Articles 152 to 167 of the Constitution of India erect the State Executive on a single axis: a Governor who is constitutionally the head of the State, but who in almost every function is bound by the aid and advice of a Council of Ministers headed by an elected Chief Minister. The architecture is parliamentary, not presidential. The discretion that the text reserves to the Governor is narrow and exceptional, and the Supreme Court has, since Samsher Singh v. State of Punjab (1974) 2 SCC 831, repeatedly cut down attempts to enlarge it. The State Executive is therefore best read as a study in constrained office: a high constitutional functionary whose own pleasure is borrowed from the Council, whose ordinance power is borrowed from the Legislature, and whose removal is borrowed from the President.
This chapter walks the office from appointment to ordinance. It covers the Governor's appointment, term, oath and removal under Articles 153 to 159; the executive power vested by Article 154 and bounded by Article 162; the pardoning power under Article 161; the Council of Ministers and Chief Minister under Articles 163 to 164; the Advocate-General under Article 165; the conduct of business under Article 166; the Chief Minister's duty to inform under Article 167; and the Governor's ordinance-making power under Article 213. The companion limbs of state government — the Legislature and the High Court — are treated separately in the chapter on the State Legislature and the chapter on the State Judiciary. The textual scaffolding for the State Executive belongs to the larger architecture studied in the Preamble and components of the Constitution.
Article 153 to 155 — One Governor per State, appointed by warrant
Article 153 mandates that there shall be a Governor for each State. The proviso, inserted by the Constitution (Seventh Amendment) Act, 1956, allows the same person to be appointed Governor of two or more States — the textual basis for joint Governorships that the President sometimes resorts to during interregnums. Article 155 supplies the mode of appointment: the Governor of a State is appointed by the President by warrant under his hand and seal. There is no popular election, no consultation with the State Legislature, and no nomination by the State Government. The office is, in formal terms, a Union appointee posted at the apex of a State.
The qualifications under Article 157 are minimalist: the appointee must be a citizen of India and must have completed thirty-five years of age. The Constitution prescribes nothing about residence, profession, or party affiliation. Successive Centre-State Commissions urged conventions — that the Governor should be eminent in some walk of life, should not be from the State concerned, should not be a recently active politician, and should be appointed in consultation with the Chief Minister. The Supreme Court in Rameshwar Prasad (VI) v. Union of India (2006) 2 SCC 1 noted that political parties have not generally observed those criteria, and left the matter to the wisdom of the political class rather than reading any binding norm into Article 157.
Article 158 imposes the conditions of office: the Governor cannot be a member of either House of Parliament or of any State Legislature; if a sitting member is appointed, the seat is deemed vacated on entering office. The Governor cannot hold any other office of profit and is entitled to the use of an official residence and to the emoluments specified in the Second Schedule, which cannot be diminished during the term. Where one person holds office in two States, Article 158(3A) provides for proportionate allocation of emoluments by Presidential order.
Article 156 — Term, pleasure, and the limits of removal
Article 156 creates a deceptively simple tension. Clause (1) says the Governor holds office during the pleasure of the President. Clause (3) says the Governor shall hold office for a term of five years. The two are reconciled in B.P. Singhal v. Union of India (2010) 6 SCC 331, where the Supreme Court held that the five-year term in Article 156(3) is not a restriction on the President's pleasure under Article 156(1); the Governor can be removed before the expiry of the term, without notice and without assigning reasons. To that extent, the office mirrors the historical English position of a constitutional functionary serving at the Crown's pleasure.
But the Court in B.P. Singhal also drew a line. The order of removal is justiciable to a limited extent. If the aggrieved person can show a prima facie case of arbitrariness or mala fides, the Court can require the Union Government to produce the record to show that the withdrawal of pleasure was for good and compelling reasons. The pleasure doctrine therefore survives, but it is not a licence for political housekeeping after every change of government at the Centre. A removal merely because the Governor's political ideology does not align with that of the new ruling party at the Union — without any substantive ground of misconduct or incapacity — would not pass the limited judicial review the Court reserved.
