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‘THE APPOINTMENT OF CHIEF MINISTER IN

STATES: WITH SPECIAL REFERENCE TO USE OF
DISCRETIONARY POWERS BY GOVERNOR’

PROJECT SUBMITTTED BY
PRANABH KUMAR
Semester III, Section A
BA.LL.B.(Hons)
ROLL NO.103
SUBMITTED ON:
03/09/2019

PROJECT SUBMITTED TO:

Mr. AASHUTOSH KUMAR AAHIRE
(Faculty Of Political Science)

HIDAYATULLAH NATIONAL LAW UNIVERSITY

UPARWARA , NAVA RAIPUR, CHATTISGARH- 492002
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DECLARATION

I, Pranabh Kumar, do hereby declare that, the project work entitled, “THE
APPOINTMENT OF CHIEF MINISTER IN STATES: WITH SPECIAL
REFERENCE TO USE OF DISCRETIONARY POWERS BY GOVERNOR” submitted
to H.N.L.U, Raipur is record of an original work done by me under the able guidance of Mr.
AASHUTOSH KUMAR AAHIRE, Faculty Member, H.N.L.U, Raipur.
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ACKNOWLEDGEMENT

First of all, I would like to thank my Political Science teacher Mr. AASHUTOSH
KUMAR AAHIRE for giving me opportunity to work on this project named “THE
APPOINTMENT OF CHIEF MINISTER IN STATES: WITH SPECIAL
REFERENCE TO USE OF DISCRETIONARY POWERS BY GOVERNOR”. His
guidance and support has been instrumental while making my project on this issue.

I would also like to thank all the authors, writers, columnists and social thinkers whose
ideas and works have been made use of in my Project.

My heartfelt gratitude also goes to all staff and administration of HNLU for the
infrastructure in the form of our library and IT lab that was a great source of help in the
completion of this Project. I also thank my friends for their precious inputs which have been
very useful in the completion of this Project.

I would also like to thank my parents, my seniors and friends in the University, who have
helped me with ideas about this work.

I hope you will appreciate my true work which is indeed a hard work and a result of my true
research and work.

PRANABH KUMAR
Semester III, Section A
BA.LL.B.(Hons)
ROLL NO.103
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TABLE OF CONTENTS

 CHAPTER: 1

1.1 INTRODUCTION…………………………………………………………. 5

1.2 LITERATURE REVIEW ……………………………………………...….. 7

1.3 RESEARCH QUESTIONS…….…………………………………………… 8

1.4 OBJECTIVES AND SCOPE.....……………………………………………. 8

1.5 RESEARCH METHODOLOGY …………………………………………. 8

1.5 SOURCES OF DATA COLLECTION……………………………………. 9

 CHAPTER:2

2.1 Chief Minister and His Duties…………………….……………………….. 10

2.2 Position Of the Chief Minister……………………………………………... 11

2.3 Powers of the Chief Minister………………………………………………. 13

2.4 Tenure……………………………………………………………………… 14

2.5 Chief Minister and State Legislature………………………………………. 14

2.6 Resignation………………………………………………………………… 15

 CHAPTER:3

3.1 Discretionary Powers of the Governor in Appointment of Chief Minister… 16

3.2 Guidelines Suggested by the Committee of Governors……………………. 17

 CONCLUSION…………………………………………………………..…... 22

 BIBLIOGRAPHY……………………………………………………………. 23
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CHAPTER: 1

1.1 INTRODUCTION

Politics is the way that people living in groups make decisions. Politics is about making
agreements between people so that they can live together in groups such as tribes, cities, or
countries. In most countries, people have formed political parties to put forward their ideas.
There is usually some disagreement between people within a party, but they work together
because they feel that they agree on enough things, and they will have more power if they join
together. They agree to take the same position on many issues, and agree to support the same
changes to law and the same leaders. An election is usually a competition between different
parties. India have a multi-party system in which various parties take part in electoral system
and forming the government on the basis of majority; these political parties time to time
evolve political mechanism differently at different point of time.

As these days, alliance governance is the main postulates of Indian political system. Politics
involves making common decisions for a group of people. It is the activity by which differing
interests within a given unit of rule are conciliated by giving them a share in power in
proportion to their importance to the welfare and survival of the whole community.

