According to Article 163, there is a Council of Ministers to aid and advise the Governor to exercise her functions. However, the Constitution provides certain discretionary powers to the Governor, where she can act without the advice of the Council.
Constitutional Discretion of the Governor:
- Reservation of a bill for the consideration of the President (Art. 200).
- Recommendation for the imposition of President’s Rule in the state (Art. 356).
- Exercising functions as the administrator of an adjoining union territory (in case of additional charge).
- Determining the amount payable by certain states to an autonomous Tribal District Council as royalty from mineral exploration licences.
- He may call upon the Chief Minister to provide information regarding the administration of the state affairs and proposals for legislation (Art 167)
Situational Discretion of the Governor:
- Appointment of Chief Minister in cases of a hung assembly or sudden demise of the incumbent Chief Minister (Article 164).
- Dismissal of the council of ministers if it fails to prove confidence in the state legislative assembly.
- Dissolution of the state legislative assembly if the council of ministers loses its majority (Art. 174).
Article 153 provides for the office of a Governor for every state. While the Governor is constitutionally expected to act as a neutral arbiter and bridge the gap between the Union and state administrations, the actual practice has often differed.
Issues Related to the Office of the Governor:
- Partisan Behavior: Governors have been accused of acting as agents of the Centre.
- Dereliction of Constitutional Duties: Example: Recently in Punjab and earlier in Rajasthan, the Governor refused to convene the Assembly session on the recommendation of the State Cabinet (Articles 163 and 174).
- Increasing Tussle with Elected Governments: Example: In January 2023, the Tamil Nadu Governor refused to read certain parts of the Governor’s address.
- Misuse of Article 200: Indefinite withholding of assent to Bills, leading to a deadlock between the executive and legislative branches. Example: Tamil Nadu.
- Misuse of Discretionary Powers:
- President’s Rule: Article 356 has been invoked over 125 times, often for political reasons rather than a genuine breakdown of constitutional machinery in the States.
- Appointment of CM during a hung assembly: Determining the time needed for a party to prove its majority, or deciding which party should be called first. Example: Recent case in Maharashtra.
- University Chancellorship: Governors being vested with other roles, such as university chancellorship, creates controversies, as seen in Kerala.
- Lack of Accountability: There are few checks on Governors’ conduct and little means to hold them accountable.
Measures needed to strengthen the office of the Governor:
- Code of Conduct: Establish a code endorsed by all levels of government to guide Governors.
- Codify Discretionary Powers: Set boundaries and mandate adherence to Cabinet advice.
- Amend Article 155: Reform the process for Governor appointments and removals based on the Punchhi and Sarkaria Commission reports.
- Follow Judicial Guidance:
- Supreme Court (SC) recently ruled that bills sent to the Governor for assent must be returned “as soon as possible.”
- Shamsher Singh case (1974): The Governor should not go against the advice of the Council of Ministers.
- S.R. Bommai Judgment (1994): SC defined the proper instances of failure of constitutional machinery (President’s Rule).
- Rameshwar Prasad case (2006): Motivated or whimsical conduct of the Governor is subject to judicial review.
- Nabam Rebia Judgment (2016): SC ruled that the Governor’s discretionary powers under Article 163 are limited and not arbitrary.
- Hargovind Pant vs. Raghukul Tilak case (1979): SC observed that the office of the Governor is independent and not subordinate to the Central government.
Conclusion:
Governors must act according to their constitutional mandate, not as political agents. An active but unbiased Governor’s office can strengthen the Union-State relationship and enhance the federal structure.
Article 153 provides for the office of a Governor for every state. The Constitution has assigned a dual role to the office of a Governor in the Indian federal system. He is the constitutional head of the state as well as the representative of the Centre (i.e., President).
Constitutional Duties | Working as Agent of center |
Art 164 : He appoints the Chief Minister and other ministers. They also hold office during his pleasure. |
|
Article 163 – Council of Ministers to aid and advise Governor |
|
Art 356 : He can recommend the imposition of constitutional emergency in a state to the President. |
|
Art 174: He has the right of summoning or proroguing the state legislature and dissolving the State Legislative Assembly. |
|
Art 176 : He can address the state legislature at the commencement of the first session after each general election and the first session of each year. |
|
Art 200 : The Governor, upon receiving a bill passed by the state legislature, can either assent, withhold assent, return for reconsideration, or reserve it for the President’s consideration. |
|
Art. 161 : He can grant pardons, reprives, respites and remissions of punishment or suspend, remit and commute the sentence |
|
Due to such instances of misuse of discretionary powers and favoritism towards the ruling party at the Centre, Governors are often labeled with negative terms like “agent of the Centre,” “puppet,” and “rubber stamp.”
Way Forward
- Governor’s Discretion: governor must act judiciously, impartially and efficiently while exercising his discretion and personal judgment.
- Establish a ‘Code of Conduct’ endorsed by all levels of government to guide governors.
- Codify discretionary powers, set boundaries, and mandate adherence to Cabinet advice.
- Amend Article 155: Reform governor appointments and removals based on Punchhi and Sarkaria Commission reports.
- SC in the Hargovind Pant vs. Raghukul Tilak Case of 1979 observed that:
- the office of the Governor of State is not an employment under the Central government.
- the office of the Governor of State is an independent constitutional office and is not under the control of or subordinate to the Central government.
Thus, The Governors should act according to their Constitutional mandate, rather than acting as political agents. Upholding the principles of neutrality, fairness, and impartiality is crucial for Governors to safeguard the democratic fabric of the state administration.
