Question -“The discretion of the Governor cannot be arbitrary or fanciful”. In the context of any such application, more attention is needed. Comment on it.

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Question -“The discretion of the Governor cannot be arbitrary or fanciful”. In the context of any such application, more attention is needed. Comment on it. – 11 May 

Answer – 

It is an accepted principle that, in parliamentary democracy with a responsible form of government, the powers of the governor as constitutional or formal head of state should not be extended at the expense of the actual executive, e.g., the Council of Ministers. The Governor has an important role in promoting cooperative federalism as it serves as an important link between the Central and State Government. Under this role he enjoys certain discretionary powers in accordance with Article 163 (1) and Article 163 (2). According to these powers, if any issue relates to the discretionary powers of the Governor, his decision will be final. Thus, it appears that the governor has wide powers.

However, many concerns have arisen due to the wide formulation and indiscriminate use of these powers. For example:

  • Article 200 and 201: The Governor has the power to withhold his Assent of any Bill, as well as to reserve that Bill for the consideration of the President. It is alleged by the states that this provision is often misused by the Governor at the behest of the Center.
  • Article 356: Recommend to implement constitutional emergency in the state. So far this power has been misused by the Central Government for political gains about 120 times.
  • Article 164: Appointment of Chief Minister. Questions are often raised at the discretion of the governor to invite a party to form a government in the case of a hung assembly. The recent elections in Goa and Manipur are examples of this.
  • The Governor is entrusted with the duty of shielding, preserving and defending the Constitution. However, the Governor often acts as the officer of the Center.

Way forward:

  • There is no doubt that major reforms are needed in the provisions relating to the appointment of governors and their tenure.
  • The recommendations of the Rajmanar Committee set up in 1970 should be implemented, and states should also be included in the process of appointing governors. It may be noted that the correction of the imbalance in the center-state equations can be started with such an improvement.
  • Decisions taken by the governor should be brought under judicial scrutiny, including the sources used to reach that decision.
  • The powers and privileges associated with the office of the Governor should be attached with accountability and transparency.
  • An ‘agreed code of conduct’ should be developed approved by the State Governments, the Central Government, the Parliament and the State Legislatures to enable the Governor to discharge his duties successfully.
  • There should be some curb on the discretionary powers of the Governor, and there should be proper guidelines regarding the appointment of the Chief Minister.

In order to limit the discretion of the Governor, the Supreme Court in the case of S.R. Bommai v. Union of India stated that the control of the Central executive over the state executive is against the basic spirit of the Indian Constitution. The Sarkaria Commission report also states, “The limited scope of selection of proceedings should not be arbitrary. This selection should be such that it involves discussion on the basis of arguments, inducing by goodwill and preparation with caution.” In addition, if the governor fails to protect the constitution, a citizen should have the right to seek its remedies through the court. In this context, the Supreme Court has bypassed the absolute immunity through cases like Shamsher Singh v. State of Punjab that can be claimed by the Governor’s office.

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