Political Philosophy
Pleasure and Discretion: Why the Removable Executive Head Is the One Given a Will
21 August 2026 · 11 min read
The Constitution describes its two executive heads in what look like matching provisions. Article 74 places a Council of Ministers with the Prime Minister at its head beside the President; Article 163 places a Council of Ministers with the Chief Minister at its head beside the Governor. Both carry the same marginal heading, differing only in the office named: "Council of Ministers to aid and advise President", "Council of Ministers to aid and advise Governor". The standard account treats them as one rule stated twice, once for the Union and once for a State, and the offices as the same office at two altitudes.
The two articles do not say the same thing. They diverge in their first sentence. Article 163 then adds a whole clause that Article 74 does not have at all. And the last clause of each is word-for-word identical. A drafting accident produces differences scattered at random. This pattern — exact where it is parallel, broken at two specific joints — is a decision.
The clause with no counterpart
Article 163(1) provides that 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."
Article 74(1) has no corresponding exception. It reads that there shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President "who shall, in the exercise of his functions, act in accordance with such advice", subject only to a proviso allowing him to require the Council to reconsider — and requiring him to act on the advice tendered after reconsideration. The obligation is closed at both ends. He may send the advice back once; he may not decline what comes back.
The history sharpens this. As adopted, Article 74(1) said only that there shall be a Council of Ministers to aid and advise the President in the exercise of his functions, without stating that he must act on the advice. That left an interpretive question about whether the advice bound him. The Forty-second Amendment closed the question by inserting the words that make the advice binding; the Forty-fourth, two years later, added the reconsideration proviso. Two amendments, both directed at the President's obligation, and both settling it more tightly than the original text had.
Article 163 carries today the same exception it carried in 1950. Whatever ambiguity the Union office had was legislated away; on the State side, something considerably stronger than ambiguity — an express exception — was left standing.
A discretion that certifies its own boundary
The second divergence is the more consequential one, and it is easy to miss because the clause reads like a technicality.
Article 163(2) provides that if any question arises whether a matter is one on which the Governor is 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."
Read that against 163(1). Clause (1) says the Governor is bound by advice except where the Constitution requires him to act in his discretion. Clause (2) says that the question of which matters those are is itself decided in his discretion. The exception is therefore not a fixed list that the Governor may consult; it is a boundary that the same officer draws. Discretion at the first level is bounded by discretion at the second.
There is no analogue anywhere in Part V, which governs the Union executive. The President's obligation under Article 74(1) has no exception, so there is no boundary to draw, and consequently nothing for a clause like 163(2) to do.
That the divergence is deliberate can be shown from the text alone. Article 163(3) provides that 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 74(2) says exactly the same thing about advice tendered to the President, in the same words. The drafters were plainly capable of stating a rule for one office and reproducing it verbatim for the other, and in the clause on the confidentiality of advice they did. They did not do it for the discretion, because there was nothing on the Union side to reproduce.
How far Article 163(2) operates as written is a separate question, and a heavily litigated one; the reach of judicial scrutiny over gubernatorial action has been argued and re-argued for decades. This piece is confined to what the text provides, which is the prior question — what the framers thought they were creating before anyone asked how much of it would survive contact with a court.
Where the discretion is named expressly
Article 163(1) speaks of functions the Governor is "by or under this Constitution required" to exercise in his discretion. Some of those requirements are stated in terms, and where they are, they share a feature.
Article 239(2) permits the President to appoint the Governor of a State as administrator of an adjoining Union territory, and provides that where a Governor is so appointed "he shall exercise his functions as such administrator independently of his Council of Ministers." The Governor here is doing work that has nothing to do with the State he serves; the ministry that advises him has no constituency in the territory he is administering, and he is expressly detached from it.
Article 371A(1)(b) gives the Governor of Nagaland a special responsibility for law and order in the State so long as, in his opinion, certain internal disturbances continue, and provides that in discharging functions in relation to it he shall, after consulting the Council of Ministers, exercise his individual judgment as to the action to be taken. The consultation is mandatory; the conclusion is his. The clause goes on to make his decision final and to bar any challenge on the ground that he ought or ought not to have exercised individual judgment — the same self-certifying structure as Article 163(2), applied to a defined subject.
In both, the Governor is not acting as the head of the State's executive at all. He is doing something on behalf of an interest the State's ministry does not represent — the Union's administration of a territory in one case, a responsibility the Union has reserved in the other. The discretion appears where the office turns to face outward.
The same asymmetry in the assent power
The pattern repeats in the provisions on assent to legislation, which are otherwise close cousins.
