Governor's role and discretionary powers
- A Constitutional and judicial overview -

Y Devendro Singh *

Raj Bhavan, Imphal where Manipur State Governor resides on 15th August 2014 :: Pix - Deepak Oinam

The Constitution of India mandates the appointment of a Governor or Executive for each State, as specified in Article 153. This appointment is made by the President through a warrant under his hand and seal, as outlined in Article 155. Effectively, the executive power of the State is vested in the Governor, who exercises this power either directly or through subordinate officers, in accordance with Article 154 of the Constitution.

Notable Constitutional scholar Granville Austin has described the Governor's responsibility to uphold not just the letter but the spirit of the Constitution, ensuring that State governance aligns with National values and legal frameworks.

Governors are reminded by Article 159 of their Constitutional responsibilities, urging them not to compromise political accountability or Parliamentary conventions for “political expe- diency” (SR Chaudhuri v. State of Punjab, 2001). Under Article 162, the State's executive power pertains to subjects within the State Legislature’s legislative competence as determined by the Constitution.

When both the State Legislature and Parliament can legislate on a subject, the State's power is limited by Constitutional stipulations or laws enacted by Parliament for the Union. Executive orders must strictly adhere to pertinent rules, and if challenged, Courts can nullify them for any rule violations (State of Kerala v. K Prasad, 2007).

In 1988, the Sarkaria Commission described the Governor as the "linchpin of the Constitutional apparatus of the State," underscoring the pivotal role the Governor plays in state governance. Furthermore, the Supreme Court has provided a detailed framework for how the Governor should fulfill this role in accordance with Constitutional guidelines.

In essence, the Governor or Executive’s key duties within the Indian Constitution encompass both Constitutional and discretionary responsibilities.

Below is a detailed exploration

Ceremonial Head: The Governor represents the State and performs ceremonial functions, ensuring the State Government operates in alignment with Constitutional provisions.

Executive Powers : The Governor appoints the Chief Minister, typically the majority party or coalition leader in the State legislative Assembly, along with other Ministers based on the Chief Minister’s advice. Additionally, the Governor appoints the Advocate General and State Election Commissioner.

Legislative Powers : The Governor can summon and prorogue the House or either House of the State, and dissolve the Legislative Assembly if deemed necessary (Article 174). They have the authority to approve or reject Bills or reserve them for the President’s consideration (Article 200). Furthermore, the Governor can recommend financial-related Bills following the Council of Ministers' advice and address the State legislature at the start of a new session or the first session of a new Assembly.

Financial Powers : A Money Bill cannot be introduced in the State Legislature without the Governor's recommendation (Article 207).

Judicial Powers: Under Article 161 of the Constitution, the Governor has the power to grant pardons, reprieves, respites, or remissions of punishment.

Renowned legal scholar and former Solicitor General of India, Fali S Nariman, has asserted that the Governor's role should be primarily non-interfering, serving as a Constitutional guide rather than an active political participant. This stance under- scores the importance of the Governor's restraint, especially in discretionary matters, to uphold democratic integrity.

The Governor possesses certain discretionary powers that are exercised based on judgment Appointment of the Chief Minister: In the absence of a single party majority post-elections, the Governor exercises discretion in appointing a Chief Minister who is likely to command majority support in the Assembly.

Dismissal of a State Government : If the Governor ascertains the State Government has lost its majority, they may dismiss it, acting cautiously and in adherence to Constitutional conventions, subject to judicial scrutiny.

Dissolution of State Legislative Assembly : The legislative Assembly may be dissolved if a no-confidence motion is passed or if it is deemed that the Government cannot operate in accordance with the Constitution.

Reserving Bills for the President : The Governor can reserve certain Bills approved by the State Legislature for the President’s consideration.

Report to the President: The Governor can report to the President suggesting the imposition of President's Rule if they perceive a failure in the State’s Constitutional machinery.

The discretionary powers of Governors in India are enshrined primarily in Article 163 of the Constitution, stating that a Council of Ministers headed by the Chief Minister assists and advises the Governor, except in matters where the Governor is mandated to exercise discretion.

Numerous cases have been adjudicated concerning the Governor's discretionary power under Article 163(2) of the Constitution of India. This article, regarding the Council of Ministers in States, reads that any question regarding whether a matter requires the Governor to act in discretion is conclusively determined by the Governor, and the validity of the Governor’s actions cannot be questioned on these grounds.

Legal commentator Subhash C Kashyap has emphasized that the Governor's discretionary powers must be seen through the lens of Constitutionalism and democratic ethos. He argues that while these powers are a Constitutional necessity, their exercise must remain judicious and within the scope defined by law to prevent arbitrary governance.

The Supreme Court of India, over the years, has interpreted Article 163(2) to outline the extent of the Governor's discretionary powers, establishing key principles.

Limited Discretion: The Governor's discretionary powers are limited to specific areas where the Constitution explicitly permits discretion, contrary to a plain reading of Article 163 (2).

Aid and Advice: Normally, the Governor is expected to act on the “aid and advice” of the Council of Ministers, except where explicitly stated otherwise in the Constitution.

