MODULE 6

STATE EXECUTIVE
The State Executive consists of the Governor, who is the head of the State, and the Council of
Ministers with the Chief Minister at its head.
The pattern of the State Executive is very similar to that of the Central Executive which is based
on the fundamental principle of accountability of the Executive to the Legislature. Like the
Centre, the States also have parliamentary form of government.
Articles 153 to 167 and 213 deal with the composition and powers of the State Executive.

6.1 Governor: Appointment, removal, functions and powers

The Governor of a State plays a multifaceted role. He is a vital link between the Centre and the
State. It is his duty to keep the Centre informed of the affairs of the State.

The Governor is the constitutional head of the State. He appoints the Chief Minister and other
Ministers and discharges several important functions in relation to the State Legislature. The
Governor assures continuity in the State Administration, as having a fixed tenure, he stays in
office while the Chief Minister may come and go from time to time.

The Governor act s as the agent of the Centre when a proclamation of breakdown of
constitutional machinery in the State is issued under Art. 356. The State Governor is thus a key
functionary in the system envisaged by the Constitution.

APPOINTMENT OF GOVERNOR

Each State has a Governor, but two or more States may have a common Governor [Art. 153].
The Governor is formally appointed by the President [Art. 155]. The President appoints the State
Governor on the advice of the Prime Minister with whom, therefore, the effective power lies in
this regard.

The Constituent Assembly fully debated the merits and demerits of an elected v. nominated
Governor and finally opted for the system of presidential nomination, rather than direct election,
of the Governor because of several reasons:
1. A nominated Governor would encourage centripetal tendencies and, thus, promote all-
India unity.
2. In a parliamentary system the head should be impartial, but a Governor elected by the
direct vote of the people would have to be a partyman.

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 3. Conflicts might arise between the Governor and the Chief Minister if both were to be
elected by the people, for the former might claim to arrogate power to himself on the plea
of his having been elected by the whole State as against the latter who would be elected
only in a constituency which would be a small part of the State.
4. The Governor being only a symbol, a figurehead, there would be no point in spending
money in having him elected.

Under Art. 155, the ultimate responsibility to appoint the Governor rests with the Central
Government. The Governor has a dual capacity—he is the Head of the State as well as the
representative of the Centre in the State and he works as a channel of communication and contact
between the State and the Centre. It is felt that with a view to ensuring the smooth functioning of
the constitutional machinery in the State, it would be best to consult the State Chief Minister
while appointing the Governor, and a convention has thus grown accordingly.

The Governor appointed by the Central Government, and holding office during the pleasure of
the President (which means the Central Government), would function not objectively and
impartially, but at the bidding of the Central Government to destabilize State Governments.

The office of the Governor has now become a balance wheel of the Centre-State relationship. As
the Governor has to discharge certain functions in the State as the Centre’s representative
independently of the State Government because of the Centre’s ultimate responsibility to see that
each State functions according to the Constitution, it is not possible for a State to claim a final
say in the matter of the Governor’s appointment. But, at the same time, the Centre should not
seek to force a person as Governor upon a State against its wishes otherwise relations between
him and the State Government will always be strained.

1. QUALIFICATIONS
As per Article 157-A citizen of India who has completed the age of 35 years is eligible to be
appointed as the Governor.
As per Article 158(1)-The Governor cannot be a member of a House of Parliament, or of the
State Legislature, and if a member of a House, at the time of his appointment as the Governor, he
has to vacate his seat in that House on the date on which he enters upon his office as Governor.
As per Article 158(2)-The Governor cannot hold any other office of profit.

2. OATH
As per Article 159- Before entering upon his office, a Governor has to make and subscribe, in
the presence of the Chief Justice of the State High Court, an oath or affirmation in the prescribed
form. In the absence of the Chief Justice, the oath may be taken before the senior-most Judge of
the High Court available at the time.

K.C. Chandy v. Balakrishna Pillai (1985):- The main issues that fall in this case are: -
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 1. Whether the breach of oath committed by a Minister would be a constitutional
impediment for his continuance in office?
This issue is outside the scope of Judicial Revieur under Art- 226 of the CoI. It is to be decided
in other forums.
2. Whether, in such circumstances, a writ of quo warranto would be issued by the Court.?
It is not expedient for the court to exercise its discretion for the issue of writ when the CM is
already abreast of the matter.

3. EXTRA
As per Article 158(3)- He is entitled to the free use of his official residence and also to such
emoluments, allowances and privileges as Parliament may determine by law.
As per Article 158(4)- The emoluments and allowances of a Governor cannot be reduced during
his term of office.
As per Article 158(3-A)-Where one person is appointed Governor of more than one State, his
emoluments are allocated amongst the States in such proportion as the President may determine.

Surya Narain Choudhary v. UOI (1881):- The Rajasthan High Court held in this case that the
pleasure of the President was not justifiable as the governor had no security of tenure & can be
removed at any time by the President withdrawing pleasure.

Harkovind Pant v. Raghukul Tilak (1970):- The first respondent, who was a member of the
Rajasthan State Public service Commission was later appointed as the governor of the State of
Rajasthan. The petitioner contended that by virtue of Art. 319 (d) of the constitution the
respondent was ineligible to be appointed as Governor of the state as he was a member of the
State Public service comm carlier.
Issue - Whether by reason of Art 319(d), the respondent was ineligible for employment either
under the GoI or under the govt. of a State & whether the office of governor was"employment
under GoT. It was held as follows:-
1. The office of governor of a State is not an employment under the GoI and it does not
therefore come within the prohibition of cl (d) of Art. 319. Thus, the appointment of the
first respondent as governor of Rajasthan could not be held to be invalid.
2. Though the governor is appointed by the President, which meane in effect & substance
the GoI, it does not make him an employee/ servant of the GoI.
3. The fact that the Governor holds office during the pleasure of the President does not
make the GoI an employer of the governor. It is only a constitutional provision for
determination of the term of office of the governor.

TENURE OF GOVERNOR

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Article 156(1)-The basic rule is that a Governor holds his office during the pleasure of the
President, i.e., as long as the Central Executive wants him in that office. Accordingly, the Central
Executive can remove the Governor on any ground, as for example, bribery, corruption etc.

A Governor holds office for five years. He, however, according to Article 156(2) continues to
hold office even after the lapse of his term till his successor enters upon his office . Thus, a
person once appointed a Governor continues to hold that office till his successor enters upon his
office.

