There shall be a Governor for each State (Art.153), and one person may be appointed Governor for two or more States. The executive power of the State is vested in the Governor and is exercised by him directly or through officers subordinate to him (Art.154). He is aided and advised by a Council of Ministers with the Chief Minister at its head, except in so far as he is required to act in his discretion (Art.163).
Legal Framework
| Provision | Subject | Key Rule |
|---|---|---|
| Art.153 | Governors of States | A Governor for each State; one person may serve two or more States |
| Art.154 | Executive power of the State | Vested in the Governor |
| Art.155 | Appointment | By the President by warrant under his hand and seal; not elected |
| Art.156 | Term of office | Five years, but holds office during the pleasure of the President |
| Art.157 | Qualifications | Citizen of India and completed thirty five years of age |
| Art.158 | Conditions of office | Not a member of either House of Parliament or of a State Legislature, and holds no other office of profit |
| Art.161 | Pardoning power | Pardon, reprieve, respite, remission, suspension and commutation, in respect of offences against laws relating to matters within the State's executive power |
| Art.163 | Council of Ministers | To aid and advise, except where the Governor acts in his discretion; the question whether a matter is within his discretion is for him and is not to be called in question |
| Art.164 | Ministers | Chief Minister appointed by the Governor, other Ministers on the Chief Minister's advice; Ministers hold office during the Governor's pleasure; Council collectively responsible to the Legislative Assembly |
| Art.164(1A) | Ceiling | Ministers not to exceed fifteen per cent of the total strength of the Assembly, subject to a minimum of twelve |
| Art.164(4) | Non-member Minister | A Minister who is not a member of the Legislature for six consecutive months ceases to be a Minister |
| Art.166 | Conduct of business | All executive action expressed to be taken in the name of the Governor; rules for allocation of business |
| Art.167 | Duties of the Chief Minister | To communicate decisions, furnish information, and submit for the Council's consideration a matter decided by a single Minister |
| Art.200 and Art.201 | Assent and reservation | Assent, withholding, return, or reservation for the President's consideration |
| Art.213 | Ordinance power | When the Legislature is not in session |
The Critical Difference between Art.74 and Art.163
| Basis | President (Art.74) | Governor (Art.163) |
|---|---|---|
| Text | The Council of Ministers shall aid and advise, and the President shall act in accordance with such advice | The Council shall aid and advise except in so far as he is required to exercise his functions in his discretion |
| Discretion | No express saving of discretion | Express saving of discretion |
| Finality | No corresponding clause | Art.163(2) makes the Governor's own decision on whether a matter is discretionary final |
| Consequence | Discretion exists only in a narrow, unwritten residue | A genuine constitutional field of discretion exists |
Why the difference matters: The framers gave the Governor a discretionary field because he is also the channel through which the Union supervises the States, most obviously through his report under Art.356 and his power to reserve Bills for the President under Art.200. That role has no counterpart at the Union level. The consequence, however, has been that Art.163(2) was for many years pressed as conferring an unreviewable and almost unlimited discretion, an argument that Nabam Rebia firmly rejected.
Discretionary Powers of the Governor
| Express constitutional discretion | Situational discretion |
|---|---|
| Reservation of a Bill for the President's consideration (Art.200) | Appointment of a Chief Minister where no party has a clear majority |
| Report to the President recommending action under Art.356 | Dismissal of a Ministry that has lost the confidence of the Assembly and will not resign |
| Functions as administrator of an adjoining Union Territory (Art.239(2)) | Dissolution of the Assembly on the advice of a Chief Minister who has lost confidence |
| Special responsibilities, for example in Nagaland under Art.371A and in Arunachal Pradesh under Art.371H | Seeking information from the Chief Minister under Art.167 |
| Functions relating to Tribal Areas under the Sixth Schedule |
Facts: Amid a split in the ruling party, the Governor of Arunachal Pradesh, without the advice of the Council of Ministers, advanced the session of the Legislative Assembly by about a month and sent a message under Art.175(2) directing that a resolution for the removal of the Speaker be taken up first. Proceedings followed in which the Speaker's disqualification decisions were undone.
Issue: Whether the Governor may summon, prorogue or advance a session, or issue a message under Art.175(2), in his discretion and without ministerial advice, and how far Art.163(2) protects such action.
Held: The Governor's action was unconstitutional and status quo ante was restored. Art.163(1) does not confer a general discretionary power. The discretion is confined to those functions which the Constitution expressly requires him to exercise in his discretion, or which arise by necessary implication. Summoning, proroguing and dissolving the House under Art.174 must be done on the aid and advice of the Council of Ministers. The Governor has no authority to interfere in the internal proceedings of the House, nor to take sides in an intra-party dispute, and Art.163(2) does not place his acts beyond judicial scrutiny where he has acted outside his sphere.
