Article 163 of Indian Constitution provides-
“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.”
Origin of the Article
Article 163 of the Constitution traces its origins first to Section 50 of the Government of India Act, 1935 and then to Article 143 in the draft Constitution. Section 50 of the Government of India Act, 1935 reads as follows:
“50. (1) There shall be a council of ministers to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Act required to exercise his functions or any of them in his discretion:
Provided that nothing in this sub-section shall be construed as preventing the Governor from exercising his individual judgment in any case where by or under this Act he is required so to do.
(2) The Governor in his discretion may preside at meetings of the council of ministers.
(3) If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Act required to act in his discretion or to exercise his individual judgment, 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, or ought or ought not to have exercised his individual judgment.”
Debate in House of Common on Government of India Act
Two important expressions find mention in Section 50 of the Government of India Act, 1935 namely, “in his discretion” and “his individual judgment”. These expressions are noticed in several Sections of the Government of India Act, 1935 and came up for discussion when Section 9 of the Government of India Act, 1935 (relating to the Council of Ministers) was discussed in the House of Commons on 28th February, 1935.
In the debate, the view expressed by one of the Members of Parliament was that the Governor-General acts “in his discretion” when he is not obliged to consult the Council of Ministers. On the other hand, he acts in “his individual judgment” when he consults the Council of Ministers but does not necessarily accept its advice.
This was the view expressed by Mr. Herbert Williams:
“I beg to move, in page 7, line 3, to leave out Sub-section (3). I take it, Sir Dennis, that you have selected this particular Amendment because it enables us to discuss all the major problems which arise under this Clause—the problems of the relationship of the Governor-General to his ministers. There are in the Sub-section the words “in his discretion,” and also the words “his individual judgment.”
I want to be clear that I have interpreted the significance of these words accurately, and perhaps the Secretary of State will be good enough to contradict me if I am inaccurate. I gather that when the Governor-General acts in his discretion it is a case where he acts without being under the obligation of consulting his ministers at all, and that he acts perfectly freely.
On the other hand, when he exercises his individual judgment, that is a case where he consults his ministers but is not obliged to take their advice, and, therefore, his final decision may or may not disagree with the advice tendered to him by his ministers. I hope that I have got the correct interpretation, because it is necessary in discussing this most important constitutional issue that we should be all quite clear as to the meaning of the words we are using. As my interpretation has not been challenged, I assume that I have correctly interpreted the significance of these words.”
This view was sought to be made more explicit by Mr. Bailey by adding sub-section (4) to Section 9 of the Government of India Act, 1935 in the following words:
“I beg to move, in page 7, line 12, at the end, to add:
“(4) (i) In this Act the expression ‘in his discretion’ when applied to any act of the Governor-General or any exercise of his functions or powers means that such act may be done and such functions and powers may be exercised by the Governor-General without consultation with his Ministers.”
“(ii) In this Act the expression ‘his individual judgment,’ when applied to any act of the Governor-General or any exercise of his functions or powers, means that such act may be done and such functions and powers may be exercised by the Governor-General only after consultation with his Ministers but notwithstanding any advice given to him by his Ministers.”
I do not want to occupy any length of time in moving this Amendment, the point of which shortly is this: It seeks to clarify the possible distinction between “discretion” and “individual judgment.” I should be very grateful if the learned Attorney-General would say what is the view of the Government’s legal advisers as to the distinction, if any, between discretion and individual judgment, and whether or not—this is most important of all—the Governor-General may use his individual judgment without consulting his Ministers.”
The discussion was responded to by the Solicitor-General (Sir Donald Somervell) confirming the distinction between “in his discretion” and “his individual judgment” as mentioned above. The opinion expressed by the Solicitor-General was accepted by Mr. Churchill as the following discussion will demonstrate:
“The SOLICITOR- GENERAL (Sir Donald Somervell) In moving this Amendment, my hon. Friend has confined himself to asking two specific questions. He asks what is the distinction between individual judgment and discretion. The Bill has been drafted in this way: The words “individual judgment” are used in relation to actions by the Governor- General on his individual judgment in the ordinary sense of the word within the ambit in which normally he would be acting on the advice of his Ministers. If within that ambit it is sought to give the Governor-General special powers or responsibilities, then the words “individual judgment” are used.
