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The document discusses the constitutional powers and functions of the President and Governor in India. It makes three key points:
1. Both the President and Governor exercise their formal constitutional powers on the aid and advice of their Council of Ministers, except where the Constitution requires the Governor to act in their discretion.
2. The Governor has some discretionary powers under the Constitution in addition to certain situational powers, whereas the President has no formal discretionary powers but exercises discretion in certain circumstances like choosing the Prime Minister.
3. In all other matters, the President and Governor must act on the aid and advice of the Council of Ministers, except in the specific situations outlined in the Constitution where the Governor is required to act
Descriere originală:
Discretionary Powers of the President and Governor
Titlu original
Discretionary Powers of the President and Governor
The document discusses the constitutional powers and functions of the President and Governor in India. It makes three key points:
1. Both the President and Governor exercise their formal constitutional powers on the aid and advice of their Council of Ministers, except where the Constitution requires the Governor to act in their discretion.
2. The Governor has some discretionary powers under the Constitution in addition to certain situational powers, whereas the President has no formal discretionary powers but exercises discretion in certain circumstances like choosing the Prime Minister.
3. In all other matters, the President and Governor must act on the aid and advice of the Council of Ministers, except in the specific situations outlined in the Constitution where the Governor is required to act
The document discusses the constitutional powers and functions of the President and Governor in India. It makes three key points:
1. Both the President and Governor exercise their formal constitutional powers on the aid and advice of their Council of Ministers, except where the Constitution requires the Governor to act in their discretion.
2. The Governor has some discretionary powers under the Constitution in addition to certain situational powers, whereas the President has no formal discretionary powers but exercises discretion in certain circumstances like choosing the Prime Minister.
3. In all other matters, the President and Governor must act on the aid and advice of the Council of Ministers, except in the specific situations outlined in the Constitution where the Governor is required to act
The Piesiuent as well as the uoveinoi is the constitutional oi foimal heau of the State. Both exeicises his poweis anu functions confeiieu on him by oi unuei the Constitution (foimal constitutional poweis) on the aiu anu auvice of his Council of Ninisteis, save in spheies wheie the uoveinoi is iequiieu by oi unuei the Constitution to exeicise his functions in his uiscietion. In the Constitution, the expiession "acts in his uiscietion" is useu only in ielation to the poweis anu functions of the uoveinoi anu not in the case of the Piesiuent. The uoveinoi enjoys some constitutionally confeiieu uiscietionaiy poweis in auuition to ceitain situational oi contingent poweis exeicisable in a few well- known exceptional situations. Wheieas, the Piesiuent has no foimal uiscietionaiy poweis as such unuei the Constitution, but in ieality exeicises his uiscietion in the given ciicumstances: a) In the choice of Piime Ninistei (in case of uoveinoi, Chief Ninistei), iestiicteu though this choice is by the paiamount consiueiation that he shoulu commanu a majoiity in the Bouse; b) The uismissal of a uoveinment which has lost its majoiity in the Bouse, but iefuses to quit office; c) The uissolution of the Bouse wheie an appeal to the countiy is necessitous, although in this aiea the heau of State shoulu avoiu getting involveu in politics anu must be auviseu by his Piime Ninistei (Chief Ninistei) who will eventually take the iesponsibility foi the step. 3(4&%)(%5# 6()#'"'7'"()*88+ $()/&%%&2 2"#$%&'"()*%+ -(.&%# a) Wheie a uoveinoi is appointeu an auministiatoi of an aujoining 0nion Teiiitoiy he shall exeicise his functions as such auministiatoi inuepenuently of his Council of Ninisteis. (Aiticle 2S9(2)) b) 0nuei Aiticle SS6, the uoveinoi can senu a iepoit to the Piesiuent that a situation has aiisen in which the goveinment of the State cannot be caiiieu on in accoiuance with the piovisions of this Constitution. In uoing so, the uoveinoi will be justifieu in exeicising his uiscietion even against the aiu anu auvice of his Council of Ninisteis. c) 0nuei Aiticle 2uu, the uoveinoi has the iight to ieseive foi consiueiation any Bill which in his opinion becomes law, woulu ueiogate fiom the poweis of the Bigh Couit anu enuangei the position given to Bigh Couit unuei the Constitution. u) Beteimining the amount payable by the uoveinment of Assam, Neghalaya, Tiipuia anu Nizoiam to an Autonomous Tiibal Bistiict Council as ioyalty acciuing fiom licences oi leases foi mineial exploiation. (Paia 9, vI scheuule) e) Special iesponsibility of the uoveinoi of the Nagalanu State.( Aiticle S71A) Baiiing the abovementioneu situations, in all othei matteis the Piesiuent anu uoveinoi shall always act on the aiu anu auvice of the Council of Ninisteis. Neithei of them is to exeicise the executive functions peisonally. Wheievei the Constitution iequiies the satisfaction of the Piesiuent oi the uoveinoi foi the exeicise of any Constitutional powei oi function, the satisfaction iequiieu by the Constitution is not the peisonal satisfaction of the Piesiuent oi of the uoveinoi, but it is the satisfaction of the Council of Ninisteis. 1
9:1: ;-&$"*8 1(8"$& <#'*=8"#0>&)' 4: ;'*'& (/ 9:1 The Supieme Couit hau to consiuei whethei a uoveinoi can act in his uiscietion anu against the aiu anu auvice of the Council of Ninisteis in a mattei of giant of sanction foi piosecution of Ninisteis foi offences unuei the Pievention of Coiiuption Act anuoi unuei the Inuian Penal Coue. The Couit helu, in a mattei of giant of sanction to piosecute, the uoveinoi is noimally iequiieu to act on aiu anu auvice of the Council of Ninisteis anu not in his uiscietion. Bowevei, an exception may aiise while consiueiing giant of sanction to piosecute a Chief Ninistei oi a Ninistei wheie as a mattei of piopiiety the uoveinoi may have to act in his own uiscietion. Similai woulu be the situation if the Council of Ninisteis uisables itself oi uisentitles itself fiom auvising the uoveinoi in the mattei. 0n ceitain occasions if bias becomes appaient oi the uecision of the Council of Ninisteis is shown to be iiiational anu baseu on non-consiueiation of ielevant factois, the uoveinoi woulu be iight, on the facts of that case, to act in his own uiscietion anu giant sanction. If a piima facie case is cleaily maue out anu sanction to piosecute high functionaiies is iefuseu oi withhelu, uemociacy will be at peiil. Theiefoie, the Couit uphelu the oiuei of the uoveinoi sanctioning piosecution of the Ninisteis baseu on the iepoit of the Lokayukta.
1 Foi uetaileu analysis see, !"#$%&' !)*+% ,- !.".& /0 12*3"45 6-1- !7&8)"9 1/9)8& :$."49)$%#&*. ,- !.".& /0 6-1-