According to Article 156(3) The Governor may resign at any time by writing to the President.
In a contingency for which the Constitution makes no provision, such as death of the Governor,
the President may make such provision as he thinks fit for discharge of the functions of the
Governor of a State [Art. 160]. Thus, the Chief Justice of the High Court can be appointed
temporarily to discharge the functions of the Governor of the State.

REMOVAL :
While there exist provisions in the Constitution for impeachment of the President, no such
provisions exist concerning the Governor. The reason being that as he holds his office during the
pleasure of the President, the Central Government can always recall him if the circumstances so
require. A Governor is a political appointee, and when an appointment is made by the
government on political considerations, it can also be terminated on political considerations.

B.P singhal v. Union of India

This was a landmark judgement on removal of governors and pleasure of president. This
judgement gave power of president to take a decision about removal of governor. The writ
petition in this case was filed as a Public Interest Litigation. The President of India on the advice
of Union Council of Ministers removed the Governors of 4 states i.e. Haryana, Uttar Pradesh,
Gujarat and Goa on 2nd July 2004.
This case is counted in one of the landmark cases regarding removal of governors and
president’s pleasure. Supreme Court’s decision was in the favour of respondent i.e. union of
India but also said that the removal must not be malafide and [Link] was on the fact that
president has power to remove governor because he holds office during pleasure of president. He
can remove governor from office at any time without assigning any reason. The governor can be
removed at any time but it does not be an arbitrary, capricious or unreasonable manner.

Shamsher Singh & Anr vs State of Punjab (1974): The main issue raised in this case was whether
the governor can exercise discretion on appt & removal of members of subordinate Judicial service: It
was held that the President & governor act on the aid & advice of the ministers in all those matters be it
legislative or executive in nature. In case the governor acts on his own, he does so in harmony with the
Council of Ministers. Thus, it held that the order of termination was violative & the authorities have to

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find the suitability of the appellant. In this case, a seven-judge Constitution Bench of the Supreme
Court said that the President and Governor, custodians of all executive and other powers under
various Articles, shall exercise their formal constitutional powers only upon and in accordance
with the advice of their Ministers save in a few well-known exceptional situations.

FUNCTIONS AND POWERS

1. Judicial Power
According to Article 233-237- The State Executive has power to appoint judges to the
subordinate Courts in the State .Besides,according to Article 192 the question whether a member
of the State Legislature has become subject to a disqualification or not is formally decided by the
Governor.

POWER TO GRANT PARDON Article 161

Article 161 -The Governor is empowered to grant pardons, reprieves, respites or remissions of
punishment or to suspend, remit or commute the sentence of any person convicted of any offence
against any law relating to a matter to which the executive power of the State extend.
This power of the Governor is very much similar to the power of the President under Art. 72.
The power under Arts. 72 and 161 of the Constitution is absolute and cannot be fettered by any
statutory provision.
● The Governor must act on the advice of the Council of Ministers.
● The Governor’s powers, under any law in force, to suspend, remit or commute a death
sentence have been saved by Art. 72(3).
● Under S. 433(1),Cr.P.C., the State Government is authorised to commute a sentence,
including that of death, into a less rigorous sentence. Article 161 is of much wider
amplitude than S. 401,Cr.P.C., for while under the former the State Government can give
an absolute and unconditional pardon, the latter does not empower it to do any such
thing.

In Nanavati v. State of Bombay, Nanavati, a high naval officer, was found guilty of the offence
of murder and was sentenced to life imprisonment by the Bombay High Court. The Governor of
Bombay suspended the sentence till the disposal of his appeal by the Supreme Court and directed
that he be detained in the naval jail. The action of the Governor raised a storm of public protest
as it was characterised as an interference with the course of justice. However, the High Court
upheld the Governor’s order. It ruled that the power of pardon, reprieve, suspension of sentence,
etc., under Arts. 72 and 161, could be exercised before, during or after trial, as the words of
these provisions were wide. These contained no limitation as to the time at, the occasion, and the
circumstances in which, the powers conferred by these provisions might be exercised.
Thereafter, Nanavati sought special leave of the Supreme Court to appeal from the High Court’s

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sentence of life imprisonment. The Court has made a rule under Art. 145, requiring a petitioner,
sentenced to a term of imprisonment, to surrender to his sentence before his petition is heard
unless the Court otherwise orders. Nanavati claimed an exemption from the rule in view of the
Governor’s order suspending his sentence. The Court pointed out that while exercising its
powers under Art. 136, it could either pass an order of suspension of sentence or grant of bail
pending the disposal of the application for special leave to appeal. This power of the Court
overlaps with that of the Executive to suspend the sentence during pendency of the special leave.
Applying the rule of harmonious construction of the power of the two organs so as to avoid the
conflict between them, and the ambit of the power of the Executive being wider and that of the
Court being narrower, it must be held that the Executive could not suspend the sentence during
the time the matter is sub judice in the Court. The Governor may grant a full pardon at any time,
even when the case is pending in the Court, but the suspension of the sentence for the period
when the Supreme Court is seized of the case could be granted only by the Court itself and not
by the Governor. The Supreme Court held in effect that the Governor’s order suspending the
sentence could operate only till the matter became sub judice in the Court on filing the petition
for special leave to appeal, and no further. Thereafter, it is for the Court to pass such order as it
thinks fit. The Court refused to grant to Nanavati the exemption he prayed for.

In Swaran Singh v State of UP , D, an MLA of the U.P. Assembly, was found guilty of
murdering one J. He was convicted and sentenced to imprisonment for life. Within a period of
two years, the Governor of U.P. granted remission of the remaining long period of his life
sentence. The family members of the deceased challenged the act ion of the Governor in the
High Court and the matter ultimately reached the Supreme Court which quashed the Governor’s
act ion. The Supreme Court found that when the Governor passed the remission order, certain
vital facts concerning D were not placed before the Governor. For example, the same Governor
had earlier dismissed a petition from D for remission of his sentence and this fact was not
disclosed when the second petition was moved after only few months. It was not disclosed to the
Governor that D was involved in five other criminal cases of serious offences; his conduct in the
prison was far from satisfactory and that out of two years and five months he was supposed to
have been in jail, he was in fact on parole during the substantial part thereof.

★ Referring to Kehar Singh, and Maru Ram,the Court stated that judicial review of the
Governor’s decision under Art. 161 is not exercisable on the merits except within strict
limits defined in Maru Ram, viz.: "all public power, including constitutional power, shall
never be exercisable arbitrarily or mala fide, and ordinarily guidelines for fair and equal
execution are guarantors of valid play of power.

