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(4) his failure to see that the Ordinances promulgated were out really urgent;
(5) his failure to observe the usual procedure generally followed before prorogation as provided by Rule 25-A of the Madras Government Business rules by ignoring and by-passing the Speaker; and (6) his failure to take note of significant happenings in the State, though outside the House.

6. On his first submission, Mr. Raman's argument is this. While under Article 153 there shall be a Governor for each State. Article 154(1) vests in him the executive power of the State which shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution. Article 166(1) requires all executive action of the Government of a State should be expressed to be taken in the name of the Governor. He shall make rules for the more convenient transaction of the business of the Government of the State and for the allocation among Ministers of the business in so far as it is not business with respect to which the Governor is by or under the Constitution required to act in his discretion. Under Article 163(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 the Constitution required to exercise his functions or any of them in his discretion and by sub-art(2) on a question whether any matter is or is not a matter in regard to which he is by or under the Constitution required to act in his discretion his decision in his discretion his decision shall be final and by sub-art(3) whether any and if so what, advice was tendered by Ministers to him shall not be inquired into in any court. So, in terms of Article 163(1) unlike those of Article 74(1), not in respect of all the functions of the Governor he is to be aided and advised by the Council of Ministers. To the extent the Constitution requires him to exercise his functions or any of them in his discretion, he cannot in any case act only on the aid and advice of the Council of Ministers. The powers of the Governor is respect of such functions of his are entirely discretionary. The word 'required' in Article 163(1) includes implied requirement as well and to act in his discretion, for, if the exceptions were confined to express requirement, it will be but a purposeless verbiage because in the entire Constitution, except the express provisions in Schedule VI, Rules 9(2) and 18(3), there is no other such express requirement, and even there, clause (3) of Rule 18 has since been dropped with effect from 21-1-1972 by a Constitution amendment. To say that the exception in Art. 163(1) has been provided for only to cover the solitary express requirement in Schedule VI, Rule 9(2) is to reduce the exception to nothing which could not be the intention of the Constitution. So, the exception is intended to cover cases where the Governor, in the exercise of his functions is impliedly required by or under the Constitution to exercise them or any of them in his discretion. The test is not that the particular Article speaks of the discretion of the Governor, but whether or not he should exercise his functions in his discretion should be gathered from the nature of his function under each of the related Articles of the Constitution. Where there is a failure of Constitutional machinery in States, it is entirely within the province of the Governor under Article 356(1) to satisfy himself that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution, so as to enable the President to make a Proclamation. The Governor in such a case cannot be guided, or led by the aid and advice of the Council of Ministers. Under Article 200, the Governor has discretion to assent to a Bill or withhold assent, or reserve the same for the consideration of the President though the Article does not use the word 'discretion'. So also is the discretionary power of the Governor under the proviso to Article 200 to return the Bill to the House with a message for reconsideration. Clause(c) of the proviso to Article 311(2) vests discretion in the Governor to dispense with enquiry if he is satisfied to do so in the interest of the security of the State. The appointment of the Chief Minister by the Governor under of things, be on the aid and advice of the Council of Ministers, for at that stage there will be no such Council of Ministers. The Governor has to exercise his power of appointment in his discretion, though the Article does not in terms say so. Likewise, as a part of the Legislature, though not as a member of any House, the Governor has discretion in the exercise of his powers vested in him by Article 174(2). The language of sub-article(1) of Article 174 is directory in the matter of summoning of the House, that of sub-article(2) inasmuch as it says that the Governor may from time to time prorogue the House, or dissolve the Legislative Assembly, it is indicative that the power thereunder is to be exercised by the Governor in his discretion. If that were not so, it would lead to piquant situation to the detriment of proper and effective working of Democratic principles of Government. For instance if there is a motion of no-confidence pending discussion in the Assembly, the Chief Minister in order to steer clear of the situation, may ask the Governor to prorogue the House. Similarly, where the Government is in a minority in the Legislative Assembly, the Chief Minister by the instrument of aid and advice to the Governor, can so manipulate the machinery of proroguing the House as to perpetuate his Council of Ministers in power, avoiding from time to time, facing the Assembly. So also the Governor's power to dissolve the Legislative Assembly can be exercised by the Council of Ministers, if the Governor is bound to act only on the aid and advice of the Council of Ministers. British Parliamentary conventions cannot override the provisions of Article 174. In the circumstances, therefore, the Governor is under a duty to exercise his power under Article 174 only in his discretion, after considering all facts and relevant matters in proroguing the House or dissolving the Legislative Assembly, the test for the exercise of his discretionary power always being whether the step taken by him is in accordance with, and will promote Democratic principles in operation.

