Appointment of state governors

Articles related to the Governor in India

●Article 153: States that each state will have a Governor

● Article 154: Vests the state's executive power in the Governor, who can exercise it directly or through subordinates

●Article 155: States that the President appoints the Governor by warrant under their hand and seal

● Article 156: Covers the Governor's term of office

● Article 157: States that to be eligible for appointment, a person must be an Indian citizen who is at least 35 years old

●Article 158: Covers conditions of the Governor's office

●Article 159: Covers the Governor's oath or affirmation

●Article 161: Empowers the Governor to grant pardons, reprieves, respites, or remissions of punishment

●Article 213: Covers the Governor's power to promulgate ordinances during a legislative recess.

What is office of Profit

●An office of profit generally refers to a position that brings or has the potential to bring to the person holding it some financial gain, advantage, or benefit. Various constitutions of the world mention the term to showcase executive appointments, which are not allowed.

●The law does not clearly define what constitutes an office of profit but the definition has evolved over the years with interpretations made in various court judgments.

● In 1964, the Supreme Court ruled that the test for determining whether a person holds an office of profit is the test of appointment.

Factors which are considered in this determination includes:

○Whether the government is the appointing authority

○  Whether the government has the power to terminate the appointment

○Whether the government determines the remuneration

○What is the source of remuneration

○Power that comes with the position.

Articles related to it:

●Article 102 (1) : Prohibits MPs from holding any office of profit under the central government

●Article 191 (1) : Prohibits MLAs from holding any office of profit under the state government

Parliament (Prevention of Disqualification) Act, 1959

● Parliament has also enacted the Parliament (Prevention of Disqualification) Act, 1959, which has been amended several times to expand the exempted list.

The Parliament (Prevention of Disqualification) Act, 1959 exempts several posts from disqualification, like:

● Ministers of State and Deputy Ministers,

●Parliamentary Secretaries and Parliamentary Under Secretaries,

●Deputy Chief Whips in Parliament,

●Vice-Chancellors of Universities,

● Officers in the National Cadet Corps, and the Territorial Army, and

● Chairman and members of Advisory Committees set up by the Government when they are not entitled to any fee or remuneration other than compensatory, etc.

Discretionary power of Governor

Constitutional Discretion

● He can give or withhold assent to Bills, return a Bill for reconsideration of the House concerned or both the Houses, reserving it for the consideration of the President (Article 201).  

●Article 356: He advises the President on the issue of the failure of the constitutional machinery and recommends for the imposition of the President’s rulein the state concerned.  

● Article 239 (2): Where the Governor is also appointed as administrator of some Union Territory in respect of administration of such territories he will act independently of his Cabinet.

●Article 167: He seeks information from the Chief Minister with regard to the administrative and legislative matters of the state.

Situational Discretion of Governor

●The Governor can appoint a new Chief Minister in a situation where no single party or leader commands majority support. 

●He can dissolve the Assembly on the advice of a Chief Minister who has lost majority support.

● He can dismiss a Ministry where the Ministry refuses to resign even after losing majority support in the House or after being defeated on a non-confidence motion.

PRACTICE QUESTION

Q.Consider the following posts of the constitution and the  government in India:

1. Ministers of State and Deputy Ministers
2. Members of Parliament
3. Parliamentary Secretaries and Parliamentary Under Secretaries
4. Deputy Chief Whips in Parliament
5. Vice-Chancellors of Universities

Which of the above are exempted from the meaning of “Office of Profit” under article 102 and 191 of the constitution of India ?

(a) 1, 2,3 and 5

(b) 2, 3, 4 and 5

(c) 1, 3, 4 and 5

(d) All of the above

Answer: c

Explanation

An office of profit generally refers to a position that brings or has the potential to bring to the person holding it some financial gain, advantage, or benefit. Various constitutions of the world mention the term to showcase executive appointments, which are not allowed.

●Article 102 (1) : Prohibits MPs from holding any office of profit under the central government

● Article 191 (1) : Prohibits MLAs from holding any office of profit under the state government

Parliament has also enacted the Parliament (Prevention of Disqualification) Act, 1959, which has been amended several times to expand the exempted list.

The Parliament (Prevention of Disqualification) Act, 1959 exempts several posts from disqualification, like:

● Ministers of State and Deputy Ministers,

●Parliamentary Secretaries and Parliamentary Under Secretaries,

●Deputy Chief Whips in Parliament,

●Vice-Chancellors of Universities,

●Officers in the National Cadet Corps, and the Territorial Army, and

●Chairman and members of Advisory Committees set up by the Government when they are not entitled to any fee or remuneration other than compensatory, etc.