State government

In a state, the legislature, executive and state judiciary is collectively known as state government.

In every state, there is a house formed by elected representatives who are elected by the citizens on the basis of adult franchise. This house of the legislature is known as Legislative Assembly (Vidhan Sabha). Those states which have the second house of the legislature also are known as Legislative Council (Vidhan Parishad).

At present, seven states of Indian Union have bicameral legislatures. These

include Uttar Pradesh, Jammu and Kashmir, Maharashtra, Karnataka, Bihar,

Andhra Pradesh and Telangana and the remaining states have unicameral

legislature.

In these seven states which have bicameral legislatures, following are the three

organs of the state legislature-

            1.         Governor

            2.         Legislative Assembly (First or lower house)

            3.         Legislative Council (Second or upper house)

Formation of Legislative Assembly

1.         Number of members

            The maximum number of members of the legislative assembly is 500 and their minimum number is 60. For election process, the state is geographically divided into constituencies in such manner that every member of the legislative assembly represents a minimum of 75,000 number of population.

2.         Reservations

            According to 95^th constitutional amendment of 2009, reservation of seats for scheduled castes and scheduled tribes has been provided in state legislative assemblies till January, 2020 CE.

            After the appointment of state legislative assembly, if the President feels that the Anglo-Indian community has not been given representation, then he can nominate one member from this community in the legislative assembly.

Termination of membership of the members

            Membership of both the houses of the State legislature can be terminated in any of the following conditions:

            1.         If a person is elected as the member of both the houses of the state legislature, then he/she will have to resign from the membership of any one house. In the same way, no person is entitled to assume the office as a Member of Parliament and the legislative assembly of a state at one time.

            2.         A person can be terminated if he/she remains absent for a continuous period of 60 days from the meetings of the respective house of the legislature without prior permission.

            3.         After being elected as a member of any house, if it is felt that the person does not have the required qualification or some fixed incapability emerges in that person, he/ she can be terminated from membership.

4.         Tenure : The tenure of the stale legislative assembly is 5 years. The Governor can dissolve it even before the completion of its term. But if a declaration of emergency is in process, then the Parliament can lawfully extend die term of state legislative assembly which cannot he for more man one year in a single instance and in any condition, This term cannot be for more man 6 months after the termination of declaration of emergency.

5.         Officers: Every state's legislative assembly has two chief officers- (i) Speaker and (ii) Deputy Speaker. These both are elected from amongst the members of the legislative assembly and they remain in office till the legislative assembly remains in existence. Between its tenure, the Speaker can give his resignation to the Deputy Speaker and the Deputy Speaker can give his resignation to the Speaker. Both these officers can be removed from their office by a motion passed by majority of members of legislative assembly, but it is mandatory to provide a notice regarding such motion 14 days in advance to the Speaker pr the Deputy Speaker (one who has to be removed).

            Formation of the Legislative Council

            The legislative assembly has the power to recommend the Parliament regarding the creation and dissolution of the legislative council. According to section 169, if the legislative assembly passes a motion by majority of its entire number of members or if it passes the motion by two-third of its present and voting members, then the Parliament forms law regarding the creation or dissolution of the legislative council of that particular state.

1.         Number of members

            Legislative council is the first or upper house of the state legislature. It has been provided in the constitution that the number of members of the legislative council of each state will not be more than one-third of the number of members of the legislative assembly, but along with this, it has also been provided that in any condition, this number cannot be less than 40. Essentially, the state of Jammu and Kashmir has been excluded in this context.

2.         Election and nomination of members

            About 5/6th members of the legislative council are elected and the remaining about 1/6^th members are nominated by governor. These members of the legislative council are elected indirectly and their election is held by single transferable vote method through proportional representation system. Following electoral colleges conduct the election of members of the legislative council:

            1.         Electoral College of local institutions: Approximately l/3^rd number of members are elected by municipalities, Zila Parishads and other such local institutions.

            2.         Electoral College of legislative assembly: Members of legislative assembly elect approximately l/3^rd number of members from amongst such persons who are not the members of the legislative assembly.

            3.         Electoral College of Graduates: This is an electoral college consisting of educated people who reside in the state, who have passed the examination of graduate level and a time period of three years has passed since these persons became graduates. This Electoral College elects approximately l/12^lh part of the total number of members.

            4.         Electoral College of Teachers: In this College, those teachers are included who have taught for the last three years in a primary school or a higher school in the state. This Electoral College elects approximately 1/12th part of the total number of members.

