vacant till filled by representatives of people in Pakistan occupied Kashmir (PoK).

The Legislative Council consists of 36 members, 11 of whom are elected by the Assembly from among the people of Kashmir provided that of the members elected at least one shall be a resident of Tehsil Ladakh and at least one a resident of Tehsil Kargil, and 11 elected by the Assembly from people of Jammu. The remaining 14 members are elected by various electorates, such as municipal councils and such other local bodies.

The High Court of the state consists of a Chief Justice and two or more other Judges. Every Judge is to be appointed by the President after consultation with the Chief Justice of India and the Governor.

The official language of the State is Urdu, but English will continue to be used for official purpose unless the State Legislature provides otherwise. And no amendment can be made to change any provision regarding the relationship of the state with the Union of India.

•• There will be a Public Service Commission for the State. The Commission along with its Chairman will be appointed by the Governor.

•• The State Constitution may be amended by introducing a Bill in the Legislative Assembly and getting it passed in each House by a majority of not less that two-third of total membership of that House.

Administration of Scheduled Areas:

Article 244 in Part X of the Constitution envisages a special system of administration for certain areas designated as ‘Scheduled areas’ and ‘tribal areas’.

The Constitution has made special provision for the administration of Scheduled Areas in a state other than Assam, Meghalaya, Tripura and Mizoram. The right to declare any area as a Scheduled Area rests with the President and is subject to legislation by the Parliament.

The Constitution contains special provisions regarding the administration of Scheduled Areas, which are contained in the Fifth Schedule.

The Union Government can also give directions to the respective State regarding administration of the Scheduled Areas.

The Governor of the state, where such areas are located, has to submit reports to the President regarding the administration of such areas annually or whenever required by the President.

To take care of the welfare and advancement of the Scheduled Tribes in the State, a Tribes Advisory Council is constituted.

In addition, the Governor can also take certain steps to protect the interests of the Scheduled Tribes. Thus, he can direct that a particular Act of Parliament or state legislature shall not apply to the Scheduled Area. He can make regulations prohibiting or restricting transfer of land, allotment of land and money lending. However, all these actions of the governor need prior approval of the President.

Tribes Advisory Council:

The Constitution of India provides for a Tribes Advisory Council (TAC) in each State having Scheduled areas and if the president so directs, also in any State having Scheduled Tribes but not Scheduled areas. TAC shall consists of not more than 20 members of whom three-fourths shall be the representatives of the Scheduled Tribes in the Legislative Assembly of the State.

The Governor makes rules prescribing or regulating as the case may be (i) the number of members of the Council, the mode of their appointment and the appointment of the Chairman of the Council and of the officers and servants thereof; (ii) the conduct of its meetings and its procedure in general; and (iii) all other incidental matters.

Tribal Areas:

These areas are located in the states of Assam, Meghalaya, Mizoram and Tripura and have been specified in the Sixth Schedule of the Constitution. Though these areas fall within the executive authority of the state, provision has been made for the creation of district councils and regional councils for the exercise of certain legislative and judicial powers in these areas. The district and regional councils are empowered to make laws in certain fields such as management of forests, marriage and social customs, inheritance of property, etc. These councils can also impose certain taxes and collect land revenue.

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