India is the largest democracy in the world. India has the biggest number of people with
franchise rights and the largest number of political parties, which take part in election
campaign. In the 2019 national elections, almost 814 million people voted and taking part in
democratic system. Politics (from Greek: Politiká, meaning "affairs of the cities") is the
process of making decisions that apply to members of a group. It refers to achieving and
exercising positions of governance, and organized control over a human community,
particularly a state

The academic study focusing on just politics, which is therefore more targeted than all
Political science, is sometimes referred to as Politology. In modern nation-states, people have
formed political parties to represent their ideas. They agree to take the same position on many
issues and agree to support the same changes to law and the same leaders.

In the scheme of parliamentary system of government provided by the Constitution, the

Governor is the nominal executive authority (de jure executive) and the Chief Minister is the
real executive authority (de facto executive). In other words, the Governor is the head of the
state while the Chief Minister is the head of the government. Thus the position of the Chief
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Minister at the state level is analogous to the position of Prime Minister at the centre. There
is a Council of Ministers in a State with the Chief Minister at its head. Governor appoints the
Chief Minister and other Ministers are appointed by the Governor on the advice of the Chief
Minister. Chief Minister holds office during the pleasure of the Governor. 1 The total number
of Ministers, including the Chief Minister, in the Council of Ministers in a State shall not
exceed fifteen percent of the total number of Members of the Legislative Assembly of that
State and the number of ministers including the Chief Minister shall not be less than twelve in
case of smaller States.2 Our Constitution is silent about the person who should be appointed
as the Chief Minister. It does also not prescribe any qualification for the person to be
appointed by the Governor as the Chief Minister.3 A person who is not a Member of any
House may be appointed as the Chief Minister for six months. After the completion of six
months if he wants to be continued as Chief Minister, then he has to be the Member of the
House.4 There have been cases when non-members have been appointed as Chief Ministers.
In 1954 Kamraj Nadar was appointed as the Chief Minister of Madras. Shri T.N. Singh was
appointed as the Chief Minister of Uttar Pradesh on October 18, 1970.

1
Article 164 (1), Constitution of India.
2
Article 164 (1-A) inserted by the (Constitution 91st Amendment) Act, 2003.
3
Harsharan Verma vs Tribhuvan Narain Singh, AIR 1971(1) SCC 616.
4
Article 164(4), Constitution of India.
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1.2 LITERATURE REVIEW

I. D. D. Basu(2015) in this book he has explained that principle of constitutional law on

comparative & global level with human right. Human rights are fundamental rights
which are available in part III of the constitution of India right to education is in
article 21A of the constitution before that in part IV of the constitution .
In this book one chapter – Fundamental Rights & Fundamental Duties; he
explained that Article 21A that is Right to Life and personal liberty. Here adopting a
liberal interpretation the Supreme Court has read several rights in Article 21 to make
life more meaningful and worth living. In this book Chapter include Right to
Education which is a fundamental right (Article 21A). The 86th constitutional
amendment Act 2002, has inserted Article 21Awhich provides that “The State shall
provide free and compulsory education to all children of the age of six to fourteen
years in such manner as the state may, by law, determine”. This right should not be
restricted only to free and compulsory but should have quality education. This is a
fundamental right as well as a basic human right. In our country right to education is
indispensable in the interpretation of right to development as well as a human right.
Now this is become a fundamental right under Article 21Aof the constitution.

II. J. N. Pandey (2015) in this book chapter include right to education which is a
fundamental right of the child. Right to Education is a fundamental rights (Article
21A). The 86th constitutional amendment Act 2002 has added a new Article 21A after
Article 21A and has made education for all children of the age of 6-14 years a
fundamental right. It provides “In The State shall provide free and compulsory
education to all children of the age of six to fourteen years in such manner as the
state may, by law, determine “We know that education is basic human rights for
success of democratic system of government. Education is one of the basic elements.
It give person human dignity, which develop himself as well as country. In landmark
case Mohini Jain vs. State of Karnataka Supreme Court held that right to education
is a fundamental right under Article 21 of the constitution.
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1.3 RESEARCH QUESTIONS

 What are the procedures for the appointment of the chief minister in the states?

