Article 164 of the constitution of India deals with the appointment of the Council of Ministers and the Chief Minister. Additionally, it deals with the oath taking of the ministers, and the peculiar case of appointment of non-members of the legislative assembly into the council of ministers. Article 164 is of special import in the context of State Executive.
Article 164: Council of ministers and Chief Minister
The provisions of Article 164 is as reproduced hereunder:
The Governor shall appoint other provisions as to Ministers – (1) The Chief Minister and 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 State of Bihar, Madhya Pradesh and Orissa, 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.
(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 form 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 Legislatures 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
Three main topics of discussion are an appointment of the Chief Minister and the Council of Ministers, the appointment of non-members as Ministers and the administration of oath:
- Appointment of the Chief Minister and the Council of Ministers is as laid down under Article 163 of the Constitution of India, which states that “there shall be a Council of Ministers with Chief Minister at the head….” Under Article 164, subsection (1) states that the Governor shall appoint the Chief Minister and the Council of Ministers shall be appointed by the Governor on the advice of the Chief Minister. There is a bunch of interesting points about this subsection of Article 164–
- The Council of Ministers come into existence with the appointment of the Chief Minister itself (Dattaji Chirandas v. the State of Gujarat, AIR 1999 Guj 48);
- No basic rule of who should be appointed is mentioned, except the understanding that the leader of the majority party must be appointed; however, even members of the Legislative Council have been considered for Chief Ministerial post (E.g., Morarji Desai, 1952);
- Chief Minister can be asked to prove majority by a vote of confidence by the Governor even though provisions do not lay down such a condition. The silence of the Constitution on the matter doesn’t mean it can’t be asked as such an interpretation would be too rigid ( Jayakar Motilal C.R. Das v. Union of India, AIR 1999 Pat 221)
- With regards to the Council of Ministers – there is no limit to the number of Ministers that can be appointed as members of the Council.
- Although the appointment is on the advice of the Chief Minister, therefore signaling that the Chief Minister exercises his own discretion, practically it is the decision of the High Command of the political party that comes into play. Additionally, as they are appointed by the Governor on the advice of the Chief Minister, they hold the office at the Governor’s pleasure, much like the Chief Minister. However, the Chief Minister may invoke the Governor’s pleasure to dismiss any Minister from the Council. This exercise of the power to decide the tenure of office by the Governor is not subject to judicial review (D. Satyanarayana v. N.T Rama Rao, AIR 1988 AP 62).
- Finally, it is also to be noted that the Council of Ministers stays even when the legislature is dissolved by the Governor (K.N. Rajagopal v. M. Karunanidhi, AIR 1971 SC 1551).
- Article 164(2) lays down the responsibility of the Council of Ministers – they are responsible to the Legislative Assembly. The Chief Minister shoulders individual responsibility, in addition to the collective responsibility to the Cabinet.
- Article 164(3) discusses taking oaths of office and of secrecy, as specified under the third schedule. The fundamental question of law under Article 164(3) is whether the breach of an oath is actionable:
- For instance, in K.C. Chandy v. R. Balakrishnan (AIR 1986 Ker 116) the Minister involved had made public speeches that people should resort to terrorism and wage war against the Central Government on the Punjab model to achieve their objectives. The Kerala High court in the matter held that the oath is a prescription of a fundamental code of conduct in the discharge of duties of High Office. Further, that the Council is set up under the Governor’s pleasure, with or without the advice of the Chief Minister, therefore the question of a breach or the consequence of it shall be decided under Article 164(1), i.e., by the Governor or the Chief Minister. Therefore the petition was dismissed, and so was the Minister by the Governor.
- The court clearly stated its stance in Sukumaran v. Union of India (AIR 1987 Ker 212) which was a writ petition filed against the reappointment of the minister in the former case – it held that the appointment and removal of the minister is not within the scope of judicial review under Article 226, but is in the realm of “pleasure and unfettered discretion of appointing authority”.
- Notably, it has been held that such a breach of an oath is not a disqualification under Article 191 or any law in force in India.
- Finally, Article 164(4) discusses the appointment of a non-member of legislative assembly as Minister in the Council of Ministers.
- This is exemplified in the case of B.R. Kapur v. State of Tamil Nadu ((2001) 7 SCC 231). In the instant case, Jayalalitha was convicted for offenses and sentenced to 3 years of imprisonment. The High Court on appeal suspended the sentence, but the conviction was retained pending appeal. Consequently, she was disqualified from contesting an election to the Assembly. However, she was made Chief Minister – this was declared null and void by the Supreme Court. Article 16(4) state that non-members should be elected into the legislative assembly within six months of appointment; otherwise such tenure ceases. This presupposes that said appointee is eligible for the post under Article 173 and is not hit by disqualifications under Article 191 on date of appointment. In the instant case, there was a disqualification. Such is the import of Article 164(4).
- The legislative intent behind the provision is to provide room for the appointment of experts in some field due to political exigencies, or the person whose service is required provided s/he is eligible without being a member of Legislative Assembly.
- Article 164(5) states that the salaries and allowances are determined by the State Legislature by law.
Article 164 is of importance to understand the powers of the executive wing and the extent of the Governor’s discretionary power in such a context.