In Satpal v. State of Haryana, a BJP leader sentenced to life imprisonment in a murder case
was pardoned by the Governor of Haryana. The Supreme Court ruled that the Governor was not
properly advised and had exercised his power "without applying his mind" and, accordingly,
quashed the clemency [Link] the plea of the Government that the power of pardon and
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remission of sentence is executive in [Link] Court pointed out the following grounds on
which the Court could interfere with an order passed under Art. 161, viz., if the Governor
exercises the power himself without being advised by the Government; if the Governor
transgresses the jurisdiction in exercise of the power under Art. 161; if the Governor has passed
the order without application of mind; if the order is mala fide; if the Governor has passed the
order on some extraneous consideration. Whatever applies to the President under Art. 72 equally
applies to the power of the Governor under Art. 161. The power under Art. 72 or 161 is to be
exercised by the government concerned and not by the President or the Governor on his [Link]
advice of the appropriate government binds the President/Governor.

2. Legislative Power

(a) PARTICIPATION IN THE LEGISLATIVE PROCESS

The State Executive also participates intimately in the legislative process. Each Minister is
necessarily a member of the State Legislature. The powers of prorogation and dissolution of the
Legislature vest in the Executive. The Governor has to signify his assent to a Bill passed by the
State Legislature before it can assume legal sanctity or reserve it for Presidential assent.

(b) RULE MAKING

Several provisions of the Constitution confer rule-making powers on the Governor. He can make
rules regarding:—
1. authentication of orders and other instruments;
2. conditions of service of the members of the State Public Service Commissionas well as
civil servants;
3. convenient transaction of Government business;
4. procedure in respect of communications between the Houses of State Legislature;
5. recruitment of officers, etc., for a High Court,
6. recruitment of secretarial staff of the Legislature.

(c) ORDINANCE-MAKING POWER

● The power to promulgate ordinances is meant to be used sparingly and only in an

emergency and when the State Legislature is in recess. An ordinance has only a limited
life. Article 213 is so structured that no ordinance made by the State Government can
remain in force for more than 7 months without being approved by State Legislature and
enacted into an Act . Under Art. 213, the Governor can promulgate an ordinance if the
State Assembly is not in session. An ordinance lapses if not passed by the Legislature
within six weeks from the re-assembly of the Legislature. The Assembly has to meet

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 within six months of its last session; in effect, the maximum life of an ordinance can thus
be seven and half months.
● The State Executive has ordinance-making power similar to that enjoyed by the Central
Executive.
● According to Art. 213(1),the State Governor may promulgate such ordinances as the
circumstances appear to him to require when—
(1) the State Legislative Assembly is not in session; or if the State has two Houses, when one of
the Houses is not in session; and
(2) the Governor is satisfied that circumstances exist which render it necessary for him to take
immediate action.

According to the proviso to Art. 213(1), the Governor cannot, without instructions from the
President, promulgate any ordinance if:—
(a) a Bill to that effect would, under the Constitution, have required the previous sanction of the
President for its introduction into the State Legislature; or,
(b) if the Governor would have deemed it necessary to reserve a Bill to that effect for the
President’s consideration; or,
(c), an Act of the State Legislature to that effect would have been invalid under the Constitution
without receiving the President’s assent.- when a State makes a law containing a provision
inconsistent with a Central Law with respect to a matter in the Concurrent List, the State Law has
to receive the assent of the President to be valid. Thus, the assent of the President is secured
subsequent to the passage of the Bill. If, however, an ordinance is being made in the similar
circumstances, then the instructions from the President are a condition precedent to the
promulgation of the ordinance.

● Art. 213(2)(a)- An ordinance is to be laid before the State Assembly, and before the
Council as well if there is one in the state.
● An ordinance ceases to operate at the expiration of six weeks from the reassembly of the
Legislature. If the State has a bicameral legislature, and the two Houses assemble on
different dates, the period of six weeks is to be counted from the later of the two dates.
● Art.213(2)(a)-An ordinance ceases to operate earlier than six weeks if a resolution
disapproving it is passed by the Assembly, and is agreed to by the Council, if any.
● Art.213(2)(b)-An ordinance may be withdrawn by the Governor at any time.
● Art.213(2)-An ordinance has the same force and effect as an Act passed by the State
Legislature.
● Art.213(3)-The ordinance making power is co-extensive with the legislative power of the
State.44 Just as the Legislature can make a law under Art. 209 to expedite financial
business in the Houses, so can an ordinance. An ordinance cannot make a provision
which cannot be validity enacted by an Act of the State Legislature .
● Art.213(1)(c)-In the Concurrent List, an Act of the State Legislature repugnant to an Act
of Parliament with respect to a matter in that list may become effective if the President
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 has assented to it. So an ordinance, in a similar situation, will be valid if enacted with the
President’s prior consent.
● The power to make ordinances though formally vested in the Governor is, in effect,
exercised by the Council of Ministers on whose advice the Governor acts, except when
the matter is one in which the Governor has to seek instructions from the President.

EFFECT OF AN ORDINANCE
Article 213(2) says that an ordinance has the same force and effect as an Act of the Legislature.
In T. Venkata Reddy v State of Andhra Pradesh , an ordinance issued by the State Government
abolished the posts of part time village officers. After sometime, the ordinance lapsed without
being replaced by an Act of the Legislature. The question was whether the offices revived after
the lapse of the Ordinance. The Supreme Court answered in the negative. The Court refuted the
argument that when an ordinance is not replaced by an Act, as required by Art. 123(2) or 213(2),
the ordinance is to be deemed to be void ab initio and it should be assumed that it never became
effective.

The Court argued, after reading Arts. 123(2) and 213(2), that the wordings of both of these
provisions being similar, neither of these provisions says that the ordinance shall be void from its
commencement if it is not approved, or is disapproved by the Legislature. The constitutional
provision merely says that the ordinance shall cease to operate. This means that the ordinance
remains effective till it ceases to operate. Accordingly, a mere disapproval of an ordinance by the
concerned legislature cannot revive closed or completed transaction. If the Legislature wants to
revive the pre-ordinance position, it can do so by passing a law having retrospective effect.