The proviso to Article 156(3) is functional rather than restrictive. There is no provision in the Governor's appointment scheme equivalent to Article 62(1) for the President's election; circumstances may carry the incumbent past five years without a successor being named. The proviso permits the Governor to continue until a successor enters office. As the Supreme Court explained in Krishna Ballabh Sahay v. Commission of Inquiry, AIR 1969 SC 258, the proviso is meant to avoid an interregnum, not to extend the term as a matter of right. Article 159 then prescribes the oath, taken before the Chief Justice of the High Court exercising jurisdiction in the State, to faithfully execute the office and to preserve, protect and defend the Constitution and the law. Article 160 supplies the residual contingency power: the President may make such provision as he thinks fit for the discharge of the functions of the Governor in any contingency not provided for in the Chapter.
Article 154 and 162 — Executive power: residue, co-extensive, constrained
Article 154(1) vests the executive power of the State in the Governor and provides that it shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution. The companion provision, Article 162, marks the extent: the executive power of the State extends to the matters with respect to which the Legislature of the State has power to make laws, with a proviso that in the concurrent sphere the State's executive power is subject to the executive power expressly conferred on the Union by the Constitution or by Parliament.
Three propositions, settled long ago in Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549, govern the field. First, executive power is the residue of governmental functions left after the legislative and judicial functions have been taken away — a definition the Court borrowed from the Westminster tradition and grafted onto the Indian text. Second, executive action does not require prior legislative authority for every act; the State may act executively in any field where the Legislature could legislate, provided no fundamental right is touched and no statute occupies the field. Third, where a statute does occupy the field, executive action must conform to it. The doctrine that the State's executive power is co-extensive with its legislative power was repeated in Bishamber Dayal Chandra Mohan v. State of U.P., AIR 1982 SC 33. The boundary line is drawn by Articles 245 to 254, treated separately under the chapter on Centre-State legislative relations.
Two limits flow from this. Where the action affects the rights of citizens — by curtailing liberty, taking property, or imposing a tax — Article 162 cannot supply the authority; legislation is required. And where Parliament has competence and has acted, the State Executive's power yields. The familiar example: a State cannot, in exercise of executive power under Article 162, regularise the services of employees appointed contrary to statutory rules framed under Article 309, because the executive order cannot prevail over a statute or statutory rules — the line drawn in State of Karnataka v. KGSD Canteen Employees' Welfare Assn. (2006) 1 SCC 567.
Article 161 — The Governor's pardoning power
Article 161 confers on the Governor the power to grant pardons, reprieves, respites or remissions of punishment, and to suspend, remit or commute sentences in respect of offences against any law to which the executive power of the State extends. The article echoes Article 72, the President's pardoning power, but is narrower in two ways: it does not extend to sentences passed by court-martial, and it does not extend to death sentences as such (death sentences are within the President's exclusive sphere under Article 72). Within its sphere, however, the power is wide. As K.M. Nanavati v. State of Bombay, AIR 1961 SC 112, recognised, the article gives the Governor a pardoning power of the same nature as that historically enjoyed by the British Crown, and it may be exercised before, during or after trial.
The exercise of the power is not personal. The Governor acts on the aid and advice of the Council of Ministers, as Union of India v. V. Sriharan (2016) 7 SCC 1 confirmed in the context of remission of life sentences. The competence of the Governor depends on the offence being against a law to which the State's executive power extends; if the offence is under a Union law on a matter in List I, the Governor cannot act. Thus, in G.V. Ramanaiah v. Superintendent, Central Jail, Rajahmundry, AIR 1974 SC 31, the Court held that the Governor could not commute a sentence for an offence under Sections 489A to 489D of the Indian Penal Code because the subject of currency falls within the Union List.
The pardoning power is not exhausted by a single rejection. In G. Krishta Goud v. State of A.P. (1976) 1 SCC 157, the Supreme Court accepted that the Governor or President may reconsider an earlier rejection in light of changed circumstances. Nor does the exercise of the power amount to interference with the judiciary; the Court's power to pronounce on the validity, propriety and correctness of the conviction remains unaffected, as State (Govt of NCT of Delhi) v. Prem Raj (2003) 7 SCC 121 reiterated. But an order under Article 161 cannot pronounce on the innocence or guilt of the accused — that would exceed the constitutional limits of the article, as the Court held in Narayan Dutt v. State of Punjab (2011) 4 SCC 353.
