Discretionary Powers of governor means an authority bestowed on the governor to choose the most reasonable decision among various alternatives. The governor's discretion can be used to make choices, which are divided into two categories: constitutional and situational. The discretionary powers of the governor have made him the lynchpin of constitutional democracy in the states. If any question arises whether any matter is a matter on which the Governor can use discretionary power, the decision of the Governor is final. This article explains the Discretionary Powers of Governor which is important for UPSC IAS Preparation.

Definition - Discretionary Power

• Discretionary Power is defined as that authority of the executive, whether in matters of substance or of procedure or both, which it is free to exercise as it thinks fit.
• Legally, it is the power to exercise a discretion with which the courts cannot interfere.
• Discretionary authority may proceed from two sources. It may be conferred on a person or a body of persons by the action of the legislature by statute, or it may be based upon convention.
• But whatever the source, it is exercised in both cases with impunity from outside interference.

Discretionary Powers Of Governor

• 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.

The governor has two categories of discretion:

• Constitutional Discretion (express discretion mentioned in the Constitution)

• Situational Discretion (hidden discretion derived from the exigencies of a prevailing political situation)

Constitutional Discretion

• 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 neighbouring union territory (in case of additional charge).
• Determining the amount payable to an autonomous Tribal District Council as royalty from mineral exploration licences by the governments of Assam, Meghalaya, Tripura, and Mizoram.
• Seeking information from the chief minister about state administrative and legislative matters.

Situational Discretion

• Appointment of a chief minister when no party has a clear majority in the state legislative assembly or when the current chief minister dies unexpectedly and there is no obvious successor.
• Dismissal of the council of ministers when it is unable to demonstrate the confidence of the state legislative assembly.
• Dismissal of state legislative assembly when the council of ministers lose their majority.
• Furthermore, the governor is charged with specific duties that must be carried out in accordance with the President's directives. In this regard, the governor, while required to consult the council of ministers led by the chief minister, acts at his discretion. These are:
  • Maharashtra – Formation of separate development boards for Vidarbha and Marathwada.
  • Gujarat – Formation of separate development boards for Saurashtra and Kutch.
  • Nagaland–In terms of law and order in the state, as long as the internal conflict in the Naga Hills-Tuensang Area persists.
  • Assam–With regards to tribal area administration.
  • Manipur–In relation to the administration of the state's hill areas.
  • Sikkim–For peace and the social and economic advancement of all sections of the population.
  • Arunachal Pradesh–In terms of the state slaw and order.
  • Karnataka - Creation of a separate development board for the Hyderabad-Karnataka region.

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 Use Of Discretionary Powers And Misuses – Examples

Relevant Use

1. Dharma Vira, the governor of West Bengal, dismissed the Council of Ministers led by Ajoy Mukerjee on the grounds that only the Ministry with the majority in the Legislature had the right to continue. Ajoy Mukerjee had lost the majority and was unwilling to demonstrate it in the Assembly.
2. Suresh Mehta's ministry was terminated in September 1996 by the Governor of Gujarat after S.S. Vaghela and some of his colleagues created disorderly scenes in the House and engaged in violence. The governor's rule was imposed, and the ministry was dismissed, citing a constitutional breakdown in the state.
3. Kalyan Singh's ministry was dismissed on February 21, 1998, when 25 of his Lok Tantrik Congress and Janata Dal (Raja Ram) supporters who had previously defected from Congress and Janata Dal to enable him to form government withdrew their support.
4. Similarly, the Governor of Punjab set a new precedent by dissolving the State Assembly on the advice of the Chief Minister, Parkash Singh Badal, who had lost his party's majority in the State Vidhan Sabha due to defections.

• The Governor acted at his discretion and did not consult the Centre at all, as had previously been the case with Governors.
• The Governor's action was strongly opposed by leaders of the ruling party at the Centre, but members of the opposition applauded it.

Misuse

1. On March 21, the Governor of Jharkhand interviewed 41 of the 81 NDA MLAs in the House. There were five independents among the 41. Later, the Governor was approached by UPA leaders, who presented him with a list of 42 MLAs.

• Without verifying the strength, the governor accepted the list and extended an invitation to S. Sorin to form the government, but he must prove his strength on the House floor within 20 days.
• The BJP-JD(U) coalition was outraged, and there was a ruckus in Parliament over the issue.
• The NDA complained to the President about the Governor's biased actions.
• The President summoned the Governor and demanded that he explain his decision. He ordered the Assembly to convene on March 10, 2005, and a vote of confidence on March 15, 2005.
• It was a covert reprimand to the Governor for abusing his discretion.

2. Rajasthan Governor Kalraj Mishra's rejection of the state Cabinet's new proposal to convene a session of the Assembly on July 31 has raised new legal questions about the Governor's powers.

• This is the second time the Governor has delayed the request, which would allow Congress Chief Minister Ashok Gehlot to demonstrate his strength on the House floor.

