Part VI: The States

Article 163: Council of Ministers to Aid and Advise Governor

Original Article:

(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 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.

Explanations:

Article 163 of the Constitution of India establishes the structure and functions of the Council of Ministers, headed by the Chief Minister, in advising and assisting the Governor of a State. This article provides the framework under which the Governor must generally act on the advice of the Council of Ministers, with exceptions where discretionary powers are involved. This provision outlines the division of executive authority and clarifies the role of the Governor within a parliamentary system of governance at the state level.

Clause-by-Clause Explanation:

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

Under clause (1), the Governor of a State is expected to act on the aid and advice of a Council of Ministers, which is headed by the Chief Minister. This is consistent with the parliamentary structure where the Governor's functions are mostly ceremonial, and the real executive authority lies with the elected government. However, the Constitution allows certain exceptions where the Governor may act at their discretion, independent of ministerial advice.

Historical Significance: The concept of a Council of Ministers aiding and advising the Governor is derived from the British parliamentary system, where the monarch acts on the advice of the Prime Minister and the Cabinet. In the Indian context, the Council of Ministers ensures that the Governor’s role remains largely ceremonial, maintaining democratic principles where elected representatives hold executive power.

Amendments: No significant amendments have been made to this clause, but its interpretation has evolved through case law.

Real-Life Example: In 2016, the Governor of Arunachal Pradesh exercised his discretionary powers during a political crisis, where he dismissed the elected government and imposed President’s Rule. The matter was later challenged in the Supreme Court, which reinstated the government, emphasizing that the Governor must ordinarily act on the advice of the Council of Ministers.

Clause (2): Governor’s Discretionary Powers

Clause (2) stipulates that if a question arises regarding whether the Governor is required to act in their discretion, the decision of the Governor is final. This provision shields the Governor's discretionary actions from judicial review, ensuring that the validity of their actions cannot be questioned on the basis that they should have or should not have used their discretion.

Historical Significance: This clause has been invoked in situations where the Governor’s discretionary powers are crucial, such as in the appointment of a Chief Minister, dissolving the Assembly, or recommending President’s Rule. The Governor’s discretionary role was a point of debate in the Constituent Assembly, with members discussing the balance between a ceremonial figurehead and a constitutional guardian in critical situations.

Real-Life Example: In Maharashtra in 2019, the Governor’s discretion was invoked when no political party could form a stable government post-elections. The Governor recommended President’s Rule, and this was later followed by the appointment of a Chief Minister from a coalition that had a majority. This case reaffirmed the importance of the Governor’s discretionary role in preventing a governance vacuum.

Clause (3): Non-Inquiry of Ministerial Advice to the Governor

Clause (3) ensures that the advice tendered by the Council of Ministers to the Governor cannot be questioned in court. This is in line with the principle of confidentiality and the separation of powers between the executive and judiciary. The article seeks to prevent judicial overreach into executive decisions, thereby safeguarding the autonomy of the executive branch.

Historical Significance: This provision echoes the colonial legal principle of not disclosing discussions within the executive. It has been upheld to maintain the sanctity of the executive’s internal decision-making process, ensuring that governance remains efficient without interference from the judiciary.

Real-Life Example: During the 1980s, the Governor of Tamil Nadu acted on the advice of the Council of Ministers to dismiss several civil servants accused of corruption. The decision was challenged, but the court ruled that it could not inquire into the advice tendered to the Governor, affirming the inviolability of clause (3).

Legislative History:

Article 163 of the Indian Constitution, initially drafted and deliberated as article 143 of the Draft Constitution, was subsequently incorporated into the Indian Constitution on June 1, 1949.

Real-Life Examples:

• Ninety-first Amendment Implementation: In 2004, states like Uttar Pradesh and Bihar had to reduce the size of their ministries significantly to comply with the fifteen percent limit introduced by the Ninety-first Amendment. This reform was aimed at curbing unnecessary expenditures and ensuring administrative efficiency.
• Anti-Defection Law Enforcement: In Karnataka, members disqualified under the Tenth Schedule were barred from holding ministerial positions, showcasing the significance of Clause (1B) in promoting ethical governance.
• Tribal Welfare Representation: The state of Odisha has consistently appointed Ministers for tribal welfare, reflecting the commitment to inclusivity and addressing the needs of marginalized communities as per the provisions of Article 164.

Debates and Deliberations:

• Dr. B. R. Ambedkar emphasized the need for collective responsibility in state governance.
• Prof. Shibban Lal Saksena proposed limiting ministerial appointments to elected Legislative Assembly members.
• Shri T. T. Krishnamachari supported provisions for tribal welfare representation in certain states.

References:

• D. D. Basu, "Introduction to the Constitution of India" - Detailed commentary on Article 163.
• Constituent Assembly Debates, Volume VIII - Key discussions on ministerial roles and responsibilities.
• Case Study: Maharashtra 2019 - Discretionary powers of the Governor in action.