162.Extent of Executive Power of State:

Subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws: Provided that in any matter with respect to which the Legislature of State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made by the Parliament upon the Union or authorities thereof.

COMMENTS

The power extends to matters with respect to which the State Legislature has authority to make laws, i.e. the subjects enumerated in the State List and the Concurrent List. But in relation to the subjects enumerated in the Concurrent List, the executive power of the State is subject to the executive power expressly conferred by the Constitution or by any law made by the Parliament, upon the Union or its authorities. “Any exercise of executive power by the State in such case will be unconstitutional.” It was held that there are limitations on exercise of power by the State executive. “A tax or compulsory ejection of money from any person can also not be justified in the exercise of executive power without the authority of law.” Proper functioning of State administration should not be jeopardised owing to ego clashes between high officers. Such officers should be aware that power should be exercised for public good, and not for personal benefit.” In the similar vein, the higher court observed that the senior officers should not be unnecessarily asked to be present in the court to explain certain matters or in frequent cases of contempt of court. The Supreme Court further observed, “In general, the court would not exercise its power of judicial review to interfere with a policy made by the Government in exercise of its power under Article 162, particularly where it involves technical, scientific or economic expertise.”

Thus, the checks and balance is the key principle in exercise of power by any wing of the State i.e. executive, Legislative or judiciary.

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.

The salaries and allowances to Ministers shall be such as the Legislature 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.

163. Council of Ministers to aid and advise Governor:

(1) There shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except insofar as he is by or under this Constitution required to exercise his functions or any of them in his discretion.

(2) If any question arises whether any matter is or is not a matter as respects which the Governor by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion 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.

(3) The question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired into any court.

164. Other Provisions as to Ministers:

(1) 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, and the Ministers shall hold office during the pleasure of the Governor.

Provided that in the States of Bihar, Madhya Pradesh and Orissa there shall be 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 Legislature 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 forms 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 Legislature 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.

165. Advocate-General for the State:

(1) The Governor of each State shall appoint a person who is qualified to be appointed a Judge of a High Court to be Advocate-General for the State.

(2) It shall be the duty of the Advocate-General to give advice to the Government the State upon such legal matters, and to perform such other duties of legal character, as may from time to time be referred or assigned to him by or under this Constitution or any other law for the time being in force.

(3) The Advocate-General shall hold office during the pleasure of the Governor, and shall receive such remuneration as the Governor may determine.

COMMENTS

There is one Constitutional post of Advocate-General in a State. The State may appoint other counsels for looking after the legal matters of the States and may give them any designation, including the designation of Additional Advocate-General. But such counsels are appointed and their designations are assigned in the exercise of executive power of the State. A Statement made by the Advocate-General in the Court binds the government while that may not be true about the Statement of a counsel appearing for the State unless such counsel has a written instruction from the State.

It was held that the person beyond the age of 62 years can be appointed as Advocate General. In fact, advocates generally in a few States are still working beyond the age of 62 years.

166. Conduct of business of the Government of a State:

(1) All executive action of the Government of a State shall be expressed to be taken in the name of the Governor.

(2) 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, and 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 executes by the Governor.

(3) The Governor shall make rules foe the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business insofar as it is not business with respect to which the Governor is by or under this Constitution required to act his discretion.

COMMENTS

Under our Constitution, the Governor or President is essentially a constitutional head. The administration of the State is run by the Council of Ministers. But in view of multifarious matters in volume, it is impossible to refer all matters to the Governor which come before the Government. In order to remove that difficulty, the Constitution has authorized the Governor under clause (3) of Article 166 to make rules for the more convenient transaction of business of the Government of the State and for the allocation among its ministers of the business of Government. Therefore, all actions of the Governor under the allocation of business rules mean the action of the State Government.

Once the order has been made in accordance with the rules, it is conclusive and beyond challenge in the courts. The rules of business framed under Article 166(3) do not create or confer any right upon a person to be enforced in a court of law. However, such orders are open for adjudication whether these are passed in accordance with the law.

167. Duties of Chief Minister as respects the furnishing of information to Governor, etc. It shall be the duty of the Chief Minister of each State:

(a) 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;

(b) To furnish such information relating to the administration of the affairs of the State and proposals for legislation as the Governor may call for; and

(c) 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.

COMMENTS

The Governor is to act with the aid or advice of the Council of Ministers. Therefore, till the advice is accepted by the Governor, views of the Council of Ministers do not get crystallised into action of the State. However, except where the Governor is to exercise his functions in his discretion, the Governor has to accept the advice of the State Council of Ministers, as per rulings.

Government action is routed through officers, or officials. Hence, they should be answerable for illegal acts. Further, a policy directed by the Minister can be examined by the court to see if it is meant for the public good or whether if fritters away public property.