The Government of India Act, 1858 transferred the responsibility for administration of India from the East India Company to the British Crown. The Governor then became an agent of the Crown, functioning under the general supervision of the Governor-General. The Montagu-Chelmsford Reforms (1919) ushered in responsible Government, albeit in a rudimentary form. However, the Governor continued to be the pivot of the Provincial administration.
The Government of India Act, 1935 introduced provincial autonomy. The Governor was now required to act on the advice of Ministers responsible to the legislature. Even so, it placed certain special responsibilities on the Governor, such as prevention of grave menace to the peace or tranquillity of the Province, safeguarding the legitimate interests of minorities and so on. The Governor could also act in his discretion in specified matters. He functioned under the general superintendence and control of the Governor-General, whenever he acted in his individual judgement or discretion.
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.
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.
The framers of the Constitution accepted, in principle, the Parliamentary or Cabinet system of Government of the British model both for the Union and the States. While the pattern of the two levels of government with demarcated powers remained broadly similar to the pre-Independence arrangements, their roles and inter-relationships were given a major re-orientation.
The Constituent Assembly discussed at length the various provisions relating to the Governor. Two important issues were considered. The first issue was whether there should be an elected Governor. It was recognised that the co-existence of an elected Governor and a Chief Minister responsible to the Legislature might lead to friction and consequent weakness in administration. The concept of an elected Governor was therefore given up in favour of a nominated Governor. Explaining in the Constituent Assembly why a Governor should be nominated by the President and not elected, Jawaharlal Nehru observed that “an elected Governor would to some extent encourage that separatist provincial tendency more than otherwise. There will be far fewer common links with the Centre.”
The second issue related to the extent of discretionary powers to be allowed to the Governor. Following the decision to have a nominated Governor, references in the various articles of the Draft Constitution relating to the exercise of specified functions by the Governor ‘in his discretion’ were deleted. The only explicit provisions retained were those relating to Tribal Areas in Assam where the administration was made a Central responsibility.
The Governor as agent of the Central Government during the transitional period could act independently of his Council of Ministers. Nonetheless, no change was made in Draft Article 143, which referred to the discretionary powers of the Governor. This provision in Draft Article 143 (now Article 163) generated considerable discussion. Replying to it, Dr. Ambedkar maintained that vesting the Governor with certain discretionary powers was not contrary to responsible Government.
MAIN FACETS OF THE GOVERNOR’S ROLE
The three important facets of the Governor’s role arising out of the Constitutional provisions, are:–
(a) as the constitutional head of the State operating normally under a system of Parliamentary democracy;
(b) as a vital link between the Union Government and the State Government; and
(c) as an agent of the Union Government in a few specific areas during normal times [e.g. Article 239(2)] and in a number of areas during abnormal situations [e.g. Article 356(1)].
CONSTITUTIONAL PROVISIONS AND THEIR SCOPE
The Constitution as it finally emerged, envisages that normally there shall be a Governor for each State (Article 153).
The Governor is appointed by the President and holds office during his pleasure [Articles 155 & 156(1)].
Article 154 vests the executive power of the State in the Governor who exercises it either directly or through officers subordinate to him in accordance with the Constitution.
Under Article 163(1), he exercises almost all his executive and legislative functions with the aid and advice of his Council of Ministers. Thus, executive power vests theoretically in the Governor but is really exercised by his Council of Ministers, except in the limited sphere of his discretionary action.
Article 167 of the Constitution imposes duties on the Chief Minister to communicate to the Governor all decisions of the Council of Ministers and proposals for legislation and such other information relating to the administration of the affairs of the State and proposals for legislation as the Governor may call for; and “if the Governor so requires, to submit for the consideration of the Council of Ministers any matter on which a decision has been taken by a Minister but which has not been considered by the Council’.
The information which the Governor is entitled to receive under clause (b) of the Article, must not only be related to the affairs of the State administration, but also have a nexus with the discharge of his Constitutional responsibilities.
The nature and scope of these duties of the Chief Minister and the corresponding rights and powers of the Governor are to be understood in the context of their respective roles and responsibilities under a Cabinet system of government as adopted in our Constitution. Under this system, the Governor as Constitutional head of the State has “a right to be consulted, to warn and encourage” and his role is overwhelmingly that of “a friend, philosopher and guide” to his Council of Ministers.
Harmoniously with this role, the Governor also functions as a sentinel of the Constitution and a live link with the Union. The rationale of Article 167 is that by affording access to necessary information relating to the administration of the affairs of the State and the legislative proposals, it enables the Governor to discharge effectively this multi-faceted role.
The options available to the Governor under Article 167 give him persuasive and not dictatorial powers to override or veto the decisions or proposals of his Council of Ministers relating to the administration of the affairs of the State. At best, “they are powers of giving advice or counselling delay or the need for caution and they are powers which may be used to build bridges between the Government and opposition”.
The efficacy of this advisory role of the Governor depends, in no small measure, on the respect which the incumbent of the office inspires for his wisdom and integrity in the mind of his Chief Minister and Ministers, in particular, and the legislature and the public, in general.
