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The Chief Minister ,Council Of Ministers and State Legislature

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updated on April 9th, 2019

Appointment

As we have seen earlier, the Council of Ministers with the Chief Minister as its head functions as the real executive. You are also aware how the Chief Minister and other members of the Council of Ministers are appointed by the Governor. Their term of office is for five years, but they remain in office till they enjoy the support of the majority in the Assembly. If a person who is appointed as the Chief Minister or a Minister, is not a member of the State Legislature, he/she has to become member of any of the two houses within six months of his/her appointment. The portfolios or different ministries are allocated to the Ministers by the Governor on the advice of the Chief Minister.

Functions of the Chief Minister and Council of Ministers

Have you ever given thought to the fact that whenever anything happens in a State, it is the Chief Minister who is said to be responsible for that? If good things happen, he/she is praised, and if bad things occur, he/she is criticized. Why so? In fact, the Chief Minister is the Head of the Government in the State. He/She plays very important roles. He/She:

  • advises the Governor on the appointment of Council of Ministers and allocation of portfolios to them;
  • presides over the meetings of the State Council of Ministers and also coordinates the functioning of different ministers;
  • guides the framing of the policies and programmes for the State and gives approvals of the Bills that are introduced by the Ministers in the State Legislature;
  • is the sole link of communication between the Council of Ministers and the Governor. The Chief Minister communicates the decisions of the Council of Ministers relating to administration as well as proposals for the legislation to the Governor; and
  • submits any matter on which decision has been taken by a Minister for consideration of the Council of Ministers, if the Governor desires him/her to do so.

Position of the Chief Minister

The Chief Minister is the real executive head of the State. It is he/she who formulates the policies and guides the Council of Ministers to implement them. He/She is the most powerful functionary, especially when one political party has an absolute majority in the Legislative Assembly. But if he/she heads a coalition government, his/her role gets restricted by the pulls and pressures of other partners of the coalition. At times, he/she is pressurized by a few independent Members of Legislative Assembly (MLAs), if the majority in the House is thin.

State Legislature

Every State has its Legislature. . Let us understand how the State Legislatures are constituted. In some of the States the Legislature is bicameral i.e. has two houses. In most of the States it is unicameral i.e. has only one house. The Governor is an integral part of the State Legislature. The unicameral legislature has the Legislative Assembly and the bicameral has the Legislative Assembly being its Lower House and the Legislative Council the Upper House. At present only Bihar, Jammu & Kashmir, Karnataka, Maharashtra Telangana and Uttar Pradesh have bicameral legislatures and the remaining 23 States have unicameral legislatures.

Composition of Legislative Assembly

The Legislative Assembly, i.e. Vidhan Sabha is the real legislature even in those States that have bicameral legislatures. According to the Constitution of India, a State Legislative Assembly shall not have more than 500 members and not less than 60 members. However, very small States like Goa, Sikkim and Mizoram have been allowed to have less than 60 members. Seats are reserved for the Scheduled Castes and Scheduled Tribes in the Legislative Assembly.If the Governor feels that the Anglo-Indian Community is not adequately represented, he/she may nominate one person of that community in the State Legislative Assembly. The Legislative Assembly is an elected body. Its members, M. L. As. are elected by the people based on the principle of universal adult franchise. There are certain qualifications prescribed by the Constitution for being elected as an M. L. A. The candidate must:

  • be a citizen of India;
  • have attained the age of 25 years;
  • have his/her name in the voters’ list;
  • not hold any office of profit; and
  • not be a government servant.

Do You Know

What is Universal Adult Franchise?: All adults men/women who have completed the age of 18 and above have the right to vote and participate in the electoral process, without any discrimination based on race, caste, religion, place of birth or sex.

The tenure of the Vidhan Sabha is of five years. However, the Governor may dissolve the Assembly earlier on the advice of the Chief Minister. Similarly the Assembly may be suspended or dissolved when President’s Rule is imposed in a State. During a national Emergency, the Parliament may extend the term of Legislative Assemblies for a period not exceeding one year at a time.

Composition of the Legislative Council

The upper chamber of the State Legislature i.e. the Legislative Council or Vidhan Parishad shall not have more than one third of the total membership of the State Legislative Assembly but not less than 40. The Legislative Council in Jammu & Kashmir has 36 members as an exception. The members of the Legislative Council are partly elected indirectly and partly nominated.

