The Indian Constitution establishes a parliamentary system of government at both the Union and State levels. At the state level, the Governor is the constitutional head, similar to the President at the Union level. However, the real executive power rests with the Council of Ministers headed by the Chief Minister. Article 163(1) lays down the foundational principle governing the relationship between the Governor and the Council of Ministers, defining their respective roles in the executive administration of the state.
This article is crucial for understanding the operational dynamics of the state government, particularly the balance between the nominal head (Governor) and the real executive (Council of Ministers), and the specific circumstances under which the Governor may deviate from the standard procedure of acting on ministerial advice.
Original Text
(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 in so far as he is by or under this Constitution required to act in his discretion.
Detailed Explanation
Article 163(1) mandates the existence of a Council of Ministers (COMs) for each state. This Council is led by the Chief Minister and its primary purpose is to “aid and advise” the Governor in the exercise of his functions. This provision effectively establishes the parliamentary form of government in the states, where the executive head (Governor) is expected to act on the advice of the elected representatives (Council of Ministers). The concept of ‘aid and advise’ signifies that the Governor is not expected to perform his functions independently or according to his personal will in most matters. He is bound by the collective advice tendered by the Council of Ministers. This ensures that the administration of the state is carried out by a government accountable to the state legislature, reflecting the will of the people.
However, Article 163(1) introduces a significant exception to this general rule: the Governor is required to act on advice “except in so far as he is by or under this Constitution required to act in his discretion.” This clause recognises certain specific situations where the Governor is expected to act independently of the Council of Ministers’ advice. These discretionary powers are not explicitly listed exhaustively in the Constitution itself, but they are understood to arise from the specific provisions of the Constitution or established conventions. The existence of this discretionary power distinguishes the Governor from the President of India, who has no constitutional discretionary powers (though he has situational discretion and powers like suspending assent to bills). The scope and exercise of the Governor’s discretionary powers have historically been a subject of debate and judicial interpretation.
The phrase “by or under this Constitution” suggests that the discretionary power must stem from a constitutional requirement or authorisation, either directly by an article or implicitly derived from the scheme of the Constitution. Article 163(2) further clarifies this by stating that if any question arises whether any matter is or is not a matter as respects which the Governor is 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.
Detailed Notes
- Mandate: Establishes a Council of Ministers (COMs) for each state.
- Head: The Council of Ministers is headed by the Chief Minister (CM).
- Primary Function: The COMs (headed by the CM) exists to “aid and advise” the Governor.
- Purpose of Aid & Advise: To assist the Governor in the exercise of his functions, ensuring the state executive is run by a body accountable to the legislature.
- Parliamentary Principle: Reinforces the parliamentary system at the state level, where the nominal head (Governor) acts on the advice of the real executive (COMs).
- Exception: The Governor is not required to act on the advice of the COMs in matters where he is, by or under the Constitution, required to act in his discretion.
- Discretionary Powers: These are specific powers exercisable by the Governor independently of the COMs’ advice. Their source is the Constitution.
- Distinction from President: The Governor has constitutional discretionary powers, unlike the President of India.
- Nature of Advice (as per Article 163(3)): The question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired into in any court. The advice is confidential and not justiciable.
Additional Comments
- The Governor acts as a dual functionary: the constitutional head of the state executive and a representative of the Union Government. His discretionary powers are often related to his role as a link between the Centre and the State.
- The scope of the Governor’s discretionary powers is limited and not absolute. They must be exercised reasonably and in good faith, guided by constitutional conventions and legal precedents.
- Specific situations where the Governor might act in discretion include appointing a Chief Minister when no single party has a clear majority, dismissing a government that has lost confidence, recommending the imposition of President’s Rule (Article 356), reserving a bill for the consideration of the President (Article 200), and seeking information from the Chief Minister (implied).
- Article 163(2) makes the Governor’s decision on whether a matter falls within his discretion final and not subject to judicial review on that ground. However, the exercise of the discretionary power itself can be challenged in court on grounds like mala fides, irrationality, or irrelevance of considerations.
- Article 163 is closely related to Article 164, which deals with the appointment of the Chief Minister and other Ministers and their collective responsibility to the legislative assembly.
Summary
Article 163(1) mandates the existence of a Council of Ministers led by the Chief Minister to aid and advise the Governor in performing his duties. This establishes the principle of parliamentary executive at the state level, where the Governor generally acts on the advice of the elected government. A crucial exception exists for matters where the Constitution requires the Governor to act in his discretion, allowing him to exercise certain functions independently of ministerial advice. This provision highlights the unique constitutional position of the Governor, involving both constitutional headship and limited independent authority in specific circumstances.