3. In Bihar, the 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 minister the strength of 122 out of 243. As a result, he advocated for President's rule in the state.

• On March 7, 2005, the Union Cabinet approved the same. As a result, President Rule was established, and the Assembly was kept in suspended animation.
• Later, in September, elections were held and the Chief Minister Rabri Devi was ousted.
• The dissolution of the Assembly was challenged in the Supreme Court on the grounds that no horse-trading occurred, and Nitesh Kumar, the largest group leader, could have been called to form the government in Bihar.
• The Apex Court condemned the Governor's action, and the Prime Minister accepted responsibility for the Governor's actions.
• Governor Buta Singh was forced to resign. This was a clear abuse of discretionary powers.

Comparison With Discretionary Powers Of President

Conclusion

The office of governor has a dual role in the Indian federal system, as defined by the Constitution. He serves as the constitutional head of state as well as the Centre's representative. The conferment of some discretionary authority upon the executive is necessary in any modern well-developed government. The primary goal of these powers is to provide justice to the parties. However, regular use of these powers can jeopardize the constitution's principles. The courts should define these discretionary powers or establish the conditions under which they should be exercised.

FAQs

MCQs

1. Under which Article of the Indian Constitution can the Governor recommend the imposition of President's Rule?

A) Article 200
B) Article 123
C) Article 356
D) Article 163

2. Which of the following powers can the Governor exercise without the advice of the state's Council of Ministers?

A) Appointment of Judges
B) Granting Pardons
C) Reserving a bill for Presidential assent
D) Presenting the Budget

3. Which of the following situations allows the Governor to use their discretionary powers?

A) Passing the state budget
B) Dissolving the state assembly in a political crisis
C) Introducing a money bill
D) Setting state taxes

4. Who appoints the Governor of a state in India?

A) Chief Minister
B) President of India
C) Prime Minister
D) Supreme Court of India

5. Which Article of the Indian Constitution provides for the discretionary powers of the Governor?

A) Article 162
B) Article 163
C) Article 164
D) Article 165

GS Mains Questions and Model Answers

Q1: Discuss the discretionary powers of the Governor as per the Indian Constitution and their implications on state politics.

Answer: The Governor is granted certain discretionary powers under the Indian Constitution, which can be exercised without the advice of the state’s Council of Ministers. These powers include appointing a Chief Minister in case of a hung assembly, reserving bills for Presidential assent, and recommending the imposition of President's Rule under Article 356. These powers have significant implications for state politics, especially in situations where political stability is at risk. However, the use of these powers has often been controversial, leading to allegations of partisanship and central government interference in state matters. While the discretionary powers are meant to ensure constitutional governance, their frequent misuse has led to judicial intervention and calls for clearer guidelines.

Q2: Analyze the role of the Governor in a coalition government or a hung assembly situation.

Answer: In the event of a hung assembly or coalition government, the Governor plays a crucial role in determining who will form the government. The Governor must use their discretion to appoint the Chief Minister who is most likely to command a majority in the legislative assembly. This situation is often politically sensitive, as the Governor’s decision can influence the formation of government and its stability. While the decision should be impartial, there have been instances where Governors have faced criticism for acting under political influence. The discretionary role of the Governor in such situations underscores the need for impartiality and adherence to constitutional principles.

Q3: Evaluate the need for checks and balances on the Governor's discretionary powers in India.

Answer: The discretionary powers of the Governor are essential for maintaining constitutional order, especially in extraordinary situations like a breakdown of governance or political instability. However, the exercise of these powers has often been controversial due to concerns of political bias and interference by the central government. There is a need for greater checks and balances to prevent misuse of these powers. Judicial review acts as a key check, but there is a growing demand for clearer guidelines and constitutional amendments to regulate the discretionary powers of the Governor, ensuring they are used objectively and in the best interest of the state’s constitutional framework.

Previous Year Questions on Governor's Discretionary Powers

1. UPSC CSE Prelims 2020

Question: Which Article of the Indian Constitution empowers the Governor to reserve a bill for the consideration of the President?
A) Article 163
B) Article 200
C) Article 356
D) Article 143

Answer: B

Explanation: Article 200 of the Indian Constitution empowers the Governor to reserve a bill passed by the state legislature for the consideration of the President of India.

2. UPSC CSE Mains 2019 (GS Paper 2)

Question: The discretionary powers of the Governor have often been a subject of controversy in India. Discuss with examples the role of the Governor in state politics and the need for reforms.

Answer: The discretionary powers of the Governor have frequently led to controversies, especially in politically sensitive situations like the appointment of a Chief Minister or recommending President's Rule. For instance, in cases where the Governor’s appointment of a Chief Minister has been seen as favoring one political party over another, questions of partisanship have arisen. The discretionary powers are crucial for ensuring constitutional governance, but their misuse has sparked debates about the role of the Governor in state politics. There is a need for reforms to ensure that these powers are exercised impartially and in a manner that upholds democratic principles.