The composition of the Legislative Council is as follows:

  • One-third members are elected by the members of local bodies i.e. Municipalities, District Boards and others in the State;
  • Another one-third members are elected by the members of the Legislative Assembly;
  • One-twelfth members are elected by the electorate consisting of graduates of the State of not less than three years standing;
  • Another one-twelfth are elected by the electorate consisting of teachers having teaching experience of at least three years in the educational institutions within the State, but these institutions must not be lower in standard than secondary schools; and
  • The remaining one-sixth members are nominated by the Governor of the State.

The Vidhan Parishad is a permanent house, and hence it is not dissolved. Members are elected/nominated for a period of six years. One-third of its members retire after every two years. The retiring members are eligible for re-election. The qualifications for becoming members of the Legislative Council are similar to those for the members of the Legislative Assembly. However, the minimum age in the case of Legislative Assembly is 25 years whereas for the Council it is 30 years.

The State Legislature meets twice a year at least and the interval between two sessions cannot be more than six months. The members of Vidhan Sabha and Vidhan Parishad elect their respective Presiding Officers, as well as Speaker and Deputy Speakers, the Chairman and Deputy Chairman.

The business of the two houses is conducted by their respective Presiding Officers who also maintain discipline and order in the houses.

Functions of the State Legislature

The State Legislature performs the following categories of functions:

(a) Legislative Functions: The Assembly has the sole right to legislate. All the laws must be passed by it. Where there is a bicameral legislature, the ordinary Bills can be introduced in any of the Houses. A Bill passed by the Legislative Assembly is sent to the Legislative Council which has to pass it or to return it with recommendations to the Legislative Assembly.If the Legislative Assembly passes that Bill once again either with recommendations of the Council or without those, it shall be deemed to have been passed by both the Houses. As regards, Money Bills, these can be introduced only in the Legislative Assembly. After the Assembly passes the Money Bill, it goes to the Legislative Council which has to pass it or return the Bill to the Assembly with its recommendations within 14 days of the receipt of the Bill. Even if the Assembly rejects the recommendations of the Council, it will be deemed to have been passed by both the Houses. Once the Bill is passed by the Legislature, it is sent to the Governor for his/her assent. He/She cannot withhold the assent on the Money Bill but can send back an ordinary bill for reconsideration or can reserve any of the bills for consideration by the President.

(b) Control over the Executive: The State Legislature keeps control over the executive. The Council of Ministers is responsible to Vidhan Sabha collectively. It remains in office so long as it enjoys the confidence of the House. The Council of Ministers is removed if the Vidhan Sabha adopts a motion of no-confidence against it. Moreover, The State Legislature keeps checks on the government by asking questions and supplementary questions, moving adjournment motions and calling attention notices.

(c) Electoral Functions: The elected members of the Legislative Assembly are members of the Electoral College for the election of the President of India. The members of the Vidhan Sabha also elect the members of the Rajya Sabha from their respective States. Moreover, they elect one-third members of the Legislative Council of their own State.

(d) Functions related to Constitutional Amendments: There are important functions of the State Legislature related to the amendment of the Constitution. A constitutional amendment requires the support of a special majority of each House of the Parliament as well as ratification by not less than half of the States where the State Legislatures ratify the amendments.

In the scheme of the 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 Minister at the state level is analogous to the position of prime minister at the Centre.

APPOINTMENT OF CHIEF MINISTER

The Constitution does not contain any specific procedure for the selection and appointment of the Chief Minister. Article 164 only says that the Chief Minister shall be appointed by the governor. However, this does not imply that the governor is free to appoint anyone as the Chief Minister. In accordance with the conventions of the parliamentary system of government, the governor has to appoint the leader of the majority party in the state legislative assembly as the Chief Minister. But, when no party has a clear majority in the assembly, then the governor may exercise his personal discretion in the selection and appointment of the Chief Minister. In such a situation, the governor usually appoints the leader of the largest party or coalition in the assembly as the Chief Minister and ask him to seek a vote of confidence in the House within a month.

The governor may have to exercise his individual judgment in the selection and appointed of the Chief Minister when the Chief Minister in office dies suddenly and there is no obvious successor. However, on the death of a Chief Minister, the ruling party usually elects a new leader and the governor has no choice but to appoint him as Chief Minister.

