The Council of Ministers of State Executive | Indian Constitution Download PDF
As has already been stated, the Governor is a constitutional head of the State executive, and has, therefore (subject to his discretionary functions noted below), to act on the advice of a Council of Ministers [Art. 163], The provisions relating to the Council of Ministers of the Governor are, therefore, subject to exceptions to be stated presently, similar to those relating to the Council of Ministers of the President.
Appointment of Council of Ministers
At the head of a State Council of Ministers is the Chief Minister Appointment of (corresponding to the Prime Minister of the Union). while the other Ministers are appointed by the Governor on the advice of the Chief Minister. The Chief Minister cannot be constitutionally prohibited to give advice under Art. 164(1) to the Governor in respect of a person, for becoming a Minister, who is charged for serious or heinous offences or offences relating to corruption.8″4 The Council of Ministers shall be collectively responsible to the Legislative Assembly of the State and individually responsible to the Governor. The Ministers are jointly and severally responsible to the Legislature. He/They is/are publicly accountable for the acts or conducts in the performance of duties. Any person10 may be appointed a Minister (provided he has the confidence of the Legislative Assembly), but he ceases to be a Minister if he is not or does not remain, for a period of six consecutive months, a member of the State Legislature. The salaries and allowances of Ministers are governed by laws made by the State Legislature [Art. 164].
Relation between the Governor and his Ministers
It may be said that, in general, the relation between the Governor and his ministers is similar to that between the President wemi ‘the* Governor and his ministers, with this important difference that and his Ministers. while the Constitution does not empower the President to exercise any function ‘in his discretion’, it authorises the Governor to exercise some functions ‘on his discretion’. In this respect, the principle of Cabinet responsibility in the States differs from that in the Union.
Article 163(1) says—
“There shall be a Council of Ministers…. 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.”
It is because of this discretionary jurisdiction of the Governor that no amendment was made by the 42nd Amendment Act in Art. 163(1) as in Art. 74(1), which we have noticed in Chapter 11.
In the exercise of the functions which the Governor is empowered to exercise in his discretion, he will not be required to act according to the advice of his ministers or even to seek such advice. Again, if any question arises whether any matter is or is not a matter as regards which the Governor is required by the Constitution to act in his discretion, the decision of the Governor shall be final, and the validity of anything done by the Governor shall not be called into question on the ground that he ought or ought not to have acted in his discretion [Art. 163(2)].
Discretionary Functions of Governor
A. The functions which are specially required by the Constitution to be exercised by the Governor in his discretion are—
(a) Para 9(2) of the 6th Sch. which provides that the Governor of Assam shall, in his discretion, Governor determine the amount payable by the State of Assam to the District Council, as royalty accruing from licences for minerals.
(b) Art. 239(2) [added by the Constitution (7th Amendment) Act, 1956] which authorises the President to appoint the Governor of a State as the administrator of an adjoining Union Territory and provides that where a Governor is so appointed, he shall exercise his functions as such administrator ‘independendy of his Council of Ministers’.
B. Besides the above functions to be exercised by the Governor ‘in his discretion’, there are certain functions under the amended Constitution which are to be exercised by ‘ the Governor ‘on his special responsibility’—which practically means the same thing as ‘in his discretion’, because though in cases of special responsibility, he is to consult his Council of Ministers, the final decision shall be ‘in his individual judgment’, which no court can question. Such functions are—
(i) Under Art. 371(2), as amended,12 the President may direct that the Governor of Maharashtra or Gujarat shall have a special responsibility for taking steps for the development of certain areas in the State, such as Vidarbha, Saurashtra.
(ii) The Governor of Nagaland shall, under Art. 371A(l)(b) (introduced in 1962), have similar responsibility with respect to law and order in that State so long as internal disturbances caused by the hostile Nagas in that State continue.
(iii) Similarly, Art. 371C(1), as inserted in 1971, empowers the President to direct that the Governor of Manipur shall have special responsibility to secure the proper functioning of the Committee of the Legislative Assembly of the State consisting of the members elected from the Hill Areas of that State.
(iv) Art. 371F(g), inserted by the Constitution (36th Amendment) Act, 1975, similarly, imposes a special responsibility upon the Governor of Sikkim “for peace and for an equitable arrangement for ensuring the social and economic advancement of different sections of the population of Sikkim”.
