The Council of Ministers

Article 163(1) provides: “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 exercise his functions or any of them in his discretion.” 

  • The Chief Minister is appointed by the Governor. The other Ministers are appointed by the Governor on the advice of the Chief Minister. It is the sole prerogative of the Chief Minister to form the Ministry by choosing such Ministers as he may deem fit. Judiciary cannot intervene in the matter or allocation of ministries. 
  • The Ministers hold office during the pleasure of the Governor. The Council of Ministers is collectively responsible to the Legislative Assembly of the State. 
  • Before a Minister enters upon his office, the Governor administers to him the oaths of office and of secrecy according to the forms set out for the purpose in the Third Schedule. 
  • 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 so determined, shall be as specified in the Second Schedule.

Non-Member as Minister: 

  • The existence of the Legislative Assembly is not a condition precedent before the Council of Ministers can be sworn in under Article 164(1)
  • Further, it is not necessary that the Chief Minister or a Minister shall always be a Member of the Legislature of the State. A non-Member may be appointed as Chief Minister or a Minister. It was held in Ashok Pandey vs Mayawati, that Article 164(4) did not prevent a non-Member of the Home of the State Legislature, who was a member of a House of Union Parliament, from being appointed a Minister or a Chief Minister in the State Council of Ministers. 
  • However, Clause (4) of Article 164 provides that 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 
  • A non-Member, who has failed to get himself elected in six consecutive months, cannot be re-appointed as Minister.” Referring to the relevant provisions of the English, Canadian and Australian Systems, the Apex Court ruled that repeatedly appointing as a Minister, a non-member would defeat the basic principle of representative and responsible Government.
  • Further, the Governor’s power under Article 164(4) to appoint a non-legislator as Minister or Chief Minister for six months subject to implied limitations, i.e., he must be one who satisfies the qualifications for membership of the Legislature contained in the Constitution and must not be disqualified from seeking that membership by reason of any of the provisions therein, on the date of his appointment. Thus, the Apex Court in B.R. Kapur vs. State of Tamil Nadu,” quashed the appointment of Ms. Jayalalitha as the Chief Minister of Tamil Nadu, who had been convicted to three years’ rigorous imprisonment in a case and so stood disqualified for being a Member of the Legislature. five-Judge
  • Article 164(4) does not prevent a non-member of a House of State Legislature, who is a member of a House of Union Parliament, from being appointed a Minister or a Chief Minister in the State Council of Ministers.
  • The Constitution (Ninety-first Amendment) Act, 2003 has inserted Clauses (1A) and (1B) in Article 164. The new Clause (1A) has done away with jumbo-size Ministries. It provides that the size of the Council of Ministers in the State would not exceed fifteen per cent of the Assembly’s total strength, but not less than twelve members. 
  • The new Clause (1B) provides that a member disqualified under the anti-defection law, shall not be appointed a Minister for the duration of the remaining term of the existing Legislature or until his next fresh election, whichever is earlier.

Minister for Tribal Welfare:

  • Clause (1) of Article 164 requires that in the State of Chhattisgarh, Jharkhand, 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.

Appointment of the Chief Minister 

Though, the Chief Minister is appointed by the Governor, however, he has no discretion in this matter, when the circumstances are normal. 

As a matter of a well-established convention, the Governor is required to invite, the leader of the majority party in the Lower House of the State Legislature, to form the government and he is appointed as the Chief Minister of the State.

A five-Judge Constitution Bench of the Supreme Court in B.R. Kapur State of Tamil Nadu,” ruled that in such a matter people’s mandate would not prevail The Constitution is supreme and while appointing the Minister, the legal and constitutional requirements, have to be followed .In doubtful situations, however, the Governor is faced with a constitutional obligation to act with care and caution in this matter. 

The various solutions which were found and adopted in the past are:

  • Where none of the parties has obtained majority in the Legislative assembly of the State: The leader of alliance or coalition or front formed before the elections.
  • The leader of the alliance formed after the elections.
  • The leader of single largest majority party in the Lower House.
  • The leader of single largest party ignoring the claim of the alliance having majority is invited by the Governor to form the Government. 

Dismissal of the Council of Ministers

So long as the party in power has majority in the Lower House, the Governor cannot dismiss the Ministry, though the Ministers hold office at his pleasure. Instances are there when the Governor has, exercised his discretion and ministry enjoying majority support in the Assembly, has been dismissed. 

In Mahabir Prasad vs Profulla Chandra, the Calcutta High Court held that Article 164(1) did not impose any restriction or condition upon the powers of the Governor to appoint a Chief Minister and to dismiss a Ministry. This matter is a matter entirely in the discretion of the Governor. The right of the Governor to withdraw the pleasure during which the Ministers hold, is held to be absolute and unrestricted. 

Relying upon the Apex Court’s judgment in R.L.K. Jain v. Union of India and the Bombay High Court in Pratapsingh Raojirao Rane vs Governor of Goa,’ held that the Governor for the purpose of appointment of the Chief Minister and for dismissal of the Government would act in his sole discretion, though his discretion would be restricted by the paramount consideration of command of majority in the House. 

However, in Jagdambika Pal v. Union of India,” the Supreme Court did not approve the dismissal of Chief Minister of State and swearing in of another person as Chief Minister without holding a floor test. The Court directed the convening of special Session of the Uttar Pradesh Assembly and to have a composite floor test between contending parties. It may be stated that Jagdambika Pal, was a particular fact situation and the order passed therein, may not said to be a law laid down by the Apex Court. It may, thus, be said that the acts done by the Governor in his sole discretion, such as under Article 163(1), are immuned under Article 361(1)

Dissolution of the Legislative Assembly

Article 174(1)(b) confers power on the Governor to dissolve the Legislative Assembly of the State before the expiration of the term of five years. In normal circumstances, the Assembly is not dissolved till the expiry of the term and so long as the Ministry is enjoying support in the House When the Ministry has lost the majority support and no alternative stable Ministry is possible, he may exercise his discretion and dissolve the Legislative Assembly. In S.R. Bommai v. Union of India, the Supreme Court has laid down guidelines in this respect and has held that the Assembly should not be dissolved until the Proclamation made under Article 356 by the President, has been approved by both the Houses of Parliament.

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