In Maitreyee Mahanta v State of Assam, the Gauhati High Court in the following case took a
different view. The Central Government issued an ordinance declaring certain sections of people
in Assam as Scheduled Tribes. By successive ordinances the benefit was continued till the last
ordinance lapsed without Parliament passing the necessary Act continuing the provisions of the
ordinance. The Court ruled that with the lapse of the ordinance, the people concerned also lost
the benefit conferred on them by the lapsed ordinance. The ordinance in question was made only
for a short period. When Parliament failed to pass the necessary law, the ordinance lapsed. "Until
and unless the competent authority enacts such a law with a view to confer such benefits afresh
on those sections of the people, it is not possible to hold that as a right has already accrued that
right has to be saved".
It is thus clear that an ordinance is effective so long as it lasts. If it lapses because of non-action
of the Legislature, its validity is not affected. Depending on the factual context and other factors,
the Court may hold that the effect of the ordinance has not come to an end even if the ordinance
may have ceased to exist.

JUSTICIABILITY OF ORDINANCE-MAKING POWER

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The question has been raised from time to time whether the ‘satisfaction’ of the Governor (i.e. of
the Government) to issue an ordinance is justiciable or not.

In [Link] v State of Andhra Pradesh The Governor of Andhra Pradesh issued an ordinance
reducing the age of retirement of civil servants from 58 to 55. The ordinance was challenged
inter alia on the ground of non-application of mind. Rejecting the argument, the Supreme Court
asserted in Nagaraj that issuing an ordinance is a legislative act of the executive. The Court
stated in this connection. "The power to issue an ordinance is not an executive power but is the
power of the executive to legislate". This power is plenary within its field like the power of the
State Legislature to pass laws and "there are no limitations upon that power except those to
which the legislative power of the State Legislature is subject". Therefore, an ordinance cannot
be declared invalid for the reason of non-application of mind "any more than any other can be.
An executive act is liable to be struck down on the ground of non-application of mind not the act
of the Legislature.

In T. Venkata Reddy v. State of Andhra Pradesh, the Supreme Court has again reiterated the
proposition that an ordinance cannot be struck down on such grounds as non-application of
mind, or mala fides, or that the prevailing circumstances did not warrant the issue of the
ordinance.

However The Supreme Court decision in [Link] Case , where the Supreme Court has
ruled that a proclamation issued by the President under Art. 356 on the advice of the Council of
Ministers is amenable to judicial review at least to the extent of examining whether the
conditions precedent to the issuance of the Proclamation have been satisfied or [Link], while
an Act passed by a Legislature may not be challengeable on the ground of mala fides, the same
ought not to be said of the Executive.

An ordinance has a temporary life; it is not a permanent law like an Act . The very fact that an
ordinance lapses automatically after a while, and has to be replaced by an Act of the Legislature
shows that the Constitution does not confer the same status on an ordinance as that of an Act.

In Venkata Reddy,as stated above, an ordinance was given a high status by the Supreme Court,
and was equated to an Act of the Legislature. But the later case (Wadhwa) shows that an
ordinance cannot be placed on the same pedestal as an Act for all purposes, the reason being that
an ordinance is made by the Executive and not by the Legislature, and that ordinance-making
power is subject to some limitations to which legislative power is not subject.

3. Executive Power

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The usual rule is that the executive power of the State Government is co-extensive with the
legislative power of the State Legislature.
To avoid conflict of State executive power and the Central executive power in the concurrent
area, the proviso to Art. 162 provides that the executive power of the State in this area is subject
to any law made by Parliament, or restricted by the executive power of the Centre expressly
conferred on it by the Constitution or any law made by Parliament.
In the absence of a law, on a particular subject matter, the State Government can pass executive
orders in that [Link] Government can issue general instructions in exercise of its executive
[Link] executive cannot go, in exercising its executive power, against a constitutional or a
statutory provision.
In the exercise of its executive power under Art. 162, the State Government has power and
authority to prescribe conditions for admission to undergraduate and post-graduate medical
courses, when there are no legal provisions for the purpose.

● His powers to stretch out to the issues counted in the State list. On account of issues gave
in the Concurrent List, Governor practices to control over them at the same time, subject
to the official advice of the President
● He makes rules for the exchange of the matters and portfolios of the legislature of the
State for its allotment among Ministers.
● He has the privilege to look for data from the Chief Minister, and the Chief Minister of
the State must notify and answer him regarding all choices of his service.
● He can likewise require the Chief Minister to present any individual Minister’s choice for
the thought of the Council of Ministers,
● He is enabled to make arrangements of the Council of Ministers and on the
recommendation of different Ministers.
● He is consulted by the President in the appointment of the Judges of the state High Court.
● The Governor appoints Judges of the District Courts.
● In case he/she feels that the Anglo-Indian community has not been adequately
represented in the Vidhan Sabha, he or she can nominate one member of the community
to the Legislative Assembly of the state.
● In all the states where a bicameral legislature is present, the Governor has a right to
nominate the members, who are “persons having special knowledge or practical
experience in matters such as literature, science, art, co-operative movement and social
service”, to the Legislative Council.

WORKING OF THE EXECUTIVE

● Articles 154 and 166 regulate the working of the State Executive. Article 166 relates to
the conduct of business of the State Government.

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● The State being the author of a decision, cannot resile or go back on that decision merely
because it was the order of the previous government. If the order of that government was
not acceptable to the newly elected Government, it was open to it to withdraw or rescind
the same formally. It is not open to the State to contend that the said decision did not bind
it.
● The executive power of the State is vested in the Governor who exercises it either
directly or through officers subordinate to him in accordance with the Constitution [Art.
154(1)]. Parliament or the State Legislature may confer by law functions on any authority
subordinate to the Governor [Art. 154(2)(b)].
● The Governor is empowered to make rules for the more convenient transaction of the
business of the State Government [Art. 166(3)].
● Under these Rules, known as the Rules of Business, the government business is divided
amongst the Ministers and specific functions are allotted to different Ministries. Each
Ministry can, therefore, issue orders or notifications in respect of functions which have
been allocated to it under the Rules of Business.
● All executive act ion of the State Government is expressed to be taken in the name of the
Governor [Art. 166(1)].
● The validity of an instrument so authenticated cannot be called into question on the
ground that it is not an order or instrument made or executed by the Governor [Art.
166(2)]. Similarly, unless an order is expressed in the name of the President or the
Governor and is authenticated in the manner prescribed by the rules, the same cannot be
treated as an order on behalf of the Government.
● The Supreme Court has observed in Major EG Barsayv State of Bombay, that Art.
77(1) is only directory. Similarly, Art. 166(1) is also directory in [Link] non-
compliance therewith, does not make the order invalid. Even if an order is not issued in
strict compliance with the provisions of Art. 166(1), i.e. the words "by order", or "in the
name of the Governor" are absent therein, it can be established by evidence aliunde that
the impugned order was made by the appropriate authority. If an order is issued in the
name of the Governor, and is duly authenticated in the manner prescribed in Art. 166(2),
there is an irrebuttable presumption that the order or instrument is made or executed by
the Governor. Any noncompliance with Art. 166(2) does not invalidate the order, but it
precludes the drawing of any such irrebuttable presumption. This does not prevent any
one from proving by other evidence that as a matter of fact the order has been made by
the appropriate authority.
● The Rules of Business lay down who has to take what decision. Usually, these Rules
enable the Minister-in-charge of a department to dispose of cases coming before him; and
the Minister is also authorised to make standing orders, and to give such directions as he
thinks fit, for disposal of cases in his department. In practice, therefore, the Governor
rarely passes any executive order himself, except where a matter falls within his
discretion.

