The discretionary powers of a Governor and his position with respect to the Council of Ministers has always been an area of dispute as often his powers seem to be getting curtailed through judicial interpretations and decisions. It is because our Constitution envisages an accountable and parliamentary form of Government.
The Supreme Court in Shamsher Singh Vs Union of India has held, "Wherever the Constitution requires the satisfaction of President or the Governor for the exercise of any power or function by the President or the Governor, as the case may be, as for example in Articles 123, 213, 311(2) proviso (c), 317, 352(1), 356 and 360 the satisfaction required by the Constitution is not the personal satisfaction of the President or of the Governor but is the satisfaction of the President or of the Governor in the Constitutional sense under the Cabinet system of Government."
Further, the court in the same case took note of the then Chief Justice Mukherjea's view in Ram Jawaya Kapur Vs State of Punjab, "This Court has consistently taken the view that the powers of the President and the powers of the Governor are similar to the powers of the Crown under the British Parliamentary system... The executive power of the Union is vested in the President. The President is the formal or Constitutional head of the executive. The real executive powers are vested in the Ministers of the Cabinet. There is a Council of Ministers with the Prime Minister as the head to aid and advise the President in the exercise of his functions"...
The clear judicial understanding of the Constitution as manifest in the aforementioned case laws is that the Constitution disapproves of a parallel Government within the State by allowing the Governor to exercise his discretion against the advice tendered by the Council of Ministers.
Further in Rameshwar Prasad & Ors Vs Union of India & Anr with reference to 'discretion' of President and Governor, the court was of the view, "The expression required found in Article 163(1) is stated to signify that the Governor can exercise his discretionary powers only if there is a compelling necessity to do so. The necessity to exercise such powers may arise from the express provision of the Constitution or by necessary implication."
Besides, the Sarkaria Commission's report has categorically opined that except in some cases, the satisfaction of the President and the Governor under the Constitution is not their personal satisfaction but that of the Council of Ministers on whose aid and advice they exercise their powers and functions.
In another case of significance involving the discretion of the Governor, a five-judge Constitution Bench judgment of the Supreme Court in Nabam Rebia versus Deputy Speaker on July 13, 2016 held that Governor cannot have his ‘discretion’ and should strictly abide by the “aid and advice” of the Cabinet to summon the House. The court held, “The Governor can summon, prorogue and dissolve the House only on the aid and advice of the Council of Ministers with the Chief Minister as the head. And not at his own.”
"The Governor cannot manufacture any business for the House to transact through a so-called message or otherwise. If the Governor disregards the advice of the Council of Ministers for summoning the House, necessary consequences would follow. In this regard, it may be mentioned that if the President disregards the advice of the Council of Ministers he can be impeached. As far as the Governor is concerned, if he disregards the advice of the Council of Ministers the pleasure of the President can be withdrawn since the Governor holds office during his pleasure."
This judgment was a consequence of a chain of actions that followed the then Arunachal Pradesh Governor JP Rajkhowa’s decision to advance the Assembly session, and which ultimately led to President’s Rule in the State. The Constitution Bench in this case held the Governor’s decision as a violation of the Constitution and, hence, the Congress-led Nabam Tuki Government was reinstated. The court in this case also observed, “It is an accepted principle that in a parliamentary democracy with a responsible form of government, the powers of the Governor as Constitutional or formal head of the State should not be enlarged at the cost of the real executive, viz., the Council of Ministers.”
The court also observed that the Governor’s discretionary powers are contained within particular aspects of their functions like giving assent or withholding/referring a Bill to the President or appointment of a Chief Minister or dismissal of a Government which has lost confidence but refuses step down, etc., but at the same time it cautioned against such decision to be fanciful or arbitrary but rather has to be dictated by reason and good faith.
In the historic decision of the SR Bommai case of March 1994, the Supreme Court held that the President’s power for dismissing state governments is subject to the result of test of majority in the floor of the House.
Since we follow a parliamentary democracy, the powers of the Governor are circumscribed by the express and inherent limitations of the Constitution; his discretion is subject to the collective opinion of the Council of Ministers and only in a limited way vests in him but has to be strictly reasonable. Irrespective of such limitations, the role of the Governor is larger than what is seen through the lenses of these judicial interpretations as the Governor is the ‘conscience keeper of the Government’, as he can effectively participate in governance by questioning the State Government when it goes wrong; and by expressing his reasoned opinion on matters of governance, the only caution has to be that the entire exercise mustn’t appear to be political.
(The writer is an Additional Central Government Standing Counsel, Central Administrative Tribunal, Cuttack Bench and a Distinguished Adjunct Professor of Law and Media Studies at School of Mass Communication, KIIT University. He can be reached at sjyotiranjan3@gmail.com. Views are personal)