Relevance: The leading modern authority narrowing Art.163. Cite it against any argument that the Governor's own opinion as to his discretion is conclusive.
Facts: Following a change of government at the Centre, the Governors of several States were removed before the expiry of their five year terms. The removals were challenged as arbitrary and as violating the security of the five year term in Art.156(3).
Issue: What is the nature of the President's pleasure under Art.156(1), and is its withdrawal open to judicial review?
Held: The doctrine of pleasure in Art.156(1) is not subject to any limitations or restrictions, and no reasons need be assigned for a withdrawal. But the power, being conferred by the Constitution, cannot be exercised arbitrarily, capriciously, or for irrelevant or extraneous reasons. A change of government at the Centre is not by itself a ground for removing a Governor, nor is the fact that he was appointed by a different government or holds different views. Where a prima facie case of arbitrariness is made out, the court may call for the material, though it will not substitute its own view.
Relevance: The definitive statement on the tenure of a Governor. Note the balance: no right to reasons, but no unlimited power either.
Facts: After an inconclusive election in Bihar, the Legislative Assembly was kept in suspended animation and then dissolved before it had even met, on the strength of the Governor's reports that attempts were being made to win over legislators by allurement.
Issue: Whether the Governor's report could found a Proclamation dissolving an Assembly that had never met, where the report rested on apprehension rather than material.
Held: The Proclamation, in so far as it dissolved the Assembly, was unconstitutional. The Governor's report cannot be based on mere surmise, conjecture or apprehension. He is not a constitutional watchdog over the morality of political realignment, and post-election adjustments among parties are not by themselves illegitimate. However, since fresh elections had already been held by the time the case was decided, the Court declined to restore the dissolved Assembly.
Relevance: Shows the Governor's Art.356 report to be reviewable for want of material, and complements S R Bommai on the limits of the Union's power.
The Council of Ministers
| Feature | Position |
|---|---|
| Appointment | The Chief Minister is appointed by the Governor; other Ministers are appointed on the Chief Minister's advice (Art.164(1)) |
| Tenure | Ministers hold office during the pleasure of the Governor, which in practice means so long as they retain the Chief Minister's confidence |
| Responsibility | The Council is collectively responsible to the Legislative Assembly (Art.164(2)), not to the Legislative Council |
| Size | Not more than fifteen per cent of the Assembly's strength, with a minimum of twelve (Art.164(1A)) |
| Defectors | A member disqualified under the Tenth Schedule cannot be appointed a Minister (Art.164(1B)) |
| Non-members | A person may be appointed a Minister without being a member, but must become one within six consecutive months (Art.164(4)) |
| Oath | Administered by the Governor in the forms in the Third Schedule (Art.164(3)) |
Collective responsibility explained: The Council stands or falls together. A vote of no confidence in the Council, or the defeat of the Ministry on a major issue, obliges the whole Council to resign, and not merely the Minister concerned. The corollary is that a Minister who cannot support a Cabinet decision must resign rather than dissent publicly. It is this principle, rather than any provision about the Governor's powers, that makes the Chief Minister the real executive.
Illustrations
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Governor cannot advance a session on his own: The Governor, without ministerial advice, advances the session of the Assembly to enable a resolution against the Speaker. Applying Nabam Rebia (2016), the action is unconstitutional, since Art.174 must be exercised on advice.
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Art.163(2) is not a shield: The Governor asserts that whether a matter is within his discretion is for him alone. Applying Nabam Rebia, the clause does not protect action taken outside the sphere in which discretion exists at all.
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Removal of a Governor: A new Union government removes a Governor because he was appointed by its predecessor. Applying B P Singhal (2010), a change of government is not by itself a valid ground, and the removal is open to challenge as arbitrary.
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Report founded on apprehension: The Governor reports that legislators may be bought over, without identifying material. Applying Rameshwar Prasad (2006), a report resting on surmise cannot support a Proclamation.
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Non-member Minister: A person who is not a member of either House is appointed a Minister. Under Art.164(4) he must secure election within six consecutive months, failing which he ceases to be a Minister. He cannot be reappointed to sit out a further six months without election.
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Ceiling on the Council: An Assembly has 60 members. Fifteen per cent is 9, but Art.164(1A) prescribes a minimum of twelve, so up to twelve Ministers may be appointed.
