Whether the Governor of the state is bound to act with the advice of his ministers?

The author in this article discusses whether the Governor of the state is bound to act with the advice of his ministers, it further discusses the related Constitutional provisions and the case laws in detail.

Introduction 

The Governor is the head of a state simply like the President is the head of the republic. The Governor is the nominal of a state, while the Chief Minister is the executive head. Every single executive activity of the state are taken for the name of the Governor. The Governor of the State plays a multifaceted role. He is a vital link between the Center and the State. It is his duty to keep the Center informed of the affairs of the State. This helps the Center to discharge its constitutional functions and responsibility towards the State. The governor is the constitutional head of the State he appoints the Chief Minister and other Ministers and discharge several other important functions in relation to the State Legislature. The Governor ensures continuity in the State Administration, as having a fixed tenure, he stays in office while Chief Minister may come and go from time to time. The Governor acts as the agent of the Center when a proclamation of break-down of constitutional machinery in the State is issued under Art. 356. The State Governor is thus a key functionary in the system envisaged by the Constitution. Each State has a Governor, but two or more States may have a common Governor (Art. 153). The governor is formally appointed by the President (Art. 155). The President appoints the State Governor on the advice of the Prime Minister with whom therefore the effective power lies in this regard.[1]

The objective of this research article is to study whether the Governor of the State is bound to act with the advice of his ministers and under what all circumstance the Governor has the power to use his own wisdom and discretion.

Art. 163 Council of Minister to aid and advice Governor

  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[2]

In case of Machineni Kishan Rao v. Union of India[3]it was held that the Union of India is not represented by the Prime Minister and a State Government is not represented by the Chief Minister. They constitute the Council of Minister and as the head of Council of Ministers, advice the President of India and the Governor of the State respectively. The executive power of the Union of India is vested in the President of India and that of the State Government is vested in the Governor of the State. They, however, as provided under the constitution, act with the aid and advice of the Council of Ministers. It is wholly misconceived that in a writ petition, the Union of India and the respective State Government as the case may be can be represented by the Prime Minister and the Chief Minister, respectively.

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Under this Article the Governor cannot act on his own but only on the aid and advice of the Chief Minister. In substance and reality, decisions are taken by Council of Minister headed by Chief Minister or by Minister or Secretary as per the business rules. But the decisions are expressed to be taken in the name of the Governor. The Governor being the constitutional head of the State, unless he is required to perform the function under the Constitution in his individual discretion, the performance of the executive power, which is co-extensive with the legislative power, is with the aid and advice of the Council of Minister headed by Chief Minister. The Governor has to act with the aid and advice of the Council of Ministers as required by Article 163(1). Such advice of the Council of Minister does not become the action of the State Government till the advice is accepted by the Head of the State. Two requirements are to be fulfilled before an advice becomes an order of the Head of State-

  1. The order of the State Government has to be expressed in the name of the Governor as required by Article 166(1) and(2)
  2. It has to be communicated to the concerned persons.[4]

The Ministers holds office during the pleasure of the Governor, the acknowledged democratic convention clearly requires that on the advice of the Chief Minister, the Governor has to dismiss the Ministers. It is on the advice of the Chief Minister that the Governor allocates the business to different Ministers. Hence, until the other Ministers are appointed at the advice of the Chief Minister and the portfolio are allocated at the advice of the Chief Minister. In a Given case, and such cases are not unusual, the Chief Minister and few more Ministers may take oath of office, but no business is allocated to the Ministers for a few days. Till then, it is the Chief Minister who will handle the business of the entire department and the Governor will be acting on the aid and advice of the Councils of Ministers, where only the Chief Minister has the power to take decisions in respect of all the departments.[5] 

Discretion of Governor

The President has no discretion at all under Article 74 while the Governor has some element of discretion in Article 163, 371A and Schedule VI. The expression “required” found in the Article signifies that a Governor can exercise his discretionary powers only if there is compelling necessity to do so. It has been reasoned that the expression “by or under the constitution” means that necessity to exercise such powers may arise from any express provision of the Constitution or by necessary implication.