 What are the powers designated with the chief minister in the states?

 What is the role of the Governor in the appointment of the Chief Minister and his
discretionary powers?

1.4 OBJECTIVE AND SCOPE

• To study about appointment and resignation of the Chief Minister.

• To study about the powers, functions and tenure of the Chief Minister.

• To study about the Governor’s discretionary power in appointment of Chief

Minister.

1.5 RESEARCH METHODOLOGY

The report is made using the secondary sources of data available in print as well as electronic
media. Secondary sources are particularly used due to the temporal constraints faced during
the formation of the report as collection of primary data in this case would have demanded for
a lot of time, keeping in mind the deadline of submission of the report for academic purposes.
The report is descriptive and analytical in character. The articles and online journals used
have been the chief sources of information. Footnotes have been provided wherever
necessary.
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1.6 SOURCES OF DATA COLLECTION

 Dr. J.N. Pandey, Constitutional Law of India, Central Law Agency, 2007

 http://www.yourarticlelibrary.com/essay/the-chief-minister-appointment-
power- function-and-position/24905

 http://www.mitrasias.com/powers-and-functions-of-the-chief-minister/

 http://www.yourarticlelibrary.com/political-science/chief-minister-method-of-
appointment-functions-and-position/40353

 Dr. Nirmala Rana "Politics in India:-At a Glance: A Study of Indian Political System
and Elections" International Journal of Humanities and Social Science Invention
(IJHSSI), vol. 07, no. 12, 2018, pp.01-17

 D. D. Basu, An Introduction to the Constitution of India, New Delhi, Prentice Hall

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CHAPTER: 2
2.1 CHIEF MINISTER AND HIS DUTIES

In the Republic of India, a Chief Minister is the elected head of government of each of
twenty-eight states and eight Union territory/union territories. According to the Constitution
of India, the Governor is a state's de jure head, but de facto executive authority rests with the
chief minister. Following elections to the State Legislative Assembly (Vidhan Sabha) in a
state, the state's governor usually invites the party (or coalition) with a majority of seats to
form the government. The governor appoints and swears in the chief minister, whose Council
of Ministers are collectively responsible to the assembly.

Based on the Westminster system, given that he retains the confidence of the assembly, the
chief minister's term can last for the length of the assembly's life—a maximum of five years.
There are no limits to the number of terms that the chief minister can serve. A chief minister
heads a state government's council of ministers and can be deputed in that role by a deputy
chief minister.

OATH
Since, according to the constitution, the chief minister is appointed by the governor, the
swearing in is done before the governor of the state.

The oath of office.

I, <Name of Minister>, do swear in the name of God/solemnly affirm that I will bear true
faith and allegiance to the Constitution of India as by law established, that I will uphold
the sovereignty and integrity of India, that I will faithfully and conscientiously discharge
my duties as a Minister for the State of <Name of the State> and that I will do right to all
manner of people in accordance with the Constitution and the law without fear or favor,
affection or ill-will.5

The oath of secrecy

I, <Name of Minister>, do swear in the name of God/solemnly affirm that I will not directly

5
Constitution of India, Schedule 3, Para 5
 P a g e | 11

or indirectly communicate or reveal to any person or persons any matter which shall be
brought under my consideration or shall become known to me as a Minister for the State of
Name of the State> except as may be required for the due discharge of my duties as such
Minister.6

— 

2.2 POSITION OF THE CHIEF MINISTER

The Chief Minister of a state occupies a powerful position in the state. He is the maker of the
State Council of Ministers which always works under his leadership. The ministry-making
begins with the appointment of the Chief Minister. The Governor always accepts his advice in
the formation of the Council of Ministers.

He is the chief advisor to the Governor, the leader of the majority party in the state legislature,
and the most important leader of his party. He represents the whole of the state. He enjoys
vast powers of appointment and promotion, normally; the Governor always depends upon his
advice.

The Chief Minister is the chief architect of the policies of the state government. The state
administration works under his stewardship. His position in the state is similar to the one
enjoyed by the Prime Minister in the Centre. His office is the most powerful office in the state.