(v) Art. 371H(a), inserted by the Constitution (55th Amendment) Act, 1986, similarly, imposes a special responsibility upon the Governor of Arunacha Pradesh “with respect to law and order in the State of Arunachal Pradesh and in the discharge of his functions in relation thereto, the Governor shall, after consulting the Council of Ministers, exercise his individual judgment as to the action to be taken”.
“Provided that if any question arises whether any matter is or is not a matter as respects which the Governor is under this sub-clause required to act in the exercise of his individual judgment, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in the exercise of his individual judgment:
Provided further that if the President on receipt of a report from the Governor or otherwise is satisfied that it is no longer necessary for the Governor to have special responsibility with respect to law and order in the State of Arunachal Pradesh, he may by order direct that the Governor shall cease to have such responsibility with effect from such date as may be specified in the order;”
(vi) Art. 371J, inserted by the Constitution (98th Amendment) Act, 2012, similarly, imposes a special responsibility upon the Governor of Karnataka for “l.(a) establishment of a separate development board for Hyderabad- Kamataka region, (b) equitable allocation of funds for developmental expenditure over the said region, (c) equitable opportunities and facilities for the people belonging to the said region in matters of public employment, education and vocational training, and may provide for 2. (a) reservation of proportion of seats in educational and vocational training institutions in Hyderabad-Kamataka Region for students of the Region and (b) identification of posts or classes of posts under the State Government and in any body or organisation under the control of the State Government in the Hyderabad-Kamataka region and reservation of a proportion of such posts for persons of the Hyderabad-Kamataka Region.
In the discharge of such special responsibility, the Governor has to act according to the directions issued by the President from time to time, and subject thereto, he is to act ‘in his discretion’.
Discretion, in Practice, in certain matters
C. In view of the responsibility of the Governor to the President and of the fact that the Governor’s decision as to whether he should act in his discretion in any particular matter is matters. final \Art. 163(2)], it would be possible for a Governor to act without ministerial advice in certain other matters, according to the circumstances, even though they are not specifically mentioned in the Constitution as discretionary functions.
(i) As an instance to the point may be mentioned the making of a report to the President under Art. 356, that a situation has arisen in which the Government of State cannot be carried on in accordance with the provisions of the Constitution. Such a report may possibly be made against a Ministry in power—for instance, if it attempts to misuse its powers to subvert the Constitution. It is obvious that in such a case the report cannot be made according to ministerial advice. No such advice, again, will be available where one Ministry has resigned and another alternative Ministry cannot be formed. The making of a report under Art. 356, thus, must be regarded as a function to be exercised by the Governor in the exercise of his discretion.
Obviously, the Governor is also the medium through whom the Union keeps itself informed as to whether the State is complying with the Directives issued by the Union from time to time.
(ii) Further, after such a Proclamation as to failure of the Constitution machinery in the State is made by the President, the Governor acts as the agent of the President as regards those functions of the State Government which have been assumed by the President under the Proclamation \Art. 356((1)(a)]. However, the validity of the Proclamation issued by the President under Article 356(1) is judicially reviewable to the extent of examining whether it was issued on the basis of any material at all or whether the material was relevant or whether the Proclamation was issued in the malafide exercise of the power. The Supreme Court or the High court can strike down the proclamation if it is found to be malafide or based on wholly irrelevant or extraneous grounds. The power conferred by Art. 356 upon the President is a conditioned power. It is not an absolute power.
(iii) In some other matters, such as the reservation of a Bill for consideration of the President [Art. 200], the Governor may not always be in agreement with his Council of Ministers, particularly when the Governor happens to belong to a party other than that of the Ministry. In such cases, the Governor may, in particular situations, be justified in acting without ministerial advice, if he considers that the Bill in question would affect the powers of the Union or contravene any of the provisions of the Constitution even though his Ministry may be of a different opinion.
Presidents control over the Governor
It is obvious that as regards matters on which the Governor is President’s control emPowered to act in his discretion or on his ‘special over the Governor, responsibility’, the Governor will be under the complete control of the President.
As regards other matters, however, though the President will have a personal control over the Governor through his power of appointment and removal, it does not seem that the President will be entided to exercise any effective control over the State Government against the wishes of a Chief Minister who enjoys the confidence of the State Legislature, though, of course, the President may keep himself informed of the affairs in the State through the reports of the Governor, which may even lead to the removal of the Ministry, under Art. 356, as stated above.