            5.         Members nominated by the Governor: Approximately 5/6th part of the total number of members is elected through the above mentioned process and approximately 1/6th part of the total number of remaining members is nominated by the Governor. Such members are experts from the field of literature, science, art, community and social service.

            6.         Tenure: The legislative council is a permanent body with the point of view of dissolution and it also cannot be dissolved by the Governor. The tenure of members of the legislative council is 6 years. After every two years, one-third members retire from their post and new elections are made for the vacant seats.

           

            State Executive

            Governor, Chief Minister and Council of Ministers- Functions and Powers

            Governor and the council of ministers are included in the state executive. The Governor is regarded as the supreme head of state executive. Contrary to this, in practice, the Chief Minister and his council of ministers make the actual head of the state executive.

           

            Governor- The Constitutional Head of the State

            Appointment of the Governor- The Governor assumes his/her office after being appointed by the President. Term- 5 years. The President has the power to remove the Governor even before the completion of his/her tenure of five years or he/she can be transferred from one state to another.

            Process followed in appointment of the Governor:

          i.            The Governor should not be a resident of that state for which he/she is being appointed as the Governor.

ii.         Before the appointment of the Governor, the central government has to take advice and acceptance from the Chief Minister of that respective state.

Qualifications required for the post of Governor and his salary:

Two qualifications are mandatory for the post of Governor. First, he/she should be a citizen of India. Second, he/she should be more than 35 years of age. A Governor cannot be a Member of Parliament or a member of state legislature. If he/she is a member of any house then he/she will have to resign from his/her post from the date he/she is appointed as the Governor. He/She is also not allowed to hold any office of profit.

Salary and allowances:

At present, the Governor receives a monthly salary of one lakh and ten thousand INR.

Powers and Functions of the Governor

The powers of the Governor are similar to those of the President, except diplomatic, military and emergency powers".

1.         Executive Powers: He/She appoints the Chief Minister and on his advice, the council of ministers. He/She appoints the advocate general and the Chairman and members of State Public Service Commission. In context to the appointment of judges of the High Court, the President takes advice from the Governor of the respective state

2.         Legislative Powers: The Governor is an integral part of the state executive and he/ she has significant legislative powers. He/She calls the meetings of the legislature, postpones them and dissolves the legislative assembly which is the lower house of the legislature. He/She presides upon the first meeting of the legislature after the elections and also sends notifications to the legislature.

            Governor's consent is mandatory on the proposal passed by the state legislative assembly. He/She can reject any proposal and can send it back to the legislative Assembly for reconsideration. If the legislative Assembly passes the proposal for the second time, then the Governor is bound to accept it. In case of some proposals, he/ she can retain them for consideration by the President.

           

            If the session of state legislature is not being conducted, then he/she can issue an ordinance. This ordinance is equivalent to the laws formed by the legislative Assembly in status.

           

           

            Actual Executive- The Council of Ministers

            The constitution has provided for parliamentary form of government for states also, and in a parliamentary form of government, the actual legislative power vests in the council of ministers, which is responsible to the state legislative assembly.

            Formation of the State Council of Ministers

            1.         Appointment of the Chief Minister: Appointment of the Chief Minister is the first step in the formation of state council of ministers. According to section 164, the Governor appoints the Chief Minister and will then appoint the council of ministers with the advice of the Chief Minister. The traditional principle followed in this regard is that the leader of the party in majority in state's legislative assembly is appointed the Chief Minister by the Governor.

            2.         Selection of Ministers: Other ministers are selected by the Chief Minister and he provides the list of respective ministers and their portfolios to the Governor. The Chief Minister is exclusively responsible for the formation of council of ministers.

           

           

            Chief Minister

            The head of the state council of ministers is the Chief Minister. He/She is the actual head of the state legislature. In the administration structure of the state, his/her position is the same as that of the Prime Minister in the centre.

            Appointment of the Chief Minister: According to section 164, just this has been mentioned that the Governor will appoint the Chief Minister. But in practice, Governor is bound to appoint the leader of majority party of the legislative assembly as the Chief Minister.

           

Powers and Functions of the Chief Minister

            Cabinet is the most important unit of the state government and the Chief Minister is the head of the cabinet.

            1.         Formation of the cabinet: The foremost function of the Chief Minister is formation of the cabinet. The Chief Minister selects the council of ministers and sends the list to the Governor who accepts the list. To a large extent, the Chief Minister uses his/ her discretion in the selection of ministers.