10. Apart from and in the exercise of the generality of the executive powers of a State, the Constitution makes special mention of some of the functions of the Governor. Article 163(2) leaves for the decision of the Governor, in his discretion, the question whether any matter is or is not a matter as respects of which the Governor is by or under the Constitution required to act in his discretion. This Sub-Article by itself does not throw light on the true scope of the exception in Art. 163(1). In the Central setup there is no such provision as the Sub-Article since Art. 74(1) contains no exception. Under Art. 164(1), the Governor shall appoint the Chief Minister. In doing this, he acts by conventions and not in his discretion, because in the nature of things, at that stage there can be no question of exclusion of ministerial advice. He also appoints the other Ministers but on the advice of the Chief Minister. The Ministers hold office during the pleasure of the Governor which implies that in certain justifying circumstances, the Governor may dismiss them from office. When he does that, he is guided by norms of relative conventions and not he acts in his discretion as in such a situation advice of Ministers cannot be ruled out, though he may not feel bound by it in given circumstances. Under Art. 164(3), the Governor shall administer oath of office to a Minister and of secrecy. He appoints the Advocate General for the State : Art. 165(1). Under Art. 166(3), he shall make rules for the more convenient transaction of the business of the Government, and for the allocation among Ministers of the business in so far as it is not business with respect to which the Governor is by or under the Constitution required to act in his discretion. The Governor may, under Art. 167, require the Chief Minister to submit for consideration of the Council of Ministers any matter on which a decision has been taken by a Minister but which has not been considered by the Council. Then we have Art. 174(1) under which the Governor shall from time to time summon the House or each House of the Legislature in the State in terms mentioned therein. Sub-Article(2) of this Article says, the Governor may from time to time prorogue the House or either House; dissolve the Legislative Assembly. Under Art. 175(1) he may address the Legislative Assembly or both Houses, as the case may be, and also send messages to the House or Houses whether with respect to a Bill then pending in the Legislature or otherwise. The Governor, under Art. 176(1), shall address the Legislative Assembly, at its first session after each general election and of each year. Where there are two Houses, the Governor shall address in that manner both the Houses, assembled together. If the Speaker's and Deputy Speaker's Offices are vacant, the Governor under Art. 180(1), may appoint any member of the Assembly for the purpose. Article 200 states that when a Bill which has been passed by the Legislature is presented to the Governor, he shall declare either that he assents to it, or that he withholds assent therefrom, or that he reserves the Bill for consideration of the President. Article 202(1) requires the Governor in respect of every financial year to be caused to be laid before the Legislature a statement of the estimated receipts and expenditure of the State for every year. The Governor also, as contemplated by Art. 205(1) is to cause to be placed before the Legislature statements for supplementary additional or excess grants required. Under Art. 213, the Governor has powers of promulgating Ordinance which he can exercise when the Legislature is not in session, and when he is satisfied that circumstances exist which render it necessary to take immediate action. In the appointment of Judges of High Courts, the Governor is among the authorities to be consulted. Under the proviso to Article 229(1), the Governor may by rules requires that in specified cases no person not already attached to a Court shall be appointed to any office connected with it save after consultation with the State Public Service Commission. Under Article 234, the Governor makes appointment of District Judges in accordance with the rules made by him in that behalf after consultation with the State Public Service Commission and the High Court exercising jurisdiction in relation to the State. Article 237 empowers the Governor to apply by notification the provisions of Chapter VI of the Constitution to certain class or classes of Magistrates. Under Art 309 the Governor makes rules regulating recruitment and conditions of service in the State. Under clause(c) of the proviso to sub-Article(2) of Art 311, the Governor or the President, if he is satisfied that in the interest of the security of the State. It is not expedient to hold such an inquiry, he may direct dispensing with it. Art. 356 makes provision in case of failure of constitutional machinery in the State. The Article contemplates the Governor of a State who is satisfied that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution making a report to that effect to the President. Except Article 163(2), none of the other Article which we have mentioned as referring to the specially mentioned functions of the Governor speaks of the Governor acting exclusive of the ministerial aid and advice. Expressions like 'in the opinion of' and 'if he is satisfied' occur in a few of the Articles. As will appear from our discussion supra, from none of them or the other Articles we have referred to the ministerial advice is excluded or Cabinet or ministerial responsibility can reasonably be excluded.

