This article is written by Monesh Mehndiratta, a law student at Graphic Era Hill University, Dehradun. The article gives an overview of Article 163 of the Indian Constitution and explains other provisions related to it. It also includes the relation between Article 163 and the Government of India Act, 1935, along with its analysis.
It has been published by Rachit Garg.
Imagine you have a party at your house, so as a host, it is your responsibility to take care of all the requirements for organising it well. If while planning, you are struggling to decide on the theme and other arrangements, what would you do in this situation?
The answer is simple. You will obviously take advice from your family and close relatives. This will not only help you make all the arrangements easily but also divide the responsibility among other people, which will further reduce the chances of mistakes.
This is a case of a small party at your house. Now imagine what would be the scenario while determining various policies and strategies for a nation or different states in a nation. In order to make decisions related to the welfare of a country or state, certain members or ministers are given the responsibility of advising the person in power. In a country, the President is advised on all important matters by the council of ministers in the Parliament while in a state, the Governor seeks advice from the council of ministers in the state legislatures. This reduces the chances of mistakes and ensures that the best policy is decided and implemented for the benefit of the people. This article explains the role of the council of ministers to aid and advise the governor of the state.
The Constitution of India provides for a federal government in which there is a separate administrative system for the Union and the states. The structure of state government is given in Part VI of the Indian Constitution. It consists of the executive head, who is merely a constitutional head and acts according to the advice of the council of ministers in the state legislature.
Like the President, the Governor is also merely a constitutional head, and according to Article 163, the council of ministers aids and advises him on all important matters unless there is an exception of “discretion of the governor”. The Article also states whether any advice has been given to the Governor or not, and if so, what will not be questioned in any court. This means that the court will not interfere with the advice given by the council of ministers to the Governor.
The relationship between the two is the same as the relationship between the President and his ministers (Article 74). The only difference is that the President under the Constitution has not been given the power to act at his discretion in certain matters. This power is given only to the governor under Article 163. In such a situation where the governor has to exercise his discretion, he is under no obligation to seek advice from his council of ministers.
The following are the matters on which a governor can exercise his discretion:
It is noted that the major source of the Constitution of India is the Government of India Act, 1935. Most of its provisions have been directly incorporated into the Constitution as it is. Similarly, Article 163 has been taken from Section 50 of the Act, which provides that the governor must be aided and advised by the council of ministers on all important matters except in the function where he has to exercise his discretion.
Section 48 of the Act provides that the governor will be appointed by His Majesty with the help of a commission and he will have to exercise authority on behalf of His Majesty. Furthermore, the ministers in the council will be appointed by the Governor, who will hold office during his pleasure and advise him on all important matters.
This power of appointing his own council of ministers was exercised by the governor at his discretion and individual judgement under the Act. This provision further helped in preventing any disruption and tranquillity as he chose and appointed his council of ministers himself without any external intervention. The interests of minorities were taken into consideration, and the rights of the state were protected.
As mentioned above, the governor under the Act of 1935 was given wide powers which are now absent in the Constitution. He had the power to choose his council of ministers at his own discretion but now he has to consult the Chief Minister for the appointment of other ministers to the council of ministers (Article 164(1)).
A plain reading of Article 154 of the Constitution provides that all the executive work or actions in a state will be executed under the name of the Governor and vested in him. However, this is not the case. He is merely the constitutional and symbolic head. Real power vests with the council of ministers, as in the case of the President. Article 156 further provides that a governor will hold office only during the pleasure of the President.
Article 163 makes it mandatory for him to consult and seek advice from the council of ministers on all matters, unless there is an exception of exercising his own discretion, which is to be exercised only in certain matters. Where the advice given by the council of ministers is against the principles of the Constitution or in the case of bias or conflict of interest, the governor can use his discretion; otherwise, he has to act on the advice given by them. Even where the Constitution is silent as to whether he should act on the advice of ministers, he has to consult them.
For example, in the case of Maru Ram v. Union of India (1980), the Hon’ble Supreme Court, while interpreting the powers of the governor, concluded that the power to grant pardon must be exercised after consulting the council of ministers. Similarly, in the case of Satpal v. State of Haryana (2000), the Supreme Court observed that the power of the governor given under Article 161 has to be exercised after consultation with the council of ministers.
Another apprehension or issue with Article 163 was who will determine the measure and degree of discretion that can be exercised by the governor and, if the discretion has been applied, who will determine whether the decision or power exercised is ultra vires to the Constitution or not. For this, the Supreme Court in the case of Nabam Rebia and Bamang Felix v. Dy. Speaker, Arunachal Pradesh Legislative Assembly (2016) held that if a governor exercised his discretion beyond his jurisdiction or power, it would fall under the subject matter of judicial review. Even though the Supreme Court declared that the power of discretion, if exercised beyond the limits, will be reviewed by the Judiciary, the question of the validity of the power of discretion of the governor still remains the same. If the President, being the executive head of the country, has not been given this power, even in exceptional cases, then why the governor? The question has to be considered in order to determine the validity of Article 163 and the power of the governor to exercise his discretion.
Article 164 (1) of the Indian Constitution provides for the composition of the council of ministers in a state and their appointment. The council of ministers consists of the chief minister and other ministers who are appointed by the governors. However, the other ministers are appointed by him on the advice of the chief minister. The proviso clause of the Article provides that there will be an additional minister who will be in charge of tribal welfare and the welfare of scheduled castes and backward classes in the following states:
According to Article 164, the number of ministers in the council of ministers will not exceed 15% of the total members in the Legislative Assembly of the state, which also includes the chief minister. Further, the proviso clause provides that the number of ministers, along with the chief minister, must not be less than 12.
Further, the Constitution (Ninety-First Amendment) Act, 2003 provides that if the number of ministers in the council of ministers exceeds the given limit, then it must be brought down within 6 months from the date when the President issues a notification in this regard.
Article 164(2) provides that the council of ministers in a state legislature will be collectively responsible to the Legislative Assembly of that state. The principle of collective responsibility is also embodied in Article 75(3) of the Constitution. This means that the council of ministers will be collectively accountable and responsible for the policies formulated by them in a state. If it loses confidence in the house of the Legislative Assembly, the ministers must resign collectively.
According to Article 164(3), every minister in the council of ministers has to administer the oath of office to the Governor with the proper procedure and forms given in the Third Schedule of the Constitution. Further, Article 164(5) provides that the salaries and allowances of ministers in the council of ministers will be determined by the state legislature, and if it is not determined, then the salaries and allowances given in the Second Schedule will be provided to the ministers.
Article 163 clearly provides for a council of ministers to assist and advise the governor on all important matters to be dealt with in a state. The only exception is the discretion of the governor that he has to exercise in certain matters. Even though there have been some issues and problems with this Article, especially the power of discretion to be exercised by the governor that has been discussed above. The courts have clarified the position of the Article and the powers of the governor while dealing with such questions in different cases.
Like the President, the governor has no diplomatic or military powers but possesses certain executive, legislative, and judicial powers that have to be exercised after consultation with the council of ministers. Some of these are mentioned below:
According to Article 164(4), if a minister ceases to be a member of a state legislature for 6 months, then he also ceases to be a minister after the expiration of those 6 months.
According to Article 155 of the Constitution, a governor is appointed by the President and holds office during his pleasure for a term of 5 years (Article 156). If the governor wants to resign from his office, he may do so and submit his resignation in writing to the President of India. Article 157 further provides the qualifications for the appointment of the governor. These are:
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