The key question which fell for the consideration of the Constituent Assembly was whether any discretion would be made available to the Governor as the constitutional head of the State.
Article 163(1) of the Constitution, which describes the nature of such discretionary powers, 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.”
Draft Article 143
To understand the true import and the scope of this discretion which exists with the Governor, it would be apposite for us to look into the Constituent Assembly debates pertaining to this Article in some detail. Article 163 which provides for the Council of Ministers to aid and advice the Governor was earlier numbered as Article 143 under the Draft Constitution. Two amendments were sought to be moved to draft Article 143 on the 1st of July 1949; however, those did not gain the approval of the Constituent Assembly and the original version of draft Article 143 came to be later adopted as Article 163 as we see it today.
Of the two amendments, one of which was moved by Shri. H.V. Kamath sought to delete the expression, “except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion”. Shri. H.V. Kamath was of the opinion that the draft Article had been blindly copied from the GoI Act, 1935, without any mature consideration. He further remarked that, “There is no strong or valid reason for giving the Governor more authority either in his discretion or otherwise vis-a-vis his ministers, than has been given to the President in relation to his ministers”
Investing such wide discretionary powers on the Governor was all the more problematic, according to him, since Governors are nominated to their positions and not elected. No departure from the principles of a constitutional government must be favored except for reasons of emergency and therefore, he advocated for these discretionary powers to be done away with.
However, Shri. T. T. Krishnamachari pointed out that there existed specific provisions under the Draft Constitution wherein the Governor was in fact empowered to act in his discretion, irrespective of the advice tendered by his Council of Ministers. Therefore, according to him, there were two ways of drafting which would capture the aforesaid underlying idea:
One, would be to make a mention of this exception under draft Article 143 itself and enumerate the specific scenarios where the Governor would be able to exercise his discretion in the subsequent relevant articles or;
Two, would be to leave out any mention of this discretionary power under draft Article 143 and only state it in the appropriate article that will follow.
In the case of draft Article 143, according to him, it was only that the former method had been followed. Therefore, the general proposition or the default rule would be that “the Governor has normally to act on the advice of his Ministers except in so far as the exercise of his discretions covered by those Articles in the Constitution in which he is specifically empowered to act in his discretion.”
As an illustration, Shri. T.T. Krishnamachari referred to draft Article 188 which related to the proclamation of Emergency in States by the Governor under his discretion. It was his opinion that if such a discretionary power can be given under draft Article 188, there is no harm in the mention of discretion under draft Article 143 either. He understood the scheme of the draft Constitution to mean that unless there is a specific mention of discretion under any subsequent Article, the discretionary power mentioned under draft Article 143 cannot at all be exercised.
Shri. Brajeshwar Prasad was not in favor of the amendment that was put forth since he was of the opinion that the Governor should be vested not only with the power to act in his discretion but also with the power to act in his individual judgement. He was of the view that there was a dearth of leadership in the provinces wherein competent men were not available and unless the Governor is vested with large powers, it would be difficult to effect any improvement in the provincial administration. He went to the extent of saying that though such a procedure may be considered as undemocratic, it would be in the interest of the country. He remarked that,
“I cannot allow democracy to jeopardize the vital interests of the country […] The masses who ought to be the rulers of this land are down-trodden and exploited in all ways. Under these circumstances there is no way left open but for the Government of India to take the Provincial administrations in its own hands”
In his opinion, federalism could not succeed in a country which was passing through a transitory period and therefore, he subscribed to the view that power must be vested at the Centre and as a natural corollary, the Governor must be able to act in his discretion. Shri. Mahavir Tyagi was also in agreement with the view that the Governor must be granted discretion. In his opinion, the State must be kept linked together with the Centre and the Governor would be the agent who guards the Central policy in the provinces/States.
