The Constitution of India
Article 192
Decision on questions as to disqualifications of members
(1) If any question arises as to whether a member of a House of the Legislature of a State has become subject to any of the disqualifications mentioned in clause (1) of article 191, the question shall be referred for the decision of the Governor and his decision shall be final.
(2) Before giving any decision on any such question, the Governor shall obtain the opinion of the Election Commission and shall act according to such opinion.
Why this exists
Article 191(1) lists disqualifications for state legislators — things like holding an office of profit, unsoundness of mind, insolvency, not being an Indian citizen, or being disqualified under election laws. Once someone is already a member, a dispute may arise about whether they've since become disqualified. The Constitution's framers wanted this decided by a constitutional authority (the Governor, as head of the state) rather than the legislature itself, to avoid political majorities settling their own members' fates. But to prevent this from becoming an arbitrary, purely political call, they tied the Governor's hands to the independent Election Commission's opinion, ensuring the actual decision is made by an expert, non-partisan body while keeping the formal act with the Governor. This mirrors Article 103, which does the same thing for Members of Parliament, with the President playing the Governor's role.
How courts read it
In Brundaban Nayak v. Election Commission of India (1965), the Supreme Court held that although the Governor's decision under Article 192 is termed 'final,' it is not beyond judicial review — courts can examine it if there is a violation of natural justice, mala fide action, or if the Governor acted without or contrary to the Election Commission's opinion. The Court also clarified that the Election Commission's opinion is binding on the Governor, who has no independent discretion to differ from it; the Governor's role is essentially to formally communicate that opinion as a decision. This case-law approach parallels how courts have treated the President's identical power under Article 103.
Common misconceptions
- Myth: The Governor can decide disqualification cases however they personally think is right.
Fact: The Governor must obtain the Election Commission's opinion and is constitutionally bound to act according to it — courts have held this leaves the Governor no independent discretion. - Myth: Since the Constitution says the Governor's decision is 'final,' courts can never review it.
Fact: The Supreme Court has held that 'final' bars further appeal within the process but does not prevent judicial review for violations of natural justice, mala fide action, or ignoring the Election Commission's opinion. - Myth: Article 192 deals with anti-defection disqualifications too.
Fact: Article 192 only covers disqualifications listed in Article 191(1) (like office of profit, unsoundness of mind, citizenship issues); defection-related disqualification is separately governed by the Tenth Schedule and decided by the Speaker/Chairman, not the Governor.