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The Piesiuent as well as the uoveinoi is the constitutional oi foimal heau of the
State. Both exeicises his poweis anu functions confeiieu on him by oi unuei the
Constitution (foimal constitutional poweis) on the aiu anu auvice of his Council
of Ninisteis, save in spheies wheie the uoveinoi is iequiieu by oi unuei the
Constitution to exeicise his functions in his uiscietion. In the Constitution, the
expiession "acts in his uiscietion" is useu only in ielation to the poweis anu
functions of the uoveinoi anu not in the case of the Piesiuent.
The uoveinoi enjoys some constitutionally confeiieu uiscietionaiy poweis in
auuition to ceitain situational oi contingent poweis exeicisable in a few well-
known exceptional situations. Wheieas, the Piesiuent has no foimal
uiscietionaiy poweis as such unuei the Constitution, but in ieality exeicises his
uiscietion in the given ciicumstances:
a) In the choice of Piime Ninistei (in case of uoveinoi, Chief Ninistei),
iestiicteu though this choice is by the paiamount consiueiation that he
shoulu commanu a majoiity in the Bouse;
b) The uismissal of a uoveinment which has lost its majoiity in the Bouse,
but iefuses to quit office;
c) The uissolution of the Bouse wheie an appeal to the countiy is
necessitous, although in this aiea the heau of State shoulu avoiu getting
involveu in politics anu must be auviseu by his Piime Ninistei (Chief
Ninistei) who will eventually take the iesponsibility foi the step.
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a) Wheie a uoveinoi is appointeu an auministiatoi of an aujoining 0nion
Teiiitoiy he shall exeicise his functions as such auministiatoi
inuepenuently of his Council of Ninisteis. (Aiticle 2S9(2))
b) 0nuei Aiticle SS6, the uoveinoi can senu a iepoit to the Piesiuent that a
situation has aiisen in which the goveinment of the State cannot be
caiiieu on in accoiuance with the piovisions of this Constitution. In uoing
so, the uoveinoi will be justifieu in exeicising his uiscietion even against
the aiu anu auvice of his Council of Ninisteis.
c) 0nuei Aiticle 2uu, the uoveinoi has the iight to ieseive foi consiueiation
any Bill which in his opinion becomes law, woulu ueiogate fiom the
poweis of the Bigh Couit anu enuangei the position given to Bigh Couit
unuei the Constitution.
u) Beteimining the amount payable by the uoveinment of Assam,
Neghalaya, Tiipuia anu Nizoiam to an Autonomous Tiibal Bistiict
Council as ioyalty acciuing fiom licences oi leases foi mineial
exploiation. (Paia 9, vI scheuule)
e) Special iesponsibility of the uoveinoi of the Nagalanu State.( Aiticle
S71A)
Baiiing the abovementioneu situations, in all othei matteis the Piesiuent anu
uoveinoi shall always act on the aiu anu auvice of the Council of Ninisteis.
Neithei of them is to exeicise the executive functions peisonally. Wheievei the
Constitution iequiies the satisfaction of the Piesiuent oi the uoveinoi foi the
exeicise of any Constitutional powei oi function, the satisfaction iequiieu by the
Constitution is not the peisonal satisfaction of the Piesiuent oi of the uoveinoi,
but it is the satisfaction of the Council of Ninisteis.
1


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The Supieme Couit hau to consiuei whethei a uoveinoi can act in his uiscietion
anu against the aiu anu auvice of the Council of Ninisteis in a mattei of giant of
sanction foi piosecution of Ninisteis foi offences unuei the Pievention of
Coiiuption Act anuoi unuei the Inuian Penal Coue.
The Couit helu, in a mattei of giant of sanction to piosecute, the uoveinoi is
noimally iequiieu to act on aiu anu auvice of the Council of Ninisteis anu not in
his uiscietion. Bowevei, an exception may aiise while consiueiing giant of
sanction to piosecute a Chief Ninistei oi a Ninistei wheie as a mattei of
piopiiety the uoveinoi may have to act in his own uiscietion. Similai woulu be
the situation if the Council of Ninisteis uisables itself oi uisentitles itself fiom
auvising the uoveinoi in the mattei. 0n ceitain occasions if bias becomes
appaient oi the uecision of the Council of Ninisteis is shown to be iiiational anu
baseu on non-consiueiation of ielevant factois, the uoveinoi woulu be iight, on
the facts of that case, to act in his own uiscietion anu giant sanction. If a piima
facie case is cleaily maue out anu sanction to piosecute high functionaiies is
iefuseu oi withhelu, uemociacy will be at peiil. Theiefoie, the Couit uphelu the
oiuei of the uoveinoi sanctioning piosecution of the Ninisteis baseu on the
iepoit of the Lokayukta.



1
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