They are found, for example, in Clause 12. The words “in his discretion” are used where the Governor-General will be acting on his own judgment but in an area outside that field. For example, in Clause 11 the functions of the Governor-General in respect of defence are to be exercised by him in his discretion. It is a matter of drafting which, once apprehended, I think it will be agreed, is convenient and useful.
My hon. Friend asked one further point, whether when the words “individual judgment” are used the Governor-General can act without consulting his Ministers. The answer is that as quite obviously that action is in the field where normally he would be acting on the advice of his Ministers, no cleavage between them as to right actions can possibly have arisen, except of course as a result of something that has happened and has been discussed; but, of course, once he had decided that within that field action must be taken, he would take it.
Take quite an impossible case. Suppose that Ministers simply do not turn up. Then, of course, he must take the action in order to carry out the obligations conferred upon him. I do not think that the sort of test of consultation or non-consultation is really the clue to the meaning. The clue is that the words “individual judgment” are used in respect of powers within the area in which normally in ordinary times he would be acting on the advice of his Ministers. The words “in his discretion” are used in respect of powers and functions outside that area.
Mr. CHURCHILL It is, of course, a very convenient distinction between the two functions, and, if my memory serves me right, it is fully explained in the report of the Joint Select Committee. Undoubtedly there is great difficulty in describing this action and the rights of a Governor-General under the two specific and separate methods. I am bound to say that I agree with the Solicitor-General that if there is a difference between the Governor- General and his Ministers and he exercises his individual judgment because previous consultation with them has broken down, he will not be under the need of consulting them any more. All parleys having come to an end he will take the matter into his own hands and act freely. I gather that that is so?
The SOLICITOR-GENERAL Yes. Of course he can, if he thinks proper and if all friendly relations have broken down, proceed to act on his own responsibility. I do not mean to imply that in those circumstances he is precluded from consulting his Ministers. At any point he may think it right to consult them.”
The view expressed was reiterated a week later when Section 12 of the Government of India Act, 1935 (relating to the special responsibilities of the Governor-General) was discussed. During the debate on 5th March, 1935 Mr. Somerville adverted to the opinion of the Solicitor-General and said:
“We are dealing here with a very weighty and special responsibility of the Governor-General. Sub-section (2) of the Clause provides that the Governor- General shall in the exercise of his powers “use his individual judgment,” and according to the definition given to us by the Solicitor-General last week, exercising his individual judgment means that before he comes to a decision he must consult his Indian advisers.”
This makes it abundantly clear that the expression “his individual judgment” obliges the Governor to take the aid and advice of his Council of Ministers but he is not bound by that advice and may act in his judgment. Mr. Churchill sought a clarification to the effect that if there is a breakdown of communications between the Governor-General and his Ministers, then the Governor-General could “act freely” that is to say that he would be discharged of the obligation to seek the aid and advise of the Ministers. The Solicitor-General affirmed that this is so and that he could “proceed to act on his own responsibility.”
Debate in Constituent Assembly
After Independence, there was no intention to permit the Governor to exercise any discretion or to take any decision in his individual judgment. This is clear from the India (Provisional Constitution) Order, 1947 issued in exercise of powers conferred by Section 9(1)(c) of the Indian Independence Act, 1947.
Paragraph 3(2) of the India (Provisional Constitution) Order, 1947 explicitly deletes the expressions “in his discretion”, “acting in his discretion” and “exercising his individual judgment” wherever they occur in the Government of India Act, 1935.
