Discretionary powers of the Governor of a state

 

Why is it in the news ?

1.Kerala High Court quashed Governor’s nomination to university senate.

2.The four students nominated by the Governor to the university senate were set aside by the Kerala High Court. 

3. Those students who were forwarded from the Kerala University to Rajbhawan were not nominated by the Governor but the Governor instead nominated four students in the senate of Kerala University and they were alleged to be aligned with Sangh Parivar. Students who did not find a nomination from the Governor in spite of the recommendation from the Kerala University, filed a petition in the Kerala High Court. 

4.The court said that no single factor of the nominated students is shown superior to those of the petitioners. The Court directed the Governor to make a fresh nomination to the senate of  the Kerala University within six weeks. 

5.The court observed that there is no unbridled power vested with the Governor while making  the nomination to the university senate in his capacity as the chancellor of the university. If the nomination made is contrary to the requirement of the statute or if the relevant factors were not considered or if irrelevant factors were considered in making the decisions, the nomination will have to be interfered with by the constitutional courts. 

6.The court held that any arbitrary use of power violates not only the rule of equality enshrined in article 14 of the constitution but also the rule of non-discrimination under article 16. 

7.The Court held that even in the exercise of the discretionary power, the requirements of reasonableness, rationality, impartiality, fairness and equity are inherent to such exercise and can never be according to any private opinion. 

What is the discretionary power of the Governor of a state?

1.Ours is a parliamentary form of Government whereby the Governor of a state is the nominal executive while the real power is vested in the council of ministers headed by the chief minister. 

2.Both the President of India and the Governor of a state are the nominal head of the state. By the 42nd amendment act, the President is bound to accept the advice of the council of ministers. But no such provisions have been made with respect to the Governor. 

3. According to article 163 of our constitution, there shall be a council of ministers with the chief minister as the head to aid and advise the Governor in the exercise of his functions, except in so far as he is required to exercise his functions in his discretion. Thus, unlike the President of India who has been reduced to be the nominal head of the union government, the Governor of a state is vested with discretionary power also. When the Governor  acts at his discretion, he is not bound to accept the advice of his council of ministers. 

4.The Governor has discretionary power in following cases -

• Reservation of a bill for the consideration of the President of India under article 200.

• Recommendation of the imposition of the President’s rule in the state under article 356. 

• When appointed as administrator of an adjoining union territory under article 239 (1).

• Under the Sixth schedule the Governor of Assam, Meghalaya, Tripura and Mizoram are empowered to settle the dispute between the Government of Assam Meghalaya, Tripura and Mizoram and autonomous tribal district councils with respect to the sharing of the royalties that accrue from the lease of mining rights.

• The decision taken by the Governor with regard to the amount payable to the district council is final and the court cannot interfere with. 

Situational discretion 

1.When no party gets a clear cut majority in the general election of the state assembly, the Governor can appoint a leader as the chief minister who is likely to prove his majority on the floor of the House.  

2.When the chief minister suddenly dies and the party in power is not in the position to elect a leader as the successor, the Governor can appoint a leader as the chief minister.

3.When the council of ministers has lost the majority in the state assembly, the Governor is empowered to dismiss the chief minister and the council of ministers. 

4.The governor can dissolve a state assembly when the council of ministers has lost its majority on the floor of the House and no other party is in the position to form the alternate government. 

Constitutional discretionary power

1.The Governor has certain special responsibilities to discharge according to the directives issued by the President of India under article 371 (A) to (J). These are : 

• Establishment of separate development boards for Vidarbha and Marathwada. 

•  Establishment of separate development boards for Saurashtra and Kutch.

• With respect to law and order in the state of Nagaland.

• With respect to the administration of the tribal areas of Assam.

• With regard to the administration of hill areas of Manipur State.

• Social and economic advancement of the different sections of the population of Sikkim. 

• Law and order of Arunachal Pradesh.

• Establishment of separate development boards for Hyderabad and Karnataka region.  

Misuse of discretionary power 

1.In 1967, the West Bengal Governor Dharmaveer dismissed the chief minister Ajay Mukherjee on the plea that Ajay Mukherjee did not convene the legislative assembly at an early date. 

2.The U.P. Governor B. Gopala Reddy dismissed the chief minister Charan Singh in 1970 even though the chief minister was ready to convene the session of assembly to prove majority. 

3.The Governor of Haryana B.N. Chakravarty allowed the chief minister Rao Birendra Singh and Bansilal to continue for a long time without proving majority in the House. 

4.Andhra Pradesh Governor Ram Lal dismissed the chief minister N.T. Ramarao even though the chief minister was prepared to prove his majority in the House. 

5.Recently, Tamil Nadu Governor Mr. Ravi reserved the NEET bill for the consideration of the President of India because he was completely against the exemption of Tamil Nadu students from national eligibility cum entrance test. 

6.More than 100 times, the President’s rules were imposed upon states for one reason or another. After the installation of Janata Party government at the centre in 1977, nine Congress ruled states were put under President’s rule. Assemblies were dissolved and elections were held on the ground that Congress had lost the mandates of the people. Similarly, in 1980, when the Congress came back to power at the centre, President’s rule was imposed upon Janata Party Governments in nine states and assemblies were dissolved. Fresh elections in those states were ordered.  In 1993, after the demolition of Babri Masjid, the BJP ruled states of Madhya Pradesh, Rajasthan and Himachal Pradesh were imposed under the President’s rule. Thus, we see that the discretionary power of the Governor has been misused several times on the dictates of the union government.

The real position of the Governor 

1.The constitution vests enormous power with the Governor of a state but in actual practice these powers are to be exercised by him only on the advice of the council of ministers. In addition he has been bestowed with discretionary powers in certain situations but these discretionary powers are subject to the judicial review by the Supreme Court and the High Courts. By different judgements, the Supreme Court and the High Courts curtailed the discretionary powers of the Governor. For example, in S.R. Bommai case (1994), the Supreme Court held that the test of majority would be done only on the floor of the House. Recently, the Supreme Court ordered the Kerala Governor to give assent to  the pending five bills passed by the state assembly. 

2.To conclude - The Governor is not only the head of the state but he is also the representative of the central government in the state. In order to strengthen the power of the union government, the provision was made to appoint a nominated Governor who continues in his office during the pleasure of the President of India. So, in the case of a Governor, there is no fixed tenure. He has to act on the dictates of the union government.  His position has been modelled like the Canadian Governor of a state.