Under Article 111, a Bill passed by the Houses of Parliament is presented to the President, who "shall declare either that he assents to the Bill, or that he withholds assent therefrom". He may return a non-Money Bill for reconsideration; if it is passed again, with or without amendment, he shall not withhold assent.
Under Article 200, a Bill passed by a State legislature is presented to the Governor, who shall declare that he assents, or that he withholds assent, "or that he reserves the Bill for the consideration of the President". He too may return a non-Money Bill for reconsideration, and if it is passed again he shall not withhold assent. But he has a third declaration available that the President does not, and the second proviso makes it compulsory in one case: a Bill that would in his opinion so derogate from the powers of the High Court as to endanger the position that Court is designed to fill must be reserved.
The extra option is not a wider power to refuse. Withholding and reserving are different acts: withholding ends the Bill, reserving moves it. Article 200 gives the Governor a route by which a State's legislation leaves the State and arrives at the Union for decision. There is no equivalent at the Union level because there is no further level for a Bill to go to. The third option exists for the same reason the discretion does — the office sits on a boundary, and something has to be able to cross it.
The tenure runs the other way
The arrangement becomes harder to explain at this point, and this is where the political question actually lies.
The President is elected, indirectly, by an electoral college consisting of the elected members of both Houses of Parliament and the elected members of the State Legislative Assemblies. He can be removed only by impeachment under Article 61, for violation of the Constitution, on a charge preferred by one House and sustained by the other, each step requiring a two-thirds majority of the total membership of the House concerned. In practical terms the office is beyond the reach of the government of the day.
The Governor is appointed by the President by warrant under his hand and seal — which is to say, on the advice of the Union Council of Ministers — and by Article 156(1) "shall hold office during the pleasure of the President." Clause (3) gives him a five-year term, but only "subject to the foregoing provisions of this article", so the term yields to the pleasure. The office is at all times within the reach of the government of the day.
The appointment formula is worth pausing on, because it is not unique to the Governor. Article 148(1) appoints the Comptroller and Auditor-General in exactly the same words — by the President, by warrant under his hand and seal — and then provides that he shall only be removed in like manner and on the like grounds as a Judge of the Supreme Court. Identical entry, opposite exit. Whatever distinguishes the two offices is not who appoints them; it is the sentence that comes next.
Set the two facts side by side. The officer who cannot be removed is bound absolutely by his ministers' advice. The officer who can be removed at any moment, and removed by the Union executive rather than by the State whose head he is, is the one given an independent judgment and the power to decide when he has it.
That is the reverse of how independence is normally constructed. The Constitution's other offices designed to exercise judgment against pressure — the judges, the Comptroller and Auditor-General, the Chief Election Commissioner under Article 324(5) — are each given tenure to match, and each protected by the same removal standard. Judgment is secured by making the officer hard to dislodge. In Article 163 the judgment is conferred and the protection withheld.
What the two offices actually are
The inversion stops being strange once one stops assuming that the discretion belongs to the Governor.
The President is the State personified. What is asked of that office is that it not have a will of its own — that the continuity of the Union be represented by someone whose acts are always the acts of a government answerable to an electorate. An office of that kind must be insulated from removal, because it must survive changes of government, and it must be denied discretion, because a symbol that could choose would be a rival centre of authority. Article 74 and Article 61 do these two things together: irremovable, and bound.
The Governor is not a smaller version of that. The Governor is a joint — the point at which the Union's executive touches a State's. A joint has to be able to move, which is why the office has a discretion, a reserving power, and an express detachment from ministerial advice in the matters where the Union's interest is what is at stake. It also has to move in a direction, which is why the office holds at pleasure. The discretion is not the Governor's personal freedom of conscience; it is a hinge, and the pleasure clause determines which way it turns.
This is the part that the language of the Constitution conceals rather than reveals. Article 163 is written in the vocabulary of individual judgment — "his discretion", "the decision of the Governor" — and that vocabulary carries a strong implication of personal independence which the surrounding architecture does not support. Read on its own, the clause looks like a grant of autonomy. Read together with Article 156, it looks like a mechanism.
Neither reading is a criticism of the design. A federation in which the Union has responsibilities inside the States needs somewhere for that responsibility to be exercised, and putting it in a named office with a discretion is more candid than leaving it to informal channels. But the design should be described accurately. Articles 74 and 163 are not the same rule at two altitudes. One creates a head of state who cannot decide anything. The other creates an officer who can, and whose ability to decide is held by someone else.
Authored by Eshan Kumar Gupta, Advocate, Hon'ble Allahabad High Court, Lucknow Bench.