The position of the Chief Minister at the state level is analogous to the position of PRIME MINISTER at the Centre.

• 163 – Council of Ministers to aid and advise Governor.
• 164 – Says only that the Chief Minister shall be appointed by the Governor.
• CM is the real executive authority (de facto executive) in parliamentary system of government. (Governor – Nominal; de jure executive)
• CM is the head of the government. (Governor is the head of the State)

• 164 – Says only that the Chief Minister shall be appointed by the GOVERNOR.
• However, the Governor is not free to appoint anyone as the Chief Minister.
• Conventions of the parliamentary system – The Governor has to appoint the leader of the majority party in the state legislative assembly as the Chief Minister.

• In case of no party has a clear majority in the assembly, then the Governor may exercise his personal discretion in the selection and appointment of the CM.
• In above scenario, Governor usually appoints the leader of the largest party or coalition in the assembly as the CM and asks him to seek a vote of confidence in the assembly within a month. (g. in Maharashtra assembly elections 2019).
• When the CM in office dies suddenly and there is no obvious successor, then governor may have to exercise his individual judgement in the selection and appointment of the CM.
• If the ruling party elects a new leader after the death of an incumbent CM, the Governor has no choice but to appoint him as CM.
• The Constitution does not require that a person must prove his majority in the legislative assembly before he is appointed as the CM. The Governor may first appoint him the CM and then ask him to prove his majority in the assembly within a reasonable period.
• A person who is not a member of state legislature can be appointed as CM for six months, within which, he should be elected to the state legislature; otherwise, he ceases to be the CM.
• Constitutionally, the CM may be a member of any of the two Houses of state legislature.

1. Governor administers to him the oaths of office and secrecy.
2. The term of the CM is not fixed and he holds office during the pleasure of the Governor.
3. So long as the CM enjoys the majority support in the legislative assembly, CM cannot be dismissed by the Governor.
4. In case of loss of confidence (majority) of the legislative assembly, CM must resign or the Governor can dismiss him.
5. The salary and allowances of the CM are determined by the state legislature from time to time. CM gets the salary and allowances that are payable to a member of state legislature.
   

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

   The form of oath of office and secrecy for the Chief Minister is similar to that for any state minister.

• The term of the CM is not fixed and he holds office during the pleasure of the Governor. So long as the CM enjoys the majority support in the legislative assembly, CM cannot be dismissed by the Governor.The chief minister can have a maximum term of five years. It is the same as that of an MLA.
   

• CM appoints, dismisses, reshuffles the ministers.
• CM allots portfolios to ministers.
• CM’s death or resignation leads to dissolution of CoM.
• CM is chairperson of most of appointment and selection committees in state.
• CM is the chairperson of cabinet, CoM, and important cabinet committees.
• CM is chief representative and communicating authority of governor.
• CM becomes leader of house of which he is member.
• CM is usually charismatic personality of Party at state level.
• CM often equated with his party at state level.

1. Role of CM w.r.t. Governor

• CM is the principal channel of communication (Art. 167) between the governor and CoM.
• It is the duty of the CM to communicate to the governor all decisions (Art. 167) of the CoM, to furnish such information relating to the administration as the governor may call for and if the governor so requires, to submit for the consideration of the CoM any matter on which a decision has been taken by a minister but which has not been considered by the council.
• CM advises the governor with regard to the appointment of important officials like Advocate General, chairman and members of the state public service commission, state election commissioner, and so on.

2. Role of CM w.r.t. CoM

• CM recommends persons who can be appointed as ministers by the governor. The governor can appoint only those persons as ministers who are recommended by the CM.
• He allocates and reshuffles various portfolios among the ministers.
• He can ask a minister to resign or advise the governor to dismiss him in case of difference of opinion.
• He presides over the meeting of CoM and influences its decisions.
• He guides, directs, controls, and coordinates the activities of all the ministers.
• He can bring about the collapse of the CoM by resigning from office.
• The resignation or death of an incumbent CM automatically dissolves the CoM and thereby generates a vacuum.
• The resignation or death of any other minister, on the other hand, merely creates a vacancy which the CM may or may not like to fill.
• He is the chief spokesman of the state government.
• He is leader of the party in power in state.
• He is political head of the services.

3. Role of CM w.r.t. State Legislature

• The CM is the leader of the state legislative assembly.
• He advises the governor with regard to summoning and proroguing of the sessions of the state legislature.
• He can recommend dissolution of the legislative assembly to governor at any time.
• He announces government policies on the floor of the House.

4. Role of CM w.r.t. Cabinet

• CM constitute cabinet and allocates portfolios.
• He summons cabinet meeting and also decides agenda of meeting.

