“Be your ever so high, the law is above you” ~ Thomas Fuller
The Supreme Court extensively discussed in the judgment of State of Tamilnadu v. Governor of Tamilnadu (2025) that the Governor under the scheme of Article 200 would, as a general rule, be expected to act on the aid and advice of the Council of Ministers as provided for under Article 163(1). The deletion of the expression “in his discretion” by the framers of the Constitution during the course of adapting Section 75 of the GoI Act, 1935 into Article 200, is a clear indication of their intent to make the ordinary exercise of powers of the Governor under Article 200 subject to the aid and advice of the Council of Ministers.
However, the aforesaid ordinary exercise of power by the Governor is subject to certain exceptions where the Governor may act in his own discretion, contrary to the advice of the Council of Ministers. There are two broad circumstances under which it would be permissible for the Governor to act in his own discretion under Article 200:
a. Where the Governor is by or under the Constitution required to act in his discretion. The only situation in which such exercise of discretion has been explicitly laid down in the Constitution is the second proviso to Article 200, that is, where, in the opinion of the Governor, the bill, if assented to, would so derogate from the powers of the High Court as to endanger the position which the High Court is designed to fill by the Constitution;
b. Where the Governor is by necessary implication required to act in his own discretion.
This would include:
(i) Where a bill attracts such a provision of the Constitution which requires the mandatory assent of the President for securing immunity or making the law enforceable. Exercise of discretion is permissible in these cases. For instance, Article(s) 31A, 31C, 254(2), 288(2), 360(4)(a)(ii) etc.
(ii) Situations where the exceptional conditions as described in M.P. Special Police and Nabam Rebia are applicable i.e., the State Council of Ministers has disabled or disentitled itself; possibility of complete breakdown of the rule of law or by reason of peril to democracy/democratic principles respectively, as a consequence of which an action may be compelled which, by its nature is not amenable to ministerial advice.
The question which naturally follows is whether the exercise of discretion by the Governor, in the exceptional situations as discussed aforesaid, would be amenable to judicial review. The importance of this question lies in the high constitutional importance of the role which the Governor plays under Article 200. The Governor, by choosing to act in his discretion under Article 200, has the power to thwart the entire legislative machinery of the State by reserving a bill for the consideration of the President. He also has the power to significantly delay the grant of assent to a bill by withholding assent and returning the same to the State legislature under the first proviso to Article 200 of the Constitution.
It was contended by the petitioner that no exercise of power under the Constitution could be said to be beyond the scope of judicial review as every authority, howsoever high, is expected to perform its functions within the constitutional framework. It was submitted that if the exercise of powers by the Governor under Article 200 is held to be outside the scope of judicial review, then that would render him to be a super-constitutional figure in the State, who would be able to override the legislature and the government elected by the people, at his whims and fancies and without any checks and balance.
Reference
State of Tamilnadu v. Governor of Tamilnadu (2025)