Article 163 of the Constitution provides that there shall be a Council of Ministers with the Chief Minister at the head to aid and advice the Governor in the exercise of his functions except in so far as he is by or under the Constitution required to act in his discretion.
The Constitution does not make an attempt to define the discretionary powers of the Governor except in case of Assam Governor who acts in his discretion in respect of the administration of the tribal areas as the agent of the President.
Besides this what matters fall within the discretion of the Governor are decided by the Governor in his discretion and his decision is final.
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Appointment of the Council of Ministers:
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The Council of Ministers is appointed by the Governor. At the head of the Council of Ministers stands the Chief Minister who is appointed by the Governor. Other Ministers are appointed by the Governor on the advice of the Chief Minister. The Ministers hold office during the pleasure of the Governor.
They are responsible to Legislative Assembly. Before a Minister enters upon his office, the Governor administers to him the oath of office and secrecy according to the forms prescribed in the Constitution.
A non-member may be appointed a Minister provided he gets a seat in the State Legislature within a period of six months from the date of his appointment.
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The Leader of the Majority Party is appointed as the Chief Minister. Governor’s discretion in this respect is limited. A person who does not have the support of the majority behind him cannot be appointed as the Chief Minister. In case there is coalition of parties commanding majority, the Governor has no alternative but to summon their leader to form a Ministry.
Thus the Chief Minister is, in fact, the choice of the majority party in the State Legislature. However, where no party commands majority, the Governor may exercise his discretion.
Further, in those States where there are Legislative Councils in addition to the Legislative Assemblies, the Governor may choose the Chief Minister from the Legislative Council.
Certain members in the Legislative Council are nominated. There is also no bar of selecting a nominated member of the Legislative Council as the Chief Minister. But the Constitution makes the Council of Ministers collectively responsible to the Legislative Assembly.
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Therefore, a member in the Legislative Assembly should be appointed as the Chief Minister. The size of the Council of Ministers depends upon the discretion of the Chief Minister and on the political circumstances. The only constitutional requirement is that in the States of Bihar.
Madhya Pradesh and Orissa, the Council of Ministers must have a Minister in charge of Tribal Welfare. Thus the strength of the Council of Ministers varies from State to State and also in the same State from time to time. It is often complained that the Councils of Ministers in some States are unduly large.
In the States there are three categories of Ministers, namely, Cabinet Ministers. Ministers of the State holding independent charge of departments and Deputy Ministers who are to assist the Ministers in their departmental affairs.
Often a few Parliamentary Secretaries are appointed from among the members to help the Ministers in the discharge of their functions The Deputy Ministers do not have separate charge of any department. Their task is to assist the Ministers with whom they are associated in their administrative duties.
Functions of the Council of Ministers:
The Council of Ministers acts as the real executive head of the States. The various States Departments are allotted among the Ministers.
Each Minister becomes the political head of one or more Departments and civil servants of the Department including the Secretary carry out the departmental policy according to the ministerial instruction.
There is a Cabinet in the Council of Ministers which remains in-charge of formulating policies and bringing coordination among the various departmental policies. In accordance with the general policy, departmental policies are moulded by the respective Ministers. Thus, the administration of the entire State depends on the Council of Ministers collectively. They jointly take decisions on matters of vital policy.
The Ministers decide the legislative programmes of the State Legislature and sponsor and pilot bills. They answer questions on the floor of the House and reply to motions of adjournment, censure and no-confidence.
All important appointments of the Heads of Departments, members of the Public Service Commission and Advocate General are decided by the Council of Ministers and Governor accepts the decision of the Council. The Ministers determine the taxation policy of the State and assist the Finance Minister in framing the budget.
The State’s share of work in the Five-Year Plan is also considered in the Council of Ministers and its decision is final. Thus, the Council of Ministers is the real executive head of the State. They keep strict supervision over the administration. They are also the guides and masters of the Legislature.
They cannot be removed as long as they enjoy the confidence of the Legislature. As G. N. Joshi writes, “If the Governor happens not to agree with the Council of Ministers on any matter, he “ay try to persuade the Ministers, but if he does not succeed he has to accept the advice of the Council of Ministers. It will all depend upon the personal equation.”