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The general rule is that the Governor has to act only in accordance with the aid and advice of the Council of Ministers. But there are exceptions to this rule. In making a report under Article 356 the Governor will be justified in exercising his discretion even against the aid and advice of his Council of Ministers. The reason is that the failure of constitutional machinery may be because of the conduct of Council of Ministers. But the President must however act on the advice of his Council of Ministers and the action taken by the President on the report of the Governor is a different matter.[6]

In case of Madhya Pradesh Special Police Establishment v. State of Madhya Pradesh[7] the following exceptions were laid down-

  1. The choice of Prime Minister or (Chief Minister), restricted though this choice is by the paramount consideration that he should command a majority in the House.
  2. The dismissal of a Government which has lost its majority in the House but refuses to quit office.
  3. The dissolution of the House where an appeal to the contrary is necessitous, although in this area the Head of the State should avoid getting involved in politics and must be advised by his Prime Minister(Chief Minister) who will eventually take the responsibility for the step.

When the President’s rule has been lifted, it is for the Governor to decide who is to form a new government. How this majority has to be ascertained is left to the discretion of the Governor, and in a given situation there may be more than one method of ascertaining the support of the majority. Where the picture is clear and unambiguous and there is no doubt that a particular party enjoys a majority in the House, and the particular person has been elected as the leader of that party, the Governor must in exercise of his discretion, invite the leader of the party to form the Government. Where the picture is not very clear, it is left to the discretion of the Governor as to the method that he may adopt for making his assessment. The discretion of the Governor is unfettered in this regard, and he may choose any one of the methods which appears him to be most suitable and appropriate to the situation. Such discretion would also include the power to call for a vote of confidence.[8]

In the case of Jagdambika Pal v. Union of India[9] At the point when a Chief Minister of U.P. was dismissed by the Governor after a group of individuals pulled back their help and the Governor delegated someone else as the Chief Minister without a majority test on the floor of the House and the High Court requested the reestablishment of the previous Chief Minister, the Supreme Court requested an exceptional meeting of the State Assembly to have a composite floor test between the two contending claimants of Chief Ministership.

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Conclusion

From the aforementioned findings it can be concluded that the Governor of the State and the President are the constitutional head of the government they work on the aid and advice of the Councils of Ministers, yet there are some differences which prevails in the functions of both the post. The governor has some discretionary power that he can use under some of the circumstances but the president is bound by the aid and advice of the Council of Ministers.

Subsequently, the overall principle must prevail and the Governor must act in the sphere according to advice of the Council of Minister and not as opposed to it. On the off chance that this power is conceded to the Governor it would open the flood gates for the exercise of the discretionary power of by the Governor in all situations where the choice of the Council of Ministers is viewed as inept or unseemly by the Governor. That would sum presenting the power of review on the Governor in regard of the choices taken by the Council of Ministers which is responsible to the Legislative Assembly and the people. That would be against the soul of the Constitution which has set up the Cabinet type of the Government in State too that would bring diarchy. The constitution has rested more prominent confidence in the council of ministers liable to the people and its is normal that it would consider even the subject of award of approval for sanction for prosecution of its minister in a  impartial way maintaining the standard of law and cause of justice.

The Constitution doesn’t target giving the parallel government inside the state by permitting the governor to conflict with the advice of the council of ministers, along these lines neither the president nor the governor is to practice executive functions at their own caution. Subsequently we can infer that the legislature of the nation is constrained by a ministry and cabinet picked by the electorate which while remaining dependable to the legislature is other words, the Executive branch of the Government is capable to the Legislature for the prior reasons. This is as such a Constitutional show wherein the guidelines of political practice are viewed as binding by those to whom they apply.

Also read Misuse of Ninth Schedule of Constitution of India


[1] Vol. 1, M.P. Jain, Indian Constitutional Law, 470(6th Ed. 2013)

[2] Indian Const. Art. 163

[3] AIR 1997 AP 275

[4] State of Kerala v. Lakshmi Kutty A. AIR 1987 SC 331

[5] Dattaji Chirandas v. State of Gujrat, AIR 1999 Guj 48

[6] Samsher Singh v. State of Punjab, AIR 1974 SC 2192

[7] (2004) 8 SCC 788,797.

[8] Sapru Jayakar Motilal C.R. Das v. Union of India, AIR 1999 Pat 221

[9] AIR 1998 SC 998