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Pardoning power narrower than the President's: A convict under sentence of death petitions the Governor. Art.161 does not extend to a sentence of death, so the Governor cannot pardon it, though he may suspend, remit or commute the sentence. The power of pardon in a death sentence lies with the President under Art.72.
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Reservation of a Bill: The Governor reserves a Bill for the President's consideration under Art.200. This is one of the express heads of discretion, and no ministerial advice is needed.
Recall Check
- State the textual difference between Art.74(1) and Art.163(1), and why it matters.
- Name four express discretionary powers of the Governor.
- What is the effect of Art.164(4), and what happens if the six months expire?
Key Cases
Nabam Rebia v Deputy Speaker, Arunachal Pradesh Legislative Assembly (2016) Nabam Rebia v Deputy Speaker 2016
Issue: Whether the Governor may summon or advance a session and issue directions to the House in his discretion.
Rule: Art.163(1) confers no general discretion; it is confined to functions the Constitution expressly makes discretionary or which arise by necessary implication, and Art.174 must be exercised on advice.
Held: The Governor's action was unconstitutional and status quo ante was restored.
B P Singhal v Union of India (2010) BP Singhal v Union of India 2010
Issue: Whether the withdrawal of the President's pleasure under Art.156(1) is reviewable.
Rule: The pleasure is unrestricted and needs no reasons, but cannot be exercised arbitrarily, capriciously or for extraneous reasons; a change of government at the Centre is not a ground.
Held: The removals were examined on that standard, the Court declining to substitute its own view but holding the power to be a limited one.
Rameshwar Prasad v Union of India (2006) Rameshwar Prasad v Union of India 2006
Issue: Whether an Assembly that had never met could be dissolved on a Governor's report resting on apprehension of horse trading.
Rule: The Governor's report must rest on material and not on surmise or conjecture, and post-election realignment is not by itself illegitimate.
Held: The dissolution was unconstitutional, though the Assembly was not restored because fresh elections had intervened.
Samsher Singh v State of Punjab (1974) Samsher Singh v State of Punjab 1974
Issue: Whether the Governor must apply his personal mind to executive action taken in his name.
Rule: The Governor is a constitutional head, and the satisfaction required is that of the Council of Ministers.
Held: An order authenticated under the Art.166 rules of business was valid.
Distinctions
| Basis | President | Governor |
|---|---|---|
| Mode of selection | Elected by an electoral college | Appointed by the President (Art.155) |
| Tenure | Five years, removable only by impeachment | Five years, but holds office during the President's pleasure |
| Ground of removal | Violation of the Constitution | No ground need be stated, subject to B P Singhal |
| Discretion | No express saving in Art.74 | Express saving in Art.163 |
| Pardoning power | Extends to death sentences and court-martial sentences (Art.72) | Does not extend to death sentences or court-martial sentences (Art.161) |
| Emergency | Issues Proclamations under Arts.352, 356 and 360 | Reports to the President under Art.356 |
| Reservation of Bills | Considers Bills reserved by Governors (Art.201) | Reserves Bills for the President (Art.200) |
| Basis | Art.164(1A) ceiling | Art.164(1B) bar |
|---|---|---|
| Subject | Size of the Council of Ministers | Eligibility of a defector |
| Rule | Not more than fifteen per cent of the Assembly, minimum twelve | A member disqualified for defection cannot be a Minister for the rest of his term |
| Source | 91st Amendment, 2003 | 91st Amendment, 2003 |
| Purpose | To curb jumbo ministries used to buy support | To remove the reward that made defection worthwhile |
Flashcards
How is the Governor selected, and for how long does he hold office?
He is appointed by the President by warrant under his hand and seal, for five years, but holds office during the pleasure of the President.
What is the minimum age to be appointed Governor?
Thirty five years (Art.157).
What is the crucial textual difference between Art.74(1) and Art.163(1)?
Art.163(1) contains an express exception for functions the Governor is required to exercise in his discretion; Art.74(1) has no such exception.
Does Art.163(2) make the Governor's view of his own discretion conclusive?
No. Nabam Rebia (2016) held that discretion is confined to what the Constitution expressly provides or necessarily implies, and action outside that sphere is reviewable.
Must the Governor summon the Assembly on ministerial advice?
Yes. Nabam Rebia held that Art.174 is to be exercised on the aid and advice of the Council of Ministers.
Is a change of government at the Centre a ground for removing a Governor?
No. B P Singhal v Union of India (2010) so held.
Can a Governor's report under Art.356 rest on apprehension of horse trading?
No. Rameshwar Prasad v Union of India (2006) held that surmise and conjecture will not do.
To whom is a State Council of Ministers collectively responsible?
