• Lex Specialis

STATE COUNCIL OF MINISTERS UNDER THE INDIAN CONSTITUTION(Article 163-164)

Monika Mehra


The Constitution of India provides for a parliamentary system of government at the state level. The Governor acts as the constitutional and nominal executive head of the state. The real executive powers are in the hands of the State Council of Ministers headed by the Chief Minister. The Constitution provides for each state a Council of Ministers with the Chief Minister as its head for aiding and advising the Governor in the exercise of his functions. A person who is not a member of either House of the state legislature can become a minister.

QUALIFICATIONS


A member of the state legislature must have the following qualifications:


(a) He must be a citizen of India.

(b) He must bear true faith and allegiance to the Constitution of India.

(c) He must be not less than 30 years of age in the case of the legislative council.

(d) He must not be less than 25 years of age in the case of the legislative assembly


The council of ministers includes cabinet ministers, ministers of state, and deputy ministers. The difference between them lies in their ranks.

  • The cabinet ministers head the important departments.

  • The ministers of state are usually given the independent charge.

  • The deputy ministers assist the cabinet ministers.

The main principle of government is the principle of collective responsibility. All the ministers own joint responsibility to the legislative assembly for their acts. They work as a team and swim or sink together. In case of a passage of a no-confidence motion, all the ministers have to resign. The cabinet decisions bind all the ministers.

OATH ADMINISTERED BY THE GOVERNOR

The Governor administers the oaths of office and secrecy to the minister. In his oath of office, the minister swears:


1. to bear true faith and allegiance to the Constitution of India,

2. to uphold the sovereignty and integrity of India,

3. to discharge the duties of his office, faithfully and conscientiously,

4. to do right to all manner of people by the Constitution and the law, without fear or favour, affection or ill-will.

FORMATION OF COUNCIL OF MINISTERS


The procedure for the formation of the Council of Ministers at the state level is the same as in the case of the Union Council of Ministers. After each general election, the party or the group which secures a majority in the State Legislative Assembly elects its leader. The Governor then summons him to form the ministry.


In other words, the leader of the majority in the State Legislative Assembly is appointed as the Chief Minister who selects his team of ministers. He submits the list to the Governor who formally appoints them as ministers.


Normally, all ministers are taken from the members of the state legislature. However, the Chief Minister can appoint even a non-member of the Assembly as a minister. But such a person has to secure a seat in the state legislature within a period of six months from the date of his appointment as minister. In case he fails to do so, he has to resign his minister-ship.


The strength of the State Council of Ministers cannot be more than 15% of the strength of the State Legislative Assembly.


RESPONSIBILITY OF STATE COUNCIL OF MINISTERS TO THE STATE LEGISLATIVE ASSEMBLY


The ministers are individually responsible to the State Legislature Assembly. In case the latter passes a censure motion against a minister for any lapse in the working of his department, he has to resign from office. A minister remains in office only so long as he enjoys the confidence of the majority in the State Legislative Assembly. The State Council of Ministers is also collectively responsible before the State Legislative Assembly. In case the latter passes a vote of no-confidence against the Council of Ministers or against the Chief Minister or rejects any bill sponsored by the Ministry or rejects the budget of the Government, or rejects any policy of the Government, or cuts the funds of the state government, the entire Council of Ministers resigns. The Council of Ministers remains in office so long as it enjoys the support and confidence of the majority in the State Legislative Assembly.


POWERS AND FUNCTIONS


(a) Formulation of State Policies

The Council of Ministers in reality the state cabinet has the responsibility of formulating the policies of the state. All the policies are discussed and decided upon the State Cabinet (Not by the entire Council of Ministers.)


(b) Running of Administration

The State Council of Ministers runs the state administration. The ministers are responsible for this work. They do so in accordance with the policies of the government as approved and passed by the state legislature. Their duty is to see and ensure that the administration of the state is run in accordance with these policies. Each minister has one or more departments under his control and he is responsible for the administration of these.


(c) Coordination Function

The State Cabinet is also responsible for securing co-ordination in the working of various governmental departments. It has the responsibility to resolve conflicts and deadlocks between various departments. All the ministers are committed to follow the decisions of the cabinet.


(d) Appointment-making Powers

The Cabinet makes all important appointments in the state. The appointments of the Advocate General, Vice Chancellors or Pro-Vice Chancellors of the Universities in a state, Chairman and members of the State Public Service Commission, Chairman of various Corporations and Boards, etc., are all made by the Governor on the advice of the Chief Minister and his Council of Ministers.


(e) Role in Law-making


Law-making is the function of the state legislature but the ministers play a key role in this sphere. It is the ministry which really decides the legislative agenda. Most of the bills, nearly 95%, are introduced and piloted by the ministers in the state legislature. The bills moved by the ministers are mostly passed by the legislature because the ministry enjoys the support of the majority. A private member bill has little chance of getting passed, unless it is supported by the ministry.


When the state legislature is not in session, the Council of Ministers can satisfy the need for law-making by getting ordinances issued from the Governor. These ordinances have the force of law and can be converted into laws from the State Legislature when it comes into session. The Governor summons, prorogues and dissolves the state legislature upon the advice of the Chief Minister and his Council of Ministers. Thus, the Council of Ministers plays an important role in the lawmaking process.


(f) Financial Functions


The Council of Ministers manages the finances of the state. The Cabinet really determines the fiscal policies of the state. It formulates and implements all developmental policies and plans. It manages the finances of the state in accordance with the policies and budget as prepared by the State Council of Ministers and approved by the state legislature.


As the real executive, the State Council of Ministers enjoys a dominant and powerful position. It “is the strongest and the most powerful institution in the state. It really runs the state administration by exercising all the powers vested in the Governor of the state. However, in an emergency under Article 356, the Governor runs the administration of the state independently and without the help and presence of State Council of Ministers.


ARTICLE 163- COUNCIL OF MINISTERS TO AID AND ADVISE GOVERNOR


(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 at his discretion.


(2) If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, 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 his discretion. (3) The question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired into in any court.


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 to 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.

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