Council of Ministers to aid and advise Governor

Article 143, Draft Constitution of India 1948

(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.

Article 163, Constitution of India 1950

(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.

Draft Article 143 (Article 163) was debated on 1st June 1949. It created a Council of Ministers to aid and advise the Governor.

A member proposed that clause (1) be amended so that the Council could aid and advise the Governor even in the exercise of his discretionary powers. He argued that this gave the Governor more authority than the President in relation to the Council’s advice. He further contended that it violated the principles of constitutional government to invest the Governor with wide discretionary powers. A member of the Drafting Committee clarified that the Governor would be bound to act on the advice of the Council except on those matters which explicitly came under his discretionary powers under Draft Article 188. He pointed out that the present Draft Article could be later revised if the Assembly decided to remove discretionary powers altogether during the debate on Draft Article 188.

A member proposed to an amendment to explicitly state that the Chief Minister, as the head of the Council, would be responsible to the Governor. He argued that the Constitution was based on the principle of the executive’s responsibility to the legislature. Since the Chief Minister would be heading the Council and adjudicating on matters of great importance, it was necessary for him to be ‘directly responsible for any advice tendered to the Constitutional head of the State.’ One member agreed with this, expressing concern that the Draft Article only required the Council to render advice to the Governor, and did not bind the latter to act on it. Another member disagreed, arguing that there may be many situations in which the advice of the Council may not be appropriate.

Both amendments were negatived by the Assembly. Draft Article 163 was adopted on 1st June 1949.