STATE COUNCIL OF MINISTERS

STATE COUNCIL OF MINISTERS

 

 BACKGROUND
  • Portfolio system was started by Lord Canning in Indian Councils Act 1861.
  • In the United Kingdom – Council of Ministers is the real executive which is left on the convention.
  • In India – the System of Council of Ministers is codified and mentioned in Indian Constitution.

 

In S.R. Chauhan vs State of Punjab (2001), Supreme Court held that a non-member cannot be re-appointed without being elected. However, a Non-member can also become a part of council of minister for maximum of 6 months.

  • As the Constitution of India provides for a Parliamentary system of government in the states on the Union pattern, the Council of Ministers headed by the Chief Minister is the real (De-facto) executive authority is our politico-administrative system of state.
  • The council of ministers in the states is constituted and function in the same way as the council of ministers at the Centre.
  • The principles of the Parliamentary system of government are not provided in detail in the Constitution. However two Articles i.e. 163 and 164 in Part VI dealt with them in a broad, sketchy and general manner.
  • Every Minister is responsible for the acts of the officers of his department. He has to answer questions regarding the affair of his department in the Assembly.
  • Council of Ministers rarely meets so the driving wheel of the government is the Cabinet.

 

Article 163 deals with the status of the council of ministers while Article 164 deals with the appointment, tenure, responsibility, qualifications, oath and salaries and allowances of the ministers

 

CONSTITUTIONAL PROVISIONS
  • Articles spanning from 163 to 177 in Part VI broadly deals with State Council of Minister.

 

ARTICLESDESCRIPTION
163Council of Ministers to aid and advise Governor
164Other provisions as to Ministers
166Conduct of business of the Government of a State
167Duties of the Chief Minister as respects the furnishing of information to the Governor, etc.
177Rights of Ministers with respects the to the Houses.

 

STATE EXECUTIVE – Consist of Governor, Chief Minister, State Council of Ministers and Advocate General of State.

India has 28 States and 9 Union Territories according to the Gazette of India 2019 which has been implemented from 31 October, 2019. There can be 31 Chief Ministers in India, 28 from States and 3 from Union Territories (Delhi, Puducherry and Jammu & Kashmir).

 

ARTICLE 163 – COUNCIL OF MINISTERS TO AID AND ADVISE GOVERNOR
  • There shall be a Council of Ministers with the Chief Minister as the head to aid and advise the Governor in the exercise of his functions, except in so far as he is required to exercise his functions in his discretion.
  • If any question arises whether a matter falls within the Governor’s discretion or not, decision of the Governor 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.
  • The advice tendered by Ministers to the Governor shall not be inquired into in any court.

 

ARTICLE 164 – OTHER PROVISIONS AS TO MINISTERS
  • 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.
In the states of Chhattisgarh, Jharkhand, Madhya Pradesh and Odisha, 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. The state of Bihar was excluded from this provision by the 94th Amendment Act of 2006.
  • The ministers shall hold office during the pleasure of the Governor.
  • The council of ministers shall be collectively responsible to the State Legislative Assembly.
  • A minister who is not a member of the state legislature for any period of six consecutive months shall cease to be a minister.

 

ARTICLE 166–CONDUCT OF BUSINESS OF THE GOVERNMENT OF A STATE
  • All executive action of the Government of a State shall be expressed to be taken in the name of the Governor.
  • Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor.
  • Moreover, the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor.
  • The Governor shall make rules for the more convenient transaction of the business of the government of the state, and for the allocation among ministers of the said business.

 

ARTICLE 167–DUTIES OF CHIEF MINISTER

It shall be the duty of the Chief Minister of each state-

  1. To communicate to the Governor of the state all decisions of the council of ministers relating to the administration of the affairs of the state and proposals for legislation.
  2. To furnish such information relating to the administration of the affairs of the state and proposals for legislation as the governor may call for.
  3. If the Governor so requires, to submit for the consideration of the council of ministers any matter on which a decision has been taken by a minister but which has not been considered by the council.

 

ARTICLE 177–RIGHTS OF MINISTERS AS RESPECTS THE HOUSES
  • Every minister shall have the right to speak and take part in the proceedings of the Assembly (and also the Council where it exists) and any Committee of the State Legislature of which he may be named a member. But he shall not be entitled to vote.

 

91ST CONSTITUTIONAL AMENDMENT ACT 2003
  • The total number of ministers, including the Chief Minister, in the council of ministers in a state shall not exceed 15 per cent of the total strength of the legislative assembly of that state.
  • However, the number of ministers, including the chief minister, in a state shall not be less than 12.
  • A member of either House of state legislature belonging to any political party who is disqualified on the ground of defection shall also be disqualified to be appointed as a minister.

 

CONSIDERATION IN CONSTITUTING THE COUNCIL OF MINISTERS
  • Minister from different regions to enhance regional representation of Council of Ministers.
  • Representation of communities, caste, women, coalition
  • Capability of Ministers to dealt with various tasks
  • Age factor – young and dynamic personality along with adequate experience.
  • He should be a good administer and decision maker
  • Visionary and optimistic with futuristic attitude
  • A non-corrupt and a high moral standards.