To the Legislative Assembly (Art.164(2)), and not to the Legislative Council.
Can a non-member be appointed a Minister?
Yes, but he ceases to be a Minister if he is not a member of the Legislature for six consecutive months (Art.164(4)).
How does the Governor's pardoning power differ from the President's?
Art.161 does not extend to a sentence of death or to sentences by court-martial, both of which fall under Art.72.
Name four express discretionary powers of the Governor.
Reservation of a Bill for the President under Art.200; the report under Art.356; functions as administrator of an adjoining Union Territory under Art.239(2); and special responsibilities such as those under Art.371A and the Sixth Schedule.
Exam Scenario
Problem: In a State Assembly of 120 members, the ruling party splits. The Chief Minister advises the Governor to summon the Assembly so that he may prove his majority. The Governor instead advances the session by three weeks on his own initiative, sends a message under Art.175(2) requiring a resolution against the Speaker to be taken up first, and appoints as Chief Minister the leader of the breakaway group, who produces letters of support. The new Chief Minister then has twenty two Ministers sworn in, three of whom have been held disqualified for defection, and one of whom is not a member of either House. The Governor also reserves a Bill on land ceilings for the President's consideration and reports to the President that law and order has collapsed because rival groups are trading in legislators. Advise on each action.
Step 1: Strike down the interference with the House
Apply Nabam Rebia v Deputy Speaker (2016) directly. Summoning and proroguing under Art.174 must be done on ministerial advice, and the Governor has no power to interfere in the internal proceedings of the House or to direct the order of its business.
Advancing the session by three weeks on his own initiative and sending the Art.175(2) message are both unconstitutional. Art.163(2) does not save them, because he was acting outside the sphere in which any discretion exists.
He was in any event bound to act on the Chief Minister's advice to summon the House, which was precisely the constitutionally correct course.
Step 2: Require a floor test for the new Chief Minister
Take the points in this order:
- Appointing a Chief Minister where the majority is uncertain is a recognised head of situational discretion.
- Letters of support are a reason to convene the House promptly, not a substitute for a division.
- The only proper test of majority is a vote on the floor of the House, so the Governor's failure to require a floor test is open to challenge.
Step 3: Audit the Council of Ministers against Art.164
| Defect | Provision | Consequence |
|---|---|---|
| Twenty two Ministers in an Assembly of 120 | Art.164(1A) | Fifteen per cent of 120 is 18, so the appointments beyond eighteen are unconstitutional |
| Three Ministers held disqualified for defection | Art.164(1B) | They cannot be appointed for the remainder of the term unless re-elected, so the appointments are void |
| One Minister not a member of either House | Art.164(4) | Permissible, but he must become a member of the Legislature within six consecutive months or cease to be a Minister |
On the non-member Minister, he cannot be reappointed to obtain a further six months without election.
Step 4: Uphold the reservation of the Bill under Art.200
Reserving a Bill for the President's consideration is one of the express heads of discretion under Art.200, so no advice was needed and the action is unimpeachable on that ground.
The President's course is then governed by Art.201.
Step 5: Reject the Art.356 report
Apply Rameshwar Prasad v Union of India (2006). A report resting on apprehension that legislators are being won over will not support action under Art.356.
The Governor is not a guardian of political morality, and post-election realignment is not by itself unlawful.
Art.163(2) does not cover everything. It shields the Governor only within the sphere where discretion exists. Summoning the House and directing its business fall outside that sphere.
Situational discretion is not a free hand. The Governor may choose whom to invite where the majority is uncertain, but the only proper test remains a division on the floor.
Count the ceiling as well as the defectors. Art.164(1A) invalidates the appointments beyond eighteen quite apart from the Art.164(1B) objection to the three defectors.
Art.164(4) is time bound and not renewable. Six consecutive months, and no reappointment to obtain a further six months without election.
Not every unilateral act is unconstitutional. Reservation under Art.200 is an express head of discretion and is unimpeachable on that ground.
Political realignment is not a ground under Art.356. Rameshwar Prasad rules out a report resting on legislators being traded, the Governor not being a guardian of political morality.
Conclusion. The summoning, the message, the excess Ministers and the three defector appointments are unconstitutional. The appointment of the Chief Minister requires an immediate floor test, the non-member appointment is valid but time bound, and the reservation of the Bill is proper while the Art.356 report is not.
See Also
- The President: Powers and Position : the Union counterpart, and the contrast between Art.74 and Art.163.
- State Legislatures : the assent, reservation and Ordinance powers in their legislative setting.
- President's Rule and Financial Emergency : the Art.356 report and the limits laid down in S R Bommai.