Discretionary powers of the Governor

Also called: Article 163 · Topic: State Government: Governor, Chief Minister, State Legislature and Union Territories · NCERT: Class 11, Ch 7 "Federalism"

Meaning

The discretionary powers of the Governor are the powers a Governor uses on their own judgment, not on the advice of the Chief Minister (CM) and the Council of Ministers. They exist only where the Constitution says so in words, or where the situation makes it necessary (Article 163).

They matter because they decide who forms a state government, when a ministry must prove its majority and whether the Centre takes over a state. These powers have often been used in a partisan way, meaning to suit the party in power at the Centre.

Explanation

How Article 163 works

• The rule (Art. 163(1)): a Council of Ministers headed by the CM will "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].
• So advice is the normal rule.

• Discretion is the exception.

• Who decides what is discretionary (Art. 163(2)): if there is a doubt, "the decision of the Governor in his discretion shall be final". No act of the Governor can be challenged on the ground that the Governor should or should not have used discretion [2].

• Advice stays secret (Art. 163(3)): no court can ask whether ministers gave advice, or what that advice was [2].
• More room than the President: Art. 74 (advice to the President) has no "in his discretion" clause like this one. So the Governor has more room to act alone than the President.
• Constituent Assembly: this was Draft Art. 143, debated on 1 June 1949 [2].
• One member warned that it gave the Governor more power than the President [2].
• The Drafting Committee replied that the Governor would be bound by advice except on matters expressly made discretionary [2].
• A move to make the CM directly answerable to the Governor was rejected [2].
• Ambedkar said the Governor "has no functions which he can discharge by himself; no functions at all" [3].

Types of discretion

• Express discretion (written into the Constitution):
• reserving a bill for the President's consideration (Art. 200);
• duties under the Sixth Schedule in tribal areas of Assam, Meghalaya, Tripura and Mizoram;
• special responsibilities under Art. 371, e.g. Art. 371A (Nagaland) and Art. 371H (Arunachal Pradesh);

• running a nearby Union Territory as its administrator (Art. 239(2)).

• Situational discretion (comes from the facts at the time):

• choosing a CM in a hung assembly (no party or alliance has a clear majority);
• dismissing a ministry that has clearly lost its majority but will not resign;
• dissolving the assembly when no government can be formed;

• sending a report under Art. 356 that can lead to President's rule (when the Union government takes over the running of a state for a time).

• PRS lists choosing a CM in a hung House, dissolving the House when no majority exists, recommending President's rule and Sixth Schedule powers in the North-East as the Governor's areas of discretion [3].

Choosing a CM and the floor test: the steps

1. Appointment (Art. 164(1)): the Governor appoints the CM. Ministers hold office "during the pleasure of the Governor". In practice, that pleasure lasts only as long as the ministry has the assembly's confidence.
2. Order of preference in a hung assembly (Sarkaria Commission, report 1988 [6]; Punchhi Commission, report 2010, agreed):
3. a pre-poll alliance (parties that fought the election together);
4. the largest single party that has support from others;
5. a post-poll coalition whose partners all join the government;

6. a post-poll coalition where some partners support from outside (they back the government but take no ministerial posts).

7. Floor test: majority is proved by a vote in the assembly, not by head-counts in Raj Bhavan (the Governor's residence) [3]. - A confidence motion is moved by the government to show it has a majority. - A no-confidence motion is moved by the opposition to remove the government. - The ministry needs a simple majority of members present and voting. - Courts now set short deadlines, sometimes about a day, to stop horse-trading (buying legislators' support).

Limits set by the courts

• Discretion covers only what the Constitution expressly or necessarily allows. It is not a general power (Nabam Rebia, 2016).
• Summoning, proroguing (ending a session) and dissolving the House under Art. 174 must be done on the CM's advice (Nabam Rebia).
• The Governor must not act against ministers' advice except in these narrow cases (Samsher Singh, 1974; State of Tamil Nadu, 2025) [4].
• Exception: the Governor may sanction the prosecution of a minister against cabinet advice if that advice is biased or plainly unreasonable (M.P. Special Police Establishment, 2004).
• Art. 361 protects the Governor personally from court cases. But courts can still review the Governor's report (Rameshwar Prasad, 2006).

In the Constitution and practice

• Main articles: Art. 163 (aid and advice, discretion), Art. 164 (CM appointment), Art. 174 (summon, prorogue, dissolve), Art. 200 (bills), Art. 239(2), Art. 356, Art. 371, and the Sixth Schedule. All of these are in the original Constitution of 1950.
• Who uses it: the Governor, who is appointed by the President. Courts check it through judicial review (the courts' power to examine whether an action follows the Constitution).

