DISCRETION OF GOVERNORS QUESTIONED

RELEVANCE – UPSC GS PRELIMS & GS MAINS – II

EXPECTED QUESTIONS

QUES 1. Governor of a state can use his discretionary power in-

1 . Appointment of the Chief Minister when no party gets clear cut majority.

2 . Dismissal of a ministry when the ministry losses support of the house and the Chief Minister refuses to resign .

3 . Advising the President for proclamation of Emergency.

4 . Dissolution of Legislative Assembly when the ministry loses the majority and the Governor is satisfied that no other party or coalition can form the Government.

codes:

a . 1 , 2 & 3

b . 1 , 3 & 4

c . 2 , 3 & 4

d . 1 , 2 , 3 & 4

Answer – d

QUES 2 . The Governor of a state can reserve a bill for the consideration of the President under –

a . Article 199

b . Article 200

c . Article 201 

d . Article 202

Answer- b 

FOR MAINS EXAM

QUES 1 . Considering the recent spate in controversies regarding appointment of ministries in various states, discuss the role of Governor in appointment of ministry in a state in case of a hung assembly.  (250 words)

QUES 2 . Including a historical account during British era , critically examine the discretionary powers of Governor of a state. (250 words)

Ques 3 .Discuss about  the Sarkaria Commission recommendations about the role of a Governor in case of a hung assembly in a state . (150 words)

ABOUT DISCRETIONARY POWERS OF GOVERNOR

Image result for dilemma meaning

Legal-constitutional meaning of “discretion”

What discretion is?

1 . Discretion is a science of understanding, to discern between falsity and truth, between wrong and right, between shadows and substance .

2 . Discretion is choosing from various available alternatives with reference to rules of reason and justice.

3 . Discretion is to be exercised with caution and in a reasonable manner.

4  . Discretion is to be exercised after proper application of mind to the facts and circumstances of any case.

5 . It stands for not to do according to (men’s) wills and private affections.

Discretion can not be-

1 . Discretion cannot be exercised under dictation, or for an improper purpose, in bad faith, or by taking into account considerations that are irrelevant.

2 . It can also not be exercised in an arbitrary or whimsical manner, or on the basis of prejudice or preference rather than reason or fact.

3 . Discretion cannot be absolute. Absolute discretion is constitutional blasphemy. Absolute discretion is a ruthless master (which is) more destructive of freedom than any of man’s other inventions.

Historical aspect of discretionary power of Governor

When the British allowed limited representative government, they retained some special powers for British Governors who could take important decisions in their discretion, without the aid and advice of the Council of Ministers.

In 1937, after the Congress won elections in seven provinces, it took office on the condition that the British Governors would not interfere in the functioning of its Ministries, and would refrain from exercising “discretion and special powers”.

Why the post of Governor retained after independence? 

Despite the Congress’s opposition to the office of the Governor during the Raj, the framers of the Constitution of independent India chose to retain it in order to preserve the nation’s unity, stability and security.

Views of different leaders 

Jawaharlal Nehru favoured the appointment of eminent academics from outside politics and other outstanding and impartial people from other walks of life as Governors.

B N Rau, who played a key role in the drafting of the Constitution, proposed that the Governor be elected by the Legislative Assembly.

Sardar Vallabhbhai Patel, who headed the Provincial Constitution Committee, recommended that the Governor should be elected by the people of the state with a term of four years, and who could be impeached for “misbehaviour”.

Jayaprakash Narain wanted the Governor to be appointed by the President from a panel of four persons selected by the Legislative Assembly and Members of Parliament from the state.

Why a nominated Governor?

It was finally decided to have a nominated Governor for several reasons:

1 . An elected Governor may come into conflict with the Chief Minister

2 . Due to his popular support, the Governor may encourage separatist tendencies

3 . He may join hands with the Chief Minister to defy the Centre.

4 . Babasaheb Ambedkar argued that the Governor being a figurehead, time or money should not be spent on his election. He said that the Governor will represent the people of the state, not the party at Centre.

T T Krishnamachari argued that the Centre should always consult Chief Ministers in appointing Governors, and the CM should have a veto on the appointment. Decades later, in 1987, the Sarkaria Commission made a similar recommendation.

Role of Governor in early days after independence

In the early days of the Republic, the Governor had a faint presence, “like a full moon at midday”. His primary role, like that of the Queen in England, was to be the sagacious counsellor who would be consulted, and who would warn and encourage.

Qualities of an ideal Governor

The Governor is neither a decorative emblem nor a glorified cipher. His powers are limited, but he has an important constitutional role to play in the governance of the state and in strengthening federalism. He must remain true to his oath of preserving, protecting and defending the Constitution.

Situations in which discretion can be applied by Governor

The Governor of state has more discretionary powers than the President of India. He is not bound to act on the advise of the council of Ministers in certain circumstances, even he need not seek its advise.

The constitution does not specify these matters but the matters in which he can act without the advise of the council of ministers are as follows:

1 . Appointment of the Chief Minister: In situation where no party gets majority, the Governor exercises his discretionary powers in appointing the Chief Minister. He can appoint the leader of the single largest party or of a coalition as the Chief Minister.

However the “subjective satisfaction” of the Governor on the question of who has majority should be based on “objective facts”. His personal satisfaction is not important; it has to be constitutional satisfaction.

2 . Dismissal of a Ministry:  When the ministry losses support of the house and the Chief Minister refuses to resign the governor can dismiss the ministry.

3 . Advising the President for proclamation of Emergency: The Governor advises the President to proclaim emergency(under Article 356) in the state when he is satisfied that the Government of that state cannot be carried on in accordance with the provisions of the constitution.

4 . Reservation of a bill for the consideration of the President: Situations are mentioned in Article 200, when Governor can reserve a bill passed by the state legislature for the consideration of the President .

5 . Dissolution of Legislative Assembly: When the ministry loses the majority and the Governor is satisfied that no other party or a coalition can form the Government, he may dissolve the House.

Role played by Governor in practice

This ideal has, however, been steadily eroded over time, and Governors have come to act — and be seen — as partisan political beings , a tendency that the Supreme Court has repeatedly assailed. In Hargovind Pant vs Dr Raghukul Tilak & Others (May 4, 1979), the court made it clear that the Governor is not an employee of the central government, nor is he under its control or accountable to it.

Sarkaria Commission recommendations

Sarkaria Commission was set up in June 1983 to examine the relationship and balance of power between state and central governments and suggest changes within the framework of the Constitution.

There are no specific guidelines in the Constitution on what the Governor should do or whom he or she should invite in case there is a hung assembly. In this matter, the Sarkaria Commission recommendations, which were affirmed by a Constitution Bench of the SC in Rameshwar Prasad vs Union of India in 2005 are often the guiding principle and are the main reference point.

The Commission report details the options before the governor in the situation where no single party has obtained an absolute majority.

The order of preference for the Governor in such case is-

(1) An alliance of parties that was formed prior to the elections

(2) The single largest party staking a claim to form the government with the support of others, including independents

(3) A post-electoral coalition of parties, with all the partners in the coalition joining the government

(4) A post-electoral alliance of parties, with some of the parties in the alliance forming a government and the remaining parties, including independents, supporting the government from outside.

According to the Constitution, the decision of the Governor is final and the validity of anything done by him as a matter of his discretion cannot be questioned.