The position and powers of the Chief Minister of a State constitute almost a replica of those
of his prototype in the Central Cabinet. Like the Prime Minister of India, he can be described
as the “keystone of cabinet-arch”, “a moon among the lesser stars” or a “sun around whom
the other Ministers revolve like planets.” In fact, he is central to the formation, and central to
the death of the Council of Ministers.7

In the States, there have been more cases of differences of opinion among the Ministers and a
Chief Minister, than at the Centre. Hence it is held that a Chief Minister gets ample
opportunity for asserting himself against the Ministers. The Ministers had either been yielding
before the Chief Minister or had been made to quit by the latter.
6
Constitution of India, Schedule 3, Para 6
7
Negi Mohita, 19 August, 2019, http://www.yourarticlelibrary.com/essay/the-chief-minister-appointment-
power-function-and-position/24905
 P a g e | 12

The CM is appointed by the Governor while the other Ministers are appointed by the
Governor on his advice. In actual practice, the leader of the majority party or in case of a
coalition, the chosen leader of the aligning parties, is summoned by the Governor to act as the
Chief Minister. In the latter case, the CM is required to seek vote of confidence on the floor of
the House.

In the recent past, after withdrawal of BSP’ support the ex-Chief Minister of UP Kalyan
Singh was asked to seek vote of confidence on the floor of the House. He succeeded in
winning the Vote of Confidence. Likewise the CM is ousted by the Governor when he loses
the confidence of the House or is deserted by a coalition partner as it happened in Uttar
Pradesh and Gujarat in the recent past.

In S.R. Bommai v. Union of India case, 9 Judges Bench observed that whenever a doubt
arises whether a Ministry has lost the confidence of the House, the only way of testing is on
the floor of the House. As such, the assessment of the strength of the Ministry is not a matter
of private opinion or any individual be he the Governor or the President. A Chief Minister
losing the confidence of the majority on account of desertions may himself tender resignation
as Arjun Munda did at Jharkhand on September 14 2006.8

8
Negi Mohita, 19 August, 2019, http://www.yourarticlelibrary.com/essay/the-chief-minister-appointment-
power-function-and-position/24905
 P a g e | 13

2.3 POWERS OF THE CHIEF MINISTER

His powers vis-a-vis his Council of Ministers are the same as that of the Prime Minister of
India vis-a-vis his Council of Ministers:

(i) As a Chief of the Council, he presides at its meetings. He is to decide which matters
should be brought before the Council for discussions.

(ii) He is the creator, preserver and destroyer of the Cabinet/Council of Ministers.

(iii) He distributes portfolios amongst them and can reshuffle them.

(iv) He is to make the Council of Ministers work as a team. He possesses the power of
general supervision and co-ordination over all the departments.

(v) He, being the leader of the legislature, is in a position to get any legislation within the
competence of the State legislature passed, any taxes levied and any supplies voted. He is
authorized to advise the Governor to dissolve the legislative assembly. The Governor, being
a constitutional ruler, generally acts upon his advice and dissolves the legislative assembly.

(vi) He is the connecting link between his Council of Ministers and the Governor. He is to
communicate to the Governor the decisions of the ministers and any other information,
regarding the State administration which the Governor may call for.

(vii) Being the principal spokesman of the State Government and the majority party or
coalitional alliance in the office, his utterances and assurances are deemed to be authoritative
and binding on the State Government.

(viii) Though certain important appointments like that of Advocate General and members of
State Public Service Commission are vested with the Governor, yet he exercises determining
influence in such appointments.9 If the Governor so desires, he is to submit for the

9
Mitra IAS, 4November,2018 http://www.mitrasias.com/powers-and-functions-of-the-chief-minister/
 P a g e | 14

consideration of the Council of Ministers any matters on which a minister may take a
decision without consulting the Cabinet. But once such a matter is approved by the Council,
it becomes binding on the Governor. In fact, such an eventuality will crop up, when a
coalition Council of Ministers is constituted in a State. So long as Council of Ministers is a
homogeneous team, a minister may not take a decision on any vital matter of policy
independent of the Council.

(ix) He represents the State in the Chief Ministers’ conferences convened by the Central
leaders for deliberating on matters of paramount importance. It may thus be concluded that
for all practical purposes, the Chief Minister holds a pivotal position in the Council of
ministers. However he is a leader of the Cabinet and not their boss. To what extent, he can
be assertive and make his will prevail, depends upon his dynamic personality, administrative
acumen, political calibre and his equation with the High Command of the Party concerned.

