The question of Governor’s power to act on his own, came before the Supreme Court in Nabam Rebia v. Deputy Speaker (2016). While considering the question the court said,
First of all, it is extremely essential to understand, the nature of powers and the functions of the Governor, under the provisions of the Constitution. Insofar as the instant aspect of the matter is concerned, it is apparent that the Governor has been assigned functions and powers, concerning the executive and the legislative affairs of the State. The executive functioning of the States is provided for under Part VI Chapter II of the Constitution, which includes Articles 153 to 167.
Article 154 mandates that the executive power of the State is vested with the Governor, and is to be exercised by him either directly or through officers subordinate to him “in accordance with this Constitution”.
Article 163 further warrants, that the Governor would exercise his functions, on the aid and advice of the Council of Ministers with the Chief Minister as the head. The above edict is not applicable, in situations where the Governor is expressly required to exercise his functions, “…by or under this Constitution…”, “… in his discretion…”. The question that will need determination at our hands is, whether the underlying cardinal principle, with reference to the discretionary power of the Governor, is to be traced from Article 163(1) or from Article 163(2).
Tracing Discretionary Power of the Governor
Undoubtedly, all executive actions of the Government of a State are expressed in the name of the Governor, under Article 166. That, however, does not per se add to the functions and powers of the Governor. It is also necessary to appreciate, that in the discharge of executive functions, the Governor of a State has the power to grant pardons, reprieves, respites or remissions of punishments or to suspend, remit or commute sentences (under Article 161).
The Governor’s power under Article 161, is undisputedly exercised on the aid and advice of the Chief Minister and his Council of Ministers.
The Governor has power to frame rules for the convenient transaction of executive business of the Government, under Article 166. The instant responsibility is also discharged, on aid and advice. All in all, it is apparent, that the Governor is not assigned any significant role in the executive functioning of the State.
We would also endeavour to examine the duties and responsibilities of the Governor in the legislative functioning of a State. Details with reference to the same are found incorporated in Part VI Chapter III of the Constitution, which includes Articles 168 to 212. Even though Article 168 postulates, that the legislature of a State would comprise of the Governor, yet the Governor is not assigned any legislative responsibility in any House(s) of the State Legislature, irrespective of whether it is the legislative process relating to Ordinary Bills or Money Bills.
Article 158 (dealing with the conditions of the Governor’s office) provides, that the “… Governor shall not be a member of either House of Parliament or of a House of the Legislature of any State specified in the First Schedule …”.
Insofar as the legislative process is concerned, the only function vested with the Governor is expressed through Article 200 which inter alia provides, that a Bill passed by the State Legislature, is to be presented to the Governor for his assent. And its ancillary provision, namely, Article 201 wherein a Bill passed by the State Legislature and presented to the Governor, may be reserved by the Governor for consideration by the President.
The only exception to the non- participation of the Governor in legislative functions, is postulated under Article 213 (contained in Part VI Chapter IV of the Constitution), which apparently vests with the Governor, some legislative power. The Governor under Article 213 can promulgate Ordinances, during the period when the House(s) of the State Legislature, is/are not in session. This function is exercised by the Governor, undisputedly, on the aid and advice of the Council of Ministers with the Chief Minister as the head. The Governor is also required to summon the House or Houses of State Legislature, or to prorogue or dissolve them under Article 174.
Whilst Article 179 provides for vacation, resignation and removal of the Speaker (and the Deputy Speaker) of the Legislative Assembly. Article 183 provides for vacation, resignation and removal of the Chairman (and the Deputy Chairman) of the Legislative Council. In neither of the above Articles, the Governor has any assigned role. The only responsibility allocated to the Governor under Article 208, is of making rules as to the procedure with respect to communications between the two Houses of State Legislature.
All in all, it is apparent, that the Governor is not assigned any significant role even in the legislative functioning of the State.
The above position, leaves no room for any doubt, that the Governor cannot be seen to have such powers and functions, as would assign to him a dominating position, over the State executive and the State legislature.
Governor is not Super-Constitutional Authority
An examination of the executive and legislative functions of the Governor, from the surrounding provisions of the Constitution clearly brings out that the Governor has not been assigned any significant role either in the executive or the legislative functioning of the State.
In our considered view, a clear answer to the query raised above, can inter alia emerge from the Constituent Assembly debates with reference to draft Article 143, which eventually came to be renumbered as Article 163 in the Constitution. It would be relevant to record, that from the queries raised by H.V. Kamath, T.T. Krishnamachari, Alladi Krishnaswami Ayyar, and from the response to the same by Dr. B.R. Ambedkar, it clearly emerges, that the general principle with reference to the scope and extent of the discretionary power of the Governor, is provided for through Article 163(1).
It also becomes apparent from Article 163(1), which provides for the principle of ministerial responsibility. The crucial position that gets clarified from a perusal of the Constituent Assembly debates, arises from the answer to the query, whether the Governor should have any discretionary power at all? The debates expound, that the retention of discretionary power with the Governor was not, in any way, contrary to the power of responsible Government, nor should the same be assumed as a power akin to that vested with a Governor under the Government of India Act, 1935.
And from that, emerges the answer that the retention and vesting of discretionary powers with the Governor, should not be taken in the sense of being contrary to, or having the effect of negating, the powers of responsible Government.
Significantly, with reference to the Governor’s discretionary powers, it was emphasized by Dr. B.R. Ambedkar, that “the clause is a very limited clause; it says: ‘except insofar as he is by or under this Constitution’. Therefore, Article 163 will have to be read in conjunction with such other Articles which specifically reserve the powers to the Governor”. “It is not a general clause giving the Governor power to disregard the advice of his Ministers, in any matter in which he finds he ought to disregard. There, I think, lies the fallacy of the argument of my Hon’ble friend…”.
