• Lex Specialis


Monika Mehra

The relationship between the two most powerful posts in India, President and Council of Ministers, is not clearly layered out in the Constitution of India. This led to various controversies regarding exercising the powers vested with these posts. But it should be noted that every time such a controversy arose, it has been confirmed that the President is just a constitutional head and the real power rests with the Council of Ministers. The controversy between the powers were largely solved by the 42nd Constitutional Amendment Act. Moreover, we can conclude Article 74(1) and 75(3) must be read together to determine how the President can exercise his powers which ultimately states that the advice of the council of ministers needs to be followed by the President as long as parliamentary support is available, and in the event the parliament is being dissolved, the president need not wait for advice from the Prime Minister he may use his own discretion at will. But this issue of powers still remains unanswered in clear terms in the Constitution. According to Art. 74(1), there shall be a Council of Ministers with the Prime Minister at its head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice.

The provision clearly denotes that the Council of Ministers should be there all the time. The President does not have the power to dispense the Council of Ministers. Even when the Lok Sabha is dissolved, the Council of Ministers should keep working. In U.N.R. Rao case, the Supreme Court (“SC”) clearly ruled out the possibility of the President ruling with the help of his advisers in case of absence of the Council of Ministers. The SC rejected the argument that the “shall” in Article 74(1) can be read as “may”. SC said that as the position of President is compulsory according to Article 52, the position of Council of Ministers is also necessary and rejected the argument that when there is no Lok Sabha, Council of Ministers are not responsible to anyone and the position can be done away with.

The only fear that the President has in case he ignores the advice given by the Council of Ministers is that the Lok Sabha can start impeachment proceedings against him for “violation of constitution” under Article 56(b) of the Constitution. But the process of impeachment is very complex and requires a very strong government enjoying a majority in one house with support of two-third of total membership in another house as it is requisite to pass a motion with no less than two-third majority of the total membership of the House. To conclude, we can say despite the attempt to codify the convention, the provision in Article 74(1) of the Constitution is merely directory in nature and is not a legally enforceable injunction

The Ministers hold office, not during the pleasure of the President but that of the House. As long as the party enjoys the confidence of the House and the Prime Minister is willing to keep a person in the Council of Ministers, the President has no other alternative but not to disturb the existing arrangement. President’s discretion to some extent arises when there is no single political party in the Lok Sabha with a clear cut majority.

It may be said that, in general the relation between the Governor and his Ministers is similar to that between the President and his Ministers. But there is an important difference that while the constitution does not empower the President to exercise any function ‘in his discretion’, it authorises the Governor to exercise some functions ‘in his discretion’. Art 163 says that there shall be a council of Ministers with the Chief Minister as the head to aid and advise the Governor.In the exercise of the functions which the Governor is empowered to exercise in his discretion, he will not be required to act according to the advice of his ministers or even to seek such advice.

Again, if any question arises whether any matter is or is not a matter as regards which the Governor is not required by the Constitution to act in his discretion, the decision of the Governor shall be final. A real problem occurs in the absence of a clear majority being obtained by either a single party or an alliance of different parties.In a situation of this type, the Governor can take up a number of alternative courses of action. Any person, whom the Governor thinks, would be in a position to form a stable ministry can be appointed as the Chief Minister. This power of the Governor can always be misused.

More often than not the Governors in India have acted in favour of the party ruling at the Centre. Once a person is appointed as a Chief Minister he has the advantage to win over the required strength in the Assembly by virtue of his powers and patronage.In the opinion of the Governor if no person is in a position to form the ministry then the Governor can advise the President to invoke Article 356 and impose President’s Rule.

This is done in order to give some time for the polarisation of different political groups, so that a ministry may be formed with majority support. Such an act of the Governor may also favour one group against the other.Thus the discretionary power of the Governor in appointing a Chief Minister depends upon the political context. Where a person enjoys the support of the majority members of the Legislative Assembly, the Governor is left with no option.In a situation where the support of members is not clear, and then the discretion of the Governor has a vital role to play. In such crucial times the Governor has to make an objective assessment and should not be carried away by political partnership.

The limitations on the power of the Governors to dismiss the ministry can be understood from Dr. Ambedkar’s statement: “As long as the Ministry enjoys the confidence of the majority of the Legislative Assembly, it shall not be dismissed and when it has lost the confidence of the majority, the Governor whether he likes it or not has to dismiss the Ministry.”The experience of the Governors in different States proves that the matter was not so simple as it has been mentioned in the Constitution. Often many of the Governors found it very difficult to take a decision on the dismissal of a ministry on the basis of the fact that it had lost the majority support in the Legislative Assembly.

Many times the dismissal of the ministry was challenged in the Court as unconstitutional. But at no time did the courts give judgement against the action of the governors.

There are also instances, wherein it was known beyond doubt that the Chief Minister had lost support of the majority in the Legislative Assembly; still he was allowed to continue in the office, without convening the Legislative Assembly.A Governor can exercise his discretion either in favour or against a particular Chief Minister irrespective of the majority support enjoyed. A Governor can also recommend to the President for invoking Article 356 and imposing President’s Rule, by which the ministry of the State government is automatically dismissed. Experience shows that the Central government has, many times, made use of this provision.

When the constitutional government cannot function either because of law and order problems or when there is no person who is in a position to form the ministry, the President’s Rule can be imposed.The slightest disturbance in the State can be taken as a pretext and the Governor may recommend the imposition of President’s Rule. So wide is the discretionary power enjoyed by the Governor which can be misused for political purposes?

Considering all these factors, we can draw the conclusion that, constitutionally, the Governor has the power to dismiss an individual Minister at any time. Furthermore, he can dismiss a Council of Ministers or the Chief Minister (whose dismissal means a fall of the Council of Ministers), only when the Legislative Assembly has expressed its want of confidence in the Council of Ministers, either by a direct vote of no confidence or censure or by defeating an important measure or the like, and the Governor does not think fit to dissolve the Assembly.

The Governor cannot do so at his pleasure on his subjective estimate of the strength of the Chief Minister in the Assembly at any point of time because it is for the Legislative Assembly to enforce the collective responsibility of the Council of Ministers to itself, under Art. 164 (2).


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