5. Role of CM w.r.t. Planning

• He is a member of the Inter-State Council and the Governing Council of NITI Aayog (both headed by the prime minister)
• CM is chairman of the State Planning Board.
• CM is vice-chairman of the concerned zonal council by rotation, holding office for a period of one year at a time.
• He is the crisis manager-in-chief at the political level during emergencies.
• CM is Chairperson of State Disaster Management Authority (SDMA)

• 163 – There shall be a CoM with the CM at the head to aid and advise the Governor who shall, in the exercise of his functions, act in accordance with such advice, except in so far as he is required to exercise his functions or any of them in his discretion.
• 164- The CM shall be appointed by the Governor and the other ministers shall be appointed by the Governor on the advice of the CM.
  • The ministers shall hold office during the pleasure of the Governor.
  • The CoM shall be collectively responsible to the legislative assembly of the state.

• 167 – It shall be the duty of the Chief Minister:
  • to communicate to the Governor of the state all decisions of the CoM relating to the administration of the affairs of the state and proposals for legislation.
  • to furnish such information relating to the administration of the affairs of the state and proposals for legislation as the Governor may call for.
• 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 CoM.

State Council of Ministers

• Portfolio system was started by Lord Canning in Indian Councils Act 1861.
• In the United Kingdom – the 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

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

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

India has 28 States and 8 Union Territories There can be 31 Chief Ministers in India, 28 from States and 3 from Union Territories (Delhi, Puducherry and Jammu & Kashmir).

• 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.

• 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.

• 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.

• 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.

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.

• 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.

• 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.

• 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.

• 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 inquiring into the nature of advice rendered by the ministers to the Governor.

• 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: 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.

• 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.

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.

2. 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.

• 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.

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.

• 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.

• 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.

• 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.

Advocate General of State

• Article 165 has provided for the office of the Advocate General.
• Highest law officer in the state

• Appointed by GOVERNOR
• He must be qualified to be the Judge of HIGH COURT(Citizen of India, held judicial office for 10 years or advocate of HC for 10 years)
• Term of office not fixed by constitution
• Constitution has no procedure for his removal
• Holds office during the pleasure of the Governor.
• Receives remuneration as Governor may determine

• Chief Law officer of the State Government.
  • Give advice to State Government on legal matters
  • Perform duties of a legal character
  • Discharge functions conferred on him by constitution.
• Governor may assign the following duties to Advocate General of the State
  • To appear on behalf of government
  • To represent the government
  • To appear when required by the government in any high court

Who Appoints Advocate General of State?

• According to Article 165 of the Indian Constitution, the Governor of each State shall appoint a person who is qualified to be appointed as a Judge of a High Court to be Advocate General for the State. The Governor appoints the Advocate General, who serves at the Governor’s discretion and receives such compensation as the Governor determines.

What is the Qualification of Advocate General of State?

• The Governor appoints the advocate general.
• He must be qualified to serve as a Justice in the Supreme Court of India.
• In other words, he must be an Indian citizen who has served as a judge for ten years or as a high court advocate for ten years.

Duties and Functions of the Advocate General of the State

The advocate general’s responsibilities as the State’s chief legal officer include the following:

• The Advocate General is the chief legal advisor to the state government.
• He is responsible for advising all departments and ministries on legal matters.
• The Advocate General appears in court on behalf of the state in all cases involving the state.
• He represents the state before the Supreme Court and various high courts.
• It is the duty of the Advocate General to defend any proceeding or claims against the state.
• He guides and supervises public prosecutors in criminal cases taken up by the state.
• The Advocate General’s office helps administer justice and maintain rule of law.
• All activities of the state relating to important litigation and legal affairs are coordinated by the Advocate General.
• District attorneys and panel lawyers are appointed under the supervision of the Advocate General.
• He plays a key role in ensuring that state policies are within the legal framework of the constitution.

Power and Limitations of Advocate General of the State

There are certain limitations on the Advocate General of a State to prevent conflict of interest and complications. Here are some of them:

• The Advocate General’s powers are limited to those conferred upon him/her by law or the State government. Therefore, the Advocate General cannot act outside the scope of his/her legal powers.
• He/ She cannot give advice or take a case on behalf of government officials of the State Government.
• He/she should not advise or hold a brief in cases where he is called upon to advise or appear on behalf of the State Government.
• He/She should not advise or hold a brief against the respective State Government.
• He/she should not represent the accused in criminal proceedings without the permission of the State Government. This is to avoid any conflict of interest or perception of bias.
• The Advocate General of a State should not accept an appointment as a director in any corporation or company without the permission of the State Government.

Salary of an Advocate General of the State

• The salary of the Advocate General of India varies according to the State, which is determined by the Governors of the respective states.
• The Constitution does not fix the remuneration of the Advocate General of State.
• Some recent pay revisions for the Advocate General of States (November 2020):
  • Assistant Advocate General/Junior Most Law Officer – Rs. 55000/month
  • Deputy Attorney General and Senior Deputy Attorney General – Rs. 90,000 per month
  • Establishment officers are paid Rs. 40000 per month.
  • Advocate General – Monthly salary is estimated to be Rs. 1.25 lakh.