DISCRETIONARY POWERS AND THE POSITION OF THE GOVERNOR OF A STATE IN INDIA

The Governor of the state of India have similar powers and functions at the state level as that of the President of India at Union level. The Governor acts as the nominal head whereas the real power lies in the hand of the Chief Ministers of the states and the Chief Minister's Council of Ministers.

The Governors are appointed by the President for a term of 5 years.

PROVISIONS RELATING TO THE GOVERNOR IN THE CONSTITUTION

·       There shall be a Governor for each state (Articles 153 of the Constitution of India). 

·       The executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution of India (Article 154)

·       The Governor of a State shall be appointed by the President by warrant under his hand and seal (Article 155).

·       A person to be eligible for appointment as Governor should be citizen of India and has completed age of 35 years (Article 157).

·       The Governor shall not be a member of the Legislature or Parliament; shall not hold any office of profit, shall be entitled to emoluments and allowances. (Article 158)

·       Every Governor and every person discharging the function of the Governor shall make a subscribe an oath or Affirmation (Article 159).

·       The President may make such a provision as he thinks fit for the discharge of the functions of the Governor of a State in any contingency not provided for in Chapter II of the Constitution.(Article 160).

·       The Governor shall have the power to grant pardons, reprieves, etc. (Article 161).

·       There shall be council of Ministers with the Chief Minister at the head to aid and advice 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.        (Article 163).

·       The Governor appoints Chief Minister and other Ministers.
(Article 164).

·       The Governor appoints the Advocate General for the State. (Article 165).

·       All executive actions, of the Governor of a State shall be expressed to be taken in the name of Governor. (Article 166).

·       The Governor shall from time to time summon and prorogue the House and dissolve the Legislative Assembly. (Article 174).

·       The Governor may address the Legislative Assembly....; The Governor may send messages to the House. (Article 175).

·       Special Address to the House by the Governor. (Article 176).

·       The Governor assents, withholds assent or reserves for the consideration of the Bill passed by the Legislative Assembly. (Article 200).

·       The Governor shall in respect of every financial year cause to be laid before the House....  a statement of the estimated receipts and expenditure.(Article 202). 

·       No demand for a grant shall be made except on the recommendation of the Governor. (Article 203(3)).

·       The Governor shall ........cause to be laid before the House another statement showing estimated amount of expenditure. (Article 205).

·       The Governor may promulgate the ordinances under certain circumstances. (Article 213).

·       The Governor is consulted for appointment of Judges of High Court. (Article 217).

Powers and functions of the Governor

The Governor enjoys many different types of powers:

·       Executive powers related to administration, appointments and removals,

·       Legislative powers related to lawmaking and the state legislature, that is Vidhan Sabha or Vidhan Parishad,

·       Discretionary powers to be carried out according to the discretion of the Governor.

Discretionary powers

Normally, the Governor has to act on the aid and advice of the Council of ministers headed by the Chief Minister. However, there are situations when the Governor has to act as per his/her own judgement and take decisions on his own. These are called the discretionary powers of the Governor. The Governor exercises them in the following cases:

In the appointment of the Chief Minister of a state

When no party gets a majority in the Vidhan Sabha, the Governor can either ask the leader of the single largest party or the consensus leader of two or more parties (that is, a coalition party) to form the government. The Governor then appoints the leader of the largest party to Chief Minister.

In informing the President of the failure of constitutional machinery in a state

The Governor can send a report to the President informing him or her that the State's constitutional functioning has been compromised and recommending the President impose "President's rule" upon the state.

Though in the exercise of all his powers the Governor is aided and advised by the Council of Ministers, in the exercise of his discretionary powers the Governor is not required to act according to the advice of his Ministers or even to seek such advice. If any question arises as to whether a matter is or is not a matter for which the Governor is not required by the Constitution to act in his discretion, the decision of the Governor is final.

Following are the functions which are specially required by the Constitution to be exercised by the Governor in his discretion:

(a)   Article 239(2) authorizes the President to appoint the Governor of a State as the administrator of an adjoining Union Territory  and where he is so appointed, he exercises his functions as administrator ‘independently of his Council of Ministers’.

(b)  Article 371(2) provides that “the President may by order made with respect to the State of Maharashtra or Gujarat, provide for any  special responsibility of the Governor for 

(c)   The establishment of separate development boards for Vidarbha, Marathwada   Saurashtra, Kutch and the rest of Gujarat;

(d)  The equitable allocation of funds for developmental expenditure over the said areas, subject to the requirement of the State as a whole; and

(e)   An equitable arrangement providing adequate facilities for technical education and vocational training, and adequate opportunities for employment in services under the control of the State Government, in respect of all the said areas. Subject to the requirements of the State as a whole.”