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 ● The Governor is essentially the constitutional head; the administration of the State is run
by the Council of Ministers. But, in the very nature of things, it is impossible for the
Council of Ministers to decide each and every matter which comes before the
government. So, Rules of Business are made under Art. 166(2) for the convenient
transaction of government business. Even a Minister is not expected to burden himself
with the day to day administration. His main function is to lay down policies and
programmes of his Ministry. Decisions in specific cases are thus taken by officials under
the Rule of Business.

ADVOCATE-GENERAL

Parallel to the Attorney-General at the Centre, there is an Advocate-General in each State. He is

formally appointed by the Governor. Needless to say that the Governor exercises this power with
the aid and advice of the Council of Ministers.

Article 165(1)- The Advocate-general is a person who is qualified to be appointed as a Judge of

the High Court.

Article 165(3)-The Advocate-General holds his office during the Governor’s pleasure and
receives such remuneration as the Governor may determine. The fact that the Advocate-General
holds office during the Governor’s pleasure means that, unlike a High Court Judge who retires at
the age of 62, the Advocate-General can hold office even after he attains the age of 62 years.

Article 165(2)-He gives advice to the State Government upon such legal matters as may be
referred to him. He performs such other duties of a legal character as may be assigned to him by
the Governor from time to time, or are conferred on him by the Constitution or any other law.

6.2 Role of the Governor: Some Controversies

GOVERNOR’S DISCRETIONARY POWERS

The concept of the Governor acting in his discretion or exercising independent judgment is not
alien to the Constitution. The normal rule is that the Governor acts on the aid and advice of the
Council of Ministers and not independently or contrary to it. But there are exceptions under
which the Governor can act in his own [Link] some of the exceptions were pointed
out, they are not exhaustive.

13
 1. The Governor is required to discharge certain functions in his "discretion" "by or under
the Constitution". This envisages that the Governor’s discretionary powers need not be
express but may be necessarily implied.
2. In the discharge of these functions, he is not required to seek the "aid and advice" of his
Council of Ministers.
3. Whether a function falls within his "discretion" or not, it is the Governor who decides
the matter in his "discretion".
4. The Governor’s decision under (3) above is final. He is the sole and final judge whether
any function is to be exercised in his discretion or on the advice of his Council of
Ministers.
5. The validity of any thing done by the Governor is not to be called in question on the
ground that "he ought or ought not to have act ed in his discretion".

Why power given ?

It was felt necessary by the makers of the Constitution to confer discretionary power on the
Governor for two main reasons:
1. the Governor has to serve as an agent of the Central Government in the State; and
2. he is an important link between the Centre and the State to maintain the unity and
integrity of the country.

Under the Constitution, there are several categories of act ion which the Governor may take in
his discretion, viz. :
1. Art. 200 requires him to reserve for the President’s consideration any Bill which in his
opinion derogates from the powers of the High Court;
2. To reserve any other Bill [Art. 200];
3. To appoint the Chief Minister of the State;
4. Governor’s report under Art. 356;
5. Governor’s responsibility for certain regions such as the Tribal Areas in Assam and
responsiblities placed on the Governor’s shoulders under Arts. 371A, 371C, 371E,
371H.
In all other matters, the Governor, like the President, act s on the advice of his Council of
Ministers.

In the matter of grant of sanction to prosecute a Chief Minister or a Minister the Governor is
normally required to act on the aid and advice of the Council of Ministers and not in his own
discretion. It is also presumed that a high authority like the Council of Ministers will normally
act in a bona fide manner, fairly, honestly and in accordance with law. Where as a matter of
propriety the Governor may have to act in his own discretion, or where bias is inherent or
manifest in the advice of the Council of Ministers or, on those rare occasions where on facts the
bias becomes apparent or the decision of the Council of Ministers is shown to be irrational and
based on non consideration of relevant factors, the Governor would be right to act in his own
14
discretion and grant sanction. Similar would be the situation if the Council of Ministers disables
itself or disentitles itself from giving such advice. In appropriate facts and circumstances, the
Governor may exercise in his own discretion otherwise it would lead to a situation where people
in power may break the law with impunity safe in the knowledge that they will not be prosecuted
as the requisite sanction will not be granted.

CONTROVERSIES
● With the emergence of the multi-party system in the wake of the fourth general elections,
the office of the Governor has become more directly involved in the constitutional
process and has assumed significance both as a link between the Centre and the States as
well as for maintaining an effective constitutional machinery within the States. In this
process, the Governor’s office has also become controversial, as whatever decision a
Governor takes, whether as the representative of the Centre, or the constitutional Head of
the State, he becomes a centre of controversy, for one or the other political party feels
dissatisfied and thus criticises him and attributes to him partisan motives. This also brings
the Central Government into controversy, for the Governor being an appointee of the
Centre, and holding his office during its pleasure, is regarded as the Centre’s creature,
and the disgruntled political group criticises the Central Government as well for exercise
of his discretion by the Governor.
● The repercussions and reverberations of decisions taken by the Governors are often heard
in Parliament. A Governor’s decision may at times lead to a sort of confrontation
between the Centre and the States which affects the federal balance to some extent. The
Central Government usually takes the formal position that the Governor is free to take a
decision in the discharge of his function, that it does not dictate to him one way or the
other, and though he may seek advice from the Centre, the final decision rests with him.
● Much of the controversy arises around the use of discretionary powers by the Governors,
especially the power to appoint the Chief Minister, to dismiss the ministry and to dissolve
the House. These powers are exerciseable by the Governor as Head of the State.
Controversy also arises with respect to the use by the Governor of his power to
recommend to the President the imposition of his rule under Art. 356. The Governor
exercises this power as the Centre’s representative in the State.

