Constitutional Discretion of Governor refers to the expression of discretion mentioned in the Constitution. The Constitution makes it clear that if there is any doubt about whether a matter is within the governor's discretion or not, the governor's decision is final, and the validity of anything he does cannot be called into question on the basis that he ought or ought not to have acted in his discretion.

What is the Constitutional Discretion of the Governor?

The governor can use constitutional discretion in the following cases:

• Reservation of a bill for the President's consideration.
• Recommendation for implementing President's Rule in the state.
• While performing his duties as the administrator of a neighboring union territory (in case of an additional charge).
• Determining the amount payable to an autonomous Tribal District Council as royalty from mineral exploration licenses by the governments of Assam, Meghalaya, Tripura, and Mizoram.
• Seeking information from the chief minister about state administrative and legislative matters.

Constitutional Provisions

• Article 163 provides that the Governor acts with the assistance and advice of the cabinet.
  • As per Article 163(1) of the Constitution, "there shall be a council of Ministers, with the Chief Minister at its head, to aid and advise the Governor in the exercise of his functions, except insofar as he is required by or under this constitution to exercise his functions or any of them in his discretion."
• Article 174 states that the Governor has the authority to summon "the House or each House of the Legislature of the State to meet at such time and place as he thinks fit."

Relevant Examples of Constitutional Discretion

1. In Bihar, Governor saw the strength of the RJD and its alliance on one hand, and the BJP and JD (U) on the other. He believed that neither of them could minster the strength of 122 out of 243. As a result, he advocated for President's rule in the state.

2. In Bommai vs. Union of India, 1994

• The case concerned the limits to the Governor's powers under Article 356 of the Constitution in dismissing a state government.
• The Assembly floor is the only forum where the majority of the government of the day should be tested, not the Governor's subjective opinion.

3. Rameshwar Prasad Case, 2006

• The Supreme Court was asked to rule on the legality of the President's Rule proclamation and the dissolution of the Bihar Assembly in 2005.
• The Supreme Court ruled that the Governor could not make a decision based on his subjective assessments.

Constitutional Discretion – Criticism

• The Governors Committee (1971) assigned the governor the responsibility of ensuring that the administration of the state does not collapse due to political instability, and he was required to send a regular report on the state's political situation.
  • The imposition of the President's rule (Article 356) in the event of a breakdown of constitutional machinery in a State, on the other hand, has been frequently abused by the central government.
• The Governor's work is bound by the assistance and advice of his council of ministers, reducing the office's significance to that of a rubber stamp.
  • This is reflected in the observation of TB. Pattabhi Sitaramayya (former Governor of Madhya Pradesh) as he had no public function to perform other than making the fortnightly report to the President.

Conclusion

• For the smooth operation of a democratic government, it is important for the governor to act judiciously, impartially, and efficiently while exercising his discretion and personal judgement.
• It is suggested that the Governors' exercise of 'discretionary powers' be 'guided by healthy and democratic conventions.'
• The role of the governor is critical to the functioning of constitutional democracy. He must avoid aligning himself with any political ideology.
• To ensure a free and fair election in a democracy, the virtue of impartiality must be withheld.

FAQs

MCQs

1. Under which article of the Indian Constitution does the Governor exercise discretion in certain cases?

A) Article 163
B) Article 164
C) Article 170
D) Article 168

2. What is the role of the Governor in the imposition of President's Rule in a state?

A) Governor directly imposes President's Rule
B) Governor recommends President's Rule based on the situation in the state
C) President decides unilaterally
D) Council of Ministers advises the President

3. Which of the following cases is related to the Governor's discretionary power in dismissing state governments?

A) Kesavananda Bharati case
B) Bommai case
C) Golaknath case
D) Minerva Mills case

4. Which of the following powers can the Governor exercise at his discretion?

A) Appointment of Chief Minister
B) Issuing ordinances
C) Reservation of bills for the President
D) Summoning the state legislature

5. Which article of the Indian Constitution allows the Governor to summon the legislature?

A) Article 168
B) Article 174
C) Article 172
D) Article 181

GS Mains Questions and Model Answers

Q1: Analyze the role and importance of the Governor's discretionary powers in the context of Indian federalism.

Answer: The Governor’s discretionary powers play a crucial role in maintaining the stability and integrity of Indian federalism. These powers are essential in situations where constitutional machinery breaks down, such as in the imposition of President's Rule or when there is a breakdown of law and order. While the discretionary powers are meant to be used in exceptional situations, they have often been a subject of controversy due to their potential for misuse, especially when exercised for political reasons. A judicious use of these powers ensures that the Governor can act as a neutral arbiter in times of political crisis, preserving the balance between state autonomy and central authority.

Q2: Discuss the criticism regarding the use of the Governor's discretionary powers in Indian politics.

Answer: The use of the Governor's discretionary powers has been a subject of significant criticism, especially when it has been perceived as being used to further political agendas rather than to uphold constitutional principles. One of the major criticisms is the misuse of the power to recommend President's Rule (Article 356) during times of political instability, often leading to the dismissal of democratically elected governments. The Bommai case clarified that the Governor’s subjective opinion should not determine the fate of an elected government, and the floor test in the Assembly must be the final determinant of majority. Critics argue that Governors often act under pressure from the central government, undermining the federal structure and the autonomy of states.

Q3: Evaluate the role of the Governor in the appointment of Chief Ministers and the formation of state governments.

Answer: The Governor plays a pivotal role in the formation of state governments, particularly in situations where no party has a clear majority. As per the Constitution, the Governor appoints the Chief Minister of a state and other ministers. In situations where there is no clear majority, the Governor exercises his discretion to invite the party or coalition with the largest support in the legislature to form the government. While the Governor is expected to act on the advice of the council of ministers, in situations involving a hung assembly, the discretion exercised by the Governor is crucial in ensuring that the government formed is stable and enjoys the confidence of the legislature.

Previous Year Questions on Governor's Discretion

1. UPSC CSE Prelims 2020:

Question: Under which Article of the Indian Constitution is the Governor’s discretion defined?

A) Article 163
B) Article 164
C) Article 166
D) Article 170

Answer: (A)

Explanation: Article 163 defines the Governor’s discretion, stating that the Governor can act on his discretion in certain situations as required by or under the Constitution.

2. UPSC CSE Mains 2019 (GS Paper 2):

Question: Discuss the discretionary powers of the Governor and their impact on the functioning of the state government.

Answer: The discretionary powers of the Governor have a significant impact on the functioning of state governments. While the Governor generally acts according to the advice of the Chief Minister and the council of ministers, there are exceptional circumstances where the Governor must act independently. The use of these powers is often a contentious issue, as it can lead to political instability or undermine the autonomy of state governments. The imposition of President's Rule under Article 356 is a prominent example of the discretionary powers exercised by the Governor, and its misuse has led to debates about the proper role of the Governor in the federal structure.