Article 163 of the Constitution of India

The Governor's Discretion and the Council of Ministers: An Analysis of Article 163 of the Constitution of India

Introduction

Article 163 of the Constitution of India is a cornerstone of the parliamentary system of governance at the State level. It delineates the relationship between the Governor and the Council of Ministers, particularly concerning the exercise of executive functions. The Article mandates a Council of Ministers, with the Chief Minister at its head, to aid and advise the Governor, but carves out an exception for functions to be exercised in the Governor's discretion. This provision, particularly its clauses regarding the finality of the Governor's decision on discretionary matters and the secrecy of ministerial advice, has been the subject of considerable constitutional debate and judicial interpretation. This article seeks to provide a comprehensive analysis of Article 163, drawing upon key judicial pronouncements and constitutional principles, with a specific focus on the reference materials provided.

Historical and Constitutional Genesis of Article 163

The framework of Article 163 has its antecedents in the colonial era. As noted in Nabam Rebia And Bamang Felix v. Deputy Speaker, Arunachal Pradesh Legislative Assembly And Others (Supreme Court Of India, 2016, citing historical background), Article 163 traces its origins to Section 50 of the Government of India Act, 1935, and subsequently to Article 143 in the Draft Constitution of India. Section 50(1) of the 1935 Act provided for a Council of Ministers to aid and advise the Governor, except where he was required to exercise functions in his discretion or exercise his individual judgment. Section 50(3) made the Governor's decision on whether a matter fell within his discretion final.

The Draft Constitution, in Article 143, largely mirrored these provisions. Notably, Draft Article 144(6) initially proposed that the Governor's functions regarding the appointment and dismissal of Ministers would be exercised in his discretion. However, as observed in Pu Myllai Hlychho And Others v. State Of Mizoram And Others (Supreme Court Of India, 2005), this specific discretionary power concerning ministers' appointment and dismissal was omitted when Draft Article 144 became Article 164 in the final Constitution. This omission signifies a deliberate constitutional choice to generally align the Governor's role with that of a constitutional head in a parliamentary democracy, where such powers are typically exercised on ministerial advice, save for exceptional circumstances.

The General Rule: Aid and Advice of the Council of Ministers (Article 163(1))

Article 163(1) states: "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 exercise his functions or any of them in his discretion." This provision establishes the norm of responsible government, where the Governor, as the constitutional or formal head of the State, ordinarily exercises powers and functions upon the aid and advice of the Council of Ministers.

The Supreme Court in Samsher Singh v. State of Punjab ((1974) 2 SCC 831), a seven-Judge Bench decision frequently cited (e.g., in Nabam Rebia (SC, 2016); M.P. Special Police Establishment v. State Of M.P And Others (2005 SCC CRI 1); R.P. Ravichandran v. The State of Tamil Nadu (Madras High Court, 2022)), firmly established this principle. The Court held:

"The President as well as the Governor is the constitutional or formal head. The President as well as the Governor exercises his powers and functions conferred on him by or under the Constitution on the aid and advice of his Council of Ministers, save in spheres where the Governor is required by or under the Constitution to exercise his functions in his discretion. Wherever the Constitution requires the satisfaction of the President or the Governor for the exercise by the President or the Governor of any power or function, the satisfaction required by the Constitution is not the personal satisfaction of the President or Governor but the satisfaction of the President or Governor in the constitutional sense in the Cabinet system of Government, that is, satisfaction of his Council of Ministers..." (as quoted in Nabam Rebia (SC, 2016)).
This principle was reiterated by the Gauhati High Court in several related cases concerning the Arunachal Pradesh crisis, such as The Deputy Speaker Arunachal Pradesh Legislative Assembly & Anr v. Nabam Rebia (Gauhati High Court, 2016), emphasizing that the Governor acts on aid and advice unless discretion is explicitly conferred. The necessity of a Council of Ministers to aid and advise the executive head, ensuring continuous responsible government, was also underscored in U.N.R Rao v. Smt Indira Gandhi (1971 SCC 2 63) in the context of the Union executive, a principle equally applicable to the States.

Furthermore, Article 166(3) of the Constitution allows the Governor to 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. This implies that decisions are generally taken by Ministers or officers under these rules, representing the collective responsibility of the Council of Ministers (Nabam Rebia (SC, 2016); Ananthavalli v. State of Kerala (Kerala High Court)).

The Exception: Governor's Discretionary Powers

While the general rule is action on aid and advice, Article 163(1) itself carves out an exception for functions where the Governor is "by or under this Constitution required to exercise his functions or any of them in his discretion." These discretionary powers are limited and specific.

Explicit discretionary powers are found in provisions such as Article 371A (special responsibility for Nagaland) and paragraphs 9 and 18 of the Sixth Schedule concerning tribal areas (Pu Myllai Hlychho, 2005). Beyond these, certain discretionary powers are understood to be vested in the Governor by necessary implication, arising from the constitutional scheme and conventions of parliamentary democracy. These include:

It is important to note that the scope of "discretion" under the Indian Constitution is narrower than the "discretion" and "individual judgment" available to Governors under the Government of India Act, 1935.

Finality of Governor's Decision on Discretion (Article 163(2))

Article 163(2) provides: "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."

