Sarkaria Commission Report on Union-State Relations was released in 1988. In Chapter IV thereof, it is noted that the role of the Governor had emerged as one of the key issues in Union-State relations. While dealing with the historical background, two extremely significant observations were made in paragraphs 4.2.03 and 4.2.04 of the Report. It was suggested quite clearly that:
(i) The Congress Party which commanded a majority in six Provincial Legislatures after the Government of India Act, 1935 came into force assumed office only after it was assured by the Viceroy that the Governors “would not provoke a conflict with the elected Government.” The intention was pretty clear – that the discretion or the individual judgment available to the Governor under the Government of India Act, 1935 would be sparingly used, if at all.
(ii) This intention was carried into effect when the India (Provisional Constitution) Order, 1947 was promulgated, the expressions ‘in his discretion’, ‘acting in his discretion’ and ‘exercising his individual judgement’ occurring in the Government of India Act, 1935 were deleted making it incumbent on the Governor to exercise his functions only on the aid and advice of his Council of Ministers. This is what the Justice Sarkaria Commission observed:
“4.2.03 In 1937, when the Government of India Act, 1935 came into force, the Congress Party commanded a majority in six provincial legislatures. They foresaw certain difficulties in functioning under the new system which expected Ministers to accept, without demur, the censure implied, if the Governor exercised his individual judgement for the discharge of his special responsibilities. The Congress Party agreed to assume office in these Provinces only after it received an assurance from the Viceroy that the Governors would not provoke a conflict with the elected Government.
4.2.04 Independence inevitably brought about a change in the role of the Governor. Until the Constitution came into force, the provisions of the Government of India Act, 1935 as adapted by the India (Provisional Constitution) Order, 1947 were applicable. This Order omitted the expressions ‘in his discretion’, ‘acting in his discretion’ and ‘exercising his individual judgement’, wherever they occurred in the Act.
Whereas, earlier, certain functions were to be exercised by the Governor either in his discretion or in his individual judgement, the Adaptation Order made it incumbent on the Governor to exercise these as well as all other functions only on the advice of his Council of Ministers.”
On Article 163
The Justice Sarkaria Commission looked at Article 163(1) of the Constitution in two parts, namely, the Governor exercising his discretion when required by the Constitution and when required under the Constitution. The exercise of discretion conferred by the Constitution would relate to an express provision of the Constitution (such as those relating to the Tribal Areas of Assam) or by necessary implication; while the latter expression would include the exercise of discretion from rules and orders made under the Constitution.
Given this interpretation, according to the Justice Sarkaria Commission, “The scope of discretionary powers has to be strictly construed, effectively dispelling the apprehension, if any, that the area for the exercise of discretion covers all or any of the functions to be exercised by the Governor under the Constitution. In other words, Article 163 does not give the Governor a general discretionary power to act against or without the advice of his Council of Ministers.”
The Justice Sarkaria Commission studied the Constitution and placed the functions of the Governor in four categories:
(i) The Governor acting in his discretion;
(ii) The Governor acting in his individual judgment;
(iii) The Governor acting in his discretion independently of the Council of Ministers.
(iv) The Governor acting in his discretion under the Constitution.
The first category of functions consists of the Governor acting in his discretion only in respect of the Tribal Areas of Assam as per the Sixth Schedule of the Constitution. Subsequently, as the Constitution was amended, this category expanded to include Article 371-A (1) (d) and (2)(f) [relating to Nagaland], Article 371-F (g) [relating to Sikkim], Article 371- H (a) [relating to Arunachal Pradesh]. To this may also be added paragraph 20-BB of the Sixth Schedule, as discussed in Pu Myllai.
The second category of functions consists of the Governor acting in his individual judgment. This was not provided for in the Constitution as originally enacted but was introduced by way of an amendment in Article 371- A (1)(b) [pertaining to Nagaland] and Article 371-H (a) [pertaining to Arunachal Pradesh].
With regard to the third category of functions, the Justice Sarkaria Commission gave five examples of areas where the Governor exercises his discretion independently of the Council of Ministers – all of them by necessary implication:
“(a) Governor has necessarily to act in his discretion where the advice of his Council of Ministers is not available, e.g. in the appointment of a Chief Minister soon after an election, or where the Council of Ministers has resigned or where it has been dismissed [Article 164(1)].
(b) A Governor may have to act against the advice of the Council of Ministers, e.g. dismissal of a Ministry following its refusal to resign on being defeated in the Legislative Assembly on a vote of no-confidence [Article 164(1) &(2)].
(c) A Governor may require that any matter decided by a Minister may be considered by the Council of Ministers (Article 167).
(d) A Governor may have to make a report to the President under Article 356 that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of the Constitution.
Obviously, in such a situation he may have to act against the aid and advice of the Council of Ministers as the situation may be due to the various acts of omission or commission on the part of the Council of Ministers (Article 356).
(e) A Governor may have to exercise his discretion in reserving a Bill for the consideration of the President (Article 200).”
The Punchhi Commission
In March 2000, Justice Punchhi submitted a Report on Centre-State Relations. The broad mandate of the Commission was “to review the existing arrangements between the Union and States as per the Constitution of India in regard to powers, functions and responsibilities in all spheres including legislative relations, administrative relations, role of Governors, emergency provisions, financial relations, economic and social planning, Panchayati Raj institutions, sharing of resources, including inter-state river water and recommend such changes as may be appropriate keeping in view the practical difficulties”.
With reference to the discretionary role of the Governor, broadly speaking, the following situations may be culled out from the Justice Punchhi Commission Report (paragraph 4.5 thereof):
- To give assent or withhold or refer a Bill [except a Money Bill] for Presidential assent under Article 200;
- The appointment of the Chief Minister under Article 164;
- Dismissal of a Government that has lost the confidence of the Legislative Assembly but refuses to quit since the Chief Minister holds office during the pleasure of the Governor;
- If the Chief Minister neglects or refuses to summon the Assembly for holding a “Floor Test”, the Governor should summon the Assembly for the purpose. Dissolution and prorogation of the House under Article 174;
- Governor’s report under Article 356;
- Governor’s responsibility for certain regions of the country under Articles 371-A, 371-C and 371-H of the Constitution.
The Justice Punchhi Commission did not disagree with the Justice Sarkaria Commission on any issue relating to the functions and duties of the Governor. It must therefore be taken that the functions, duties and powers of the Governor by or under the Constitution are “cabined, cribbed, confined”. However, if “discretion” is given a broad meaning as desired by the respondents and is given greater weightage than “his individual judgment” then there would be “saucy doubts andfears” of the arbitrary exercise of discretion by the Governor as has happened in the present case, and other cases.