11. Out of the above list of Articles which detail the functions of the Governor, counsel for the petitioners referred only to Arts. 164(1). 200. Cl.(c) of the proviso to Art. 311(2) and Article 356 and also Arts. 163(2) and 174(2) as having a bearing in the present context. Article 163(2) does not take any one beyond the exception in Art. 163. As to the appointment of the Chief Minister under Art. 164(1), it is not, as pointed out before a function which the Governor is required to exercise in his discretion. He has no choice in the matter of appointment; he has to make it, and so too in his choice of the person whom he shall appoint as the Chief Minister, he has no discretion, but will be governed by the principles of Party and Parliamentary Government. He has necessarily to choose one for appointment as the Chief Minister, who shall have the support of his party and the majority in the House, or who can form a Ministry which will have the support of the majority in the House. So too, as we said earlier, is his power of dismissal to be exercised in accordance with parliamentary conventions. Under Art. 164(1), the power or function of the Governor is not or does not become discretionary either because there is no Chief Minister, or Council of Ministers to advice the Governor in respect of the appointment of the Chief Minister, or because the Council of Ministers, in the nature of things, cannot bind the Governor with their advice in case the Governor decides to dismiss the Council. Powers of the Governor which in certain situations as there being no Chief Minister at all as one has to be appointed by him or where advice of Council of Ministers in the nature of things, has no place or will be inappropriate, he has to exercise in accordance with conventions established or to be established, cannot by any means be said to be powers which he exercises in his discretion in the strict Constitutional significance of the expression. The reason is that in such cases, no question of exclusion of aid and advice of Council of Ministers can arise at all either because it does not exist or because it is not available or inherently inappropriate in the particular exigencies of nature of things and circumstances as for instance, in the case of appointment of Chief Minister or a break down of the Constitution and action under Art. 356. Where and when the Constitution speaks of a Governor being required to exercise his functions in his discretion, it postulates the existence of a Ministry competent to advise in the circumstances and exclusion of its advice in respect of such functions. In the matter of appointment of Ministers, there is little room for discretion, and in the matter of dismissal of the Council of Ministers or a Minister the nature of the powers of the Governor springs from the tenure of office of Ministers which is at the pleasure of the Governor, not that the power of the Governor in such a case is discretionary in the proper sense of the term. The power to assent or withhold assent to a Bill or reserve the same for the consideration of the President is a quasi legislative function, and in any case, having regard to the implications the power can hardly be regarded as one which the Governor can exercise in his discretion to the total exclusion of the ministerial advice. Proviso(c) to Art. 311(2) speaks of the President or the Governor's satisfaction. It may be possible to take the view that while the satisfaction is of the Governor, it is only in a formal sense, because the President even there has to act by and with the advice of the Council of Ministers. Even otherwise, satisfaction is not a power which can well be said to be exercised in the discretion of the President or the Governor. It may be seen that while Art. 74(1) reserves no discretion to the President in the exercise of any of his functions, one cannot, nonetheless, justifiably import such a discretion into Arts. 75, 86, 111 and the Proviso(c) to Art. 311(2) so far as the President is concerned. There is no more reason why because of the exception in Art. 163(1) such a discretion for Governor's exercise of his function can or should be imported into the corresponding Arts. 164(1), 174, 200 and Proviso(c) to art. 311(2). That clearly shows that different yardsticks cannot be applied in interpreting parallel provisions in the Constitution and that, by the discretion in the exception in Article 163(1) all that is meant is a function of the Governor which he is required by or under the Constitution to exercise in his discretion, and not that it is imported impliedly or by construction into each and every one of the Articles relating to the Governor's functions. The functions of the Governor covered by the exception in Article 163(1) are those to be found in schedule Six read with Articles 224(2) and 275(1). More specifically the Governor's functions to be exercised in his discretion are only those in Rules 9(2) and 18(3) in the Sixth Schedule. These are the only two instances mentioned in the Constitution in which as we consider, the Governor is required by the Constitution to exercise his functions in his discretion. Even here, Rule 18 has been dropped recently by the Constitution amendment.