2.4 TENURE

Theoretically, the Chief Minister holds office during the pleasure of the Governor. However,
in actual practice the Chief Minister remains in office so long as he continues to be the leader
of the majority in the State Legislative Assembly. The Governor can dismiss him in case he
loses his majority support.
The State Legislative Assembly can also remove him by passing a vote of no-confidence
against him. In this case it is also taken to be a vote of no-confidence against the entire
Council of Ministers and it resigns forthwith.
Once appointed, a Chief Minister can remain in office for five years (which is the tenure of
the State Legislature Assembly). He can be appointed afresh after every election to the State
Legislative Assembly, if he continues to remain the leader of majority in the Assembly.

2.5 CHIEF MINISTER AND STATE LEGISLATURE

In a parliamentary form of government the executive, headed by Chief Minister and the
legislature are supposed to work in close co-operation with each other. As a leader of the
House he makes all policy statements in the House and whenever, he feels that his cabinet
colleagues are not in a position to satisfy the House he comes forward to help them.
He defines government’s policies and programmes in the House and faces the opposition
 P a g e | 15

whenever, an opportunity arises. He communicates the views of the House to the Governor
and as such he acts as a channel between the two. He decides for all practical purposes the
agenda of the House.
It is his responsibility to keep the Governor informed about all government policies and
views of the Council of Ministers on all important and controversial issues, etc., on the one
hand and law and order situation on the other.
But in respect of legislature his most important power is that of the dissolution of the House.
At any time the Chief Minister can advise the Governor that the House be dissolved. In this
connection it may be noted that Chief Minister’s resignation on political grounds is
considered to be the resignation of the whole cabinet.

2.6 RESIGNATION

In the event of a Chief Minister's resignation, which conventionally occurs after an election or
during a phase of assembly transition, the outgoing minister holds the informal title of
"caretaker" chief minister until the Governor either appoints a new chief minister or
dissolves the assembly. Since the post is not constitutionally defined, the caretaker chief
minister enjoys all the powers a regular chief minister possesses, but is expected not to make
any major policy decisions during his/her short tenure as caretaker.
 P a g e | 16

CHAPTER: 3

3.1 DISCRETIONARY POWERS OF THE GOVERNOR IN THE

APPOINTMENT OF THE CHIEF MINISTER

In the appointment of the Chief Minister, the Governor can use his discretion. The extent of
use of discretion in the appointment of the Chief Minister depends upon the situation that
arises. When a single party or group has the majority, the leader of the majority party is
invited to form the government. At this time, Governor has not much say in the appointment
of the Chief Minister. But he can use his discretion in this situation also and refuse to appoint
the leader of the majority party as the Chief Minister, if the majority party in the Legislature
asks to appoint such a person as the Chief Minister, who is not qualified to be a member of
the Legislature or who is disqualified to be such.10

In the appointment of the Chief Minister, the problem arises, when no party has a clear-cut
majority in the Legislature and in such situation the role of the Governor becomes very
important. Governor uses his discretion in the appointment of the Chief Minister, where after
the General Assembly elections, no single party or group commands absolute majority. In
such circumstances, the Governor plays a very important role and uses his discretion. He may
call such person to form the government to whom he thinks fit to form the government.

Similarly, if after the death or resignation of the Chief Minister on any political ground or
after the defeat of the Chief Minister in the House, any party or group is not in majority, the
Governor may appoint such person as the Chief Minister to whom he thinks fit. Constitution
does not provide any specific guidelines to the Governor for the appointment of Chief
Minister in such circumstances. That’s why the Governors are not using any uniform practice
in such circumstances.