Paragraph 3(1) and paragraph 3(2) of the India (Provisional Constitution) Order, 1947 read as follows:
“3(1) As from the appointed day, the Government of India Act, 1935, including the provisions of that Act which have not come into force before the appointed day and the India (Central Government and Legislature) Act, 1946, shall, until other provision is made by or in accordance with a law made by the Constituent Assembly of India, apply to India with the omissions, additions, adaptations and modifications directed in the following provisions of this paragraph and in the Schedule to this Order.
(2) The following expressions shall be omitted wherever they occur, namely, “in his discretion”, “acting in his discretion” and “exercising his individual judgment”.”
Apart from this explicit expression of intent, the overall distinction between the two expressions “in his discretion” and “his individual judgment” was understood and accepted by Sir B.N. Rau who, in his address to I.A.S. probationers in New Delhi in June, 1948 said in the context of the Government of India Act, 1935:
“There were, however, certain matters in respect of which the Governor was required to act in his discretion without having to consult his ministers at all and certain other matters in respect of which he was required to exercise his individual judgment, though bound to consult his ministers. In regard to both these classes of matters, the Governor was under the general control of the Governor-General, who, in his turn, was under the general control of the Secretary of State and, therefore, of the Parliament in England.
The area of responsible government in the provinces was thus restricted to some extent, though not to the same extent as under the Government of India Act of 1919.”
Later, in his address, he added:
“The framers of the Government of India Act of 1935 presumably foresaw that the distinction, which they had attempted to draw between the matters in respect of which the Governor was required to act on the advice of his Council of Ministers and those in respect of which he was not so required, would disappear in practice, unless special provision was made to resolve any consequential deadlocks.
Accordingly, the Act gave power to the Governor, acting with the concurrence of the Governor-General and subject to certain other safeguards, to proclaim – what amounted to a suspension of responsible government in the province – that government could not be carried on in accordance with the provisions of the Act.”
Article 143 in the draft Constitution
As mentioned above, Article 143 in the draft Constitution corresponds to Section 50 of the Government of India Act, 1935 and this reads as follows:
“Article 143 (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 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.”
It is significant and necessary to note that (as expected) the expression “his individual judgment” did not find mention in Article 143 in the draft Constitution. This is as clear an indication as any that the framers of our Constitution did not intend that the Governor could disregard the aid and advice of the Council of Ministers.
The absence of the expression “his individual judgment” makes it apparent that the Constitution framers were clear that the Governor would always be bound by the aid and advice of the Council of Ministers. Limited elbow room was, however, given to the Governor to act “in his discretion” in matters permitted by or under the Constitution.
Conclusions on Article 163 of the Constitution
The sum and substance of the historical background leading to Article 163 of the Constitution, as enacted, is this:
(i) The Council of Ministers will aid and advise the Governor in the exercise of his functions. This is the first part of Article 163 (1) of the Constitution. The Governor then has two options –
(a) To reject the aid and advice of the Council of Ministers and act in “his individual judgment”. This is an illusory and non- existent option since the Constitution does not permit it.
(b) To act on the aid and advice of the Council of Ministers. By default this is the only real option available to him.
(ii) If the exercise of function is beyond the purview of the aid and advice of the Council of Ministers but is by or under the Constitution, the Governor can act “in his discretion”. Article 163(2) of the Constitution will have reference only to the last part of Article 163(1) of the Constitution and is not all-pervasive.
If there is a break-down in communications between the Council of Ministers and the Governor (as imagined by Mr. Churchill), then the Governor will not have the benefit of the aid and advice of the Council of Ministers. In that event, the Governor may “take the matter into his own hands and act freely.”
The break-down of communications was a possibility under the Government of India Act, 1935 since it was “in the main undemocratic” and there could be a break-down of communications between the representative of His Majesty and the Council of Ministers. However, if such a situation were to arise today in independent India, namely, a break- down of communications between the Governor of a State and the Council of Ministers, it would be most unfortunate and detrimental to our democracy. In the unlikely event of a complete break-down of communications, the President can and must intervene to bring in constitutional order.
Reference
Nabam Rebia v. Deputy Speaker (2015)