13. An examination of the Government of India Act. 1935 before and after adaptation, brings out clearly what was meant by the Governor acting in his discretion. The expression was used in a special and technical sense in the Government of India Act. which had reference to this country in its then Dominion status. That Act, besides the phraseology that the Governor shall function in his discretion in specified matters, uses also other expressions such as the Governor or the Governor-General acting in his individual judgment in areas of ministerial responsibility where in some cases the Governor was to act by the aid and advice of the Council of Ministers. Where the Governor was required to act in his individual judgment, ministerial advice would be welcome, but the Governor was not bound to follow it. But where the Governor was required to act in his discretion, ministerial advice was excluded, and it had no place. Section 7 of this Act before adaptation said that subject to the provisions of the Act. the executive authority of the Federation should be exercised on behalf of His majesty by the governor-general, either directly or through officers subordinate to him. Section 9 said that there shall be a Council of Ministers to aid and advise the governor-general in the exercise of his functions "except in so far as he is by or under this Act required to exercise his functions or any of them in his discretion". The sub-section contained a proviso to the effect that nothing in the sub-section shall be construed as preventing the governor-general from exercising his individual judgment in any case where by or under the Act he was required to do so. Sub-section(2) said that the governor-general in his discretion might preside at meetings of the Council of Ministers, and sub-section(3) was similar to the wording of Art. 163(2) of our Constitution; Section 10 was to the effect that the governor-general's Ministers should be chosen and summoned by him, should be sworn by him as members of the Council, and should hold office during his pleasure. What advice was tendered by the Council of Ministers to the governor-general was not justiciable. Then Section 11 said that the functions of the governor-general with respect to defense and ecclesiastical affairs and with respect to external affairs expect the relations between the Federation and any part of His Majesty's dominions should be exercised by him in his discretion and his functions in or in relation to the tribal areas should be similarly exercised. To assist him in the exercise of those functions the governor-general might appoint counselors. Section 12 spoke of the special responsibilities of the governor-general in respect of the prevention of any grave menace to the peace or tranquillity of India, the safeguarding of the financial stability and credit of the Federal Government, the safeguarding of the legitimate interests of minorities, the protection of the rights of any Indian State and the rights and dignity of the Ruler thereof, the securing that the due discharge of his functions with respect to matters with respect to which he was by or under the Act required to act in his discretion, or to exercise his individual judgment, was not prejudiced or impeded by any course of action taken with respect to any other matter, and a few other matters. If and in so far as any special responsibility of the governor-general was involved, he should in the exercise of his functions exercise his individual judgment as to the action to be taken Section 17(3) provided that the Governor General should make rules for the more convenient transaction of the business of the Federal Government and for the allocation among Ministers of the said business in so far as it was not business with respect to which the Governor General was by or under the Act required to act in his discretion. As to the sessions of the Legislature, prorogation and dissolution. Section 19 said that the Federal Legislature should be summoned to meet once at least in every year, and twelve months should not intervene between their last sitting in one session and the date appointed for their first sitting in the next session, and subject to the provisions of the section the Governor General might in his discretion from time to time summon the Chambers to meet at such time and place as he thought fit; prorogue the Chambers; dissolve the Federal Assembly. Section 32 which provided for assent to Bills was to the effect that when a Bill had been passed by Chambers, it should be presented to the Governor General who should in his discretion declare either that he had assented in His Majesty's name to the Bill, or that he had withheld assent therefrom, or that he had reserved the Bill for the signification of His Majesty's pleasure. It was also provided that the Governor General in his discretion might return the Bill to the Chambers, with a message etc. The Governor General was required by Section 33 in respect of every financial year to cause to be laid before both Chambers of the Federal Legislature a statement of the estimated receipts and expenditure of the Federation for that year. As to the Legislative powers of the Governor General. Section 42 provided that if at any time when the Federal Legislature was not in session the Governor General was satisfied that circumstances exist which rendered it necessary for him to take immediate action he might promulgate such Ordinances as the circumstances appeared to him to require, provided that he should exercise his individual judgment as respects the promulgation of any Ordinance under the section if a Bill containing the same provisions would under the Act have required his previous sanction to the introduction thereof into the Legislature. Similar powers to make Ordinance were vested in the Governor General by Section 43 to make Ordinance if at any time the Governor General was satisfied that circumstances exist which rendered it necessary for him to take immediate action for the purpose of enabling him satisfactorily to discharge his functions in so far as he was by or under the Act required in the exercise thereof, to act in his discretion or to exercise his individual judgment. The governor-general also was vested by Section 45 with the power to issue Proclamations if he was satisfied that situation had arisen in which the Government of the Federation could not be carried on in accordance with the provisions of the Act, and in that event, he should declare that his functions to such extent as might be specified in the Proclamation, be exercised by him in his discretion. In the Governors' Provinces analogous provisions were made as to the appointment of the Governor by His Majesty, the