Judicial review is available, but is limited. Epuru Sudhakar v. Govt of A.P. (2006) 8 SCC 161 sets out the now-standard grounds: an order under Article 72 or 161 can be impugned if it has been passed without application of mind, is mala fide, has been passed on extraneous or wholly irrelevant considerations, has kept relevant materials out of consideration, or suffers from arbitrariness. The territorial test in Govt. of A.P. v. M.T. Khan (2004) 1 SCC 616 is also important: the appropriate Government to exercise the power is the Government within whose territorial jurisdiction the convict was convicted, not the State where the convict happens to be serving the sentence. The interplay with statutory remission powers under Sections 432 and 433 of the Code of Criminal Procedure is recognised in Sriharan — the constitutional power and the statutory power operate in parallel and one does not extinguish the other. For the symmetric Union-side discussion, see the chapter on the Union Executive. The constitutional grammar of fundamental rights that constrains every executive act is collected in the chapter on Fundamental Rights.
Article 163 — Aid and advice; the narrow ambit of discretion
Article 163(1) creates 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 the Constitution required to exercise his functions or any of them at his discretion. Clause (2) makes the Governor the final authority on whether a matter is one in which he is required to act in his discretion. Clause (3) bars any inquiry in court into what advice was tendered.
The contrast with Article 74(1) is studied. Article 74 makes the President's obligation to act on the advice of the Council of Ministers absolute (subject to the power to require reconsideration once); it contains no clause about discretion. Article 163, by contrast, expressly carves out a discretionary sphere. Samsher Singh v. State of Punjab (1974) 2 SCC 831 held, however, that this textual difference is not a licence for the Governor to act personally on every matter. The discretion is confined to the situations where the Constitution itself spells it out. The Court in State of Gujarat v. R.A. Mehta (2013) 3 SCC 1 made the point sharply: individual discretionary powers of the Governor exist only where they are expressly spelt out in the Constitution.
The textual list of express discretion is short. The Sixth Schedule confers discretionary functions on the Governor of Assam in tribal areas under Paragraph 9. The Governor, when appointed Administrator of a Union Territory under Article 239(2), discharges that role in his discretion. Articles 371A, 371C and 371F confer special responsibilities on the Governors of Nagaland, Manipur and Sikkim. Beyond those expressly enumerated functions, certain functions are by their nature non-ministerial — reporting to the President under Article 356(1), and reserving a Bill for the President's consideration under Article 200 — and these too cannot sensibly be exercised on the advice of the very Council whose conduct or legislation is in issue. Hoechst Pharmaceuticals Ltd. v. State of Bihar, AIR 1983 SC 1019, illustrates the first; Samsher Singh illustrates the second. For the parallel federal context, see the chapter on Centre-State Administrative Relations.
The Constitution Bench in Nabam Rebia v. Deputy Speaker, Arunachal Pradesh Legislative Assembly (2016) 8 SCC 1 considerably tightened this line. The Court held that the Governor cannot use Article 163 as a roving commission to intervene in intra-party disputes among members of the Legislative Assembly, summon or prorogue the House on his own initiative, or fix the agenda of the Assembly. Such functions belong to the elected branch and to the Speaker; the Governor cannot adjudicate them or use the discretion clause as an entry point.
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Take the constitutional mock →Article 164 — The Chief Minister and Council of Ministers
Article 164(1) provides that the Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by the Governor on the advice of the Chief Minister, and that Ministers hold office during the pleasure of the Governor. The choice of the Chief Minister is, by convention, the leader of the party or coalition that commands a majority in the Legislative Assembly. Where the verdict is decisive, no discretion arises; where the assembly is hung, the Governor's role becomes consequential — but even there, the Court in Rameshwar Prasad insisted that the Governor must accept a claim that prima facie demonstrates majority support, and cannot deny it on the basis of subjective assessments of how that majority was assembled.