Finality of Decision : Although Article 163(2) bestows finality on the Governor's decisions regarding discretionary matters, this is not absolute. The Supreme Court has confirmed that finality does not exclude judicial review, allowing courts to assess if the conditions justifying discretion genuinely existed.

Judicial Review: Despite the provision for finality, the Governor's actions are subject to judicial review, especially when discretionary power appears to be exercised inconsistently with the Constitution.

Emerging Jurisprudence : The Supreme Court has continually balanced Article 163 with democratic principles, emphasizing that the essence of Constitutional democracy is to restrict arbitrary use of power.

While Article 163(2) seems to grant the Governor final say in discretionary matters, the Supreme Court has meticulously interpreted this power to align it with democratic ideals and constitutional principles. The Court has provided various directives to clarify the Governor's role and powers to prevent misuse of discretion. Notable cases included -

Sanjeevi Naidu v. State of Madras (1970) : Declared that the Governor's discretion is not absolute, underscoring the importance of Constitutional morality and fairness.

U.N.R. Rao v. Indira Gandhi (1971): Examined the President’s discretionary powers, offering insights into parallel powers held by Governors on State matters, emphasizing constitutional conventions and integrity.

Shamsher Singh & Anr v. State Of Punjab (1974): Delved into the Governor’s discretion, where the Court ruled that the Governor must act on the Council of Ministers’ aid and advice, except in specified circumstances.

State of Rajasthan v. Union of India (1977): Reinforced the Governor’s limited discretionary role, holding that invoking President's rule under Article 356 is subject to judicial review and is not purely reliant on the Governor's discretion.

Hargovind Pant v. Dr. Raghukul Tilak (1979): Asserted that the Governor is not an employee of the Central Government, rather occupying an independent Constitutional office.

Minerva Mills Ltd. v. Union of India (1980): Although primarily addressing the basic structure doctrine, it reaffirmed democracy’s essence and inherent limits on all constitutional functionaries, including the Governor.

Kehar Singh v. Union of India (1989) : Discussed the President's clemency powers under Article 72, analogous to the Governor’s powers under Article 161.

SR Bommai v. Union of India (1994): This landmark judgment curtailed the Governor's discretionary powers, particularly in dismissing a state government, ruling the imposition of President’s rule as subject to judicial review and advocating floor tests to determine majority, superseding the Governor's subjective opinion.

Rameshwar Prasad v. Union of India (2006): Emphasized that while the Governor has discretion, it must be exercised judiciously and not arbitrarily, addressing the arbitrary recommendation by the Governor to dissolve the assembly without a floor test, declaring it unconstitutional and affirming respect for democratic processes.

Rajendra Singh Rana & Ors v. Swami Prasad Maurya (2007): Stressed the necessity of a floor test to determine the assembly's majority, rather than relying solely on the Governor’s discretion.

Nabam Rebia Case, 2016 (Arunachal Pradesh Assembly Case): Clarified that the Governor cannot act on personal whims or resolve political questions meant for the assembly floor. It reiterated the Governor’s chiefly facilitative role, with deviations from constitutional propriety being legally contestable.

Shivraj Singh Chouhan v. Speaker of Madhya Pradesh Legislative Assembly (2020): Examined the Governor's discretionary powers amidst political dynamics and state government functioning, underscoring alignment with constitutional obligations and scrutiny through judicial review to avert arbitrariness.

The State of Punjab v. Principal Secretary to Governor of Punjab (2023): Maintained that in a Parliamentary democracy, real power lies with elected representatives, and the Governor operates on the ‘aid and advice’ of the Council of Ministers, except where constitutional discretion is explicitly prescribed.

In conclusion, the role of the Governor in India, as defined by the Constitution, is a balancing act between ceremonial duties and the exercise of both constitutional and discretionary powers. The Governor acts as a vital bridge between the state and central governance, executing duties such as appointing the Chief Minister, sanctioning bills, and exercising judicial pardons.

Although the Governor holds significant ceremonial and executive responsibilities, the execution of these duties must remain in alignment with the constitutional norms and must reflect the democratic values of the nation. The overarching principle is that the Governor must generally act based on the “aid and advice” of the Council of Ministers, stepping into a discretionary role only when explicitly allowed by the Constitution.

The discretionary powers outlined in Article 163 have been subject to extensive judicial interpretation to safeguard against their misuse. The Supreme Court has underscored that such powers are inherently limited and should be exercised judiciously, with their actions being open to judicial review.

Landmark rulings mentioned above, including Shamsher Singh & Anr v. State of Punjab, SR Bommai v. Union of India, Rameshwar Prasad v. Union of India, and State of Punjab v. Principal Secretary to Governor of Punjab emphasized the importance of maintaining constitutional propriety and preventing any arbitrary exercise of power by the Governor.

The judiciary has consistently maintained that the Governor must refrain from acting on personal discretion in political matters, instead upholding democratic norms through legislative mechanisms like floor tests to determine majority status in assemblies.

Ultimately, the judicial directives have established a framework ensuring that the Governor’s actions support constitutional democracy, respect the authority of elected representatives, and avoid any arbitrariness or deviation from democratic practices.

These principles safeguard the spirit of democracy, encouraging a constitutional balance in the Governor’s role as a facilitator rather than an independent authority, there- by strengthening the fundamental tenets of democratic governance in India.