The most important feature of Indian Democracy is the separation of powers that is followed between the three organs of the Indian Government, i.e., the Legislature, the Executive and the Judiciary. A certain modification in this separation of powers has made the Indian government more efficient in functioning. This modification refers to the allocation of interchangeable functions between the three organs. For instance, the Executive has been given certain legislative and judicial functions; the Judiciary is assigned certain legislative functions. However, despite such mixtures, the separation of powers in the Indian democratic system remains intact due to several discretionary power assigned to various authorities of the three Organs. The most prominent example of the same is the discretionary powers provided to the President of India and the Governors of the States.
Discretionary Power of Governor – Meaning
The phrase “Discretionary Power” refers to a special authority given to a particular office-holder to decide on the most reasonable option amongst all others. In the Indian Executive, this power is given to two positions: The President of India at the Central level, and the Governors of all States at the State Level. The Governors being the head of the State Executive, enjoy two kinds of discretionary powers:
- Constitutional Discretion
- Situational Discretion
These powers ensure that the democratic structure of government is maintained at the State level in the country. Therefore, if any conflict between a number of issues arises at the State level, the decision of the Governor on such matters is deemed to be final. These decisions are final to the extent that even the Courts cannot interfere in the matters thus decided by the said Governor. Therefore, these powers deem the authority of the Governor independent of Judicial Review.
Constitutional Discretion of the Governor
Article 163(b) read with 163(c) of the Constitution of India explicitly provides powers to the Governor of States within the territory of India. The Constitution also provides for a Governor’s powers through several Articles thereby being referred to as the Governors’ Constitutional Discretion. These powers are as follows:
1. Article 161 – Power of Governor to grant pardons, etc. and to suspend, remit, or commute sentences in certain cases.
The Governors of several states in India have exercised this power in multiple cases in the past. For instance, in the case of K. M. Nanavati v. State of Bombay (1960), the execution of a sentence was respited for a temporary period.
Similarly, in the case of Hukum Singh v. State of Punjab (1974), the Governor exercised this power to remit the sentence that exempts an accused from undergoing the decision (or any part of it), notwithstanding the decision of the Court imposing the sentence.
Another important judgement by the Supreme Court of India was that of Ramanaiah G.V. v. Supdt. Central Jail, Rajamundry (1973), in which it held that no Governor has the power to remit, suspend or commute sentences for offenses committed under Section 489A – D of the Indian Penal Code.
2. Article 167 – Duties of Chief Minister as respects the furnishing of information to Governor, etc.
Taking into consideration that the Governor functions as the executive head at the State level, all executive actions at the said level are taken in the name of the Governor. Therefore, it is necessary for the Governor to be kept informed regarding all the decisions of the Council of Ministers with regard to proposed legislation.
This article refers to the duties of the Chief Minister and not his rights. Therefore, it ensures that the Chief Minister communicates all the administrative decisions made by the Council of Ministers to the Governor thereby taking his/her assent for the execution of the said decision.
3. Articles 175 and 176 – Right of Governor to address and send messages to the House or Houses; and Special address by the Governor.
As per this provision of the Constitution, the House to which a message or address is sent by or on behalf of the Governor is bound to discuss the matter so conveyed.
For instance, in the case of K. A. Mathialagan v. P. Srinivasan, the Governor convened the Assembly and conveyed the matter that was to be discussed in the first meeting through a message. The Speaker, however, permitted a censure motion against the Ministry. This, however, could not be taken up for discussion since it was not a matter covered within the purview of the message sent by the Governor.
4. Article 239 – Administration of Union Territories.
This Article provides for the Governors of any State to be appointed as the Administrator of an adjoining Union Territory. This power can be considered discretionary as it allows the Governor to function as Administrator without the advice of his Council of Ministers.
Situational Discretion refers to those powers of the Governors that are not explicitly provided for in the Constitution of India. However, they are exercised as part of the powers of a Governor in situations that require such execution. Some such powers are explained below:
1. The Governor has the power to appoint a Chief Minister at his/her discretion in case of a lack of clear majority in the State Legislative Assembly. This power of the Governor is enforced in situations of the untimely death of an acting Chief Minister of the respective State as well.
2. In situations where the Council of ministers of a particular State within the territory of India does not have confidence in the State’s Legislative Assembly, the Governor of the respective State has the power to dismiss the said council. Further, the Governor is also empowered to dismiss the entire State Legislative Assembly when the Council of Ministers loses its majority in the Assembly.
The Governor has the power to decide on certain matters at his own discretion, despite the advice of the Council of Ministers. This power of several Governors has been enforced in multiple instances till date, which are as follows:
(a) The formation of separate developmental boards for Vidarbha and Marathwada in the state of Maharashtra.
(b) The formation of separate development boards for Saurashtra and Kutch in the state of Gujarat.
(c) As long as the internal conflict in the Naga Hills – Tuensang Areas of Nagaland persists, the Governor of the respective State can make decisions at his discretion in matters relating to law and order in the concerned area.
(d) The Governor can decide on matters relating to the administration of tribal areas in the state of Assam.
(e) Similar powers can be exercised in matters of administration of the hill areas of Manipur.
(f) The Governor can exercise his discretionary power in the State of Sikkim in matters of peace and social and economic advancement of all sections of the said population.
(g) He also has discretion in matters of law and order in the state of Arunachal Pradesh.
(h) Similar powers can be exercised for decisions regarding the creation of a separate developmental board for the Hyderabad-Karnataka region.
Relevant examples of the Discretionary Power of Governors
West Bengal – The Governor, Dharma Vira dismissed the Council of Ministers since the Ministry could not maintain a majority in the Assembly. This Council was led by Ajoy Mukherjee.
Gujarat – The Governor, in 1996, terminated the Ministry of Suresh Mehta in the month of September on the grounds that his colleagues had created disorderly scenes in the House and also engaged in violence. The ground for the application of this discretion was the Constitutional Breakdown of the system in the state.
Punjab – The Governor of Punjab had dissolved the State Assembly on the advice of the Chief Minister at the time, Prakash Singh Badal. The concerned Chief Minister had lost majority votes in the Vidhan Sabha as a result of defections. This instance is considered as a landmark since it was the first time a Governor had exercised such discretion without the approval of the Centre.
While the Governors of several States have utilized their discretionary power to make the functioning of the executive more efficient, there have also been instances of misuse of the said powers. One such instance pertains to the state of Jharkhand where; the Governor had called upon S. Sorin to form a government, despite a lack of proof on behalf of the latter stating their majority in the Assembly. He was appointed on the condition to have to prove a majority within 20 days with the help of a floor test. The concerned Governor was covertly reprimanded for such misuse of his discretion.
The Governor has two main roles, defined in the Constitution, in the Indian federal system: The Constitutional Head of a State, and the representative of the Centre at the State level. Therefore, the primary goal of granting such discretion to the Head is to ensure the maintenance of justice and law and order in their respective States which in turn ensures the same across the Country. However, it can be noticed that these powers can be conflicting with the principles and provisions of the Constitution of India. Taking into consideration that the Constitution is the Supreme Law of the Land, it obliges the Judiciary to interpret the conflicting provisions in a manner that resolves the discrepancy. Thus, in order to do the same, the Courts have, through time, laid down certain conditions under which such powers can be executed.