There would be certain subject matters which affect the whole body politic and the provinces/States cannot be left free of the policy at the Centre. Since the policy which is evoked in the Centre must be followed by all the States, and if the Governors were to be in the hands of the provincial Ministers, then there will be various policies in various provinces and ministers of various types having different party labels and programmes would push their own agenda. Therefore, it was his view that, “The Governor being the agency of the Centre would be the only guarantee to integrate the various provinces/States”
According to him, this is why the Governor’s discretionary powers should not be interfered with. He went on to remark that democratic trends are like a wild beast and that it goes by the whims and fancies of the parties and the masses. There must be some machinery which would keep this wild beast under control. It is in such a reality that the Governor exercising his discretion acts as a guardian of the Central policy on one side and the Constitution on the other.
Shri. B.M. Gupta was of the view that if certain powers had to be given to the Governor, our endeavor must be to restrict them as far as possible so that the Governor’s position as a constitutional head may be maintained.
Shri. Alladi Krishnaswami Ayyar echoed the stance taken by Shri T.T. Krishnamachari. He stated that, in the first place, a general principle under Article 143 is laid down, namely, the principle of ministerial responsibility that the Governor in the various spheres of executive activity should normally act on the advice of his ministers. Then, the Article goes on to carve out an exception as regards the matters under which the Governor is required to exercise certain functions under his own discretion. Therefore, it was his conclusion that as long as there are articles under the Constitution which enable the Governor to act in his discretion, the draft Article 143 as it was framed was perfectly in order.
In certain circumstances, this exercise of discretion may be to override the Cabinet or to refer to the President. If later on, the Constituent Assembly were to arrive at the conclusion that those subsequent Articles which enable the Governor to act in his discretion in specific cases must be deleted, it would be open to revise draft Article 143. But as long as there are Articles occurring later in the Constitution which permit the Governor to act in his discretion and not on ministerial responsibility, the present draft Article 143 was drafted rightly. The only other question, in his opinion, was to see whether the Constituent Assembly had to first make a provision under draft Article 143 that the Governor shall mandatorily act on ministerial responsibility and then go on to provide “Notwithstanding anything contained in Article 143, […] he can do this” or that “Notwithstanding anything contained in Article 143, he can act in his discretion” in the subsequent relevant Articles.
However, he favored the method of drafting that had already been adopted i.e., to provide in draft Article 143 itself that the Governor shall always act on ministerial responsibility excepting in particular or specific cases where he is empowered to act in his discretion. If, of course, the Constituent Assembly came to the conclusion that in no case the Governor shall act in his discretion, and that he shall in every case act only on ministerial responsibility, then there will be a consequential change to this Article.
Pandit Thakur Das Bhargava adopted the notion that the Governor “shall be a guide, philosopher and friend of the Ministry as well as the people in general, so that he will exercise certain functions some of which will be in the nature of unwritten conventions and some will be such as will be expressly conferred by this Constitution.”
The Governor’s role would transcend party politics and he would look at the Minister and the State government from a detached standpoint. He would also be able to influence the ministers and members of the legislature in such a manner that the administration would run smoothly. In such a circumstance, to say that he is merely a dummy, an automaton or a dignitary without powers would be gravely wrong. According to his conception of a constitutional Governor, the Governor would have to accept the advice of his ministers in many matters but there may also exist many other matters in which such an advice will either be unavailable or wherein he will not be bound to accept that advice.
Another illustration, according to him, of when the Governor would act in his discretion would be under draft Article 147 (Article 167 as it stands today) where the Governor can exercise his power of calling for certain information from the Chief Minister. Under this Article, the Governor is competent to ask the Chief Minister to place any matter before the Council of Ministers which only one minister might have decided. When he calls for such information, he will be acting in the exercise of his discretion and may call for any kind of information with a view to control and restrain the ministry from undertaking irresponsible acts.
Therefore, he remarked that, “In my opinion taking the Governor as he is conceived to be under the Constitution, he will exercise very important functions and therefore it is very necessary to retain the words relating to his discretion in article 143”
Shri. Rohini Kumar Chaudhuri put forth the alternate view that it is always better to be governed by the will of the people than to be governed by the will of a single person who could act in his discretion. He remarked that, “If this Governor is given the power to act in his discretion there is no power on earth to prevent him from doing so. He can be a veritable King Stork.”
Furthermore, the draft Article 143 itself states that wherever the Governor thinks that he is acting in his discretion, he cannot be questioned. According to him, in this day and age, we must not countenance such a state of affairs.
