The extra-constitutional delusions of Raj Bhavan

Source: The post is based on an article “The extra-constitutional delusions of Raj Bhavan” published in The Hindu on 31^st October 2022.

Syllabus: GS 2 – Governance

News: The Kerala Governor issued the statement that individual Ministers who lower the dignity of the office of the Governor can face withdrawal of the pleasure by the Governor. The statement has stirred the controversy.

What are the different views regarding the pleasure of the Governor?

Governor mainly exercises two powers – a) Statutory Power, b) Constitutional Powers

Statutory Power: The governor has statutory powers as a Chancellor of universities in the State, like determining the loopholes in the appointment process, etc. Vice-Chancellors of universities were expelled in exercise of this power. However, he does not have power to expel Ministers and he is expected to act within the bounds of the Constitution.

Constitutional Powers: Article 163(1) says that the Council of Ministers must aid and advise the Governor. Article 163(2) says that the Governor can act in his discretion in certain matters according to the Constitution. These two articles have to be read together.

This means that Governor is bound by the Cabinet decision except in certain cases, where he can use his discretion, such as in deciding on sanctions to prosecute a cabinet minister or in his decisions as Administrator of a Union Territory, etc.

Article 164 says that the Ministers shall hold office during the pleasure of the Governor. However, this article cannot be separated form Article 163.

Therefore, it means that Governor cannot use its pleasure unless the Cabinet or the Chief Minister advises to use it.

Scholar’s view: The jurist H.M. Seervai said that if Governors have discretion in all matters under Article 163(1), then it would be unnecessary for another provision that gave discretionary powers to Governor under Article 163(2).

According to scholar Subhash C. Kashyap, the pleasure given in the constitution signifies the use of the pleasure only when the Ministry has lost the confidence of the majority.

Supreme Court: Supreme Court in Shamsher Singh vs State of Punjab (1974) highlighted the statement of Dr. B. R. Ambedkar regarding Article 164.

Dr. B. R. Ambedkar said unlike the President of the US, Indian President is bound by the advice of his Ministers. The President cannot act against the advice of the Ministers nor he can take any decision without their advice.

He further said that the President of India cannot dismiss any Minister as long as he enjoys the majority in the Parliament. This same principle applies to Governor as well.

SC also said that the power and functions of the President and the Governor should be disposed by the Ministry answerable to the Legislature. This will secure the democratic nature of the governance.

Colonial laws: As per the Government of India Act, 1858, the post of Governor was under the supervision of the Governor General and Government of India Act, 1935 made Governors to act on the advice of the provincial Government.

Constituent Assembly: There were debates over the misuse of the power of the Governor. The daft article 126 contained that Governor’s Ministers shall be chosen and summoned by (the Governor) and shall hold office during his pleasure. However, this article was later amended and the Cabinet was given the authority to rule.

So, it implies that the Governor is only a titular head of the State and the Governor cannot act against the Cabinet if the Cabinet has majority. Therefore, the current statement of the Kerala Governor stands void.