The Governor is under the Constitution, not above it

Source: The post is based on an article “The Governor is under the Constitution, not above it” published in The Hindu on 19^th November 2022.

Syllabus: GS 2- Governance

Relevance: concerns associated with misuse of powers by the Governor

News: The misuse of power by the governor in some states has created a tussle with the state governments.

What does the Constitution of India say regarding the Governor?

Article 153 provides a Governor for each State.

Article 154 says that the executive power of the State shall be vested in the Governor and the powers shall be exercised by him directly or through officers’ subordinate to him in accordance with Constitution.

Article 163 provides that there shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor except on the matter of his discretion.

What has the Supreme Court said regarding the discretionary powers of the Governor?

The issue of discretionary powers of the governor was taken by SC in Shamsher Singh vs State of Punjab and Anr. The following observations were made by SC –

The court ruled that wherever the Constitution requires satisfaction of the President or the Governor for the exercise of any power or function, the satisfaction is in the Constitutional sense under the Cabinet system of the Government.

It held that the discretionary power given to the Governor by the Constitution on which he/she can act on his own is only Article 356.

Whereas in exercising all other discretionary powers, the Governor will act in harmony with his Council of Ministers. Moreover, the Governor should have a proper justification in using Article 356.

The court further said that the Constitution does not aim at providing a parallel administration.

It said that the basic philosophy in a democracy is that the elected Ministers must accept responsibility for every executive act and that the Council of Ministers alone represents a responsible form of government in the States.

Moreover, the role of Governor was also debated in the Constituent Assembly.

What were the debates in the Constituent Assembly?

The appointment methods of the Governor were debated whether the Governor should be appointed by the President of India or should be elected.

However, the Constituent Assembly adopted the appointment of the Governor by the President fearing that election would create a parallel State leadership.

Prof. K.T. Shah, a member of the Constituent Assembly, while debating Article 154 demanded that the Constitution must include the provisions that guides the Governor to use its power in accordance with the Constitution and the Law, i.e., on the advice of his Ministers.

Further, while debating Article 163 he said that it will be the responsibility of the Chief Minister who will advise the Governor about the appointment of his Minister or their removal if necessary.

He said that Article 163 is a very limited clause. It is not a general clause that gives the Governor power to disregard the advice of his ministers in any matter in which he finds not suitable.

K.M. Munshi said that it would be better to have a Governor nominated by the Centre, who is free from the passions and jealousies of local party politics.

B.R. Ambedkar said that the Governor will not have any such power that he will use on his own discretion or judgment but he is required to follow the advice of his ministry in all matters.

Therefore, it is clear from these debates that the Governor has no powers to interfere with the administration in day-to-day affairs including to refuse assent to Bills passed by the Assembly. He should act according to the powers given by the Constitution.