(f)   Article 371 A( l)(b) states that “the Governor of Nagaland shall have special responsibility  with respect to law and order in the State of Nagaland for so long  as in his opinion internal  disturbances occurring  in  the  Naga  Hills-Tuensang  area immediately before the formation of the State continue  therein or in any  part thereof and in the discharge of his functions  in relation thereto the Governor shall, after consulting the Council of Ministers, exercise his individual judgment as to the action to  be taken.”

(g)  Similarly, Article 371C(1) empowers the President to direct  that the  Governor of Manipur shall  have special responsibility to secure the proper functioning of the Committee of the Legislative Assembly of the State consisting of the members elected from the Hill areas of the State.

(h)  Article 371F (g) imposes on the Governor of Sikkim, a “special responsibility for peace and for an equitable arrangement for ensuring the social and economic advancement of different sections of the population of Sikkim” and further states that “in the discharge of his special responsibility under this clause, the Governor of Sikkim shall, subject to such directions as the President may, from time to time deem fit to issue, act in his discretion.”

The report to the President under Article 356 that a situation has arisen in which the Government of State cannot be carried on in accordance with the provisions of the Constitution is made by the Governor in his own discretion.  The Governor is also the medium through which the Union keeps itself informed as to “whether the State is complying with the Directives issued by the Union from time to time.  

Further, after a President’s rule is imposed in the State, the Governor acts as the agent of the President as regards those functions of the State Government which have been assumed by the President under the proclamation of emergency.

In some other matters, such as the reservation of a Bill for consideration of the President, the Governor may not always be in agreement with his Council of Ministers, particularly when the Governor happens to belong to party other than that of the Ministry. In such cases, the Governor may be justified in acting without Ministerial advice, if he considers that the Bill in question would affect the powers of the Union or contravene any of the provisions of the Constitution even though his Ministry may  be of a different opinion.

The role and position of the Governor of a State in India.

The head of the states is called the Governor, who is the constitutional head of the state as the President is for the whole of India. The Governor is usually a distinguished elder states man, who can discharge his rather perfunctory duties with dignity and who is on a position to exercise what Gandhi called an "all pervading moral influence.

The position of Governor of the State is the same as that of the President of the Union. Theoretically, he is the chief administrator. But in practice, it is not so.  The Constitution provides that the Governor shall function with the aid and advice of the Council of Ministers, headed by a Chief Minister. Even in the exercise of his discretionary powers, the Governor is not free in the sense that he has to act under instructions from the President of India or in accordance with some set conventions.

For instance, it is a set convention that the Governor invites only the leader of the majority party in the Assembly to be the Chief Minister since only such a leader is capable of forming a stable Government. If no party has a clear majority, the Governor invites the leader of the largest single party to form the Government.  Thus, it is only in the latter instance that he uses his discretion. In summoning, proroguing or dissolving the House, the Governor has to seek the advice of the Ministers.

There is no denying the fact that the Governor plays a dual role. On the one hand, he is the Constitutional head of the State, acting on the advice of Council of Ministers and advising the State Ministry on various important political and administrative issues, on the other hand, he serves as an agent of the Central Government and keeps the Center informed of the working of the State Government.

The Governor is a ceremonial head of the state. The constitution provides for a council of ministers with a Chief Minister at the head to aid and advise the Governor in the exercise of this functions except when he can act at his discretion. The council of ministers is collectively responsible to the state Legislative Assembly.

All the executive powers are exercised by the cabinet in the name of the Governor who acts constitutionally on the advice of the council of Ministers. The constitution, however, specifically lay down that except in matters where the Governor is required to act in his discretion, he shall not be bound to follow the advice of the council of Ministers, but act in his discretion.

If any question regarding the exercise of the discretion of the Governor arises, the decision of the Governor shall not be called in question on the grouped that he ought or ought not to have acted in his discretion. The courts of the land do not have the power to question the action of the Governor taken in his discretion and the decision of the Governor shall be final.

It is pointed out by the study team on Union- State relations appointed by the Administrative Reforms Commission that the following functions fall within the discretionary powers of the Governor in his role as the head of the State Government.

(i) Appointment of Chief Minister,

(ii) Dismissal of ministry;

(iii) Dissolution of legislature;

(iv) Right to advise, warn and suggest;

(v) Withhold assent from a bill; and

(vi) Discretionary powers of the Governor of Assam, Nagaland, Arunachal Pradesh, Sikkim, Mizoram, Tripura and Meghalaya.

