Role and Powers of the Governor in India: Constitutional Duties and Discretionary Authority – (Part 02)

The Governor plays a vital role in the governance of Indian states, holding significant powers and responsibilities. As the constitutional head of the state, the Governor oversees executive, legislative, financial, and judicial functions. This article explores the various powers of the Governor, including their discretionary authority and role in the appointment of the Chief Minister. Understanding these functions is essential for grasping the complexities of state governance in India.

The Governor’s Role in Indian Governance

Constitutional Position of the Governor

• • Constitutional Provisions Governing the Governor: Article 154, 163, and 164 are pivotal to understand the constitutional position of the Governor:
    • Article 154: states that 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 this Constitution.
    • Article 163: states that 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.
    • Article 164: states that the Council of Ministers shall be collectively responsible to the legislative assembly of the state.

• Key Differences Between the Constitutional Positions: The Constitutional position of the Governor is different from the President in the following two ways:

• No discretionary power has been provided for the President by the Constitution.
• Advice of the Council of Ministers has been made binding on the President by the 42nd Constitutional Amendment Act of 1976 but there is no such provision for the office of the Governor.

• Finality of the Governor’s Discretionary Decisions: It has been made clear by the Constitution that if any question arises about a matter falling within the purview of the Governor’s discretion or not, the decision of the Governor is final.

Governors of all states enjoy following discretionary powers under specific circumstances ‘by implication’

Reservation of Bills passed by the State Legislature for the consideration of the President

• Approval Process for State Bills: In order for a bill passed by a State legislature to become an Act, it must receive the approval of the Governor or the President, particularly when the bill is reserved for the President’s consideration [Art 200].
• Options Available to the Governor: When a State legislature passes a bill, it goes through a process with the Governor. Under Article 200 of the Constitution, the Governor has four choices:

• The Governor may approve the bill.
• The Governor may reject the bill.
• The Governor can send the bill (if not a Money Bill) back to the State Legislature for further review.
• The Governor may reserve the bill for the President’s consideration.

• Implications of the Governor’s Veto Powers: This implies that the Governor holds a Suspensive veto over a State bill, similar to how the President has it over Union legislation. 
  • In unique situations, the Governor may also wield an Absolute veto or Pocket veto over State bills.

• Authority to Reserve Bills for Presidential Consideration: The Governor has the authority to reserve any bill passed by the State Legislature for the President’s consideration. 
  • Typically, this decision is made based on the advice of the State Council of Ministers. 
• Discretionary Power of the Governor: However, if the Governor believes that a particular bill might impact Union powers or violate the Constitution’s provisions, they can use their discretion to reserve the bill for the President’s consideration.

Under The Constitution, Bills Passed By State Legislatures And Reserved For The President’s Consideration Fall Into Distinct Categories

• • Mandatory Reservation:  These bills must be reserved for the President’s consideration, and they include:
    • Bills reducing the powers of the High Court, endangering its intended role (second provision to Article 200).
    • Bills related to the imposition of taxes on water or electricity in specific cases, falling under Clause (2) of Article 288.
    • Money Bills or Financial Bills passed during a Financial Emergency, mandated to be submitted for the President’s consideration (Art 360).
    • These provisions explicitly require the Governor to act in a particular manner, ensuring the bills are reserved for the President.

• Permissive Reservation for Specific Purposes: Bills in this category may be reserved for the President’s consideration and assent for specific purposes:

• • Bills Securing Immunity from Articles 14 and 19: Bills securing immunity from the operation of Articles 14 and 19, such as those related to the acquisition of estates [First Proviso to Article 31A(I)] and implementing Directive Principles of State Policy (Proviso to Article 31C).
  • Bills Related to the Concurrent List: Bills related to subjects in the Concurrent list, ensuring operation despite repugnancy to Union law or existing law, with the President’s assent under Article 254(2).
  • Legislation Imposing Restrictions on Trade and Commerce: Legislation imposing restrictions on trade and commerce, requiring Presidential sanction under the Proviso to Article 304(b) read with Article 255.
    • The Governor may reserve bills in this category based on the advice of the State Council of Ministers.
• Discretionary Reservation: Bills not falling specifically under the above categories may still be reserved by the Governor for the President’s consideration under Article 200. 
  • This is rare, and the Governor exercises discretion when they believe the bill’s provisions may contravene the Constitution.
  • The Governor may reserve bills in their discretion, feeling it prudent to seek the President’s consideration if there’s a potential contravention of constitutional provisions. 
  • Whenever a bill is reserved by a Governor for the President’s assent, the process follows the provisions of Article 201.

• Reservation of Bills by State Governors (2012-2017): In the period from 2012-17, for instance, 188 bills were reserved by various State Governors for the President’s consideration. 
  • Among these, 155 received assent, 12 were returned with a message, and assent was withheld for 18 bills (absolute veto).

Report Of Breakdown Of Constitutional Machinery Under Article 356

• Enforcement of President’s Rule Under Article 356: Article 356 allows for the enforcement of the President’s rule by making a proclamation when the State Government cannot function in line with the Constitution. 
• Proclamation Based on Governor’s Report: The President can make this proclamation based on a report from the Governor or other means. 
  • The Governor will submit such a report if the ruling ministry attempts to undermine the Constitution or loses its majority in the Legislative Assembly. 
• Governor’s Independent Reporting: Importantly, the Governor independently issues this report without consulting the Council of Ministers. 
• President’s Rule After Ministry Resignation: If a ministry resigns and no alternative party or coalition can form a government, the Governor may suggest the imposition of the President’s rule through their report under Article 356.
• Controversial Misuse of Article 356 Powers: Over time, there have been instances of controversial misuse of the powers granted by Article 356. However, the Supreme Court’s judgement in the S. R. Bommai case in 1994 has played a crucial role in restricting this misuse. 
  • The judgement subjected the Presidential proclamation under Article 356 to judicial review, thereby curbing the arbitrary exercise of this power.

Appointment of the Chief Minister when no party enjoys majority in the Legislative Assembly

• Appointment of Chief Minister Without Clear Majority: In situations where no political party holds a clear majority in the Legislative Assembly, the appointment of the Chief Minister in accordance with Article 164 of the Constitution becomes a nuanced process. 
  • The Governor, vested with the authority to make this appointment, traditionally selects the leader of the party with the majority in the Assembly. 
  • However, when no single party commands such a majority, the Governor exercises discretion in choosing the Chief Minister.

• Sarkaria Commission’s Recommendations: The Sarkaria Commission, tasked with providing recommendations in such scenarios, outlined a specific order of preference. If no party secures a majority, the Governor should consider the following:
• An alliance of parties formed before the elections.
• The largest single party claiming to form the government with support from others, including independents.
• A post-electoral coalition of parties, with all coalition partners joining the government.
• A post-electoral alliance of parties, where some parties in the alliance form the government, and others, including independents, support the government from outside.
• Real-World Deviations from Recommendations: Despite these recommendations, real-world scenarios have seen Governors deviate from this order, often aligning with the party in power at the Centre. Notable instances illustrate this:
• In the Goa Legislative Assembly election of February 2017, the BJP, with 13 seats, was invited to form the government, bypassing the Congress, which had 17 seats and staked a claim as the single largest party.
• Similarly, in the Manipur Legislative Assembly election of February 2017, the BJP, with 21 seats, was invited to form the government over the Congress, which had 28 seats.
• The Karnataka Legislative Assembly election of May 2018 witnessed the BJP, with 104 seats, being invited to form the government, even as the Congress-JD(S) coalition claimed majority support. 
• This decision faced scrutiny, leading to a swift resignation by the appointed Chief Minister.
• These instances underscore the complexity and occasional divergence from established protocols in the appointment of Chief Ministers under circumstances of no clear majority.
• Favoritism Towards the Ruling Party at the Centre: In recent times, there have been cases where Governors have shown favouritism towards the ruling party at the Centre. 
  • This trend is not new in India’s independent history, with several instances of similar behaviour.
• Implementing Sarkaria Commission Guidelines: A potential solution to this problem could be implementing the recommendations outlined in the Sarkaria Commission report. 
  • If these recommendations are established as guidelines, Governors would be required to follow them when appointing Chief Ministers, especially in situations where no single party holds a majority in the Legislative Assembly.