            2.         Distribution and redistribution of Portfolios: The Chief Minister distributes portfolios amongst his/her council of ministers. Even after formation of council of ministers and division of portfolios amongst them for one time, he/she has the power to make changes and redistribute the portfolios amongst his/her council of ministers whenever he/she wishes to do so.

            3.         Functioning of the council of ministers: The Chief Minister calls and presides upon the meetings of the council of ministers. He/She prepares the agenda for the meeting. If the Chief Minister is significantly powerful, then the entire proceeding of the council of ministers takes place as per his wish.

           

            4.         Leader of the legislative assembly: The Chief Minister is adorned with dual personality. On one hand, he/she is the head of the government, and on the other hand, he is also the leader of legislative assembly. In the form of leader of the legislative assembly, he has important position in respect of formation of laws and to a very large extent, the work of forming laws takes place as per his/her wish. In the form of leader of the legislative assembly, he/she can also advice the Governor to dissolve the legislative assembly.

            High Court

           

            On state level, the High Court is the highest judicial organization. According to section 214, every state has its High Court. There can be a single High Court for two or more than two states.

            In the beginning, High Courts were established in Calcutta, Bombay and Madras in the year 1862 in India. Allahabad High Court was established in 1866. Al present, there are 24 High Courts in India.

           

            Formation of the High Court: According to constitution every High Court will constitute a Chief Justice and other such judges whom the President considers suitable to be appointed. In the same way, the number of High Court judges will also be determined by the President.

            Appointment of the Judges: The President appoints the Chief Justice and other judges of the High Court. The President appoints the Chief Justice after taking advice from the Chief Justice of the Supreme Court and the Governor, while the other judges are appointed by the President after taking advice from the Chief Justice of the Supreme Court and the High Court and the Governor.

            Qualifications of the judges:

            1.         He should be the citizen of India.

            2.         He should have been on a judicial post in India for a minimum period of ten years.

            3.         He should have been an advocate for a minimum of ten years in a High Court or any two or more such courts.

            Tenure:

            1.         He will assume office till the age of 62 years.

            2.         He can give his resignation by addressing it to the President.

            3.         After getting a resolution passed by special majority of the Parliament, A High Court judge can be removed on order by the President.

            Oath by the Judges: A High Court judge takes oath in front of the Governor or a person authorized by him for the purpose.

            Transfer of Judges: Transfer of High Court judges is made by the President after taking advice by the Chief Justice of the Supreme Court.

            Salary of the judges: The Parliament fixes the salary of every judge of the High Court by law. At present, the Chief Justice of the High Court draws a monthly salary of 90,000 INR and other judges get a monthly salary of 80,000 INR.

           

           

            Jurisdiction and Powers of the High Court- Following is the description of jurisdiction and powers of the High Court:

            1.         Original/Statuary Jurisdiction

            2.         Right to issue writs

            3.         Appellate Jurisdiction

            4.         A court of record

            5.         Administrative powers

            6.         Judicial review

1.         Original jurisdiction: This refers firstly to the hearing of cases by the High Court. These include:

            i.          Disputes associated with appointment of the members of Parliament and members of state legislature.

            ii.         Disputes associated with revenue collection.

           

2.         Right to issue writs: The High Court has the right to issue writs such as Habeas Corpus, Mandamus, Prohibition, Certiorari and Quo Warranto. As per section 32, the Supreme Court can issue only those writs which are associated with fundamental rights, the High Court has the power to issue writs regarding fundamental rights as well as other rights.

3.         Appellate jurisdiction: Appellate jurisdiction of the High Court can be divided into the following parts:

            i.          Civil appellate jurisdiction: Appeal can be made in the High Court against the decisions made by the district court in cases associated with income tax, patent, design, succession, etc.

            ii.         Criminal appellate jurisdiction: If a criminal is sentenced for four years of imprisonment or death punishment by a session court, then an appeal can be made against such decision in the High Court.

            iii.        Constitutional appellate jurisdiction: Any such case in which there is a question of interpretation of the constitution, can be presented in the High Court.

4.         Court of record:

            Decisions of the High Court are saved in the form of records and they will function as laws for the subordinate courts.

5.         Administrative powers: Administrative powers of the High Court include the following:

            i.          A High Court may call for decisions made by a subordinate court and can evaluate and examine them.

            ii.         It is the duty of the High Court that it ensures that some subordinate court does not violate its limit and is working as per the provisions laid down by law.

            iii.        It can remove a case from one court and transfer it to another court for consideration and verdict.

6.         Judicial review: The High Court has the power to declare the working of the central and state government and executive as valid or invalid.