Article 163 of the Constitution: A misplaced legacy of the British Era

Amidst the various political crises that have cropped up over the recent past, the role of the Governor of a state has been called into question.

The relationship between the Governor and the Council of Ministers, especially when a government loses majority, has also been raised before the courts.

Let us analyse the provision that determines the same.

Article 163 of the Constitution of India reads thus:

“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 by or under this Constitution required to exercise his functions or any of them in his discretion.

(2) 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.

(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.”

A plain reading of sub-clause (2) suggests that the decision of the Governor with regard to whether he is required to act in his discretion or not, is final. Even the validity of anything done by him is not be called in question on the ground that he ought or ought not to have acted in his discretion.

Sub-clause (3) further suggests that with whether any advice was tendered and if so what advice was tendered by the Ministers to the Governor, shall not be inquired into by any Court.

The above provision has been picked up from the Government of India Act, 1935. Section 50 of the 1935 Act read as follows:

“50. Council of Ministers. – (1) There shall be a council of ministers to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Act required to exercise his functions or any of them in his discretion :

Provided that nothing in this sub section shall be construed as preventing the Governor from exercising his individual judgment in any case where by or under this Act he is required so to do.

(2) The Governor in his discretion may preside at meetings of the council of ministers.

(3) If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Act required to act in his discretion or to exercise his individual judgment, 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, or ought or ought not to have exercised his individual judgment.”

[Emphasis Supplied]

Further, Section 51(4) of the 1935 Act reads as follows:

51(4). The question whether any, and if so what, advice was tendered by ministers to the Governor shall not be inquired into by any court.

[Emphasis Supplied]

A reading of the above makes it clear that Article 163 has, for the most part, been bodily lifted from Sections 50 and 51(4) of the Government of India Act.

The position of the Governor, however, under the 1935 Act is diametrically opposed to the position of the Governor under the Constitution of India.

Under Section 48 of the 1935 Act, the Governor of a Province was appointed by His Majesty by a Commission under the Royals Sign Manual.

Section 49 postulated that the executive authority of a Province shall be exercised on behalf of His Majesty by the Governor.

Under Section 51(1), the Governor’s Ministers were chosen and summoned by him and held office during his pleasure.

Under Section 51(5), the functions of the Governor with respect to the choosing and summoning and dismissal of Ministers were exercised by him in his discretion.

Under Section 52, various special responsibilities and functions were assigned to the Governor to be exercised in his individual judgment. This included the prevention of any grave peace or tranquility; safeguarding of the legitimate interests of minorities; securing to members of the public service rights provided under the 1935 Act; the protection of rights of any Indian State and the rights and dignity of the ruler thereof; etc.

Under Section 55, the Governor of each Province was to appoint the Advocate General for the Province in his individual judgment.

Suffice to say, the Governor of a Province was vested with vast powers under the 1935 Act. It was in the background of the aforementioned powers that the discretion under Section 50 was conferred on the Governor. The said powers are, however, absent under our Constitution.

In contrast with the Government of India Act, 1935, the executive functions of a state are set out in Part VI, Chapter II of the Constitution of India. A cursory perusal thereof makes it patent that all executive actions of a state government are expressed to be taken in the name of the Governor [Article 166(1)].

However, that is exactly what it is. He is the head, but only in name. A symbolic head required to act in accord with the advice tendered by the Council of Ministers. He is a mere executive nominee and even his appointment flows from the aid and advice tendered to the President by the Council of Ministers with the Prime Minister as the head.

The tenure of the Governor lasts so long as it is acceptable to the Council of Ministers with the Prime Minister as its head, as the Governor under Article 166 holds office only during the pleasure of the President.

Though there are some areas where the Governor may act contrary to the aid and advice of the Council of Ministers, such areas are few. For instance, where the advice tendered by the Council of Ministers is contrary to constitutional principles; in cases where there is an apparent bias/ conflict of interest or where the legislative intent patently requires the Governor to exercise his discretion. These instances are adequately taken care of under clause (1) and they do not justify the inclusion of clauses (2) and (3) to Article 163 in the Constitution.

Leaving aside the above exceptions, in matters where the Constitution is silent and does not require the Governor to act on the aid and advice of the Council of Ministers, the Supreme Court has so interpreted the powers of the Governor so as to require him to act on the aid and advice of the Council of Ministers.

Illustratively, concerning Article 161 (power of Governor to grant pardon) in Maru Ram (power to summon, prorogue House) in Nabam Rebia Article 175 (Right of Governor to address and send messages to the House) in Nabam Rebia; Article 213 (power of Governor to promulgate Ordinances) in Shamsher Singh.

During the Constituent Assembly debates on Draft Article 143 (which is finally numbered as Article 163 in the Constitution) ,an objection was raised to the language conferring discretion on the Governor under Clause (1) of Article 143 by Shri HV Kamath and others.

Dr. BR Ambedkar, however, opposed any dilution in Article 143(1) by stating as follows:

“Now, speaking for myself, I have no doubt in my mind that the retention in or the vesting the Governor with certain discretionary powers is in no sense contrary to or in so sense a negation of responsible Government. I do not wish to rake up the point because on this point I can very well satisfy the House by reference to the provisions in the Constitution of Canada and the Constitution of Australia.

I do not think anybody in this House would dispute that the Canadian system of Government is not a fully responsible system of Government, nor will anybody in this House challenge that the Australian Government is not a responsible form of Government. Having said that, I would like to read Section 55 of the Canadian Constitution.”

Section 55 of the Canadian Constitution reads as follows:

“55. Where a Bill passed by the Houses of Parliament is presented to the Governor- General for the Queen’s assent, he shall, according to his discretion, and subject to provisions of this Act, either assent thereto in the Queen’s name, or withhold the Queen’s assent or reserve the Bill for the signification of the Queen’s pleasure.”

Section 55 of the Canadian Constitution in no manner justifies the inclusion of subclauses (2) and (3) of Article 143. Dr. BR Ambedkar further went on to say that :

“The clause is a very limited clause, it says ‘except insofar as he is by or under this Constitution’. Therefore, Article 163 will have to be read in conjunction with such other articles which specifically reserve the power to the Governor. It is not a general clause giving the Governor power to disregard the advice of his Ministers, in any matter in which he finds he ought to disregard...”

The above reasoning in no manner justifies the inclusion of clauses (2) and (3) in Article 163. A plain reading of Article 163(2) shows that it basically confers on the Governor the right to decide any question as to whether a matter falls within his discretion or not. The said decision is stated to be final. Even the validity of anything done by the Governor is not to be called in question on the ground that he ought or ought not to have acted in his discretion.

The Supreme Court of India has said that “the measure of discretionary power of the Governor, is limited to the scope postulated therefor, under Art. 163(1).” But then why have clauses (2) and (3) in the first place? The finality given to the decision of the Governor has also been made subject to judicial review. The validity of the Governor’s actions continue to be called in question.

The upshot of the above discussion is that clauses (2) and (3) of Article 163 continue to be those rare provisions of the Constitution which do not carry much weight or purpose. Whether at all they ought to have been incorporated in the Constitution will always remain a moot issue.

The Governor remains a constitutional figurehead, a formal head or as stated by Shri B Das in the Constituent Assembly debates, a mere “cipher”. As Justice Krishna Iyer said, the Governor is “only a functional euphemism”.

The author is a Senior Advocate at the Supreme Court of India.