Question

Governor should use his discretion not as “representative of a party” but as “the representative of the people as a whole of the State”. Discuss this statement in the context of abuse of this constitutional position in the current political climate.

Answer 1

Approach:

• Discuss the Governor’s position as “the representative of the people
• How discretionary powers of the Governor are misused in the current political climate.
• Suggest some Way forward

The importance of the Governor’s position arises not from the exceptional circumstances that necessitate the use of his discretion, but as a crucial link within this federal structure in maintaining effective communication between the Centre and the State. In his speech on the constitutional role of Governors, Dr. B.R. Ambedkar described how a Governor should use his discretion not as “representative of a party” but as “the representative of the people as a whole of the State”.

Discretionary powers of the Governor means the powers which s/he exercises as per one’s own individual judgment or without the aid and advice of the Council of Ministers.

Under Article 163 of the Constitution the governor will be advised by the council of ministers except for functions which require his discretion. Governor has constitutional discretion for example Reservation of bills for consideration of President , recommendation of imposition of President's rule in a state. Also governor has situational discretion is cases like Dismissal of Council of Ministers when it can not prove the confidence of state legislative assembly.

The emergence of the coalition government, party splits and mergers, alignment and realignment of parties, etc. create muddled circumstances and these give opportunities to the Governor to use his discretion discriminately.

• In the current political climate, the central government is alleged to use the office of the Governor as a weapon to manipulate the politics of the states for political gain.
• Examples being Goa, Manipur, and Karnataka, the governor’s role became controversial with allegations of partiality and lack of objectivity in the exercise of the discretionary powers.
• The part played by some Governors, particularly in recommending president’s rule and in reserving State Bills for the consideration of the president, had evoked strong resentment. Frequent removals and transfers of governors before the end of their tenure have also lowered the prestige of this office.
• Many governors, looking forward to further office under the Union or active role in politics after their tenure, came to regard themselves as agents of the Union. The governor thus became a major issue affecting the equation between the Centre and the states.
• Recently, the Governor of Rajasthan has been charged with the violation of the model code of conduct. His support of the ruling party is against the spirit of nonpartisanship that is expected from the person sitting on constitutional posts.
• Due to such incidents, negative terms like an agent of the Centre, Puppet and rubber stamps are used to describe a governor of the state.

Way forward:

• For the smooth functioning of a democratic government, it is equally important that the governor must act judiciously, impartially and efficiently while exercising his discretion and personal judgment.
• In order to enable the governor to successfully discharge his functions under the constitution, an agreed 'Code of Conduct' approved by the state governments, the central government, the parliament, and the state legislatures should be evolved.
• It is necessary to invest the office of the Governor with the requisite independence of action and to rid them of the bane of ‘instructions’ from the Central Government.
• We have to find a new method of appointing governors. Consultation with the state government may not be enough.
• All designated governors should be summoned before the Rajya Sabha for confirmation. It does not matter if the ruling party has a majority in the house.
• Each governor will be thoroughly interrogated, investigated and judged on suitability. Such a procedure should be inserted by the amendment.
• The president could also lay down guidelines along the lines of the various committees so that he is not led astray by politics, that governors with political affiliations are excluded and proper, politically neutral governors are appointed.
• The five-judge Constitution Bench of the Supreme Court led by the then Chief Justice J.S. Khehar in the Nabam Rebia judgement of 2016 ruled that Article 163 does not give Governors a “general discretionary power” as is often misunderstood. “The area for the exercise of his (Governor) discretion is limited. Even this limited area, his choice of action should not be arbitrary or fanciful. It must be a choice dictated by reason, actuated by good faith and tempered by caution”