The Constitution does not require the appointee to be a member of the Legislature at the time of appointment. Article 164(4) provides that a Minister who is not a member of the State Legislature for a period of six consecutive months shall, at the expiration of that period, cease to be a Minister. The combined working of Article 164(1) and (4) was the subject of S.R. Chaudhuri v. State of Punjab (2001) 7 SCC 126: a non-legislator may be inducted as Minister, but he must secure election within six consecutive months. The Court refused to permit the device of repeated re-appointment of the same non-legislator after the lapse of one six-month period — that would subvert the constitutional design and reduce the elected basis of ministerial office to a formality. The grace period is a single, non-renewable bridge to electoral legitimacy, not a recurring loophole.
The eligibility line was tightened further in B.R. Kapur v. State of T.N. (2001) 7 SCC 231: a person convicted of a criminal offence and sentenced to imprisonment for not less than two years cannot be appointed Chief Minister under Article 164(1) read with Article 164(4), and cannot continue if so appointed. The disqualification operates because the appointee must, even though not a sitting member, possess the qualifications and not suffer from the disqualifications prescribed for membership of the Legislature under Articles 173 and 191. The Court in Manoj Narula v. Union of India (2014) 9 SCC 1 declined to read a further disqualification — for those merely facing charges of heinous or corruption-related offences — into Article 164(1), leaving that to legislative reform.
Article 164(1A), inserted by the Constitution (Ninety-first Amendment) Act, 2003, caps the size of the Council of Ministers at fifteen per cent of the total membership of the Legislative Assembly, with a floor of twelve. Article 164(1B) operates the anti-defection bar of the Tenth Schedule into ministerial appointments: a member disqualified under paragraph 2 of the Tenth Schedule is also disqualified from being appointed Minister for the duration of his disqualification.
Article 164(2) entrenches collective responsibility. The Council of Ministers is collectively responsible to the Legislative Assembly of the State. Three consequences follow, as State of Karnataka v. Union of India, AIR 1978 SC 68, set out. First, collective responsibility is political rather than legal — it is enforced through votes of confidence and the loss of office, not through suits. Second, each Minister is vicariously responsible to the Assembly for the acts of every other member of the Council; the whole Council may be compelled to resign for the acts of one. Third, the legal liability of an individual Minister for wrongful acts done by him remains intact and is enforced through ordinary courts.
What happens between two governments? U.N.R. Rao v. Indira Gandhi, AIR 1971 SC 1002, held that the Council of Ministers does not vanish on dissolution of the House. Article 164(2) must be read with Article 163(1), which says there "shall be" a Council of Ministers; there must always be a Council to advise the Governor as the constitutional head. The outgoing Council carries on until its successor takes office, and no quo warranto lies against the Chief Minister or any other Minister during that interregnum on the ground of legal title. The same logic applies, of course, after a vote of no-confidence — the defeated Council remains in caretaker capacity until a successor is sworn in.
The Governor between two claimants — composite floor test
One recurring controversy concerns the Governor's role when a sitting Chief Minister is allegedly displaced without a floor test, or when a hung assembly produces rival claimants. The Supreme Court's preferred remedy is institutional rather than discretionary. In Jagdambika Pal v. Union of India (1999) 9 SCC 95, the Court directed a special session of the Assembly with a single agenda — a composite floor test between the contending parties — and abided by the verdict of the House. The principle is now standard: where there is doubt, the floor of the House is the appropriate forum, not the Raj Bhavan.
The Court in Rameshwar Prasad held that the Governor cannot recommend dissolution of an Assembly on the ground that the majority claim is supported by means he subjectively considers illegal or unethical. The Governor is "not an autocratic political ombudsman". If a party with the support of others claims a majority, the Governor must accept the prima facie case and put the question to a floor test rather than denying the opportunity to form a government. The action of recommending dissolution must be guided solely by preservation of the Constitution, not by the political interest of any party. The companion theme — when the Centre acts under Article 356 on a Governor's report — is treated in the chapter on Emergency Provisions, where the Constitution Bench in S.R. Bommai v. Union of India (1994) 3 SCC 1 laid down the floor-test rule for President's Rule. The federal-finance side of the same equation appears in the chapter on Centre-State financial relations.
