The Constitution of India is the fountainhead from which all our laws derive their authority and force. This is next Article in the series on constitutional provisions in order to aid our readers in understanding them.
Council of Ministers
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.
Under article 163, in the discharge of all his functions, with a few exceptions in certain cases, the Governor is to be guided by the aid and advice of the Council of Ministers.
While both the President of the Republic and the Governor of a State are constitutional heads, there are some fundamental differences between the position of the President and the Governor. While the President is bound by the advice of the Council of Ministers in the discharge of all his functions, in the case of Governors the aid and advice provision to article 163 applies “except in so far as” the Governor is required to function “in his discretion”. The 42nd Amendment had amended article 74 to provide that the President “shall” act in accordance with the advice. Such an amendment, however, was not made in the corresponding article 163 applicable to Governors.
There are certain areas where the Governor may have to use his own wisdom and discretion, e.g., in (a) appointing a new Chief Minister in a situation where no single party or leader commands majority support; (b) dismissing a Ministry where it refuses to resign even after losing majority support in the House or after being defeated on a no‑confidence motion; (c) dissolution of the Assembly on the advice of a Chief Minister who has lost majority support; (d) determining the royalty for mineral licenses to District Councils in case of tribal areas of Assam, under the Sixth Schedule; (e) advising the President of the failure of the constitutional machinery and to impose President’s rule; and (f) giving or withholding assent to Bills, returning a Bill for reconsideration of the House/s or reserving it for the consideration of the President. Some of the Governors may have to discharge certain special responsibilities also under articles 371 to 371-I.
When a Chief Minister of U.P. was dismissed by the Governor after a group of members withdrew their support and the Governor appointed another person as the Chief Minister without a majority test on the floor of the House and the High Court ordered the reinstatement of the former Chief Minister, the Supreme Court ordered a special session of the State Assembly to have a composite floor test between the two contending claimants of Chief Ministership [Jagdambika Pal v. Union of India, AIR 1998 SC 998: (1999) 9 SCC 95].