Whether Governor competent to dismiss a Chief Minister
Whether Governor A sharp controversy has of late arisen upon the competent to question whether a Governor has the power to dismiss dismiss a Chief a Council of Ministers, headed by the Chief Minister, Minister. on assumption that the Chief Minister and his Cabinet have lost their majority in the popular House of the Legislature. The controversy has been particularly intriguing inasmuch as two Governors acted in contrary directions under similar circumstances. In West Bengal, in 1967, Governor Dharma Vira, being of the view that the United Front Ministry, led be Ajoy Mukhexjee, had lost majority in the Legislative Assembly, owing to defections from that Party, asked the Chief Minister to call a meeting of Assembly at a short notice, and, on the latter’s refusal to do so, dismissed the Chief Minister with his Ministry. On the other hand, in Uttar Pradesh in 1970, Governor Gopala Reddy dismissed Chief Minister Charan Singh, on a similar assumption, without even waiting for the verdict of the Assembly which was scheduled to meet only a few days later. Quite a novel thing happened in Uttar Pradesh in 1998 when the Governor Romesh Bhandari, being of the view that the Chief Minister Kalyan Singh Ministry had lost majority in the Assembly, dismissed him without affording him opportunity to prove his majority on the floor of the House and appointed Shri Jagdambika Pal as the Chief Minister which was challenged by Shri Kalyan Singh before the High Court which by an interim order put Shri Kalyan Singh again in position as the Chief Minister. This order was challenged by Shri Jagdambika Pal before the Supreme Court which directed a “composite floor test” to be held between the contending parties which resulted in Shri Kalyan Singh securing majority. Accordingly, the impugned interim order of the High Court was made absolute.
Before answering the question with reference to the preceding instances, it should be noted that the Cabinet system of Government has been adopted in our Constitution from the United Kingdom and some of the salient conventions underlying the British system have been codified in our Constitution. In the absence of anything to the contrary in the context, therefore, it must be concluded that the position under our Constitution is the same as in the United Kingdom.
In England, the Ministers being legally the servants of the Crown, at law the Crown has the power to dismiss each Minister, individually or collectively. But upon the growth of the Parliamentary system, it has been established that the Ministers, collectively, hold their office so long as they command a majority in the House of Commons. This is known as the ‘collective responsibility’ of Ministers. The legal responsibility of the Ministers, as a collective body, to the Crown has thus been replaced by the political responsibility of the Ministry to Parliament, and the Crown’s power to dismiss a Prime Minister of his Cabinet has become obsolete,—the last instance being 1783.18 The Crown retains, however, his power to dismiss a Minister individually and, in practice, this power is exercised by the Crown on the advice of the Prime Minister himself, when he seeks to weed out an undesirable colleague.
Be that as it may, the above two propositions as they exist today in England have been codified in Cls. (1) and (2) of Art. 164 of our Constitution as follows :
“(1) … and the Ministers shall hold office at the pleasure of the Governor;
(2) The Council of Ministers shall be collectively responsible to the Legislative Assembly of the State. ”
In the above context, the legitimate conclusion that can be drawn is that—
(a) The Governor has the power to dismiss an individual Minister at any time.
Testing majority support
(b) He can dismiss a Council of Ministers or the Chief Minister (whose Testing majority dismissal means a fall of the Council of Ministers), only support. when the Legislative Assembly has expressed its want of confidence in the Council of Ministers, either by a direct vote of no-confidence or censure or by defeating an important measure or the like, and the Governor does not think fit to dissolve the Assembly. The Governor cannot do so at his pleasure on his subjective estimate of the strength of the Chief Minister in the Assembly at any point of time, because it is for the Legislative Assembly to enforce the collective responsibility of the Council of Ministers to itself, under Art. 164(2).
The above view of the Author has been upheld by the Supreme Court in S.R. Bommai v. Union of India,19 (a 9Judge Bench) by observing that wherever a doubt arises whether a Ministry has lost the confidence of the House, the only way of testing is on the floor of the House.The assessment of the strength of the Ministry is not a matter of private opinion of any individual, be he the Governor or the President.