The council of ministers

The Council of Ministers in the State is constituted and functions in the same ways the Union Council of Ministers is headed by the Chief Minister and is responsible to the State Legislative Assembly. The Ministers are appointed by the Governor on the advice of the Chief Minister. Any person can be appointed as a Minister but he ceases to be a Minister if he is not elected as a member of the State Legislature within six months after his appointment as a Minister.

Relationship between the governor and the council of minister

Broadly speaking the relationship between the Governor and the council of Ministers is similar to that between the President and the Union council of Ministers. Whereas the Constitution does not provide much discretionary powers for the President, it empowers the governor to exercise some functions in his discretion (Art.163) while exercising his discretionary power the Governor need not seek or act according to the advice tendered by his Council of Ministers. If any question arises whether any matter is a matter on which the Governor can use discretionary power, the decision of the Governor is final. The functions, which are specially required by the Constitution to be exercised by the Governor in his discretion, are:

(1)     The Governor of Assam can in his discretion, determine the amount payable by the State of Assam to the District Council, a royalty accruing for licenses for minerals. (2) The Governor of a State as the administrator of an adjoining UnionTerritory can exercise his functions as such administrator independently of his council of Ministers. Apart from the exercise of his discretionary power the Governor can be entrusted with special responsibilities. In such cases the Governor shall seek the advice of his Council of Ministers, but he is not bound by the advice tendered by his Council of Ministers. The special responsibilities include:

(1)     Under Art. 371 (2), the President may direct that the Governor of Maharashtra or Gujarat have a special responsibility for taking steps for the development of certain areas in the State, such as Vidarbha, Saurashtra.

(ii)     The Governor of Nagaland shall, under Art. 371A (1) (b) have similar responsibility with respect to law and order in the that State so long as internal disturbances caused by the hostile Nagas in that State continue.

(iii)    Art. 371C, empowers the President to direct that the Governor of Manipur shall have special responsibility to secure the proper functioning of the Committee of the Legislative Assembly of the State consisting of the members elected from the Hill Area of that State.

(iv)    Art. 371 D (g) similarly, imposes a special responsibility upon the Governor of Sikkim “ for peace and for an equitable arrangement for ensuring the social and economic advancement of different sections of the population of Sikkim”.

In the discharge of such special responsibility, the governor has to act according to the directions issued by the President from time to time, and subject, therefore, he is to act “in his discretion”.

From the practice of the parliament from of Government in the States, the Governor has come to assume discretionary power in the following matters as well: -

(1)     Under Art. 356, when the Governor sends a report to the President that the Government of the State cannot be carried on in accordance with the provisions of the Constitution, the Governor does not act according to ministerial advice. He can make such a report to the President purely on his discretion. The report made by a Governor, under Art. 356, therefore, falls under his discretionary power.

(ii)     In matters relating to reservation of a Bill for the consideration of the President, the Governor may act on his own on matters specified by the Constitution to be reserved for the consideration of the President.

However, the Governor shall be bound to use his discretionary power as per the directions of the President.

Advocate- general

The Advocate-General is the first law officer of a State. The office corresponds to the office of the Attorney-General of India and enjoys similar function within the State. He is appointed by the governor and holds office during the pleasure of the Governor. A person who is qualified to be appointed as a Judge of a High Court can only be appointed as Advocate-General. He has the right to participate in the proceedings of the House or Hoses of the State Legislature without the right to vote and has the right of audience in any court in the State.