Landmark cases on how wide discretion is

Case	Year / Bench	Principle
Samsher Singh v. State of Punjab	1974, seven judges	The President and Governors act on ministers' advice, except in a few well-known exceptional situations
M.P. Special Police Establishment	2004	The Governor may sanction prosecution of a minister against biased or plainly unreasonable cabinet advice
Nabam Rebia v. Deputy Speaker	13 July 2016, five judges	Discretion is not a general power. The Arunachal Governor's acts were set aside and the Nabam Tuki government was restored
State of Tamil Nadu v. Governor of Tamil Nadu	8 April 2025, two judges	The Governor cannot act against advice under Art. 163(1). It held B.K. Pavitra (2019) per incuriam (decided without noticing binding law) [4]
Sixteenth Presidential Reference (Art. 143)	20 November 2025, five judges	The Governor's Art. 200 choices on bills are not bound by advice. There are no court-fixed timelines and no "deemed assent", but courts may step in after a long, unexplained delay [5]

• On bills (Art. 200): the Governor can give assent, reserve the bill for the President, or withhold assent and return it with comments. Returning is not allowed for a money bill (a bill only about taxes, government borrowing or spending) [5]. The April 2025 ruling had set timelines and allowed deemed assent. The November 2025 opinion reversed both [4][5].
• Prosecution sanction in practice: in August 2024, the Karnataka Governor sanctioned the prosecution of CM Siddaramaiah in the MUDA land case against cabinet advice. The Karnataka High Court upheld it in September 2024.

Floor-test cases

• S.R. Bommai (1994, nine judges): majority must be tested on the floor of the House, not by the Governor's own opinion.
• Jagdambika Pal (UP, 1998): the court ordered a composite floor test (one vote between both claimants). Kalyan Singh won.
• Jharkhand (2005): the court brought forward Shibu Soren's floor test. He resigned without facing it.
• Karnataka (May 2018): the Governor gave Yeddyurappa 15 days. The court cut this to about a day, and he resigned before the vote.
• Shiv Sena v. Union of India (Maharashtra, November 2019): the court ordered an immediate floor test with an open ballot and a live telecast. Fadnavis resigned before it.
• Shivraj Singh Chouhan (MP, 2020): the Governor may call a floor test for a sitting government when there is prima facie (at first sight) evidence that it has lost its majority. Kamal Nath resigned.
• Subhash Desai (11 May 2023, five judges): the Governor's June 2022 floor-test call had no objective material behind it. A dispute inside one party cannot be settled by a floor test. Thackeray was not restored because he had resigned.

Art. 356 reports

• Misuse recorded by NCERT (Class 11, Ch. 7):
• Kerala 1959: the government was dismissed even though it had a majority.
• After 1967: ministries were dismissed without any floor test.

• 1980s: elected governments were removed in Andhra Pradesh (1984) and J&K.

• Average states under President's rule per year: 1.1 up to 1966, 6 in 1967–1993, and 1.5 after Bommai (1994) [3].

• Rameshwar Prasad (2006, five judges): the May 2005 dissolution of the Bihar assembly, based on Governor Buta Singh's report, was unconstitutional and mala fide (done in bad faith). The assembly was not restored because fresh elections were already under way.

Don't confuse with

• President's discretion (Art. 74): Art. 74 has no "in his discretion" clause. Art. 163 does, so the Governor has more room to act alone than the President.
• Governor's pleasure (Art. 164) vs floor test: ministers hold office "during the pleasure of the Governor". But that pleasure cannot override a majority on the floor. Since Bommai, only the House decides majority.
• Art. 361 immunity vs judicial review: the Governor personally cannot be taken to court. But the Governor's Art. 356 report and decisions can still be reviewed (Rameshwar Prasad, 2006).
• Art. 174 powers vs real discretion: summoning, proroguing and dissolving the House look like the Governor's own powers. Nabam Rebia (2016) held they must be used on the CM's advice.

Prelims Hooks

• Art. 163(2): the Governor's own decision is final on whether a matter is discretionary. Art. 163(3): courts cannot ask what advice ministers gave [2].
• Draft Art. 143 became Art. 163. It was debated on 1 June 1949 [2].
• Bench sizes: Samsher Singh (1974) seven judges, Bommai (1994) nine, Nabam Rebia (2016) five.
• Sarkaria order for a hung assembly: pre-poll alliance → largest party with support → post-poll coalition in government → coalition with outside support.
• Trap: Subhash Desai (2023) held the Governor's floor-test call wrong but did not restore Thackeray. Nabam Rebia (2016) did restore the Tuki government.
• 16th Presidential Reference (20 November 2025): no court-fixed timelines and no deemed assent for bills under Art. 200 [5].

Mains Points

• Discretion vs responsible government: Art. 163(2) makes the Governor the judge of their own discretion. Courts have narrowed it to express or necessary cases through Samsher Singh, Nabam Rebia and the April 2025 Tamil Nadu ruling [2][4]. But the November 2025 opinion kept a space on bills that courts cannot examine [5]. The tension is still unsettled.
• Floor test as the remedy: quick, open-ballot, televised floor tests ordered by courts (1998, 2018, 2019) reduce Raj Bhavan's role. Even so, Subhash Desai (2023) shows a Governor can still tip the balance through the timing of a call. On Art. 356, Rameshwar Prasad shows the remedy may come too late to help.
• Reforms (Sarkaria, Punchhi): appoint non-political Governors, consult the CM before appointment, give a fixed tenure, test majority only on the floor, and write the hung-assembly order into conventions or law [3].

Related concepts

• Floor test
• Nabam Rebia case

Read more

• The Governor's discretion: government formation, floor tests and Art. 356 reports