Conclusion of the Debate
While concluding the debate on draft Article 143, Dr. B. R. Ambedkar elaborated that the main and crucial question under this draft Article was whether the Governor must have certain discretionary powers or not. During the course of the debate, it was pointed out that the retention of discretionary powers in the Governor was contrary to responsible government in the States/provinces. It was also stated that the same mimicked the GoI Act, 1935, which was largely assailed as being undemocratic. However, Dr. B. R. Ambedkar was of the undoubted view that “the retention in or the vesting the Governor with certain discretionary powers is in no sense contrary to or in no sense a negation of responsible government.”
He cited Section 55 of the Canadian Constitution which read as follows: “Section 55. – Where a Bill passed by the House of Parliament is presented to the Governor-General for the Queen’s assent, he shall, according to his discretion, and subject to the provisions of this Act, either assent thereto in the Queen’s name, or withhold the Queen’s assent or reserve the Bill for the signification of the Queen’s pleasure.”
He conveyed that the Canadians and the Australians had not found it necessary to delete these provisions even in this day and age and that they were quite satisfied with its retention. This, he argued, was demonstrative of the fact that the grant of such a discretion to the Governor is fully compatible with a responsible government. If they had felt otherwise, they had the fullest right to abrogate this provision and would have done so. Therefore, the existence of a provision vesting a certain amount of discretion in the Governor cannot be questioned. Furthermore, the draft Article reads that,
“Except in so far as he is by or under this Constitution” and not that “except wherever he thinks that he should exercise this power of discretion against the wishes or against the advice of the ministers”
Therefore, the clause is very limited in nature and would have to be read in conjunction with such other Articles which specifically reserve the discretionary power for the Governor. It must not be construed as a general clause which gives the Governor the power to disregard the advice of his ministers in any matter in which he finds that he could disregard their opinion.
Now moving on to how an Article providing for a certain amount of discretionary powers to the Governor is to be framed, Dr. B. R. Ambedkar elaborated that there are several ways in which the same can be done. One way could be to omit the words from draft Article 143 and to add to draft Articles 175 (presently Article 200), 188, or such other provisions, an express mention which vests the Governor with discretionary power.
Those Articles would then mention that notwithstanding draft Article 143, the Governor would have a certain discretionary power. Another way would be to state in draft Article 143 itself that “except as provided in draft Articles 175, 188 etc.”, the Governor shall act in accordance with the aid and advice of the Council of Ministers with the Chief Minister at the head. However, irrespective of what method of drafting is adopted, the essential point that would remain is that the Governor’s discretionary power must be acknowledged in some form.
Dr. B. R. Ambedkar was open and quite willing to concede to the position of those members who were of the view that the last portion of clause (1) of draft Article 143 must be amended to mention the specific Articles under which the Governor shall exercise discretion, if at that stage of the Constituent Assembly debates the provisions intended for such vesting were already determined. The difficulty was that the Constituent Assembly had not yet arrived at a stage where they could discuss draft Articles 175 or 188, nor had they exhausted all the possibilities of other provisions being made which vested the Governor with discretionary power. If all those possibilities were already known, draft Article 143 could have been amended and those specific Articles could have been mentioned or listed out.
Therefore, Dr. B. R. Ambedkar was firmly of the view that no wrong could be done if the words as they stood in the draft Article were retained.
While acknowledging that there exists a material difference between draft Article 61(1) (Article 74(1) as it stands today) relating to the executive functions of the President vis-à-vis his Ministers and the draft Article 143, Dr. B. R. Ambedkar elucidated that it was not the intention of the drafters to vest any discretionary power upon the President. It is because the provincial governments are required to work in subordination to the Central government and in order to ensure that they do act in such subordination, the Governor would reserve certain matters, thereby giving the President an opportunity to see that they are broadly in compliance with the policy of the Central government. Through this mechanism, the President would be able to ensure that the rules under which the provincial governments are supposed to act, according to the Constitution, are observed. Therefore, the vesting of discretionary powers in the post of the Governor was considered crucial to enable this administrative dialogue between the Centre and the provinces.
Reference
State of Tamilnadu v. Governor of Tamilnadu (2025)