On its face, this clause appears to create an absolute bar to judicial review of the Governor's decision regarding the discretionary nature of a function. However, judicial interpretation has qualified this finality. The Supreme Court in Nabam Rebia (SC, 2016) clarified:

"For all the reasons recorded hereinabove, we are of the considered view that the impugned message of the Governor dated 9-12-2015 is liable to be set aside. A challenge to an action beyond the authority of the Governor, would fall within the scope of the judicial review, and would be liable to be set aside."
This implies that while the Governor's decision on whether a matter falls within his discretion is given finality, the courts can intervene if the Governor wrongly assumes jurisdiction in discretion where none exists, or if the exercise of such discretion is mala fide, based on extraneous considerations, or is otherwise ultra vires the Constitution. The Court in Nabam Rebia (SC, 2016) further noted that "lack of bona fides vitiates executive action."

Similarly, in M.P. Special Police Establishment (2005), the Supreme Court did examine the Governor's exercise of discretion in sanctioning prosecution, effectively reviewing whether such discretion was validly exercised in the circumstances. The principle that even powers exercised "at pleasure," such as the removal of a Governor by the President (analogous to some discretionary powers), are subject to judicial review if found to be arbitrary, capricious, unreasonable, or mala fide, as held in B.P Singhal v. Union Of India And Another (2010 SCC 6 331), lends support to a limited judicial oversight over the Governor's discretionary powers.

Secrecy of Ministerial Advice (Article 163(3))

Article 163(3) stipulates: "The question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired into in any Court." This provision safeguards the confidentiality of deliberations between the Governor and the Council of Ministers, which is essential for the collective responsibility of the cabinet and the candid exchange of views.

The Patna High Court in Vidyasagar Singh v. Krishna Ballabha Sahay And Others Opposite Party. (1964 SCC ONLINE PAT 143) applied this bar in the context of nominations to the Legislative Council, stating it was not possible to question the Chief Minister's assertion regarding the privacy of cabinet proceedings or advice tendered to the Governor. Similarly, the Kerala High Court in Ananthavalli v. State of Kerala (Kerala High Court) held that a challenge to a sanction order on the ground of absence of prior ministerial advice could not be inquired into due to the bar in Article 163(3). The court noted that the validity of an order authenticated under Article 166(2) cannot be questioned on the ground that it is not an order made by the Governor.

However, this bar relates to the *content* of the advice, not to whether the Governor acted in accordance with the Constitution. The courts can examine whether an action taken by the Governor is constitutional or not, irrespective of the advice tendered, and whether the Governor acted in an area where he was bound to act on advice or could act in his discretion.

Judicial Scrutiny of Governor's Actions

Despite the apparent finality in Article 163(2) and the personal immunity granted to the Governor under Article 361(1) ("The Governor ... shall not be answerable to any court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties"), the actions of the Governor are not entirely beyond judicial scrutiny.

As established in landmark cases like S.R. Bommai (1994) and reiterated in Rameshwar Prasad (2006), the exercise of constitutional powers, even those involving subjective satisfaction (like the imposition of President's Rule under Article 356 based on the Governor's report), is reviewable on grounds of mala fides, unconstitutionality, or if based on wholly irrelevant or extraneous grounds. In Rameshwar Prasad (2006), the Supreme Court affirmed that "the immunity granted under Article 361 does not mean that in the absence of the Governor, the grounds of mala fide or being ultra vires would not be examined by the Court."

The Supreme Court's decision in Nabam Rebia (SC, 2016) is a significant illustration. The Court quashed the Governor's message advancing the Assembly session and setting its agenda, deeming it beyond his constitutional authority and an infringement upon the powers of the Speaker and the Chief Minister. The Court emphasized that "the Governor just cannot act as the Ombudsman of the State Legislature." This underscores that actions taken under the guise of discretion can be struck down if they are found to be unconstitutional or an abuse of power.

The contention that the Governor must act on aid and advice even in matters like granting sanction for prosecution, unless specific discretion is provided, was raised in Dr. Y. Bhaskar Rao v. State Of Karnataka (Karnataka High Court, 2016), citing Samsher Singh (1974). However, this must be balanced with the specific ruling in M.P. Special Police Establishment (2005) which carved out such discretion in particular circumstances of alleged corruption.

Contemporary Issues and Challenges

The interpretation and application of Article 163 continue to pose challenges in India's federal polity. The delicate balance between the Governor acting as a constitutional head guided by ministerial advice and exercising limited discretionary powers is often tested, especially in situations of political instability, hung assemblies, or when the party in power at the State is different from that at the Centre. The potential for discretionary powers to be used in a manner perceived as partisan remains a concern, highlighting the need for Governors to act with utmost impartiality and within the strict confines of constitutional propriety.

The Governor's role requires navigating the complexities of parliamentary conventions and explicit constitutional text. While Article 163(2) grants finality to the Governor's decision on discretionary matters, the judiciary has asserted its power to review the exercise of such discretion if it is arbitrary, mala fide, or subverts constitutional principles. This judicial oversight acts as a crucial check against potential misuse of power.

Conclusion

Article 163 of the Constitution of India encapsulates the essence of the parliamentary system at the State level, establishing the Council of Ministers as the primary executive authority that aids and advises the Governor. The discretionary powers of the Governor are an exception to this general rule, intended for specific situations where the Governor must act independently to uphold the Constitution. While Article 163(2) accords finality to the Governor's decision regarding the scope of his discretion, and Article 163(3) protects the secrecy of ministerial advice, the judiciary has consistently maintained that the Governor's actions are not beyond the pale of judicial review. The courts can intervene if such actions are found to be unconstitutional, mala fide, or based on extraneous considerations. The jurisprudence surrounding Article 163 reflects an ongoing effort to balance executive prerogative with constitutional accountability, ensuring that the Governor functions as a vital constitutional linchpin, acting in furtherance of democratic principles and the rule of law.