State Executive - Part 5

State Executive - Part 5

The discretionary power of Governor:
Following are the provisions of Art 163 which contains the discretionary powers. 

Art 163. Council of Ministers to aid and advise Governor.
(1)    There shall be a Council of Ministers with the Chief Minister at the head to aid and advise 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 into in any court. 

Art. 163 explicitly recognizes Governor‘s discretionary powers that there are situations in which the Governor has to act without the aid and advice of the Council of Ministers. There are two types of such situations:
•    Circumstances thrown up in the Functioning and process of legislative democracy
•    Where the Constitution confers such powers. 

In the first class are the following situations as mentioned in the Sarkaria Commission report
•    Choosing the Chief Minister
•    Testing majority
•    Dismissal of the Chief Minister
•    Dissolving the Assembly
•    Recommendation of the President‘s Rule (Art.356)
•    Reserving the Bill for Presidential consideration (Art.200)
•    Returning a Bill for re-passage to the Legislature 

In the second class are the Constitutional powers where Governor‘s discretion is in the exercise of the powers. There are shades of discretion in the following forms as given in the Constitution:
•    In his discretion; or
•    In his individual judgement; or
•    Independently of the State Council of Ministers or
•    In his special responsibility

1.Discretionary powers as given in the Constitution
•    Governors of all 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 (Art. 200).
•    The- Governors -of Arunachal Pradesh, Assam, Meghalaya, Mizorarn, Nagaland, Sikkim and Tripura have been entrusted with some specific functions to be exercised by them in their discretion (Articles 371A,  371F and 371H and in Sixth Schedule).

2.Powers in individual judgement:
•    The Governors of Arunachal Pradesh and Nagaland have been entrusted with a special responsibility with respect to law and order in their respective states. In the discharge of this responsibility, they are required to exercise ―individual judgement‖ after consulting their Council of Ministers.

3.Powers independently of the Council of Ministers
•    Governors as Administrators of Union Territories (UT) - Any Governor, on being appointed by the President as the administrator of an adjoining UT, has to exercise his functions as administrator, independently of the State Council of Ministers { Art. 239 (2) }.

4.Similarly, the Special Responsibility Powers of Governor are as follow
•    Articles 371(2) and 371C(l) 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.
•    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.

Art. 164
 (1)    The Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by the Governor on the advice of the Chief Minster, and the Ministers shall hold office during the pleasure of the Governor:
•    Provided that in the States of Bihar, Madhya Pradesh and Orissa, there shall be a Minister in charge of tribal welfare who may in addition be in charge of the welfare of the Scheduled Castes and backward classes or any other work.

The Nature of the Office of Governor:
•    Constitutional provisions concerning the Governor and the Scope of these provisions shows that there are three main facets of Governor‘s role. The three facets so pointed out are
•    As the constitutional head of the State operating normally under a system of Parliamentary democracy
•    As a vital link between the Union Government and the State Government.
•    As a representative of the Union Government in a specific areas during normal times [e.g. Article 239(2)] — appointment of the Governor of a State in charge of an adjoining UT; and in a number of areas during abnormal situations [e.g. Article 356(1).
•    Governor‘s office is of vital importance having multi-faceted role.
•   He is the linchpin of constitutional apparatus and assures continuity of Government.
•    The Committee of Governors appointed by President V.V. Giri affirmed in its report (1971): Under the Constitution, just as a State is a unit of the Federation and exercises its executive powers and functions through a Council of Ministers responsible to the Legislature and none else, the Governor, as the Head of  the State, has his functions laid down in the Constitution itself, and is in no sense an agent of the President.
•    The Rajamannar Committee Report (1971) recommended: the Governor should not be liable to he removed except under proved misbehavior or incapacity after inquiry by the Supreme Court.