Executive authority of the Province to be vested in the Governor who was to be aided and advised by a council of ministers in the exercises of his functions, except is so far as he was by or under the Act required to exercise his functions, or any of them in his discretion. Here again, by a proviso it was stated that nothing in the sub-section should be construed as preventing the Governor from exercising his individual judgment in any case where by or under the Act he was required so to do. The Governor in his discretion might preside over meetings of the Council of Ministers. If any question arose whether any matter was or was not a matter in respect of which he was required to act in his discretion, or to exercise his individual judgment the decision of the Governor should be final. The Governor's Ministers shall be chosen and summoned by him, shall be sworn by him as members of the Council, and shall hold office during his pleasure. Section 52 laid certain special responsibilities on the Governor which included the prevention of any grave menace to the peace or tranquillity of the Province, safeguarding of the legitimate interests of minorities the protection of the rights of any Indian State and the rights and dignity of the Ruler thereof, and certain other matters. If and in so far as any special responsibility of the Governor was involved he should in the exercise of his functions, exercise his individual judgment as to the action to be taken. The power to summon the Legislature was in terms similar to those in Section 19. Sub-section(2) of S. 62 said that subject to the provisions of the section, the Governor might in his discretion from time to time, summon the Chambers or either Chamber to meet at such time and place as he thought fit; prorogue the Chamber or Chambers dissolve the Legislative Assembly. There were other sections relating to the right of the Governor to address and send messages to Chambers, assent to Bills, reservation for consideration of the Governor General cause to be laid before the Chamber or Chambers of the Legislature statements of receipts and expenditure. Powers were given to the Governor to promulgate Ordinance during recess of the Legislature and separate powers of make similar Ordinances for the purpose of enabling him to satisfactorily discharge his functions in so far as he was by or under the Act required in the exercise thereof to act in his discretion or to exercise his individual judgment. So under the Government of India Act. 1935 as it stood originally, the Governor was to be aided and advised by a Council of Ministers in the exercise of his functions. But his requirement was not to apply to functions of the Governor which he was by or under the Act required to exercise in his discretion. But the requirement that in respect of the exercise of his functions he was to be aided and advised by a Council of Ministers did not prevent him from exercising his individual judgment in any case where by or under the Act he was required to do so, that is to say, in such cases though the Governor might be aided and advised by the Council of Ministers, he was not bound to follow such aid and advice, but would be free to exercise his functions in his individual judgment. The Act specifically provided both at the Federal and Provincial levels for functions of Governor which he was to exercise in his discretion or by his individual judgment. So the exceptions to Sections 9 and 50 of the Government of India Act, 1935, referred to those functions specifically and expressly mentioned which the Governor was required to exercise in his discretion and the provisos in the two sections referred to functions of the Governor or Governor General as the case may be, which each of them was called upon to exercise in his individual judgment. The other functions of the Governor General, or the Governor which they were not expressly required to exercise in their discretion or in their individual judgment were not within the exception. It may be noted that one of the functions which the Governor General or the Governor was required to exercise in his discretion was proroguing and dissolving the Legislature. When the Government of India Act was adapted after independence in 1947, discretion in Sections 9, 19, 50, 62 and 84 was omitted. Sections 11 and 12 which expressly mentioned the functions to be exercised by the Governor General in his discretion was dropped. As adapted in 1947 the Government of India Act, 1935 did not provide that the Governor General or the Governor had any function which he had to exercise in his discretion or in his individual judgment. The position was the same in the Constitution of India so far as the Union is concerned. As we mentioned, Art. 74(1) which provides for the President acting by the aid and advice of the Council of Ministers makes no exception to the rule. It is, however, true that the exception as in Section 50(1) of the Government of India Act. 1935, as it originally was reappears in Art. 163(1) of the Constitution. But at the same time it should be observed that the Constitution has not reiterated expressly any functions of the Governor which he was called upon to exercise in his discretion except those in the Sixth Schedule to the Constitution. Historically, therefore when in the Government of India Act. 1935, before its adaptation, functions of the Governor General or the Governor were referred to specifically which they were expressly required to exercise in their discretion, and a similar exception finds a place in Art. 163(1), it is reasonable to take the view that the exception has reference only to those functions of the Governor which he is expressly required by or under the Constitution to exercise in his discretion, and that has reference only to the two instances of functions of the Governor in Schedule Six to the Constitution. We may also note that the powers of the Governor General and the Governor under Sections 19 and 62 to summon, prorogue and dissolve and Legislature were to be exercised in their discretion. But after adaptation, the function of proroguing was not in the discretion of the Governor General or Governor. That is also the position with reference to Arts. 85 and 174. The exercise of the function of the Governor in proroguing or dissolving the Assembly under Art. 174 is not a function which he can exercise in his discretion that is to say, to the exclusion of the ministerial advice. Since the matter is not, therefore, covered by the exception to Article 163(1), in the matter of prorogation the Governor is bound by the advice of the Council of Ministers and in the instant case by the advice of the Chief Minister under the rules of allocation of Government business.