The Governor does not exercise the executive functions individually or personally. The State Government at various levels takes executive action in the name of the Governor in accordance with the rules of business framed under Article 166(3). Hence, it is the State Government and not the Governor who may use or be sued in respect of any action taken in the exercise and performance of the powers and duties of his office [Articles 361, 299(2) and 300].
In a very limited field, however, the Governor may exercise certain functions in his discretion, as provided in Article 163(1), which reads as follows:
(1) There shall be a Council of Ministers with the Chief Minister at the head to 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 or any of them in his discretion.
(2) If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act 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.
(3) The question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired in to in any court.
The first part of Article 163(1) requires the Governor to act on the advice of his Council of Ministers. There is, however, an exception in the latter part of the clause in regard to matters where he is by or under the Constitution required to function in his discretion. The expression “required” signifies that the Governor can exercise his discretionary powers only if there is a compelling necessity to do so.
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.
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 area for the exercise of his discretion is limited. Even this limited area, his choice of action should not be arbitrary or fanciful. It must be a choice dictated by reason, actuated by good faith and tempered by caution.
The Constitution contains certain provisions expressly providing for the Governor to act–
(A) in his discretion; or
(B) in his individual judgement; or
(C) independently of the State Council of Ministers; viz.
(i) Governors of all the States– Reservation for the Consideration of the President of any Bill which, in the opinion of the Governor would, if it became law, so derogate from the powers of the High Court as to endanger the position which that Court is by the Constitution designed to fill [second Proviso to Article 200].
(ii) The Governors of Arunachal Pradesh, Assam, Meghalaya, Mizoram, Nagaland, Sikkim and Tripura have been entrusted with some specific functions to be exercised by them in their discretion (vide Articles 371A, 371F and 371H and paragraph 9 of the Sixth Schedule).
(b) The Governors of Arunachal Pradesh and Nagaland have been entrusted with a special responsibility with respect of law and order in their respective States. In the discharge of this responsibility, they are required to exercise their “individual judgement” after consulting their Council of Ministers.
(c) Governors as Administrator of U.T.– Any Governor, on being appointed by the President as the administrator of an adjoining Union Territory, has to exercise his functions as administrator, independently of the State Council of Ministers [Article 239(2)]. In fact, as administrator of the Union Territory, the Governor is in the position of an agent of the President.
Articles 371(2) and 371C(1) provide that certain special responsibilities may be entrusted by Presidential Orders to the Governors of Maharashtra and Gujarat and the Governor of Manipur, respectively. Article 371(1), which has since been deleted, made a similar provision in respect of the Governors of Andhra Pradesh and the erstwhile composite State of Punjab.
The Presidential Orders so far issued under these Articles have provided that the concerned Governors, while carrying out certain functions connected with the special responsibilities entrusted to them, may exercise their discretion. (All these Orders, except the one issued under Article 371C, have since been rescinded).
It has to be noted that these Articles themselves do not expressly provide for the exercise of discretion by the concerned Governors. Thus, these Presidential Orders are instances of a Governor being required to act in his discretion “under” the Constitution.
The obligation of the Governor to discharge a function under the Constitution in the exercise of his discretion may also arise by implication from the tenor of the constitutional provision, the very nature of the function or the exigencies of a particular situation where it is not possible or practicable for the Governor to seek or act on Ministerial advice. Some typical situations are given below:—
(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 Governor must discharge his discretionary functions to the best of his judgement and not at the dictation of any outside authority, unless such authority is authorised by or under the Constitution to issue directions in that matter. An instance of such authorisation is furnished by Article 371F(g) which makes the discharge by the Governor of Sikkim of his special responsibility subject to such directions as the President may issue.
Article 355 of the Constitution imposes a duty on the Union
(i) to protect every State against external aggression and internal disturbance; and
(ii) to ensure that the Government of every State is carried on in accordance with the provisions of the Constitution. If a situation arises when the Government of a State cannot be so carried on in accordance with the Constitution.
Article 356 provides for a report from the Governor of the State to the President. It is implicit in these two Articles that for the proper discharge of its paramount responsibilities, the Union has a right to expect and the Governor an obligation to send reports on important developments in the State as and when they take place, which appear to the Governor to contribute towards a potential or actual situation of external aggression or internal disturbance or failure of the constitutional machinery in the state.
The Constitution thus assigns to the Governor the role of a Constitutional sentinel and that of a vital link between the Union and the State. The Governor, on occasions, could also play a useful role as a channel of communication between the Union and the State in regard to matters of mutual interest and responsibility. If any directions are issued by the Union in the exercise of its executive power to the State Government under any provision of the Constitution, such as, Articles 256 and/or 257, it will be the duty of the Governor to keep the Union informed as to how such directions are being implemented by the State Government.
Being the holder of an independent Constitutional office, the Governor is not a subordinate or a subservient agent of the Union Government. However in respect of those specified functions which the Constitution requires him to perform as agent of the Union, he is accountable to the President.