The Constitution does not require that a person must prove his majority in the legislative assembly before he is appointed as the Chief Minister. The governor may first appoint him as the Chief Minister and then ask him to prove his majority in the legislative assembly within a reasonable period. This is what has been done in a number of cases.

A person who is not a member of the state legislature can be appointed as Chief Minister for six months, within which time, he should be elected to the state legislature, failing which he ceases to be the Chief Minister.

According to the Constitution, the Chief Minister may be a member of any of the two Houses of a state legislature. Usually, Chief Ministers have been selected from the Lower House (legislative assembly), but, on a number of occasions, a member of the Upper House (legislative council) has also been appointed as Chief Minister.

OATH, TERM AND SALARY

Before the Chief Minister enters his office, the governor administers to him the oaths of office and secrecy. In his oath of office, the Chief Minister swears:

  1. to bear true faith and allegiance to the Constitution of India,
  2. to uphold the sovereignty and integrity of India,
  3. to faithfully and conscientiously discharge the duties of his office, and
  4. to do right to all manner of people in accordance with the Constitution and the law, without fear or favour, affection or ill-will.

In his oath of secrecy, the Chief Minister swears that he will not directly or indirectly communicate or reveal to any person(s) any matter that is brought under his consideration or becomes known to him as a state minister except as may be required for the due discharge of his duties as such minister.

The term of the Chief Minister is not fixed and he holds office during the pleasure of the governor. However, this does not mean that the governor can dismiss him at any time. He cannot be dismissed by the governor as long as he enjoys the majority support in the legislative assembly. But, if he loses the confidence of the assembly, he must resign or the governor can dismiss him.

The salary and allowances of the Chief Minister are determined by the state legislature. In addition to the salary and allowances, which are payable to a member of the state legislature, he gets a sumptuary allowance, free accommodation, traveling allowance, medical facilities, etc.

POWERS AND FUNCTIONS OF CHIEF MINISTER

The powers and functions of the Chief Minister can be studied under the following heads:

In Relation to Council of Ministers

The Chief Minister enjoys the following powers as head of the state council of ministers:
(a) The governor appoints only those persons as ministers who are recommended by the Chief Minister.
(b) He allocates and reshuffles the portfolios among ministers.
(c) He can ask a minister to resign or advise the governor to dismiss him in case of difference of opinion.
(d) He presides over the meetings of the council of ministers and influences its decisions.
(e) He guides, directs, controls and coordinates the activities of all the ministers.
(f) He can bring about the collapse of the council of ministers by resigning from office. Since the Chief Minister is the head of the council of ministers, his resignation or death automatically dissolves the council of ministers. The resignation or death of any other minister, on the other hand, merely creates a vacancy, which the Chief Minister may or may not like to fill.

In Relation to the Governor

The Chief Minister enjoys the following powers in relation to the governor:
(a) He is the principal channel of communication between the governor and the council of ministers. It is the duty of the Chief Minister:
(i) 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;
(ii) 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
(iii) 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.
(b) He 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.

In Relation to State Legislature

The Chief Minister enjoys the following powers as the leader of the house:
(a) He advises the governor with regard to the summoning and proroguing of the sessions of the state legislature.
(b) He can recommend the dissolution of the legislative assembly to the governor at any time.
(c) He announces the government policies on the floor of the house.

Other Powers and Functions

In addition, the Chief Minister also performs the following functions:
(a) He is the chairman of the State Planning Board.
(b) He acts as a vice-chairman of the concerned zonal council by rotation, holding office for a period of one year at a time.
(c) He is a member of the Inter-State Council and the National Development Council, both headed by the prime minister.
(d) He is the chief spokesman of the state government.
(e) He is the crisis manager-in-chief at the political level during emergencies.
(f) As a leader of the state, he meets various sections of the people and receives memoranda from them regarding their problems, and so on.
(g) He is the political head of the services.

Thus, he plays a very significant and highly crucial role in the state administration. However, the discretionary powers enjoyed by the governor reduces to some extent the power, authority, influence, prestige and role of the Chief Minister in the state administration.

