Article 163

Article 163 of the Constitution of India establishes the Council of Ministers headed by the Chief Minister to aid and advise the Governor in the exercise of his functions. It lays down the framework for the functioning of the State executive, ensuring that governance at the State level operates within a democratic and constitutional framework. The Article also delineates the relationship between the Governor and the Council of Ministers, balancing the Governor’s constitutional authority with the principle of ministerial responsibility.

Constitutional Text

Article 163 states:

(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 required by or under this Constitution 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.

Purpose and Objective

Article 163 serves as a cornerstone of the parliamentary system of government at the State level. It ensures that:

1. The Governor, as the constitutional head of the State, exercises executive functions with the aid and advice of the Council of Ministers.
2. The Council of Ministers, headed by the Chief Minister, remains collectively responsible to the State Legislature, embodying democratic accountability.
3. The Governor retains limited discretionary powers for specific constitutional functions, preventing misuse of authority and maintaining federal harmony.

Key Provisions and Their Interpretation

1. Council of Ministers to Aid and Advise the Governor (Clause 1)

• The Council of Ministers, with the Chief Minister as its head, advises the Governor on all executive matters.
• The Governor is generally bound by the advice of the Council of Ministers, except where the Constitution explicitly provides for the exercise of discretionary powers.
• This provision upholds the parliamentary convention that the real executive authority lies with the elected government, while the Governor acts as a constitutional head.

Practical Implication:The Governor’s role is largely ceremonial, similar to the President’s role at the Union level under Article 74. However, the Governor is expected to ensure that the State government functions within constitutional limits.

2. Discretionary Powers of the Governor (Clause 2)

• The Constitution permits the Governor to act independently of the Council of Ministers in specific situations.
• Examples of discretionary functions include:
  • Appointment of a Chief Minister when no party has a clear majority in the Legislative Assembly.
  • Dismissal of a government that has lost the confidence of the House.
  • Recommendation of President’s Rule under Article 356.
  • Reservation of certain bills for the President’s consideration under Article 200.
  • Functions relating to tribal areas under the Sixth Schedule.

Finality Clause:If a dispute arises regarding whether a matter falls within the Governor’s discretionary powers, the Governor’s decision is final.
However, while the Article provides finality, the Supreme Court has clarified that this finality is subject to judicial review in cases of mala fide or unconstitutional exercise of power.

3. Confidentiality of Ministerial Advice (Clause 3)

• Courts are prohibited from inquiring into the nature of advice tendered by the Council of Ministers to the Governor.
• This clause ensures the confidentiality and sanctity of cabinet deliberations, allowing ministers to express opinions freely.
• However, the Governor’s actions based on such advice remain open to judicial review if they violate constitutional principles.

Relationship Between the Governor and the Council of Ministers

Article 163 establishes a relationship similar to that between the President and the Council of Ministers under Article 74.

• The Governor functions as the nominal head of the State executive, while the Council of Ministers exercises real authority.
• The Governor must act on the aid and advice of the Council, except in matters expressly requiring discretion.
• The Chief Minister, as the head of the Council, plays a pivotal role in policy formulation, coordination, and communication with the Governor.

Judicial Interpretation and Landmark Cases

The judiciary has played a critical role in defining the contours of the Governor’s powers under Article 163:

1. Shamsher Singh v. State of Punjab (1974):
   • The Supreme Court held that the Governor is a constitutional head and must act on the aid and advice of the Council of Ministers, except in matters where discretion is expressly provided by the Constitution.
   • The Court stated:
     

     “The President and the Governor are the constitutional or formal heads. The real executive power is vested in the Council of Ministers.”

2. Rameshwar Prasad v. Union of India (2006):
   • The Court examined the Governor’s discretion during political instability and observed that the Governor’s actions must be guided by constitutional morality and cannot be arbitrary.
   • The judgment emphasised that Governor’s reports recommending President’s Rule must be objective and fair.
3. Nabam Rebia v. Deputy Speaker (2016):
   • The Supreme Court clarified that the Governor’s discretionary powers are limited and not absolute.
   • The Governor cannot unilaterally summon, prorogue, or dissolve the Legislative Assembly without the advice of the Council of Ministers.
4. S. R. Bommai v. Union of India (1994):
   • The Court highlighted that the Governor’s recommendation for President’s Rule under Article 356 is subject to judicial review and must be based on relevant material.
5. K. S. Puttaswamy v. Union of India (2017):
   • Though primarily on privacy, this case reiterated that all constitutional authorities, including Governors, must act within the framework of constitutional limitations and adhere to the principle of reasonableness.

Discretionary Powers of the Governor

While Article 163 limits the Governor’s discretion, the Constitution and judicial interpretation recognise certain situations where discretion is legitimate.
Situations of Discretion:

1. Appointment of the Chief Minister in a hung assembly.
2. Dismissal of a ministry that has lost majority support.
3. Dissolution of the Legislative Assembly.
4. Reservation of bills for the President’s consideration.
5. Administration of tribal areas under the Sixth Schedule.

Judicial Clarification:The courts have repeatedly asserted that even discretionary powers must be exercised in good faith, for constitutional purposes, and within legal boundaries.

Related Constitutional Articles

• Article 154: Vests executive power of the State in the Governor.
• Article 161: Grants the Governor powers of pardon, remission, and commutation of sentences.
• Article 166: Regulates the conduct of business of the State Government.
• Article 174: Empowers the Governor to summon and prorogue the State Legislature.
• Article 356: Allows the President to impose President’s Rule based on the Governor’s report.

These Articles together define the Governor’s constitutional role and his relationship with the elected government at the State level.

Significance of Article 163

1. Ensures Democratic Governance:
   • The Article institutionalises the parliamentary system in States, ensuring that elected representatives, not appointed officials, wield real executive power.
2. Maintains Constitutional Balance:
   • It balances the Governor’s nominal authority with the Council’s substantive power, thereby maintaining harmony between constitutional headship and democratic accountability.
3. Prevents Abuse of Power:
   • The provision ensures that the Governor’s discretion is not used arbitrarily, preserving the spirit of federalism.
4. Guarantees Political Stability:
   • By mandating the Governor to act on ministerial advice, it provides continuity and predictability in governance.

Controversies and Debates

Despite its clarity, Article 163 has been the source of frequent political and constitutional controversies, particularly regarding the Governor’s discretionary powers:

• Formation of Governments: Governors have faced criticism for inviting parties to form governments based on political considerations rather than legislative strength.
• Imposition of President’s Rule: Reports by Governors recommending President’s Rule have sometimes been accused of bias or partisanship.
• Delay in Assenting Bills: Governors have occasionally withheld assent to bills or reserved them for the President’s consideration, raising questions of constitutional propriety.

These controversies highlight the need for transparency and adherence to constitutional morality in the exercise of discretionary powers.

Practical Implications

• The Council of Ministers, led by the Chief Minister, is the real executive authority in the State.
• The Governor’s role is advisory and supervisory, ensuring constitutional compliance rather than political interference.
• Effective coordination between the Governor and the Council of Ministers is vital for stable governance.
• Judicial oversight acts as a check against misuse of discretionary powers.