 

NATURE OF ADVICE BY MINISTERS
  • The nature of advice tendered by ministers to the governor cannot be enquired by any court.
  • This provision emphasises the intimate and the confidential relationship between the governor and the ministers.

The Indian courts are barred from enquiring into the nature of advice rendered by the ministers to the Governor.

 

 APPOINTMENT OF MINISTERS
  • The chief minister is appointed by the governor.
  • The other ministers are appointed by the governor on the advice of the chief minister, implies that the governor can appoint only those persons as ministers who are recommended by the chief minister.
  • There should be a tribal welfare minister in Chhattisgarh, Jharkhand, Madhya Pradesh and Odisha .

 

The 94th Amendment Act of 2006 freed Bihar from the obligation of having a tribal welfare minister as there are no Scheduled Areas in Bihar now and the fraction of population of the Scheduled Tribes is very small.

The same Amendment also extended the above provision to the newly formed states of Chhattisgarh and Jharkhand.

  • Usually, the members of the state legislature, either the legislative assembly or the legislative council, are appointed as ministers.
  • A minister who is not a member of the state legislature for any period of six consecutive months shall cease to be a minister.
  • A minister who is a member of one House of the state legislature has the right to speak and to take part in the proceedings of the other House. But, he can vote only in the House of which he is a member.

 

OATH AND SALARY OF MINISTERS

Oath: Every new minister has to undertake the Oath of Office and Secrecy before entering into his office.

The oath to every new minister is administered by the Governor of State.

“Oath of Secrecy” of ministers should be replace by “Oath of Transparency” – Second ARC

  • Salary: The salaries and allowances of ministers shall be determined by the state legislature.

 

DISMISSAL OF A MINISTERS
  • A Minister hold office during the pleasure of Governor. Actually this pleasure is the consent of Chief Minister.
  • It is the Chief Minister who select the members of his team. This power is given to the Chief Minister to uphold the Collective Responsibility in the legislature.
  • No person shall be retained as a member of council, if the Chief Minister want to dismiss a sitting member.
  • If he loses elections.
  • Cannot gets elected or nominated (in case of Legislative Council) within 6 months.

 

RESPONSIBILITY OF MINISTERS

 

  1. COLLECTIVE RESPONSIBILITY
  • Principle of collective responsibility is the fundamental principle underlying the working of the Parliamentary system.
  • 164 – Council of ministers is collectively responsible to the legislative assembly of the state for all their acts of omission and commission.
  • They work as a team and swim or sink together.
  • When the Legislative Assembly passes a No – Confidence Motion against the council of ministers, all the ministers have to resign including those ministers who are from the legislative council.
  • The principle of collective responsibility implies that the cabinet decisions bind all cabinet ministers (and other ministers) even if they deferred in the cabinet meeting.

 

  1. INDIVIDUAL RESPONSIBILITY
  • Article 164 – also contains the principle of individual responsibility.
  • The ministers hold office during the pleasure of the Governor.
  • However, the Governor can remove a minister only on the advice of the Chief Minister.

 

NO LEGAL RESPONSIBILITY IN INDIA
  • Unlike Britain, in India there is no provision for the system of legal responsibility of a minister mentioned in the constitution.
  • As at the Centre, there is no provision in the Constitution for the system of legal responsibility of the minister in the states.
  • It is not required that an order of the governor for a public act should be countersigned by a minister.
  • Moreover, the courts are barred from enquiring into the nature of advice rendered by the ministers to the Governor.

 

In Britain, every order of the King for any public act needs to be countersigned by a minister. If the order is in violation of any law, the minister would be held responsible and would be liable in the court.

 

COMPOSITION OF COM

The Council of Ministers consists of three categories of ministers –

  1. CHIEF MINISTER
  2. MINISTER CABINET
  3. MINISTER OF STATE

 

  • Cabinet: A Smaller Body called cabinet is the nucleus of the council of ministers. It consists of only the cabinet ministers. It is the real centre of authority in the state government. It is steering wheel of the state government.

It is the Cabinet and not the Council of Ministers who advises the Governor of the state.

 

ADVANTAGES OF CABINET
  • It is easier to build consensus among various stakeholders.
  • More effective discussion and efficient time utilization
  • Less burden on public exchequer – Economic efficiency
  • More priority to secrecy
  • More rational division of work – Large size Council of Ministers ties up too many tongues and less viewpoint is available.

 

FUNCTIONS OF CABINET
  • It is the highest decision making authority in the politico- administrative system of a state.
  • It is the chief policy formulating body of the state
  • It is the supreme executive authority of the state government.
  • It is the chief coordinator of state administration.
  • It is an advisory body to the governor.
  • It is the chief crisis manager and thus deals with all emergency situations.
  • It deals with all major legislative and financial matters.
  • It exercises control over higher appointments like constitutional authorities and senior secretariat administrators.

 

CABINET COMMITTEES
  • The cabinet works through various committees called cabinet committees.
  • They are of Two Types:
    1. Standing committees – permanent nature
    2. Ad Hoc – temporary nature.
  • They are set up by the Chief Minister according to the exigencies of the time and requirements of the situation. Hence, their number, nomenclature and composition varies from time to time.
  • They not only sort out issues and formulate proposals for the consideration of the cabinet but also take decisions.
  • However, the cabinet can review their decisions.