Rameshwar Prasad vs Union of India case, a five-judge Bench headed by CJI D Y

Chandrachud enquired whether the Governor had the power to intervene by ordering a floor test
when there is internal dissent within a party.
The court declared the President’s Proclamation of dissolving the state Assembly
unconstitutional. The Supreme Court ruled that the Governor must be kept away from
controversies such as disqualifying members of the Legislative Assembly. Therefore, the
Constitution has provisions such as Article 192(2), which mandates the Governor to seek the
opinion of the Election Commission and act [Link] court declared that even though the
Governor was the primary actor, the Union Council of Ministers should have scrutinized the
15
Governor’s report before hastily accepting it as true. The court stated that the Governor had
misguided the Council of Ministers, resulting in the Council’s advice to the President and the
issuance of the challenged Proclamation.

★ The Governor is also enabled to keep himself informed of the administrative

developments in the State; and Art. 167 makes corresponding provisions.
Thus, the Chief Minister is obligated to communicate to the Governor all decisions of the
Council of Ministers relating to the State administration and proposals for legislation [Art.
167(a)], and to furnish such other information to him as the Governor may call for regarding
administration of the affairs of the State and proposals for legislation [Art. 167(b)]. Further, if
the Governor so requires, the Chief Minister will submit for the consideration of the Council of
Ministers any matter on which a decision has been taken by a Minister without reference to the
Council of Ministers [Art. 167(c)].

The Sarkaria Commission has observed:"The options available to the Governor under Art. 167
give him persuasive and not dictatorial powers to override or veto the decisions or proposals of
his Council of Ministers relating to the administration of the affairs of the State. At best they are
powers of giving advice or counselling delay or the need for caution and they are powers which
may be used to build bridges between the Government and opposition."

The implication of Art. 163(1) is that in the exercise of his discretionary powers, the Governor
does not have to seek ministerial advice. Governor’s discretionary functions thus lie outside the
area of ministerial responsibility.

If any question arises whether a matter falls within the Governor’s discretion or not, the decision
of the Governor in his discretion is final, and the validity of anything done by the Governor in
his discretion cannot be called in question on the ground that he ought or ought not to have act ed
in his discretion [Art. 163(2)]

No Court is entitled to inquire whether any, and if so what, advice was tendered by the Ministers
to the Governor [Art. 163(3)]. This constitutional provision, prohibits an inquiry in respect of
two matters: (1) whether any advice was given to the Governor by the Council of Ministers; and
(2) if an advice was given what was that advice? The clause applies when no advice has been
given as well as when an advice has been given.

Comparing Art. 74(1) with Art. 163(1) several significant points of difference become
noticeable between the Governor and the President.
1. Under Art. 74(1), no discretion is left with the President. He is bound by ministerial
advice in all his functions. On the other hand, under Art. 163(1), Governor receives "aid

16
 and advice" from his Council of Ministers only in those functions which lie outside his
‘discretion’.
2. Ministerial advice has been made binding on the President [Art. 74(1)], but no such
provision has been made with respect to the [Link] 163(1) only says that there
shall be a Council of Ministers "to aid and advise" the Governor except in so far as he act
s in his discretion.
3. While the President can require the Council of Ministers to reconsider the advice given
by it, and he is bound to act in accordance with the advice given after reconsideration,
there is no such provision in the case of the Governor. This also indicates that a Governor
may have certain functions to discharge independently of ministerial advice.

★ The Constitution expressly mentions only a few functions which a Governor exercises in
his [Link] to what other functions fall within this category has been left vague and
flexible; the Constitution provides no guidelines for deciding this and, in effect, the final
judge of the matter is the Governor himself.
In Nabam rebia v. Deputy Speaker it was held that a Governor cannot employ his “discretion”,
and should strictly abide by the “aid and advice” of the Cabinet to summon the Assembly for a
floor [Link] Governor can summon, prorogue and dissolve the House only on the aid and
advice of the Council of Ministers with the Chief Minister as the head. And not at his [Link]
the Constituent Assembly was wary of extending the Governor’s discretion. Though the draft
Constitution had vested the Governor with the discretion to summon and dissolve, it was latter
omitted by the framers of the Constitution.

Article 163 of the Constitution does not give the Governor a “general discretionary power to act
against or without the advice of his Council of Ministers”.Governor’s discretionary powers are
limited to specified areas like giving assent or withholding/referring a Bill to the President or
appointment of a Chief Minister or dismissal of a government which has lost of confidence but
refuses to quit.

1. RESERVATION OF BILL
Reservation of Bills passed by the State Legislature for the assent of the President [Art. 200]. In
doing so, the Governor may not always be in agreement with his Council of Ministers. The
Governor may be justified to reserve a Bill for Presidential sanction, even if his Council of
Ministers advises otherwise, if, in his opinion, the Bill in question would affect the powers of the
Union or contravene any provision of the Constitution. Obviously, the State Ministry is not
expected to tender any advice to the Governor to reserve a Bill for the Presidential assent (except
when the Constitution specifically makes it obligatory to do so). The Governor will, therefore,
have to exercise his discretion in the matter whether he should assent to a Bill or reserve it for
President’s assent. He must reserve the Bill where the Constitution stipulates President’s assent.

17
Under the second proviso to Art. 200, it is obligatory for the Governor to reserve a Bill for
President’s consideration if, in his ‘opinion’, if it becomes law, it will so derogate from the
powers of the High Court as to endanger the position which that Court is designed to fill by the
Constitution.

2. REPORT TO THE PRESIDENT

An important matter in which the Governor acts in his discretion is making a report to the
President under Art. 356 invoking President’s rule in the State because of the breakdown of the
constitutional machinery [Link] can the Ministry be consulted by the Governor while
making a report to the Centre under Art. 356 for the failure of the constitutional machinery in the
State may be because of the conduct of the Council of Ministers itself and, therefore, the
Governor must, of necessity, and in the very nature of things, exercise his own judgment in this
matter.

