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Council of Ministers and Governor

Council of Ministers and Chief Minister
Council of Ministers and Chief Minister


The relationship between the Governor and the Council of Ministers mirrors that of the President and their Ministers, as articulated in Article 74, with the distinction that the Constitution empowers the Governor to exercise discretion. According to Article 163(1), a Council of Ministers, led by the Chief Minister, exists to assist and advise the Governor, except in matters where the Governor can act at their own discretion.

Discretionary Powers of the Governor

Article 163(2) emphasises the Governor's final authority in cases where a question arises about matters requiring discretionary action. The validity of actions taken by the Governor cannot be challenged based on whether they should or should not have exercised discretion. Moreover, Article 163(3) prohibits any court from inquiring into the advice tendered by Ministers to the Governor.

Specific Provisions for Governor's Discretion

Although the Constitution does not explicitly mention discretionary powers, certain circumstances necessitate the Governor's exercise of discretion.

These include situations outlined in paragraphs 9(2) and 18(3) of the Sixth Schedule, as well as Articles 371A(1)(b), 371A(1)(d), 371A(2)(b), and 371A(2)(f).

Additionally, Article 200 mandates the Governor to reserve any Bill that, in their opinion, would undermine the powers of the High Court, regardless of advice from the Council of Ministers.

Special Responsibilities and Discretionary Roles

While the Constitution grants the Governor special responsibility concerning the administration of tribal areas in Assam and when appointed as administrator of a Union Territory, the exercise of discretion is not explicitly stated in all circumstances.

However, these provisions indicate instances where the Governor's discretion may be invoked to fulfil constitutional obligations.


The Rationale for Discretionary Powers

The Constitution explicitly outlines circumstances where the Governor must exercise discretionary powers, while in all other matters, the Governor is expected to act in harmony with the advice of the Council of Ministers.

The Constitution does not intend to establish a parallel administration within the State by allowing the Governor to defy the Council of Ministers' advice.

When the Governor does exercise discretion, they are obligated to fulfil their duties to the best of their judgement, ensuring actions are not detrimental to the State's interests.

Dual Role of the Governor

The Constitution justifies the vesting of discretionary powers in the Governor due to their dual role as the head of the State Government and as an agent of the Central Government within the State.

The Governor is perceived as the Centre's representative, tasked with observing and acting in their discretion to ensure the Centre's constitutional duties (as outlined in Articles 256, 257, 356, and 365) are fulfilled, even if it means acting independently of the State Executive.

Governor's Authority and Discretionary Decisions

This discretionary authority grants the Governor the power as the formal head of the State to take action, as illustrated in Article 356, where the Governor can report to the President if the State government is unable to function according to the Constitution.

In such cases, the Governor may exercise discretion, even against the advice of the Council of Ministers, particularly if the breakdown in constitutional machinery is due to the conduct of the Council of Ministers. 

This discretionary power allows the Governor to report to the President, who, however, must act based on the advice of their Council of Ministers in all matters. Article 163(2) emphasises the finality of the Governor's decision in such instances, with the validity of their actions not subject to question.

However, the President's subsequent actions based on such a report are separate and may involve acting on the advice of their Council of Ministers.

Judicial Decisions

The Governor possesses discretion in various circumstances, including the appointment of the Chief Minister as stipulated in Article 164(1).

However, the exercise of this discretion has not followed a consistent pattern, leading to significant controversy. Unless all parties agree to adhere to certain guidelines through convention, the appointment of the Chief Minister will likely remain subject to political manipulation.

In B.R. Kapoor v State of T.N. [2001 (6) SCALE 309], the Supreme Court upheld the Governor's privilege to appoint any individual as Chief Minister, even if they are found disqualified to be a member of the State legislature, under Article 164(4).

The Court emphasised that the Governor, as a constitutional functionary, is bound to uphold the Constitution and the law, and any exercise of discretion must align with these principles.

However, the protection afforded to the Governor under Article 361 shields their discretionary decisions from scrutiny.

Dismissal of Ministries and the Governor's Role

Regarding the dismissal of a Ministry, Article 164(1) dictates that other Ministers are appointed by the Governor on the Chief Minister's advice.

While Ministers serve at the pleasure of the Governor, this pleasure is only actionable based on the Chief Minister's advice, in accordance with Article 164(2), which mandates collective responsibility to the Legislative Assembly.

Thus, as long as a Ministry maintains the confidence of the legislative majority, the Governor cannot dismiss it.

However, controversies have arisen over instances where a Ministry was dismissed by the Governor, assuming it had lost the majority in the legislature without proper testing.

In West Bengal in 1967, the Governor took the view that dismissal could occur based on extraneous information, a stance upheld by the Court in Mahabir Prasad v Prafulla Chandra (AIR 1969 Cal. 189), asserting the Governor's absolute power in such matters.

In Jagdambika Pal v Union of India (AIR 1998 SC 998), the dismissal of the Chief Minister of Uttar Pradesh without a floor-test prompted a petition from the ousted Chief Minister.

The Supreme Court intervened, directing a special session of the Assembly for a composite floor-test between the competing parties. The Court's order served as notice to all MLAs, ensuring a fair assessment of support.

Similarly, in Anil Kumar Jha v UOI (2005) 3 SCC 150, the exercise of power under Article 164(1) by the Governor of Jharkhand was questioned.

The appointment of a Chief Minister without majority support was deemed arbitrary and malicious by the Supreme Court, constituting a violation of the Constitution. 

The Court expedited the floor test to ascertain the dominance between political alliances and issued directives to safeguard the fairness of the process.

The Chief Secretary and Director General of Police were instructed to ensure the safe and secure attendance of all elected MLAs in the Assembly.

Additionally, the proceedings of the floor test were mandated to be video-recorded, with a copy sent to the Supreme Court through the pro tem Speaker of the Assembly.

Dissolution of Legislative Assemblies

Furthermore, the dissolution of a Legislative Assembly may occur when the incumbent Ministry loses its majority, and no alternative stable Ministry is feasible.

Additionally, the Governor may advise the President under Article 356 for the imposition of President's rule in the State, typically in cases of constitutional breakdown or failure of the constitutional machinery.


Role of the Chief Minister and Council of Ministers

The Chief Minister, appointed by the Governor, holds a position analogous to that of the Prime Minister in the Union Government, wielding substantial executive authority over the State Government.

The actual executive powers of the State Government reside within the Council of Ministers, with the Chief Minister at its helm.

As the leader of the Council of Ministers, the Chief Minister assumes a primus inter pares (first among equals) role. Other ministers are appointed by the Governor upon the Chief Minister's recommendation, and portfolios are assigned and reshuffled at the Chief Minister's discretion.

Article 164(1A), introduced by the 91st Amendment (2003), mandates that the size of the Council of Ministers, including the Chief Minister, does not surpass 15 percent of the total members of the State Legislative Assembly, with a minimum threshold in smaller states like Sikkim, Mizoram, and Goa.

Functioning as the leader of the House, the Chief Minister sets the legislative agenda, ensuring that proposed measures receive Cabinet approval before introduction to the Assembly.

Additionally, the Chief Minister maintains the Assembly's awareness of government activities through responses to questions, statements, and participation in debates.

The Chief Minister's Relationship with the Governor

Regarding the relationship with the Governor, the Constitution does not explicitly delineate the Chief Minister's powers.

However, in practice, the Chief Minister exercises executive authority on behalf of the Governor.

The Governor's public appearances and speeches align with the policies established by the Council of Ministers, with the Cabinet's approval required for ceremonial speeches and annual addresses to the Assembly.


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