Sometimes Governors have invited the leader of single largest party to form the government
and sometimes he invited the leader of the United Front, whether it was formed prior to
election or after the election. About the discretion of the Governor in the appointment of the
Chief Minister, Justice Mitra11 observed that “the Governor in making the appointment of
the Chief Minister under Article 164 (1) of the Constitution gets in his sole discretion. The
exercise of this discretion by the Governor cannot be called in question in High Court.
There is no warrant in the Constitution itself to read in Article 164 (1), a condition or
10
B.R Kapur vs State of Tamil Nadu, AIR 2001 SC 3435
11
Mahabir Prasad vs Prafulla Chandra, AIR 1969 Cal 198.
 P a g e | 17

restriction that the Governor must act on the advice of Council of Ministers as provided in
Article 163(1), in the matter of appointment of Chief Minister. It is for him to make such
enquiries as he thinks proper, to ascertain who among the Members of the Legislature
ought to be appointed as the Chief Minister and would be in a position to enjoy the
confidence of the majority in the Legislative Assembly of the State.”

By using his discretion, the role of the Governor comes many a times in controversy. A.K.
Sarkar former Chief Justice of India says that “the Governor should make endeavours to
appoint a person who has been found by him as result of his soundings to be most likely to
command a stable majority in the Legislature”.12

On the Governor’s discretion, the Committee of the Governors observed that right from the
commencement of the Constitution, it has been recognized that in the choice of the Chief
Minister, the Governor’s decision under Article 164 (1) is final and based entirely on his
unfettered judgement.13

3.2 GUIDELINES SUGGESTED BY THE COMMITTEE OF GOVERNORS

Committee of Governors suggested the following guidelines to the Governors for the
appointment of the Chief Minister;14

 Where a single party commands a majority in the assembly, the Governor is to call
upon its leader to form the government.
 It is not incumbent on the Governor to invite the leader of the largest party (not in
majority) to form the government. The ultimate test for the purpose is not the size of a
party but its ability to command a majority in the House.
 If before the election, some parties combine and produce an agreed programme and
the combination gets a majority after the election, the commonly chosen leader of the
combination should be invited to form the government.
 If no party is returned in a majority at the election and thereafter two or more parties
come together to form the government, the leader of the combination may be invited
to form the government.

12
J.R. Siwach, Office of the Governor – A Critical Study, Sterling Publishers Pvt. Ltd., New Delhi, 1977, p. 35

13
Dr. J.N. Pandey, Constitutional Law of India, Central Law Agency, 2007, p. 535.

14
President appointed a Committee of Governors on November 26, 1970 to study the role of Governors.
 P a g e | 18

 The leader of the minority party may be invited to form the government, if the
Governor is satisfied that the leader will be able to muster majority support in the
House.
 Ordinarily, an elected member of the Legislature should be chosen as the Chief
Minister. A non-member or a nominated member of the Legislature ought not to be
appointed as the Chief Minister except in exceptional circumstances. In any case, he
should become an elected member of the Legislature as soon as possible.
 P a g e | 19

CONCLUSION

Through this project we can understand that becoming a Chief Minister of a state is difficult
but retaining the power is much more difficult. It takes hard work, blood, sweat and lot more
tears to enter the politics and to retain and continue the field.

Where comes power also comes responsibilities. The Chief Minister is head of the state and is
responsible for his conduct to the people of the state. He along with his council of ministers
take oath in the presence of governor and makes themselves liable and accountable to the
people and the government at the centre.

The extent of use of discretionary power by the Governor in the appointment of the Chief
Minister depends upon the situation that arises. When a single party or group has the majority,
the leader of the majority party is invited to form the government. At this time, Governor has
not much say in the appointment of the Chief Minister. But he can use his discretion in this
situation also and refuse to appoint the leader of the majority party as the Chief Minister, if
the majority party in the Legislature asks to appoint such a person as the Chief Minister, who
is not qualified to be a member of the Legislature or who is disqualified to be such.
 P a g e | 20

BIBLIOGRAPHY

WEBSITES

 http://www.yourarticlelibrary.com/essay/the-chief-minister-appointment-power-
function-and-position/24905

 http://www.mitrasias.com/powers-and-functions-of-the-chief-minister/

 http://www.yourarticlelibrary.com/political-science/chief-minister- method-of-
appointment-functions-and-position/40353

BOOKS
 Dr. J.N. Pandey, Constitutional Law of India, Central Law Agency, 2007

 D. D. Basu, An Introduction to the Constitution of India, New Delhi, Prentice Hall

 M. Laxmikanth, Indian polity, McGraw Hill Education(India) Pvt. Ltd. , New Delhi