3. APPOINTING CHIEF MINISTER

In the matter of appointing the Chief Minister, the constitutional provision [Art. 164(1)] confers
discretionary power on the Governor which is non-justiciable. Because of the immunity granted
to the Governor under Art. 361, he is not answerable to the Court even on the ground of mala
fides.

In Mahabir Prasad Sharma v Prafulla Chandra Ghose the Calcutta High Court, the Governor
in making the appointment of the Chief Minister under Art. 164(1) "acts in his sole discretion",
and that the "exercise of his discretion by the Governor cannot be called in question in writ
proceedings in High Court". Thus, in the matter of appointment of the Chief Minister, the
Governor does not act on the advice of the Council of Ministers. It is for the Governor himself to
make such inquiries as he thinks proper to ascertain who among the members of the Legislature
ought to be appointed as the Chief Minister and who would be in the position to enjoy
confidence of the majority in the State Assembly.

In the matter of appointment of the Chief Minister, the Governor is not required to act on the
advice of the Council of Ministers. However, the over-all affective limitation on his discretion is
that he is to appoint a person as Chief Minister who will be able to enjoy a majority support in
the Assembly. If the Ministry is not able to command a majority support in the House, it will fall.
If a party enjoys a clear majority in the Assembly, the Governor’s task is more or less
mechanical and non-discretionary, as he has to call upon the leader of the majority party to form
the government.

In 1971, an effort was made in this respect when the Committee of Governors70 suggested the
following guidelines for guidance of the Governors in the matter of appointing the Chief
Minister:

18
 1. Where a single party commands a majority in the Assembly, the Governor is to call upon
its leader to form the government.
2. It is not incumbent on the Governor to invite the leader of the largest party (not in
majority) to form the government. The ultimate test for the purpose is not the size of a
party but its ability to command a majority in the House.
3. If before the election, some parties combine and produce an agreed programme and the
combination gets a majority after the election, the commonly chosen leader of the
combination should be invited to form the government.
4. If no party is returned in a majority at the election and, thereafter, two or more parties
come together to form the government, the leader of the combination may be invited to
form the government.
5. The leader of a minority party may be invited to form the government if the Governor is
satisfied that the leader will be able to muster majority support in the House.

4. DISSOLVING THE HOUSE

He is to take a decision to dissolve or not to dissolve the House on a consideration of the totality
of circumstances. He may refuse to accept the advice of the Ministry which has lost the majority
support if in his view an alternative stable government can be formed. The Governor may,
however, be bound to accept the advice for dissolution by a Ministry having a majority support.

5. DISMISSAL OF MINISTRY

A very controversial question regarding the Governor’s discretion is his power to dismiss the
Ministry. As at the Centre, so in a State, the Council of Ministers is collectively responsible to
the Legislative Assembly and holds office during the Governor’s pleasure.
A non-controversial use of the Governor’s power is the dismissal of a Minister who has lost the
confidence of the Chief Minister, or the dismissal of a Ministry which has demonstrably lost
majority support in the Legislative Assembly, but, instead of respecting the verdict, refuses to
vacate the office.

It may not be possible for the Governor to use his own power to dismiss the Ministry in such a
situation, for then he will have to install another Council of Ministers and it may not be possible
for him to do so when the dismissed Ministry had majority in the House.

A writ petition was filed in the Allahabad High Court on February 23, 98, challenging the act ion
of the Governor. Following Bommai, the Allahabad High Court overturned the Governor’s act
ion, restored the Kalyan Singh Government and left it open to the Governor to convene a session
of the State Legislative Assembly to prove its majority. Then, the newly installed Chief Minister
approached the Supreme Court. The Court directed that a special session of the Assembly be
19
summoned which would have the only agenda to have a composite floor test between the two
contending parties in order to ascertain who out of the two contesting claimants of Chief
Ministership enjoys a majority in the House. The floor test was held as directed by the Supreme
Court and Kalyan Singh won the day.

Governor’s discretion to dismiss the Chief Minister is exercisable only if the Chief Minister loses
his majority in the Assembly and this has to be ascertained only on the floor of the House and
not in the chambers of the Governor.

6.3 State Council of Ministers

Each State has a Council of Ministers, with the Chief Minister at its head. The provision
regarding the Council of Ministers is mandatory and the Governor cannot dispense with this
body at any time [Art. 163(1)]. This proposition has now been reiterated by the Supreme Court
which has held that the Council of Ministers continues to stay in office even when the
Legislature is dissolved by the Governor.

ARTICLE 163(1) There shall be a council of Ministers with the chief Minister at the head to aid
and advise the Governor in the exercise of his functions, except in so far as he is by or under this
constitution required to exercise his functions or any of them in his discretion

The function of the Council of Ministers is "to aid and advise the Governor in the exercise of his
functions except in so far as he is by or under this Constitution required to exercise his functions
or any of them in his discretion [Art. 163(1)].The phrase "by or under" the Constitution means
that the need to exercise discretionary power may arise from any express provision of the
Constitution or by necessary implication.

It has been judicially held that the Council of Ministers comes into existence to aid and advise
the Governor as envisaged by Art. 163(1) as soon as the Chief Minister is appointed and sworn
in by the Governor. More Ministers can be appointed in course of time. But, till then, the Chief
Minister alone acts as the Council of Ministers to aid and advise the Governor. The Constitution
does not prescribe any minimum or maximum number of Ministers as members of the Council of
Ministers. Accordingly, there is nothing in the Constitution to prevent the Chief Minister from
aiding and advising the Governor all by himself pending appointment of other Ministers and
allocation of business among them. "The formation of the Council of Ministers is complete with
the swearing in of the Chief Minister.

6.4 Appointment of Chief Ministers and Other Ministers

20
Article 164. Other provisions as to Ministers
(1) The chief Minister shall be appointed by the Governor and the other Ministers shall be
appointed by the Governor on the advice of the Chief Minister, and the Ministers shall hold
office during the pleasure of the Governor: Provided that in the State of Bihar, Madhya
Pradesh and Orissa, there shall be a Minister in charge of tribal welfare who may in addition
be in charge of the welfare of the Scheduled Castes and backward classes or any other work
(2) The Council of Ministers shall be collectively responsible to the Legislative Assembly of the
State
(3) Before a Minister enters upon his office, the Governor shall administer so him the oaths of
office and of secrecy according to the forms set out for the purpose in the Third Schedule
(4) A Minister who for any period of six consecutive months is not a member of the Legislature
of the State shall at the expiration of that period cease to be a Minister
(5) The salaries and allowances of Ministers shall be such as the Legislature of the State may
from time to time by law determine and, until the Legislature of the State so determines, shall
be as specified in the Second Schedule The Advocate General for the State
* * * *

A Minister should be a member of the State Legislature. A basic feature of the parliamentary
system of government is that all Ministers ought to be members of a House of State Legislature.
This ensures accountability of the Council of Ministers to the Legislature. However, a non-
member may also be appointed as a Minister, but he would cease to be a Minister if he does not
become a member of the State Legislature within six months [Art. 164(4)]

A person who is not a member of any House may even be appointed as the Chief Minister as the
term ‘Minister’ in Art. 164(4) covers the "Chief Minister" as well. Therefore, there have been
cases when non members have been appointed as Chief Ministers. For example, Kamraj Nadar
was appointed as the Chief Minister of Madras in 1954 although he was not a member of the
State Legislature.