Article 165 — The Advocate-General for the State
Article 165 is the State counterpart of Article 76. The Governor appoints, as Advocate-General, a person qualified to be appointed a Judge of a High Court — that is, who has held judicial office in India for ten years or has been an advocate of a High Court for ten years (the Article 217(2) qualifications). It is the duty of the Advocate-General to give advice to the Government on legal matters, to perform such other duties of a legal character as the Governor may assign, and to discharge functions conferred under any law for the time being in force. The Advocate-General holds office during the pleasure of the Governor, with remuneration determined by the Governor.
The age-limit fixed in Article 217(1) for High Court Judges (sixty-two years) does not apply to the Advocate-General. Article 217(1) prescribes duration of office, not qualifications; only Article 217(2)'s qualification clause is incorporated into Article 165, as the Court explained in Bhadreswar Tanti v. S.N. Choudhury, AIR 1985 Gauhati 1. A retired High Court Judge may therefore be appointed Advocate-General. The State may also, in exercise of its general executive power under Article 162, appoint Additional Advocates-General, but those positions are statutory or executive creations and are not part of the constitutional scheme of Article 165, as M.T. Khan v. Govt. of A.P. (2004) 2 SCC 267 clarified. The Advocate-General has, under Article 177, the right to address either House of the State Legislature and to take part in the proceedings of any committee, but does not vote.
Article 166 — Conduct of business and Rules of Business
Article 166 lays down the formalities by which executive action is taken in the name of the Governor. Clause (1) requires that all executive action of the Government of a State shall be expressed to be taken in the name of the Governor. Clause (2) provides that orders and instruments made and executed in his name shall be authenticated as specified in rules made by the Governor; once so authenticated, the validity of the order shall not be called in question on the ground that it is not made or executed by the Governor. Clause (3) empowers the Governor to make rules for the more convenient transaction of the business of the Government and for the allocation of business among Ministers.
The provision is directory, not mandatory. The leading authority on this point is Dattatraya Moreshwar v. State of Bombay, AIR 1952 SC 181, followed in State of Bombay v. Purushottam Jog Naik, AIR 1952 SC 317. Failure to express an order in the name of the Governor does not nullify it; it merely takes away the constitutional immunity from proof. The State must then establish, by other evidence, that the order was in fact made by the Government — through the relevant records or by an affidavit of a responsible officer. Conversely, an order strictly authenticated under Article 166(2) carries an immunity: it cannot be impugned merely on the ground that it was not personally signed by the Governor.
The Rules of Business under Article 166(3) are the engine room of State administration. By these rules the Governor allocates portfolios among Ministers, prescribes which classes of cases must be placed before the Council of Ministers as a whole, and authorises Ministers and Secretaries to dispose of matters at their level. Samsher Singh v. State of Punjab (1974) 2 SCC 831 held that any function vested in the Governor — executive, legislative or quasi-judicial — may be allocated by the Rules of Business unless the Constitution or the statute clearly provides otherwise. Even statutory functions of the State Government can be allocated to a Minister; the General Clauses Act defines "State Government" to mean the Governor, and a statutory function therefore becomes part of the business which the Rules can route. Where the function is quasi-judicial, the rules must conform to the principles of judicial procedure — if a personal hearing is required, the deciding authority cannot delegate the hearing to a Secretary, as Gullapalli Nageswara Rao v. A.P.S.R.T.C., AIR 1959 SC 308, established.
Three further refinements of the doctrine are worth noting. First, an order signed by a Minister but not communicated to the affected party is provisional; until it is communicated, the Government remains free to reconsider — the rule of Bachhittar Singh v. State of Punjab, AIR 1963 SC 395. Second, the Rules of Business cannot be used to override a substantive statutory provision. Third, the order of a Minister even when expressed in the name of the Governor remains the order of the Minister and is open to judicial review on its merits, as Common Cause v. Union of India (1999) 6 SCC 667 observed. The careful distinction between the Governor as constitutional head and the Council of Ministers as the real decision-maker survives the formal language of Article 166. The administrative-law dimensions of the State's regulatory choices are explored further in the chapter on the distribution of legislative powers.