Governor as agent of the centre:

Apart from being the constitutional head of a state, the Governor also acts as the agent or representative of the Central Government. In fact he is the only constitutional link between the center and the states. As his appointment is made by the President of India on the recommendation of the Prime Minister, he is inclined to remain more loyal to the center than to the states.
He ensures that the directives issued by the center to the states are carried out and the Government of the state is carried on in accordance with the provisions of the constitution. It is on the recommendations of the Governor that the President usually issues a proclamation of emergency in the state on account of constitutional breakdown of the state machinery.

Even after the state is placed under President is rule the Governor is the chief representative of the President in the State Jo run the administration of the state on his behalf. When President's Rule, has been imposed on a state the Governor ceases to be a constitutional ruler of the state and acts as an agent of the President.

·       V. V. Giri, the Former Governor of Mysore, called  he to be an 'Ambassador' of the Central Government to the state administration.

·       Governor Sri Prakasa also called himself an "agent of the center".

The Governor holds a key position in the state and is a hyphen which binds the relations of the state with the center  He is the link that faster the federal state chain, the channel which regulates union-state relations.
Thus Governor represents the center in the state, and the state at the center  That he does in his periodic reports to the President, in his meetings with the President and, at the time of the Governor's conferences. It is he who helps in building up the image of the state and of the state Government at the center  He focuses on the needs and the interests of the state at the central level.

As a matter of fact, the terms agent' and 'constitutional head' are two independent contradictory things in the sense that the Constitutional Head is supposed to be impartial, where as an agent is always partial.

Governors were so Powerless during the 1950-67 period that some of them wondered whether the office they held was of any consequence of all.

·       In his article entitled. "The Governor at work'. K.V. Rao has quoted Sarojini Naidu, Governor of U P, as having said that she considered herself as a bird in a golden cage.

·       Dr. Pattabhai Sitaramaya observes that he had no public function to perform except making fort nightly reports to the President when Nehru was asked directly as to what were the functions of Governors, he replied, to entertain the people and make them feel pleased.

·       Sri Prakasa and Vijaylakshmi Pandit who were former Governors complained that the office of the Governor was redundant. They pleaded that the office of the Governor may either be abolished or given certain functions to perform.

·       Prof. K.V. Rao asserts, "One of the causalities of the Nehru era is the state Governor". The role of the Governor was restricted in the Nehru era because there was one political party that was in power in the center as well as in most of the states.

.

During this period, the channels through which the interaction between the states and the center took place were outside the office of the Governor and therefore they did not have much opportunity of playing an important role.

The Governors came into great prominence after 1967 when they were faced with difficult situation especially as no one political party could secure a clean majority. This provided Governors an opportunity to exercise their discretionary powers.

It was argued that the (Governors were exercising their constitutional powers neither in their discretion nor according to their individual judgment but according to the advice of-the Prime Minister who was abusing the office to advance her own interests and those of her party.

The foregoing analysis would show that the key issue concerning the office of the Governor today is not one of rehabilitation but of role differentiation. The problem of role differentiation which could not take place and get institution aliased so far largely on account of one party dominance has assumed such serious proportions today as to become a case of crisis of confidence in the political system itself.

The Governor has a double role to play one as constitutional head of the state and the other as agent of the center  We may argue that the expression 'agent of the center  is not a happy expression in so far as it is un-federal, it not anti-federal, we could perhaps speak of the obligations of the Governor as head of the state and of his constitutional responsibilities vis-à-vis the center.
Two premises may be developed to delineate his role in this regard. Generally speaking, there is no overlap between the two roles except where otherwise specifically provided, the role of the Governor as a so-called agent of the center starts where his role as constitutional head of the state ends.
Secondly, we may also add that there is another line of demarcation in the Governor's role as constitutional head of the state has primacy over his role as agent of the center as the former relates to periods of normally and the latter to emergency situations. If these two premises are accepted, the two roles could be easily reconciled.

Conclusion:

 We may conclude that the Governor has two important roles to play. As the representative or the centre in the state, it is his responsibility to see that the federal balance and political stability are not sought to be destroyed or under mind. In his role as the head of the state Government, he has discretionary powers.

He is not merely a figurehead or a nominal head, or a passive spectator. But the exact range of his powers would greatly depend upon the political situation that exists in the state. If there is great deal of political harmony in the state, the burden of the Governor is greatly reduced.