In Harsharan Verma v Tribhuvan Narain Singh Shri T.N. Singh who was not a member of
either House of the State Legislature was appointed the Chief Minister of Uttar Pradesh. The
High Court rejected the challenge to his appointment in view of Art. 164(4) of the Constitution
and the Supreme Court upheld the High Court. A non member can be appointed as Chief
Minister for a period of six months.

Referring to Art. 164, the Court observed that its scheme clearly suggests that ideally, every
Minister must be a member of the Legislature at the time of his appointment. In an exceptional
case, a non-member may remain a Minister for six months. Such a person must get elected to the
House during the period of six months. If he fails todo so, he must cease to be a Minister. He
cannot be re-appointed thereafter during the life time of the same Legislature by the same or
even a different Chief Minister.
21
In the case of SR Chaudhuri vs. State of Punjab (2001,the issue before the court was that can a
non-member who has served as a minister for six consecutive months, during which the time he has
ceased to serve in that capacity, be reappointed to the position without having to run for office again after
the six-month term has passed? The S.C. ruled his re-appointment as a minister with effect from
November 23, 1996 as improper, undemocratic, invalid & unconstitutional. The appeal was successful &
was granted.

In another landmark case which was stated in B.R. Kapur vs. State of Tamil Nadu (2001), the
majority of judges, while discussing the issue of a writ of quo warranto, ruled that if a non-
legislator could be appointed as a Chief Minister under Article 164 of the Indian Constitution,
then they must fulfil the qualification of membership of a legislator as mentioned under Article
173 of the Indian Constitution.

B.R. Kapur v. State of T-N: (2001):- The Court held :-

I. Whether a person who is qualified to be a member of the State Legislature can be appointed as
Chief Minister u/ Art. 164 (4)?
All the sub-clauses of Art. 164 shall be read together, along with Art 173 and 191. Art. 164 takes
into acc two significant stages, the date of appt of minister & the date of becoming an MLA
within six months. Since Art. 191 covers both these stages, it was held that J. Jayablitha should
not be allowed To contest elctions for being disqualified u/ Art. 191.

II. whether the will of people plays an imp role while barring them from conteting elections?
Relying on the Doctorine of Constitutional Morality, it is observed that people of India, electing
a person to be their leader, who is disqualified from Being an MLA is against the morals of the
CoI.

III. Whether the Governor's decision under Art. 361 of CoI attracts judicial review?
The power bestowed upon the governor under Art- 356(1) is conditional & the court is qualified
& entitled to examine whether the condition has been satisfied or not.

The Court has argued that it is implicit in Art. 164(4) [read along with Arts. 164(1) and (2)]
that a Minister who is not a member of the Legislature must seek election to the Legislature and
secure a seat therein, within six months of his appointment. If he fails to do so, he ceases to be a
Minister.
It, therefore, follows from this that a person appointed as a Minister should be one who can stand
for election to the Legislature and satisfy the requirement of Art. 164(4). This means that he
should be one who satisfies the qualification for membership of the State Legislature [Art. 173]

22
and is not disqualified from seeking that membership by reason of any provision in Art. 191 on
the date of his appointment as a Minister.

★ There is no convention to the effect that only a member of the Legislative Assembly
should be appointed as the Chief Minister. Many a time, members of Lgislative Councils
have been appointed as Chief Ministers.

★ In the States of Bihar, Madhya Pradesh and Orissa, there has to be a Minister in charge of
tribal welfare, who may also be put in charge of the welfare of the Scheduled Castes and
Backward Classes or any other work [Proviso to Art. 164(1)].

OTHER IMPORTANT PROVISIONS

1. According to Article 164(5)- The salaries and allowances of the Ministers are
determined by the State Legislature by law.
2. The provisions defining the tenure of the Council of Ministers in the States are parallel to
those at the Centre. Thus,
(i) the Council of Ministers in a State is collectively responsible to the Legislative Assembly
[Art. 164(2)], and not to the Legislative Council and
(ii) the Ministers hold office during the pleasure of the Governor [Art. 164(1)]

3. Under Art. 177, a Minister has the right to speak in, and participate in the proceedings
of, a House of the State Legislature. This means that a Minister, even though not a
member of a House can participate in its proceedings but cannot vote.

Article 177, enables a Minister to participate in the proceedings of a House even if he is not a
member thereof is designed to strengthen the principle of ministerial accountability to the
Legislative Assembly. Ministerial responsibility means that the minister is able to answer in the
House for every act of administration

4. Article 164(3)- Before a Minister enters upon his office, the Governor administers to him
the prescribed oaths of office and secrecy.

EXTRA CASE

Nibam Rebai, n Deputy Speaker (2016):- The two most pertinent issues in this case are:
1. Was the governor's decision to advance the Assembly session constitutional
2. Could the speaker disqualify MLAS while a motion for his removal was pending before
the House?

23
It was held that the governor does not enjoy broad discretionary powers & is always subject lo
constitutional standards. Further, that the Speaker's decision to disqualify rebel MLAs was an
attempt to overcome voting by all the then members & evade disqualification.

State of Bihar v. Rani Sanabati Kumari (1961):- The respondent sued the State of Bihar for a
declaration that the Bihar Land Reforms Act 1950, was ultra vires, void & unconstitutional and
for a permanent injunction restraining the state & its officers from issuing any notification wrt
her estate obtained a temporary injuction order against the state.
The Subordinate Judge held that the contention that in view of Art. 31B of the CoI, the
notification was lawful & could not constitute contempt of Court was no defence, and on further
appeale, the H.C. & S.C. affirmed this decision

24