Article 167 — The Chief Minister's duty to inform
Article 167 mirrors Article 78. It is the duty of the Chief Minister of each State to communicate to the Governor all decisions of the Council of Ministers relating to the administration of the affairs of the State and proposals for legislation; to furnish such information relating to the administration as the Governor may call for; and, if the Governor so requires, to submit for the consideration of the Council any matter on which a decision has been taken by a Minister but not considered by the Council. The duty is informational, not adjudicative. The Governor cannot use Article 167 to substitute his judgment for that of the Council; he can only require that matters be properly placed before the Council. The provision converts the Chief Minister into the institutional channel of communication between the Cabinet and the constitutional head.
Article 213 — Ordinance-making power of the Governor
The Governor's legislative power lives in Article 213, the State analogue of Article 123. When the Legislative Assembly is not in session — and where there is a Legislative Council, when neither House is in session — and the Governor is satisfied that circumstances exist which render it necessary to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require. The Ordinance has the same force and effect as an Act of the Legislature.
The proviso to Article 213(1) requires the Governor to obtain prior instructions of the President before promulgating an Ordinance in three categories: where a Bill containing the same provisions would have required the President's previous sanction for introduction; where the Governor would have deemed it necessary to reserve such a Bill for the President's consideration; or where an Act of the State Legislature containing the same provisions would have been invalid without the President's assent. These are the same fields in which Articles 200 and 201 require Presidential intervention for ordinary Bills.
Three foundational propositions on the ordinance power, drawn together in Krishna Kumar Singh v. State of Bihar (2017) 3 SCC 1 (Constitution Bench), are now beyond serious doubt. First, the Governor's ordinance power is not a discretionary power; it must be exercised on the aid and advice of the Council of Ministers, as Samsher Singh and the State-level reasoning in R.C. Cooper v. Union of India, AIR 1970 SC 564 confirm. Second, the satisfaction of the Governor is justiciable — the test is not the sufficiency or adequacy of the material, but whether the satisfaction is based on some relevant material; the Court can also scrutinise whether the satisfaction constitutes a fraud on power or was actuated by oblique motive. Third, the requirement under Article 213(2)(a) of laying the Ordinance before the Legislature is a mandatory constitutional obligation, and a failure to comply is a serious constitutional infraction.
The clearest line drawn by the Constitution Bench in Krishna Kumar Singh is the rejection of perpetual re-promulgation. Drawing on the earlier judgment in D.C. Wadhwa v. State of Bihar, AIR 1987 SC 579, the Court held that re-promulgation of Ordinances without placing them before the Legislature, in a routine manner, would be a fraud on the Constitution; any such re-promulgated Ordinance is liable to be struck down and consequential action taken under it must also fall. D.C. Wadhwa exposed the systemic vice in Bihar where Ordinances had been re-issued for years on end, never reaching the Assembly. Re-promulgation may be justified in extreme cases when the Legislature, owing to pressure of business, is unable to enact a statute in place of the Ordinance, but it cannot become the usual practice — that would be "usurpation by the Executive of the law-making function of the Legislature".
The further question — what happens to rights that have accrued under an Ordinance which has ceased to operate — was left in some doubt by the older decisions in State of Orissa v. Bhupendra Kumar Bose, AIR 1962 SC 945, and T. Venkata Reddy v. State of A.P. (1985) 3 SCC 198, both of which had borrowed the analogy of a temporary enactment and recognised "enduring rights". Krishna Kumar Singh overruled that line. There is a difference between an Ordinance and a temporary enactment; Articles 123 and 213 contain no express savings provision. Whether rights and obligations under a lapsed Ordinance survive must be determined by the test of public interest and constitutional necessity, including whether the consequences have assumed an irreversible character. In a suitable case, the Court can mould the relief.
The Ordinance power and the Governor's reserve power under Article 200 (to reserve a Bill for the President) sit in close textual proximity to Article 213, and a Governor cannot bypass the Article 200/201 reservation regime by reaching for the Ordinance route on a subject that the Constitution would have routed to the President. The careful interaction between Bill-reservation and Ordinance-instructions is part of the broader scheme of distribution of subjects in the Seventh Schedule, and the President's parallel ordinance power is described alongside the office of the President in the chapter on the Union Legislature and Parliament.