RELATIONSHIP WITH THE GOVERNOR

The following provisions of the Constitution deal with the relationship between the governor and the Chief Minister:

  1. Article 163: There shall be a council of ministers with the Chief Minister as the head to aid and advise the governor on the exercise of his functions, except in so far as he is required to exercise his functions or any of them in his discretion.
  2. Article 164:
    (a) The Chief Minister shall be appointed by the governor and other ministers shall be appointed by the governor on the advice of the Chief Minister;
    (b) The ministers shall hold office during the pleasure of the governor; and
    (c) The council of ministers shall be collectively responsible to the legislative assembly of the state.
  3. Article 167: It shall be the duty of the Chief Minister:
    (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.

Articles Related to Chief Minister at a Glance

Article No.Subject-matter
Article 163.Council of Ministers to aid and advise Governor
Article 164.Other provisions as to Ministers
Article 166.Conduct of business of the Government of a State
Article 167.Duties of Chief Minister as respects the furnishing of information to Governor, etc.

State Council Of Minister

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 executive authority in the politico-administrative system of a 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 detailed in the Constitution; but two Articles (163 and 164) deal with them in a broad, sketchy and general manner. 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.

CONSTITUTIONAL PROVISIONS

Article 163—Council of Ministers to aid and advise Governor

  1. 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.
  2. 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.
  3. The advice tendered by Ministers to the Governor shall not be inquired into in any court.

Article 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. However, in the states of Chhattisgarh, Jharkhand, Madhya Pradesh, and Odisha, there shall be a 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. The state of Bihar was excluded from this provision by the 94th Amendment Act of 2006.
  2. The total number of ministers, including the chief minister, in the council of ministers in a state, shall not exceed 15 percent of the total strength of the legislative assembly of that state. But, the number of ministers, including the chief minister, in a state shall not be less than 12. This provision was added by the 91st Amendment Act of 2003.
  3. 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. The provision was also added by the 91st Amendment Act of 2003.
  4. The ministers shall hold office during the pleasure of the Governor.
  5. The council of ministers shall be collectively responsible to the state Legislative Assembly.
  6. The Governor shall administer the oaths of office and secrecy to a minister.
  7. A minister who is not a member of the state legislature for any period of six consecutive months shall cease to be a minister.
  8. The salaries and allowances of ministers shall be determined by the state legislature.

Article 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. Further, 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.
  3. 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 in so far as it is not business with respect to which the Governor is required to act in his discretion.

Article 167—Duties of Chief Minister

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

NATURE OF ADVICE BY MINISTERS

Article 163 provides for a council of ministers with the chief minister at the head to aid and advise the governor in the exercise of his functions except for the discretionary ones. If any question arises whether a matter falls within the governor’s discretion or not, the decision of the governor is final and the validity of anything done by him cannot be called in question on the ground that he ought or ought not to have acted in his discretion. Further, the nature of advice tendered by ministers to the governor cannot be enquired by any court. This provision emphasizes the intimate and confidential relationship between the governor and the ministers.

In 1971, the Supreme Court ruled that a council of ministers must always exist to advise the governor, even after the dissolution of the state legislative assembly or resignation of a council of ministers. Hence, the existing ministry may continue in the office until its successor assumes charge. Again in 1974, the Court clarified that except in spheres where the governor is to act in his discretion, the governor has to act on the aid and advice of the council of ministers in the exercise of his powers and functions. He is not required to act personally without the aid and advice of the council of ministers or against the aid and advice of the council of ministers. Wherever the Constitution requires the satisfaction of the governor, the satisfaction is not the personal satisfaction of the governor but it is the satisfaction of the council of ministers.

APPOINTMENT OF MINISTERS

The chief minister is appointed by the governor. The other ministers are appointed by the governor on the advice of the chief minister. This means that the governor can appoint only those persons as ministers who are recommended by the chief minister.

But, there should be a tribal welfare minister in Chhattisgarh, Jharkhand, Madhya Pradesh, and Odisha1. Originally, this provision was applicable to Bihar, 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 person who is not a member of either House of the state legislature can also be appointed as a minister. But, within six months, he must become a member (either by election or by nomination) of either House of the state legislature, otherwise, he ceases 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 AND SALARY OF MINISTERS

Before a minister enters upon his office, the governor administers to him the oaths of office and secrecy. In his oath of office, the minister swears:

  1. to bear true faith and allegiance to the Constitution of India,
  2. to uphold the sovereignty and integrity of India,
  3. to faithfully and conscientiously discharge the duties of his office, and
  4. to do right to all manner of people in accordance with the Constitution and the law, without fear or favour, affection or ill-will.

