Discretionary powers of the Governor Mr. Amaresh Patel BASICS OF LAW Mon, Dec 13, 2021, at ,12:40 PM Discretionary Powers of Governor 'As a rule, Governor being constitutional head has to act on the advice of his Council of Ministers, but Article 163 provides that there shall be Council of Ministers in aid and advice the Governor in the exercise of his functions except in so far as he is by or under this Constitution required to exercise his functions in his discretion. Thus, clearly contemplates certain functions which can be exercised in his discretion without aid and advice, from his Ministers. Clause (2) of Article 163 further provides that if any question arises as to whether a matter is such in respect of which he is required to function in his discretion the decision of the Governor in his discretion shall be final and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion. The jurisdiction of the court is excluded. In the following matters Constitution specifically provides that the Governor shalt exercise his functions in his discretion: 1. Article 239 (2): Where Governor is also appointed as administrator of some Union Territory in respect of administration of such territories he will act in dependently of his Cabinet.2. Article 371-A: Maintenance of law and order in Nagaland,3. Article 371-F (g): Special responsibility for peace and equitable arrangement in Sikkim:4. Schedule VI, CI. 9 (2): Administration of tribal areas in State of Assam: Besides these express provisions there are certain functions of the Governor which by their nature imply discretion to be exercised. Following are the instances of such powers: · Appointment of Chief Minister: While appointing other Ministers he has to act on the advice of the Chief Minister, but in appointing Chief Minister himself he has to use. his own discretion. This discretion is, however, not unfettered because if he appoints as Chief Minister a person who cannot command majority in the. Legislative Assembly he will be voted out and cannot carry out any programme. It is, therefore, imperative that he should appoint someone who is able to command the majority in the Legislative Assembly. Where a single party holds majority, the task is simple but where no single party is in majority, leaders of different parties may claim majority and Governor has to make a choice. After fourth general elections In many States no single party had clear majority. In certain cases, different claimants to form Government submitted lists of supporters to the Governor. In Rajasthan and Haryana39 supporters were presented in person before the Governor. In 1982 elections to Haryana-Legislative Assemble no party could get clear majority. The Governor G.D. Tapase asked the rival claimants-Sri Bhajan Lal (Cong. I) and Sri Devi Lal (Lok Dal) to present their supporters on a particular date. However, before the largest party in the House date he appointed Bhajan Lal on the ground that he was the leader of the single largest party in the House.· Dismissal of Ministry: As, already discussed normally the Governor will not dismiss. a Ministry so: long as it enjoys the confidence of the Legislature, but sometimes a Ministry may enjoy confidence of the House but It may not have the packing of the people: in such situation he can dismiss the Ministry. Sometimes a Ministry, which has lost confidence of the Legislature may also cling. to the office and may not advise the summoning of the Legislature to test its strength. in such situation also he may exercise his discretion in dismissing the Ministry.· Dissolution of Legislative Assembly- Dissolution of Legislative Assembly presents another difficulty where the Ministry is opposed to dissolution. When the Ministry loses majority in the House but is confident of the support of the electorate, it may advise the dissolution of its own but where the Ministry has support in the Mouse but has lost confidence of the electorate it will naturally be reluctant to go to poll. In: 1977 in Parliamentary elections Janata Party was returned to power and Congress was defeated. In nine State Congress Party was badly defeated so much so that in few States it could not send a single member. This clearly indicated that the party had lost the confidence of the people. The Home Minister term in the Central Cabinet, Mr. Charan Singh advised the Chief Ministers of these States to advise their Governors to dissolve the Assembly and seek verdict of the people but they declined because in State Assemblies Congress. Had majority. Ultimately Article 356 was used to dissolve Assemblies in those States. Similarly, Assemblies in 9 States were again dissolved in 1980 when Congress (1) was voted to power in election to Lok Sabha. Dissolution of Assembly may also be necessary where no stable Government is possible because. of shifting loyalties of the members. This happened after Fourth general elections in many States. The most interesting of them are UP. and Haryana.· Reservation of Bill for consideration of the Presidential assent- Article 200 provides that Governor shall reserve for consideration of the President any. Bill which in his opinion would, if it became law, so derogate from the powers of the High Court as to endanger the position which the Court is by this Constitution de-signed to fill. In other cases also where the Governor reserves a bill for consideration of the President, he will naturally act in his discretion for no Ministry would like to give such advice, in the normal course.· Seeking instructions from President for promulgating ordinance: Under provision to Article 2.13 (1) Governor is required not to issue ordinance in certain cases without instructions from the President.· Report under Article 356: In reporting to the President that the Government of a State cannot be run in accordance with the provisions of the Constitution the Governor has to apply his own discretion. The Ministry in power would generally not like to advise. Moreover, the advice will not be available where one Ministry has resigned and alternative Ministry could not be constituted.· To call for information: Governor -may call for any information relating to administration of the State. It is the duty of the Chief Minister to furnish such information. In seeking ~h information he will exercise his discretion.· Sending of Bill to Legislature or the Council of Ministers- He can return Bills to Legislature for reconsideration. Whenever Governor feels that a matter has not been considered by the whole of the Council of Ministers he may not act on the advice of the Chief Minister and may refer the matter to the Council of Ministers for their consideration.