President's Rule and the Governor's report
Article 356 sits outside the State Executive chapter, but it is the bridge by which the Governor's role becomes federally consequential. A proclamation under Article 356 is normally founded on a report by the Governor that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of the Constitution. The Constitution Bench in S.R. Bommai v. Union of India (1994) 3 SCC 1 held that the Governor's report, and the President's satisfaction founded on it, are subject to judicial review on the same grounds as any other constitutional power. The floor of the House remains the appropriate forum for testing whether a government enjoys majority support; the Governor's subjective assessment cannot displace it. Rameshwar Prasad later applied the same logic when an Assembly was dissolved, before its first sitting, on a report alleging horse-trading. The Court struck down the dissolution on the ground that the Governor's recommendation was based on extraneous and unsupported assumptions. For the full treatment, see the chapter on basic structure doctrine, which controls how Article 356 has been read since Bommai.
Special Governors — Sixth Schedule, Articles 371A, 371C, 371F
The discretion expressly conferred on Governors by the Constitution clusters around the special-areas regime. Paragraph 9 of the Sixth Schedule confers discretionary functions on the Governor of Assam (and, by extension, of other Sixth Schedule States) in matters relating to autonomous tribal districts. Article 371A(1)(b) confers a special responsibility on the Governor of Nagaland with respect to law and order, and Article 371A(2)(b) requires the Governor's discretion in the equitable allocation of money between Tuensang district and the rest of Nagaland. Article 371C carries a parallel responsibility for Manipur in relation to the hill areas. Article 371F(g), prior to its amendment, conferred a special responsibility on the Governor of Sikkim. The pattern is consistent: where the Constitution wishes the Governor to act personally, it says so. Where it does not, Article 163 routes the function through the Council of Ministers. For the broader scheme, see the chapter on special provisions relating to certain States.
Code of conduct for Ministers and the limits of executive instructions
The State's executive power under Article 162 includes the power to issue executive instructions, codes and guidelines in the absence of legislation. R. Sai Bharathi v. J. Jayalalitha (2004) 2 SCC 9 considered the Code of Conduct for Ministers in this light and held that, since the Code does not employ mandatory language and does not provide for any consequence in the event of breach, it operates only at an ethical or moral level — its breach by the Chief Minister cannot be treated as unlawful or illegal within the meaning of Section 43 IPC. The case is a useful reminder that executive instructions, however solemn, cannot substitute for statute: only legislation can make a command enforceable in the courts. The intersection of executive power, statutory rules and constitutional limits is therefore best understood by reading Article 162 alongside the chapters on services under the Union and the States and on tribunals created under Articles 323A and 323B.
Sanction to prosecute a Chief Minister or Minister
One delicate problem is whether the Governor must act on the advice of the Council of Ministers when the question is sanction to prosecute a sitting Minister, or even the Chief Minister. M.P. Special Police Establishment v. State of M.P. (2004) 8 SCC 788 held that ordinarily the Governor acts on aid and advice; but where bias is inherent or manifest in the advice — for example, where the Cabinet refuses sanction to prosecute one of its own and the conclusion of the investigating authority is that prosecution is warranted — the Governor would be justified in acting in his own discretion. The Court was careful to confine the discretion to cases of "real likelihood of bias" or "real danger of bias", and not to apparent bias generally. The principle exemplifies the residual personal role of the Governor where the Council of Ministers cannot, without conflict of interest, perform its advisory function. The same intuition underpins how the Election Commission and electoral machinery are insulated from political control.
Reading the office whole
The State Executive is sometimes misread as a junior carbon-copy of the Union Executive. The text in Articles 152 to 167 is in many places identical to Articles 52 to 78. But two textual departures — Article 163's express discretion clause and Article 161's narrower pardoning power — and the historical role of Article 356 have given the Governor's office a distinctive constitutional silhouette. The Supreme Court's response since Samsher Singh has been to compress the office back towards the parliamentary template: the Governor is a constitutional head; the Council of Ministers is the real executive; discretion is exceptional and textually anchored; and judicial review reaches even those acts which the Constitution wraps in the language of pleasure or satisfaction. B.P. Singhal on removal, Nabam Rebia on the limits of discretion, Rameshwar Prasad on the duty to accept majority claims, and Krishna Kumar Singh on Ordinances together describe the modern shape of the office. The student who reads Articles 152 to 167 as a self-contained chapter, without reading these decisions onto them, will find the text deceptive and the exam questions surprising. The fuller picture of the State emerges only when this chapter is read alongside the chapters on the Legislative Assembly and Council, the High Court and subordinate courts, and the broader pillar of Constitution of India notes.
