Article 163 of Indian Constitution

The Indian Constitution establishes a federal structure with a clear division of powers between the Union and the States. Part VI of the Constitution deals with the executive at the state level.

Among the important provisions here is Article 163, which governs the relationship between the Governor and the Council of Ministers in each state. This article ensures democratic governance and lays down the framework for executive authority in states.

Text of Article 163

Article 163 reads as follows:

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. The question whether any matter is or is not a matter as to which the Governor is by or under this Constitution required to act in his discretion shall not be inquired into in any Court.

Meaning and Purpose of Article 163 of Indian Constitution

Article 163 mandates the formation of a Council of Ministers in every state, headed by the Chief Minister. This council is responsible for advising and assisting the Governor in performing his functions. The Governor, although the constitutional head of the state, generally acts on the advice of this Council.

However, the article also recognises that in certain matters the Governor has to act independently, exercising his discretion. Such matters are exceptions to the general rule, and the Governor’s decisions in these matters are final and cannot be challenged in courts.

The core aim of Article 163 is to ensure that executive power in the states is exercised democratically through elected representatives, while retaining limited discretionary powers for the Governor to safeguard constitutional interests.

Historical Background and Relation with the Government of India Act, 1935

The framework for Article 163 has its roots in the Government of India Act, 1935, which provided the constitutional basis for provincial governance under British rule.

• Section 50 of the 1935 Act stated that the Governor must be advised by ministers except when acting in his discretion.
• Section 48 authorised the Governor’s appointment by the Crown and allowed him to appoint his ministers.

Post-independence, the Constituent Assembly adopted much of the administrative structure from the 1935 Act, but with important modifications to establish responsible government accountable to elected legislatures.

Unlike the broad discretion that Governors held under the 1935 Act (including appointing their own ministers), Article 163 requires the Governor to act on the advice of the Chief Minister when appointing ministers. This change aligns with the democratic spirit of the Constitution.

The Council of Ministers and Chief Minister

The Council of Ministers is the real executive authority in a state, responsible for governance and policy-making. The Chief Minister leads this council and is the primary adviser to the Governor.

• Appointment: The Governor appoints the Chief Minister, typically the leader of the majority party in the state legislative assembly.
• Ministerial appointments: Other ministers are appointed by the Governor on the advice of the Chief Minister.
• Size: The total number of ministers, including the Chief Minister, cannot exceed 15% of the total members in the state legislative assembly, with a minimum of 12 ministers as per the Constitution (Ninety-First Amendment) Act, 2003.
• Special provisions: Certain states must have a minister in charge of tribal welfare and welfare of Scheduled Castes and Backward Classes.

The Council of Ministers enjoys collective responsibility towards the state legislative assembly. If the council loses the confidence of the assembly, all ministers, including the Chief Minister, must resign.

The Governor’s Role and Discretionary Powers

The Governor is the constitutional head of the state, appointed by the President for a term of five years. Although the Governor acts mostly on the advice of the Council of Ministers, Article 163 recognises situations where the Governor must exercise his functions in his discretion.

Areas of Discretion

• Reservation of bills: The Governor may reserve certain bills passed by the state legislature for the President’s consideration.
• Dissolution of the legislative assembly: Especially in situations such as hung assemblies where no clear majority exists.
• Promulgation of ordinances: Although ordinances are generally issued on ministerial advice, the Governor’s role here is constitutionally significant.
• Governor as Administrator: In Union Territories where the Governor acts as administrator under Article 239(2), he exercises powers independently.
• Special directives: The President can direct Governors to act in certain ways for the development of particular areas under Article 371(2).

Landmark Judgements on Article 163 of Indian Constitution

The judiciary has clarified several aspects of Article 163 through landmark judgements, often interpreting the limits of the Governor’s discretionary powers.

• Maru Ram v. Union of India (1980): The Supreme Court held that the Governor’s power to grant pardons or reprieves must be exercised after consulting the Council of Ministers, emphasising the requirement of advice in most matters.
• Satpal v. State of Haryana (2000): Reaffirmed that the Governor’s powers under Article 161 to grant remission or commute sentences should be exercised in consultation with the Council of Ministers.
• Nabam Rebia and Bamang Felix v. Deputy Speaker, Arunachal Pradesh (2016): This case addressed the issue of the Governor’s discretion in inviting a leader to form the government. The Supreme Court held that while the Governor’s discretionary decisions are generally final and cannot be challenged beforehand, if the Governor acts outside his constitutional limits, the courts have the power of judicial review.

These rulings indicate that while the Governor’s discretionary powers are recognised, they are not unfettered. They must be exercised in good faith and within constitutional boundaries.

Secrecy of Ministerial Advice

Article 163(2) provides that courts cannot inquire into whether the Governor acted on the advice of the Council of Ministers in a particular matter or exercised discretion. This confidentiality ensures:

• Ministers can give advice without fear of public or judicial scrutiny.
• The dignity and independence of the executive are maintained.
• It helps preserve the principle of separation of powers and respect between the executive and judiciary.

Conclusion

Article 163 of the Indian Constitution plays a vital role in defining the state executive’s structure. It embodies the principle of responsible government, ensuring that real executive power rests with elected representatives through the Council of Ministers, while the Governor acts as a constitutional sentinel with limited but necessary discretionary powers.