Dismissal of Chief Minister and dissolution of the Legislative Assembly

• Lack of Consistency in Chief Minister Removal: In the matter of removing a Chief Minister, there is a lack of consistency in the criteria applied. 
• Chief Minister’s Responsibility to Command Majority: Clearly, a Chief Minister cannot remain in office if he/she no longer commands a majority in the Legislative Assembly. 
  • It is customary for a Chief Minister to promptly resign or present themselves before the Legislative Assembly to demonstrate ongoing majority support.

• Case Study: West Bengal Chief Minister Dismissal (1967): However, the Chief Minister of West Bengal in 1967 neither resigned nor faced the Assembly within the timeframe given by the Governor. 
  • Despite the Governor’s initial two-week allowance, later extended by a week until the end of November 1967, the Ministry refused to summon the Assembly before December 1967. 
  • Consequently, the Governor dismissed the Ministry on November 21, 1967.
• Case Study: Uttar Pradesh Chief Minister’s Resignation (1970): A similar situation occurred in Uttar Pradesh in 1970, where the Chief Minister was asked to resign despite being willing to face the Assembly within two days. 
• Case Study: Dismissal of Kalyan Singh (1998): In 1998, the Governor of Uttar Pradesh dismissed Chief Minister Mr. Kalyan Singh and appointed Mr. Jagadambika Pal without testing Mr. Kalyan Singh’s Ministry’s strength on the House floor.
• Diverse Approaches to Legislative Assembly Dissolution: Diverse approaches have been observed among Governors in comparable scenarios involving the dissolution of the Legislative Assembly. 
  • Normally, a Governor is bound by the advice of a Chief Minister with majority support.
• Governors’ Discretion in Assembly Dissolution Decisions: However, in cases where the Chief Minister lost such support, some Governors rejected the dissolution of the Legislative Assembly based on their advice, while others accepted it. 
  • Example: in Kerala (1970) and Punjab (1971), the Assembly was dissolved based on the doubtful claim of majority support by the Chief Minister. 
• Instances of Not Dissolving Legislative Assemblies: Conversely, in Punjab (1967), Uttar Pradesh (1968), Madhya Pradesh (1969), and Orissa (1971), the Legislative Assembly was not dissolved, and efforts were made to establish alternative Ministries.

Others Constitutional discretion of the Governor

• Fixing the Amount Payable: Fixing the amount payable by the Government of Assam, Meghalaya, Tripura, and Mizoram
• Administrative Functions in Adjoining Union Territories: His discretion regarding his functions as the administrator of an adjoining Union Territory.
• Seeking Information from the Chief Minister: regarding the administrative and legislative matters of the State.
• Duties under Presidential Guidance: The Governor holds specific duties that must be carried out under the guidance provided by the President. 
• Discretionary Decisions: While the Governor is required to engage with the Council of Ministers, which is headed by the Chief Minister, the ultimate decision is taken at the Governor’s discretion in following matters:

• 94th Amendment Act of 2006: Bihar has been freed from the obligation of having a tribal welfare minister by the 94th Amendment Act of 2006. 
  • The same amendment act extended the provision of having a tribal welfare minister to the newly formed states of Jharkhand and Chhattisgarh.

Conclusion

In conclusion, the powers and functions of the Governor are crucial to maintaining the constitutional framework in Indian states. 

• While the Governor acts as a representative of the President, their discretion in certain matters highlights the delicate balance of power. 
• Instances of controversial decisions show the need for clear guidelines in appointing Chief Ministers and exercising authority. Ultimately, a well-defined role for the Governor can enhance democratic governance at the state level.

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