The Constitution of India is the fountainhead from which all our laws derive their authority and force. This is next Article in the series on constitutional provisions in order to aid our readers in understanding them.
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 States of *[Chattisgarh, 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.
***[(1A) The total number of Ministers, including the Chief Minister, in the Council of Ministers in a State shall not exceed fifteen per cent. of the total number of members of the Legislative Assembly of that State:
Provided that the number of Ministers, including the Chief Minister, in a State shall not be less than twelve:
Provided further that where the total number of Ministers, including the Chief Minister, in the Council of Ministers in any State at the commencement of the Constitution (Ninety-first Amendment) Act, 2003 exceeds the said fifteen per cent. or the number specified in the first proviso, as the case may be, then the total number of Ministers in that State shall be brought in conformity with the provisions of this clause within six months from such date@ as the President may by public notification appoint.]
***[(1B) A member of the Legislative Assembly of a State or either House of the Legislature of a State having Legislative Council belonging to any political party who is disqualified for being a member of that House under paragraph 2 of the Tenth Schedule shall also be disqualified to be appointed as a Minister under clause (1) for duration of the period commencing from the date of his disqualification till the date on which the term of his office as such member would expire or where he contests any election to the Legislative Assembly of a State or either House of the Legislature of a State having Legislative Council, as the case may be, before the expiry of such period, till the date on which he is declared elected, whichever is earlier.]
(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.]
Article 164(1): Article 164(1) inter alia provides that
(i) the Chief Minister “shall” be appointed by the Governor
(ii) other Ministers
(a) shall be appointed – by the Governor
– on the advice of the Chief Minister and
(b) shall hold office during the pleasure of the Governor.
Most often, this clause is not properly construed by us. The use of the word “shall” in this clause clearly makes the provision mandatory. In parliamentary polity, elections are held to choose the representatives of the people and the end product of a general election to a State Assembly should be a representative, responsible and responsive Government. The duty of appointing a Chief Minister is cast on the Governor. He must appoint a Chief Minister and discharge his constitutional responsibility. Legitimately he has no option but to appoint a Chief Minister; “shall” cannot be read to mean “may” or to connote “shall or shall not”. The Governor cannot say that he is not able to find anyone suitable and, therefore, shall not appoint anyone.
Article 164(2): Article 164(2) says that the “Council of Ministers” (so constituted with the Chief Minister at the head and other Ministers as members) shall be “collectively” responsible to the Legislative Assembly. Thus, the clause embodies the principle of joint responsibility of the Ministers. It is said under the unwritten British Constitution, ministerial responsibility is both individual and collective while under the Constitution of India it is only collective and not individual.
Also, this clause does not speak of the ‘Chief Minister’ or of ‘other Ministers’ but only of the ‘Council of Ministers’ being collectively responsible to the Assembly. In other words, while individual ministers can be sent home by the Governor on the advice of the Chief Minister, the Council of Ministers is collectively responsible only to the Legislative Assembly i.e., it should go only when it loses support on the floor of the House. While individual Ministers are removable by the Governor on the advice of the Chief Minister,1 the Council of Ministers headed by the Chief Minister is responsible not to the Governor but only to the Legislative Assembly. The concept of responsibility here is that of political responsibility i.e., a matter of votes and of losing the confidence of the House. The Sarkaria Commission and the Constitution Commission as also the Supreme Court (in the Bommai case) have all held that the question of the Council of Ministers commanding majority support or otherwise should be determined only on the floor of the House. So long as the Council of Ministers does not lose the confidence of the House, it should continue. And, confidence is presumed until the Government is defeated on the floor of the House on a no-confidence motion or the like. That is why, the Rules of Procedure specifically provide only for a ‘No-confidence Motion’ and not for ‘confidence motion’. It is significant that the responsibility is stated to be only to the Assembly. The Council (where it exists) is excluded from this role, the justification is that the Government is responsible to the directly elected representatives of the people. This clear provision, however, did not prevent the Legislative Council in Bihar in 1968 admitting, discussing and passing a motion asking the Council of Ministers to resign or otherwise requesting the Governor to dismiss it. The motion had no operational effect in view of the categorical provision in article 164(2).
Article 164(3): Clause (3) of article 164 provides for every Minister before entering office being administered oaths of office and secrecy as per the forms given in the Third Schedule of the Constitution. The oaths require the Minister
(i) to bear true faith and allegiance to the Constitution,
(ii) to uphold the sovereignty and integrity of India,
(iii) to faithfully and conscientiously discharge duties as a Minister,
(iv) to do right to all in accordance with the Constitution and the law without fear or favour, affection or ill-will,
(v) not to directly or indirectly communicate or reveal to any one any matter coming to his knowledge as a Minister except as required in discharge of his duties as such Minister.