If there is great deal of political discharge money in the state and political stability is being undermined the role of the Governor naturally becomes much larger. The Governor is an essential part of our federal system. The success of this system depends on the personality of the Governor, his knowledge and ability to solve the problems in an impartial manner.

In the opinion of The Ex-President of India Sri APJ Kalam the Governor should possess the qualities of integrity, impartiality, and obedience to the constitution, be transparent and he should work to protect the interests of common man, downtrodden and the minorities of the State.

Annexure:

SARKARIA COMMISSION REPORT

The Sarkaria Commission submitted its report to the Union Government on October 27, 1987. It focused upon the role of the Governor and gave the following recommendations regarding the Governor:

The appointment of the Governor

   1. He should be a man of some eminence in some field.
 2. He should not belong to the State where he has to serve as the Governor.
 3. He should be a detached figure with little record of participation in thelocal politics of the State.
 4. He should be a person who has not taken too great a part in politics generally, particularly in the recent past.
 5. Preference should continue to be given to the minority groups as hitherto.
 6. It is desirable that a politician from the ruling party at the Centre should not be made the Governor of a State run by another party or a coalition of parties.
 7. Article 155 of the Constitution should be suitably amended to ensure effective consultation with the Chief Minister of a State while appointing a Governor in that State.
 8. The Vice-President of India and the Speaker of the Lok Sabha should also be consulted while making this appointment though this consultation should be ‘confidential’, ‘informal’ and not a matter of constitutional obligations.

The above-mentioned recommendations show that the Sarkaria Commission has made many suggestions regarding the appointment of the Governor. According to Sarkaria Commission between 1947-1986 out of 154, 104 Governors did not complete their term of office.

Sarkaria Commission on Discretionary Powers of the Governor

Article 163 (1) reads as follows:

There shall be a Council of Ministers with the Chief Minister as the head to aid and advice 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.

And Article 163 (2) 1 as:

If any question arises whether any matter is or is not a matter as respect which the Governor is by or under this Constitution 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.

Some of the States demanded the deletion of the discretionary powers of the Governor but the Commission rejected it. Instead, it suggested that Article 163 should be left untouched. Hence, it proposed the continuance of this power but it also said that it should be used only as a last resort.

 Sarkaria Commission points out:

The Sarkaria Commission on central-state relations has recommended that Article 356 must be used "very sparingly, in extreme cases, as a measure of last resort, when all the other alternatives fail to prevent or rectify a breakdown of constitutional machinery in the state

Important Supreme Court Rulings regarding Governor of a State:

The Supreme Court has expressly lain down that Governorship is an independent constitutional office which is not subject to the control of the Government of India.

1.  S. R. Bommai v. Union of India.

S. R. Bommai v. Union of India was a landmark in the history of the Indian Constitution regarding the position of the Article 356 of the Constitution.

• It was in this case that the Supreme Court boldly marked out the paradigm and limitations within which Article 356 was to function.
• It can be seen from the conclusions of this Bench of the Supreme Court that the President's power under Article 356 is not absolute or arbitrary. The President cannot impose Central rule on a State at his whim, without reasonable cause.
• The Supreme Court established strict guidelines for imposing President's rule.  
• We can safely conclude that, though limited, the Presidential Proclamation under Article 356 is subject to judicial review.

 Article 356 has always been the focal point of a wider debate of the federal structure of government in Indian polity. It is only after the landmark judgment in 1994 in the S. R. Bommai v. Union of India case that the misuse of Article 356 was curtailed. Subsequent pronouncements by the Supreme Court in Jharkand and other states have further whetted down the scope for misuse of Article 356. Hence since the early 2000, the number of cases of imposition of President's rule has come down drastically.

In the words of Soli Sorabjee, eminent jurist and former Solicitor-General of India, 'After the Supreme Court's judgment in the S. R. Bommaicase, it is well settled that Article 356 is an extreme power and is to be used as a last resort in cases where it is manifest that there is an impasse and the constitutional machinery in a State has collapsed.

2.  B.P. Singhal vs Union of India

In a PIL (Civil W.P. No 296 of 2004, B.P. Singhal v. Union of India) the Supreme Court on Friday, 7th may 2010, ruled that the governors cannot be removed on grounds of “lack of confidence” or “conflict of political and ideological opinions” with the party in power at the centre.

In the famous BP Singhal Vs Union of India case Supreme Court gave a historical ruling over the position of the Governor of a State.  It made it clear that The Governor should be guardian of the Constitution and not to any political party. He is neither the agent nor the employee of the Union government. The Governor can be removed only in the special, rare and extraordinary circumstances only.