In our considered view, the Constituent Assembly debates, leave no room for any doubt, that the framers of the Constitution desired to embody the general and basic principle, describing the extent and scope of the discretionary power of the Governor, in sub-article (1) of Article 163, and not in sub-article (2) thereof, as suggested by the learned counsel for the respondents.
Thus, the scope of discretionary powers as provided in the exception in clause (1) and in clause (2) of Article 163 has been limited by the clear language of the two clauses. It is an accepted principle that in a parliamentary democracy with a responsible form of government, the powers of the Governor as Constitutional or formal head of the State should not be enlarged at the cost of the real executive, viz. the Council of Ministers.
Conformity with the views of Punchhi Commission
The important observations in the Justice M.M. Punchhi Commission report, with reference to Article 163(2), are contained in paragraph 4.3.03. Relevant extract of the same is reproduced below:
“Article 163(2) gives an impression that the Governor has a wide, undefined area of discretionary powers even outside situations an impression needs to be dispelled. The Commission is of the view that the scope of discretionary powers under Article 163(2) has to be narrowly construed, effectively dispelling the apprehension, if any, that the so-called discretionary powers extends to all the functions that the Governor is empowered under the Constitution.
Article 163 does not give the Governor a general discretionary power to act against or without the advice of his Council of Ministers. In fact, the area for the exercise of discretion is limited and even in this limited area, his choice of action should not be nor appear to be arbitrary or fanciful. It must be a choice dictated by reason, activated by good faith and tempered by caution.
The Governor’s discretionary powers are the following:
- to give assent or withhold or refer a Bill for Presidential assent under Article 200;
- the appointment of the Chief Minister under Article 164;
- dismissal of a Government which has lost confidence but refuses to quit, since the Chief Minister holds office during the pleasure of the Governor;
- dissolution of the House under Article 174;
- Governor’s report under Article 356;
- Governor’s responsibility for certain regions under Article 371-A, 371-C, 371-E, 371-H etc.…”
We are of the considered view, that the inferences drawn in the Justice M.M. Punchhi Commission report extracted hereinabove, are in consonance with the scheme of the functions and powers assigned to the Governor, with reference to the executive and legislative functioning of the State, and more particularly with reference to the interpretation of Article 163. We endorse and adopt the same, as a correct expression of the constitutional interpretation, with reference to the issue under consideration.
Supreme Court’s views in Shamsher singh case
In Sardari Lal case[1] is concerned, this Court had held therein, that the President or the Governor, as the case may be, would pass an order only on his personal satisfaction.
The same issue was placed before a seven-Judge Bench constituted to re-examine the position adopted in the Sardari Lal case. The position came to be reversed. This Court in the Samsher Singh case[2] declared, that wherever the Constitution required the satisfaction of the President or the Governor, for the exercise of any power or function, as for example under Articles 123, 213, 311(2), 317, 352(1), 356 and 360, the satisfaction required by the Constitution was not the personal satisfaction of the President or the Governor. “… but is the satisfaction of the President or of the Governor in the constitutional sense under the Cabinet system of Government …”.
It is therefore clear, that even though the Governor may be authorized to exercise some functions, under different provisions of the Constitution, the same are required to be exercised only on the basis of the aid and advice tendered to him under Article 163, unless the Governor has been expressly authorized, by or under a constitutional provision, to discharge the concerned function, in his own discretion.
Conclusion
We are therefore of the considered view, that insofar as the exercise of discretionary powers vested with the Governor is concerned, the same is limited to situations, wherein a constitutional provision expressly so provides, that the Governor should act in his own discretion. Additionally, a Governor can exercise his functions in his own discretion, in situations where an interpretation of the concerned constitutional provision, could not be construed otherwise.
We therefore hereby reject the contention advanced on behalf of the respondents, that the Governor has the freedom to determine when and in which situation, he should take a decision in his own discretion, without the aid and advice of the Chief Minister and his Council of Ministers.
We accordingly, also turn down the contention, that whenever the Governor in the discharge of his functions, takes a decision in his own discretion, the same would be final and binding, and beyond the purview of judicial review.
We may therefore summarise our conclusions as under:
Firstly, the measure of discretionary power of the Governor, is limited to the scope postulated therefor, under Article 163(1).
Secondly, under Article 163(1) the discretionary power of the Governor extends to situations, wherein a constitutional provision expressly requires the Governor to act in his own discretion.
Thirdly, the Governor can additionally discharge functions in his own discretion, where such intent emerges from a legitimate interpretation of the concerned provision, and the same cannot be construed otherwise.
Fourthly, in situations where this Court has declared, that the Governor should exercise the particular function at his own and without any aid or advice, because of the impermissibility of the other alternative, by reason of conflict of interest.
Fifthly, the submission advanced on behalf of the respondents, that the exercise of discretion under Article 163(2) is final and beyond the scope of judicial review cannot be accepted.
Sixthly, in view of the conclusion drawn at Fifthly above, the judgments rendered in the Mahabir Prasad Sharma case, and the Pratapsing Raojirao Rane case, by the High Courts of Calcutta and Bombay, respectively, do not lay down the correct legal position. The constitutional position declared therein, with reference to Article 163(2), is accordingly hereby set aside.
[1] Sardari lal v. Union of India (1971)
[2] Shamsher Singh v. State of Punjab (1974)