Article 164(4): It is implied in the language of clause (4) that every Minister should normally be a Member of the State Legislature which means of either House if the State Legislature is bicameral. It is permissible to appoint a person who is not such a Member but then he must get elected within six months or else he shall cease to be a Minister on the expiration of that period. It is a clear fraud on the Constitution to misinterpret and misuse this provision (i) to re-appoint a non-member after six months by giving a few days’ break, (ii) to appoint a person who is disqualified for being a Member, or (iii) to appoint someone who resigns his membership only to escape disqualification.
A non-member can also be appointed Chief Minister and he can continue to hold office if he gets elected to the State Legislature within a period of six months. This has happened in a number cases, e.g., Kamraj Nadar in Madras in 1954, T.N. Singh in U.P. in 1971.
Article 164(5): The salaries and allowances of Ministers were to be determined by the State Legislature by law and until so determined they were to be as laid down in the Second Schedule.
Article 164(1A) & (1B): Clauses (1A) and (1B) have been inserted by the Constitution (Ninety-first Amendment) Act, 2003 with the object of making the Anti-Defection Law in the Tenth Schedule of the Constitution more effective. Very often, it was found that defections took place and governments were toppled merely for the sake of ministerial offices. It had been suggested repeatedly in various fora that (i) defectors should be disqualified for holding any public office without getting reelected as members;1 and (ii) the size of the Council of Ministers should be limited to 10 per cent of the membership of the lower house of the legislature. Also, creation of other posts with the rank of a Minister, it was suggested, should be limited to 2 per cent of the membership of the lower house.
Clause (1B) disqualifies a defector for being appointed a Minister for the rest of his term or until reelection.
Also, there is a side-effect of the insertion of new clause (1A). Now that there is a maximum and minimum number of Ministers laid down for the Council of Ministers, a question may arise whether a Council of Ministers can be said to be duly constituted unless it has a minimum of twelve Ministers and they have been duly administered the oaths of office and secrecy. The 1999 Gujarat High Court verdict in Dattaji Charandas v. State of Gujarat, AIR 1999 Guj 48: (1999) 3 GLR 2189, to the effect that formation of “Council of Ministers is complete with the swearing in of the Chief Minister” may need to be reviewed.
Smooth and orderly conduct of the business of the House is the responsibility of the Speaker. Within the House and in all matters connected with the business and procedure of the House, his word is final. If the Speaker’s conduct is found to be unworthy of the office, he can be removed by the House itself by a resolution. Only in the exercise of his powers under the Anti-Defection Law (10th Schedule) his decisions are subject to judicial review.
The Governor cannot constitute himself into a court of appeal over the acts of the Speaker or decisions of the House. The Constitution does not give to the Governor any authority to declare an act of the Speaker unconstitutional or to reverse the decision of the House on grounds of procedural irregularity etc. Governor’s powers are limited to (a) sending a message to the House, (b) addressing the House, (c) withholding assent to a Bill and (d) in case of failure of constitutionary machinery to recommend President’s rule.
Thus, it is obvious that in Goa, while the Speaker’s conduct may not have been entirely above blame and he may have acted in a partisan manner, the Governor had no authority to declare his act unconstitutional or to arbitrarily reverse the decision of the House. Two wrongs do not add upto one right. The act of the Governor was blatantly undemocratic, patently unconstitutional and positively partisan. Also, it was unprecedented inasmuch as never before any State Government in India was so dismissed by a Governor immediately after winning the confidence of the House.
The Jharkhand case: Something equally damaging to the dignity of the office of the Governor happened in Jharkhand. Instead of following the order of preference and inviting the leader of the largest pre-poll alliance who incidentally also happened to be the leader of the largest single party, the Governor decided to appoint a person of his own judgement. Even if the Governor wanted to go by the head-count, 41 members constituting majority were paraded before him at the Raj Bhavan. It was highly improper for the Governor to decide to meet some of the supporting members separately and individually. It is beneath the dignity of a Governor to act as an investigating or interrogating police officer. The conduct of the Governor generated almost universal condemnation for jeopardising respect for democratic institutions and constitutional offices. The 41 MLAs physically presented themselves before the President.
A way for the Governor to stay out of controversy could have been to send a Message under article 175(2) asking the House itself to elect its leader who could be appointed the Chief Minister. That way, the decision of majority support would have been taken on the floor of the House, chances of horse-trading would have been minimised and it would not have been necessary to ask such a Chief Minister to seek a vote of confidence again. When the basic question to be determined is of who commands the majority support in the House, the most obvious and logical course is to ask the House itself. After all, in the 1998 U.P. case, the High Court had ordered the reinstatement of the former Chief Minister and the Supreme Court had ordered a special session of the Assembly to have a composite floor test between two contending claimants to Chief Ministership.
Source: Dr Subhash C Kashyap, Constitutional Law of India, Universal