Article 164

Article 164 of the Constitution of India details the power of the Governor and process of appointment of Ministers of State including the Chief Minister. The council of ministers of the State are collectively responsible, under Article 164 to the Legislative Assembly of the State. This is a reflection of the Parliamentary System of governance in India. Article 164 gives the power to the Governor to appoint the Chief Minister in accordance with the majority held in the Legislative Assembly. However, when there is no clear majority, the Governor can exercise personal discretion in selection and appointment of the Chief Minister. The Article also lays down guidelines for the number of ministers which a state can have, their oath, salary and disqualification processes.

Under the Parliamentary form of Government, the Governor serves as the figurehead of the executive and the Chief Minister holds the substantive executive authority. In other words, the governor is dubbed as the leader of a State and the Chief Minister the leader of the Government. The role of the Chief Minister at the State level is similar to the role of the Prime Minister at the National level.

Article 164 was amended by the Anti-Defection law which was added through the 52nd Constitutional Amendment Act, 1985 and is contained in the 10th Schedule of the Constitution. Defection is described as an act of a member of Parliament/State Legislature where He/She resigns from the Party from which he contested election or disobeys it’s Party while voting on a matter.

Article 164 deals with the State Legislature and Council of Ministers. Article 164 is contained in Chapter II of Part VI of the Indian Constitution. The Article provides for the following things:

• Appointment of Chief Minister and Other Ministers: It states that the Chief Minister of a State shall be appointed by the Governor and the other Ministers will be appointed by the Governor on the advice of the Chief Minister.
• Establishment of Minister of Tribal Welfare: for State of Chattisgarh, Jharkhand, Madhya Pradesh and Odisha a Minister in charge of tribal welfare will be appointed. That minister may additionally be made incharge of welfare of SC or other backward classes or any other work.
• Floor and Ceiling on the number of Ministers: the number of ministers shall not be more than 15% of the total number of members of the Legislative assembly of that State. It also provides that the No. of Ministers shall not be less than 12.
• Effect on disqualification for defection (Schedule 10): It provides that if a member of a State Legislature (from either house) is disqualified from membership on grounds of defection, shall be disqualified from being a minister as well, till the duration of his disqualification.
• Collective responsibility of Council of Ministers: The Council of Ministers shall be collectively responsible/answerable to the Legislative Assembly of the State.
  • However, there is no provision for individual legal responsibility of the Minister. No Act is required to be countersigned by a Minister. And the Courts are prohibited from enquiring into the nature of advice given by the Ministers to the governor.
• Oath of secrecy: before taking office a minister is required to take an oath of secrecy (as per Schedule 3), which will be administered by the Governor.
• Disqualification of Ministers: if a minister is not a member of the respective State legislature for a continuous period of Six Months he will be disqualified from being a Minister.
• Salary of Ministers: The Salary of Ministers shall be determined by the State Legislature as per Schedule 2.

The Amendment introduced clauses to Article 75 (Article 75 (1A) ) and Article 164 (Article 164 (1A) ) to limit the size of the Council of Ministers at both the Union and state levels respectively. According to the added clauses, the total number of ministers, including the Prime Minister or the Chief Minister, in the Council of Ministers shall not exceed 15% of the total number of ministers in Lok Sabha or the Legislative Assembly of the state. The aim was to prevent the oversized cabinets and improve the efficiency of the government.

It also amended Article 164 to include provisions regarding oath of secrecy to ministers at the state level, like those at the Union level. The Oath of Secrecy is taken by the Union and State ministers to ensure the confidentiality of their official work.

the Indian Constitution does not mention the qualifications for the post of Chief Minister, it instead says that the Chief Minister will be appointed by the Governor. However, this does mean that the Governor has full discretion to appoint any person of his/her liking as the Chief Minister. Instead the words used in Article 164 serve the purpose of stating that the Governor has authority over the Government of the State concerned. This is further clarified by the fact that the Article states that the Ministers will hold office during pleasure of the Governor.

• It is not necessary for the Chief Minister to prove majority before being appointed. The governor can first appoint and then ask them to prove their majority.
• Even though the Chief Minister serves at the pleasure of the Governor, he cannot be dismissed arbitrarily. This can only be done if the party loses majority support in the legislative assembly.

• Governor is the ceremonial head of the state executive. The actual executive powers are exercised by the Council of Ministers headed by the Chief Minister.
• Appointment : The Governor is appointed by the President of India.
• Tenure : The Governor holds office for a term of five years. The Governor hold office during the pleasure of the President
• Qualifications : The Governor must be a citizen of India of atleast 35 years of age.
  • The Governor cannot be a member of either House of Parliament of State Legislature and must not hold any other Office of profit.
• Governor plays many executive, legislative and judicial functions at the state level.

• Har Sharan Verma Vs Tribhuvan Narain Singh (1971): The Supreme Court said that in exceptional cases where a minister is not a member of the concerned state assembly can continue to be a Minister of that State, for a period of Six Months (as per Article 164(4)) during which he has to be elected to state legislature of that State to continue as a Minister.
• S.R. Chaudhary Vs State of Punjab (2001): upreme Court held that permitting an individual to be reappointed as a Minister, who has failed to be elected in the concerned State’s Legislature for a period of Six consecutive months, would be illegal and invalid. This position was upheld again in Ashok Pandey Vs. KM Mayawati (2007).

Article 164 plays a very important role in defining the structure and functioning of the State Legislature and Ministers. It lays down the procedure for appointment of Chief Ministers and other Ministers, sets the maximum number of Ministers to be not more than 15% of the strength of the State Legislature and lowest not less than 12, it establishes the collective responsibility of the Council of Ministers of a State to the Legislative Assembly of the State and addresses effect of defection, oaths and salaries of Ministers. It also emphasises the principle of “individual responsibility” of a minister which permits the Governor to remove the minister on advice of the Chief Minister only. This power is useful to ensure that a Chief Minister has power over his Ministers and can execute the principles of collective responsibility by removing those ministers who do not perform well or don't align with the opinions of the Party.