Frequently asked questions
Can the President remove a Governor merely because there has been a change of government at the Centre?
No. In B.P. Singhal v. Union of India (2010) 6 SCC 331 the Supreme Court held that although Article 156(1) lets the President remove a Governor without notice or stated reason, the order is open to limited judicial review. A removal merely on the ground of political ideology — without any material suggesting incapacity, misconduct or compelling reason — would not satisfy the bar of arbitrariness and mala fides. If the petitioner makes out a prima facie case, the Union Government can be required to produce the record to show that the withdrawal of pleasure was for good and compelling reasons.
What are the express discretionary functions of the Governor under Article 163?
The Constitution itself enumerates a short list. Paragraph 9 of the Sixth Schedule (functions of the Governor of Assam in tribal districts), Article 239(2) (Governor as Administrator of a Union Territory), Article 371A(1)(b) and (2)(b) (Nagaland law-and-order and Tuensang allocation), Article 371C (Manipur hill areas), and Article 371F(g) (formerly, Sikkim). Beyond these textual instances, certain functions are by their nature non-ministerial — reporting to the President under Article 356(1) and reserving a Bill under Article 200 — and must be performed by the Governor personally, as Samsher Singh and Hoechst Pharmaceuticals recognise.
Can a non-legislator be sworn in as Chief Minister?
Yes, but only as a temporary bridge. Article 164(4) lets a Minister, including the Chief Minister, hold office for six consecutive months without being a member of the Legislature. He must secure election within that period; otherwise, he ceases to be a Minister at the expiration of six months. S.R. Chaudhuri v. State of Punjab (2001) 7 SCC 126 held that the device cannot be repeated for the same person — re-appointing a non-legislator to fresh six-month terms would subvert Article 164(4). And under B.R. Kapur v. State of T.N. (2001) 7 SCC 231, a person disqualified from membership of the Legislature cannot be appointed Chief Minister at all.
Is the Governor's pardoning power under Article 161 the same as the President's under Article 72?
Largely similar but narrower in two respects. First, Article 161 extends only to offences against laws to which the State's executive power extends, so the Governor cannot act in respect of offences under a Union law on a matter in List I — illustrated by G.V. Ramanaiah where the Governor could not commute a sentence under Sections 489A to 489D IPC because currency is a Union subject. Second, the Governor's power does not extend to sentences of death or to court-martial sentences, both of which are within the President's exclusive sphere under Article 72. Within its sphere, the power is exercised on the aid and advice of the Council of Ministers.
What did Krishna Kumar Singh decide about re-promulgated Ordinances and "enduring rights"?
The Constitution Bench in Krishna Kumar Singh v. State of Bihar (2017) 3 SCC 1 settled two long-pending questions. Re-promulgation of Ordinances without placing them before the Legislature — as had been the systemic practice exposed in D.C. Wadhwa v. State of Bihar (1987) — is a fraud on the Constitution; such re-promulgated Ordinances and consequential action are liable to be struck down. And the older view in Bhupendra Kumar Bose and T. Venkata Reddy that rights accrued under an Ordinance survive its lapse as "enduring rights" was overruled. Whether such rights survive depends on the test of public interest and constitutional necessity and whether the consequences have assumed an irreversible character.
Can the Governor act in his own discretion when granting sanction to prosecute a Minister?
Ordinarily the Governor acts on the aid and advice of the Council of Ministers even on a sanction question. But M.P. Special Police Establishment v. State of M.P. (2004) 8 SCC 788 carved out a narrow exception: where bias is inherent or manifest in the Council's advice — for instance, where the Cabinet refuses sanction to prosecute one of its own members and the conclusion of the investigating authority is that prosecution is warranted — the Governor may act in his own discretion to grant sanction. The exception is limited to cases of real likelihood or real danger of bias and not to apparent bias generally.