A constitution bench of Chief Justice K.G. Balakrishnan, Justice S.H. Kapadia, Justice B. Sudarshan Reddy, Justice R.V. Raveendran and Justice P. Sathasivam said the arbitrary removal of a governor was subject to a “limited judicial review”.

The court gave its verdict while disposing off a petition challenging the removal of the then governors of Uttar Pradesh, Gujarat, Haryana and Goa July 2, 2004 by the United Progressive Alliance government after it took over from the Bharatiya Janata Party (BJP)-led National Democratic Alliance. Supreme Court finds fault with the UPA government’s decision of removing the governors of UP, Haryana, Gujarat, Gao in 2004.

 The following are the conclusions:

·       (1) Under Article 156(1), the Governor holds office during the pleasure of the President. Therefore, the President can remove the Governor from office at any time without assigning any reason and without giving any opportunity to show cause.

·       (ii) Though no reason need be assigned for discontinuance of the pleasure resulting in removal, the power under Article 156(1) cannot be exercised in an arbitrary, capricious or unreasonable manner. The power will have to be exercised in rare and exceptional circumstances for valid and compelling reasons. The compelling reasons are not restricted to those enumerated by the petitioner (that is physical/mental disability, corruption and behavior unbecoming of a Governor) but are of a wider amplitude. What would be compelling reasons would depend upon the facts and circumstances of each case.

·       (iii) A Governor cannot be removed on the ground that he is out of sync with the policies and ideologies of the Union Government or the party in power at the Centre. Nor can he be removed on the ground that the Union Government has lost confidence in him. It follows therefore that change in government at Centre is not a ground for removal of Governors holding office to make way for others favored by the new government.

·       (iv) As there is no need to assign reasons, any removal as a consequence of withdrawal of the pleasure will be assumed to be valid and will be open to only a limited judicial review. If the aggrieved person is able to demonstrate primafacie that his removal was either arbitrary, malafide, capricious or whimsical, the court will call upon the Union Government to disclose to the court, the material upon which the President had taken the decision to withdraw the pleasure. If the Union Government does not disclose any reason, or if the reasons disclosed are found to be irrelevant, arbitrary, whimsical, or malafide, the court will interfere. However, the court will not interfere merely on the ground that a different view was possible or that the material or reasons were insufficient.

3.   Narayan Dutt v. State of Punjab: Governor cannot decide upon innocence: Supreme Court

Holding that the role of the Governor, as the head of the State Executive, was confirmed to tendering pardon to a convict and not beyond, the Supreme Court in a recent decision [Narayan Dutt v. State of Punjab] set aside the order of the Governor holding that the convict was innocent. The Court held that such a declaration was only within the competence of the Courts and such a decision could not be taken by the Governor in exercising his rights under Article 161 of the Constitution of India. The Court affirmed the decision of the High Court which had set aside the order of pardon granted by the Governor as being extraneous to the powers conferred upon the Governor.

REFERENCES:

·       Governors of states of India-Wikipedia

·       Social Science – Part II: Indian National Council of Educational Research and Training textbook 

·       Essays on the role and position of the Governor of a State-  SMITA SHARMA

·       Role of a state governor -V P Gupta,

·       H.A. Gani, Governor in the Indian Constitution. 

·       N.S. Gehlot, The Office of the Governor—Its Constitutional Image and Reality. 

·       P.M. Bakshi, The Constitution of India. 

·       R.P. Nainta, Governor under the Indian Constitution.

·       Sarkaria Commission Report.
Sibranjan Chatterjee, Governor’s Role in the Indian Constitution.

·       Role of the Governor and Multiparty System.

·       AP Telugu Academy 2^nd BA Political Science- Indian Govt., and Politics Text Book

• Supreme Court of India

S.R. Bommai vs Union Of India on 11 March, 1994

Bench: R P S., Ian, A Ahmadi, K Singh, J.S.Verma, P Sawant, K Ramaswamy, S Agrawal, Y Dayal, B J Reddy CASE NO.: Appeal (civil) 3645 of 1989

• Supreme Court of India

B.P. Singhal vs Union Of India & Anr. on 7 May, 2010

Bench: K.G. Balakrishnan, S.H. Kapadia, R.V. Raveendran, B. Sudershan Reddy, P. Sathasivam WRIT PETITION (CIVIL) NO.296 OF 2004

• Supreme Court of India

Narayan Dutt & Ors. vs State Of Punjab & Anr. on 24 February, 2011

Bench: G.S. Singhvi, Asok Kumar Ganguly CIVIL APPEAL NO.2058 OF 2011