Discretionary Powers of the Governor

At a Glance

• What it is Powers the Governor exercises without ministers’ advice
• Kinds Constitutional, situational and special responsibilities
• Article Article 163
• Finality Governor’s decision on what is discretion is final
• Exam link UPSC Prelims, Polity: Governor

Where Does It Fit?

This is the fifth topic of the category on the Governor. The Constitution provides for a parliamentary form of government in the states, so the Governor acts with ministers’ aid and advice, except in matters in which the Governor is required to act in discretion.

Who Decides What Is Discretion?

The Constitution makes clear that if any question arises whether a matter falls within the Governor’s discretion, the decision of the Governor is final, and the validity of anything done cannot be called in question on the ground that the Governor ought or ought not to have acted in discretion. The Governor therefore has a wider area of discretion than the President, who has no constitutional discretion.

Constitutional Discretion

1. Reservation of a bill for the consideration of the President.
2. Recommendation for the imposition of President’s Rule in the state.
3. Exercising functions as the administrator of an adjoining Union territory (when given additional charge).
4. Determining the amount payable by the governments of Assam, Meghalaya, Tripura and Mizoram to an autonomous Tribal District Council as royalty from licences for mineral exploration (Sixth Schedule, paragraph 9(2)).

Sixth Schedule Royalty Discretion

The fourth constitutional discretion arises from paragraph 9(2) of the Sixth Schedule, which deals with the administration of tribal areas in Assam, Meghalaya, Tripura and Mizoram. If any dispute arises as to the share of royalties from mineral licences to be handed over to a district council, it is referred to the Governor for determination, and the amount determined by the Governor in his discretion is deemed to be the amount payable to the district council. The decision of the Governor is final. This is a rare case where the Constitution itself gives the Governor a final say without reference to ministers.

Situational Discretion

In addition to express discretion, the Governor, like the President, has situational (hidden) discretion derived from the exigencies of the political situation:

1. Appointment of the Chief Minister when no party has a clear-cut majority in the assembly, or when the Chief Minister in office dies suddenly and there is no obvious successor.
2. Dismissal of the council of ministers when it cannot prove the confidence of the assembly.
3. Dissolution of the assembly if the council of ministers has lost its majority.

Special Responsibilities

In these matters, the Governor must consult the council of ministers led by the Chief Minister but acts finally in discretion. The Constitution has thus assigned a dual role to the Governor: the constitutional head of the state and the representative of the Centre.

Issues Identified by the Sarkaria Commission

The Sarkaria Commission identified issues in the use of discretion: in choosing the Chief Minister where no party has an absolute majority, the leader with the largest support should be called to form the government and test the majority on the floor; in testing majority, Governors have used different ways such as lists of supporters or physical counting of heads; in dismissing a Chief Minister there has been no uniform criterion; in dissolving the assembly Governors have taken different approaches when the Chief Minister had lost support; in recommending President’s Rule, many Governors did so without exhausting all possible steps for a stable government and have been criticised as partisan; in reserving bills for the President, controversies have arisen; and in nominating members to the council and in acting as university chancellor, the use of discretion has been criticised.

Why Is This Topic Important?

• High-frequency topic Discretionary powers are asked very often
• Comparison with President Constitutional versus situational
• Special responsibilities State-wise list

What Came Next?

The next topic covers the ordinance-making power of the Governor under Article 213.

Key People and Terms

• Discretion Choice without ministers’ advice
• Constitutional discretion Express in the Constitution
• Situational discretion Arises from the political situation
• Special responsibility Duty under the President’s directions
• Tribal District Council Autonomous district body

Exam Corner

Mains Angle

Questions on this topic usually ask about misuse of discretion. Use these points to add depth.

• Wide discretion Larger than the President’s
• Hung assemblies Choice of Chief Minister
• Sarkaria suggestions Largest support to be invited
• Partisanship Concern in recommending Article 356