In his oath of secrecy, the minister swears that he will not directly or indirectly communicate or reveal to any person(s) any matter that is brought under his consideration or becomes known to him as a state minister except as may be required for the due discharge of his duties as such minister.

The salaries and allowances of ministers are determined by the state legislature from time to time. A minister gets the salary and allowances which are payable to a member of the state legislature. Additionally, he gets a sumptuary allowance (according to his rank), free accommodation, travelling allowance, medical facilities, etc.

RESPONSIBILITY OF MINISTERS

Collective Responsibility

The fundamental principle underlying the working of the parliamentary system of government is the principle of collective responsibility. Article 164 clearly states that the council of ministers is collectively responsible to the legislative assembly of the state. This means that all the ministers own joint responsibility to the legislative assembly 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 council2. Alternatively, the council of ministers can advise the governor to dissolve the legislative assembly on the ground that the House does not represent the views of the electorate faithfully and call for fresh elections. The governor may not oblige the council of ministers which has lost the confidence of the legislative assembly.

The principle of collective responsibility also means that the cabinet decisions bind all cabinet ministers (and other ministers) even if they deferred in the cabinet meeting. It is the duty of every minister to stand by the cabinet decisions and support them both within and outside the state legislature. If any minister disagrees with a cabinet decision and is not prepared to defend it, he must resign. Several ministers have resigned in the past owing to their differences with the cabinet.

Individual Responsibility

Article 164 also contains the principle of individual responsibility. It states that the ministers hold office during the pleasure of the governor. This means that the governor can remove a minister at a time when the council of ministers enjoys the confidence of the legislative assembly. But, the governor can remove a minister only on the advice of the chief minister. In case of difference of opinion or dissatisfaction with the performance of a minister, the chief minister can ask him to resign or advice the governor to dismiss him. By exercising this power, the chief minister can ensure the realization of the rule of collective responsibility.

No Legal Responsibility

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 action should be countersigned by a minister. Moreover, the courts are barred from inquiring into the nature of advice rendered by the ministers to the governor.

COMPOSITION OF THE COUNCIL OF MINISTERS

The Constitution does not specify the size of the state council of ministers or the ranking of ministers. They are determined by the chief minister according to the exigencies of the time and requirements of the situation.

Like at the Centre, in the states too, the council of ministers consists of three categories of ministers, namely, cabinet ministers, ministers of state, and deputy ministers. The difference between them lies in their respective ranks, emoluments, and political importance. At the top of all these ministers stands the chief minister—supreme governing authority in the state.

The cabinet ministers head the important departments of the state government like home, education, finance, agriculture and so forth3. They are members of the cabinet, attend its meetings and play an important role in deciding policies. Thus, their responsibilities extend over the entire gamut of state government.

The ministers of state can either be given independent charge of departments or can be attached to cabinet ministers. However, they are not members of the cabinet and do not attend the cabinet meetings unless specially invited when something related to their departments is considered by the cabinet.

Next, in rank are the deputy ministers. They are not given independent charge of departments. They are attached to the cabinet ministers and assist them in their administrative, political and parliamentary duties. They are not members of the cabinet and do not attend cabinet meetings.

At times, the council of ministers may also include a deputy chief minister. Thus, Andhra Pradesh had the office of deputy chief minister till 1956. This post was created in West Bengal in 1967. More recently, Rajasthan, Madhya Pradesh, and Karnataka have created this office. The deputy chief ministers are appointed mostly for local political reasons.

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 performs the following role:

  1. It is the highest decisionmaking authority in the politico-administrative system of a state.
  2. It is the chief policy formulating body of the state government.
  3. It is the supreme executive authority of the state government.
  4. It is the chief coordinator of state administration.
  5. It is an advisory body to the governor.
  6. It is the chief crisis manager and thus deals with all emergency situations.
  7. It deals with all major legislative and financial matters.
  8. It exercises control over higher appointments like constitutional authorities and senior secretariat administrators.

Cabinet Committees

The cabinet works through various committees called cabinet committees. They are of two types—standing and ad hoc. The former are of a permanent nature while the latter are of a 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 comp-osition 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.

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