Advice by and appointment of State Council of Ministers
Q. Which of the following is/are true?
1) For a question whether a matter falls within the Governor’s discretion or not, the decision of the Governor is final.
2) Where the Governor is to act in his discretion, the governor need not act on the aid and advice of the Council of Ministers.- Published on 06 Mar 17
a. Only 1
b. Only 2
c. Both 1 and 2
d. Neither 1 nor 2
ANSWER: Only 1
- Article 163 provides for a council of ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions except the discretionary ones.
- If, any question arises whether a matter falls within the Governor’s discretion or not, the decision of the governor is final and the validity of anything done by him cannot be called in question on the ground that he ought or ought not to have acted in his discretion.
- Further, the nature of advice tendered by ministers to the Governor cannot be enquired by any court.
- This provision emphasizes the intimate and the confidential relationship between the Governor and the ministers.
- In 1971, the Supreme Court ruled that a council of ministers must always exist to advise the governor, even after the dissolution of the state legislative assembly or resignation of a Council of Ministers.
- Hence, the existing ministry may continue in the office until its successor assumes charge.
- In 1974, the Court clarified that except in spheres where the Governor is to act in his discretion, the Governor has to act on the aid and advice of the Council of Ministers in the exercise of his powers and functions.
- He is not required to act personally without the aid and advice of the Council of Ministers or against the aid and advice of the Council of Ministers.
- Wherever the Constitution requires the satisfaction of the governor, the satisfaction is not the personal satisfaction of the Governor but it is the satisfaction of the Council of Ministers.
Appointment of Ministers -
- The Chief Minister is appointed by the Governor, while the other ministers are appointed by the Governor on the advice of the Prime Minister.
- This means that the Governor can appoint only those persons as ministers who are recommended by the Chief minister.
- But, there should be a tribal welfare minister in Chhattisgarh, Jharkhand, Madhya Pradesh and Odisha.
- Originally, this provision was applicable to Bihar, Madhya Pradesh and Odisha.
- The 94th Amendment Act of 2006 freed Bihar from the obligation 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 state legislature, either legislative assembly or legislative council, are appointed as ministers.
- A person who is not a member of either House of state legislature can also be appointed as a minister.
- But, within six months, he must become a member (either by election or by nomination) of either House of state legislature, otherwise, he ceases to be a minister.
- A minister who is a member of one House of state legislature has the right to speak and to take part in the proceedings of the other House also, but he can vote only in the House of which he is a member.
- Before a minister enters upon his office, the governor administers to him/her the oaths of office and secrecy.