Law optional 2018 Paper I

Is the Governor's post dependent on the pleasure of the President ? Discuss. What exactly constitutes the 'discretion' of the Governor while exercising numerous powers ? Explain with reference to statutory provisions and relevant case law.

Verified Answer
  1. Core Legal Answer & Context: Yes, the Governor's post is indeed dependent on the 'pleasure of the President' as explicitly stated in Article 156(1) of the Indian Constitution. This provision signifies that the Governor does not have a fixed tenure and can be removed by the President at any time, without assigning any reason. This makes the Governor an agent of the Centre, raising significant questions about federalism and the Governor's impartiality, especially when the state government is led by a different political party than the one at the Centre.

While the Governor is the constitutional head of the state, analogous to the President at the Centre, their role is unique due to this 'pleasure doctrine' and certain discretionary powers. The Governor is expected to act on the 'aid and advice' of the Council of Ministers of the state (Article 163(1)), except in matters where the Constitution requires them to act in their 'discretion'.

What constitutes the 'discretion' of the Governor? Article 163(1) states that 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. Article 163(2) further clarifies that 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.

This discretionary power is not absolute or arbitrary but is circumscribed by constitutional provisions and conventions. It is exercised in specific, exceptional circumstances where the Governor cannot rely on the advice of the state Council of Ministers, often to uphold the Constitution or protect the interests of the Union. Key areas of discretionary power include:

  • Appointment of Chief Minister: When no single party has a clear majority after an election, or when a Chief Minister resigns after losing confidence, the Governor uses discretion to invite the leader most likely to form a stable government.
  • Dismissal of a Ministry: If a Council of Ministers loses the confidence of the Legislative Assembly but refuses to resign, the Governor can dismiss it. However, this must be based on objective assessment, usually a floor test.
  • Dissolution of the Legislative Assembly: If a ministry has lost confidence and no alternative government can be formed, the Governor may recommend dissolution of the assembly to the President, leading to fresh elections.
  • Reserving a Bill for the Consideration of the President (Article 200): The Governor can reserve certain types of bills (e.g., those derogating from the powers of the High Court, or those relating to matters of national importance) for the President's assent. This is a significant discretionary power that can impact state legislation.
  • Seeking Information from the Chief Minister (Article 167(c)): The Governor can require the Chief Minister to submit for the consideration of the Council of Ministers any matter on which a decision has been taken by a Minister but which has not been considered by the Council.
  • Reporting to the President about the failure of constitutional machinery in the State (Article 356): This is a highly sensitive power, allowing the Governor to recommend President's Rule, which effectively suspends the state government. This power has been a source of much controversy and alleged misuse.
  • As Administrator of Union Territories (Article 239(2)): Governors of some states are appointed as administrators of adjoining Union Territories and exercise powers in their discretion.
  1. Relevant Statutes and Sections:
  • Article 153: Governors of States.
  • Article 155: Appointment of Governor by the President.
  • Article 156: Term of office of Governor – 'pleasure of the President' clause.
  • Article 163: Council of Ministers to aid and advise Governor, but also explicitly mentions discretionary powers.
  • Article 164: Other provisions as to Ministers (appointment of CM).
  • Article 167: Duties of Chief Minister as respects the furnishing of information to Governor.
  • Article 200: Assent to Bills (power to reserve bills for President).
  • Article 356: Provisions in case of failure of constitutional machinery in States (Governor's report).
  1. Important Landmark Cases:
  • S.R. Bommai v. Union of India (1994): This landmark judgment significantly curtailed the arbitrary use of Article 356 and the Governor's role in recommending President's Rule. The Supreme Court held that the power under Article 356 is not absolute and is subject to judicial review. It emphasized that the Governor's satisfaction must be based on objective material, and the floor of the Assembly is the proper forum to test the majority of the government.
  • Rameshwar Prasad v. Union of India (2006): This case dealt with the dissolution of the Bihar Legislative Assembly by the Governor. The Supreme Court held that the Governor's decision to dissolve the assembly based on a report that there was horse-trading and no stable government could be formed was unconstitutional and mala fide, as it was done to prevent a particular party from forming a government.
  • Nabam Rebia v. Deputy Speaker (2016): This judgment clarified that the Governor's discretionary powers are not beyond judicial review. The Supreme Court held that the Governor's decision to advance the assembly session without the aid and advice of the Council of Ministers was unconstitutional, emphasizing that the Governor's discretionary powers are limited to specific constitutional provisions and cannot be exercised arbitrarily.
  1. Clear Conclusion: The Governor's post is indeed dependent on the 'pleasure of the President', making them a crucial link between the Union and the State. This unique position, coupled with specific discretionary powers, often places the Governor in a delicate constitutional role. While the Governor generally acts on the aid and advice of the state Council of Ministers, their discretion comes into play in exceptional circumstances, primarily to uphold the Constitution, ensure political stability, or protect national interests. However, this discretion is not unfettered; it is guided by constitutional provisions, conventions, and is subject to judicial scrutiny, as affirmed by landmark Supreme Court judgments, which have sought to prevent its arbitrary or politically motivated misuse and uphold the spirit of federalism.