- What is the ambit of discretionary powers of the governor (Note that, U/A 163(2), what falls within the ambit of discretionary power of governor is also a discretion of the governor)
- Discretionary powers to be interpreted very narrowly and in a limited manner. A governor can act in his own discretions if his actions are justified by or under the Constitution, but the governor’s exercise of this discretion would be open to challenge where it can be shown to be perverse, capricious, fallacious, extraneous or for a motivated consideration
- A governor can’t use his discretionary powers to run a parallel administration or ‘diarchy’ challenging the existence of an elected state government.
- Governor is not an elected representative but only an executive nominee whose powers flow from the advice of the cabinet. The governor is not “an all pervading super constitutional authority“.
- The authority of governor over the speaker
- The Governor is not an ombudsman for the Legislature nor the speaker’s mentor. The Governor can’t require the speaker to discharge his functions in the manner he considers constitutionally appropriate
- Constitutional propriety of governor discharging the speaker’s role such as setting the agenda of the house, interfering in ADL proceedings
- Using discretionary powers to summon or dissolve assembly sessions, setting the agenda of the house without the aid and advice of the CM and his Cabinet is unconstitutional
- Any action taken by the governor based on the proceedings being carried on under the 10th Schedule would be a constitutional impropriety.
- Speaker’s authority with respect to Anti Defection law cases and whether such cases can be decided by the speaker at a time when removal proceedings have been initiated against the speaker
- The speaker cannot proceed with Anti Defection Law proceedings at a time when a motion for his removal is under consideration of the house. Speaker has to prove constitutional confidence before using the power of adjudication under Xth Schedule. Not doing so would be an “anathema to the concept of constitutional adjudication”
- Primarily wrt judgement on curbing discretionary power of governor
- Constituent Assembly Debates – Governor could exercise discretionary power in matters of emergency or where they were widely accepted. And Summoning and Dissolving Assembly was one such power.
- Literal Interpretation of Article 163(2) makes Governor the sole authority on what falls within its discretion. Court can’t exercise JR to judge Governor’s Discretionary power.
- The SC Judgment reduced Governor to a figurehead
- However, line of argument should be in favour of SC ruling.
- The way the office of governor has been utilized – it has affected Centre State Relations
- Constitution envisages a Parliamentary form also at state level. In a Parliamentary form discretionary power to nominal head militates against the doctrine of limited government
- Healthy conventions should ideally be developed, which unfortunately has not been the case
- Punchhi Commission : ambit of discretionary power very narrow. Not to be used in an arbitrary or fanciful manner. Must be a choice dictated by reason, activated by good faith and tempered with caution
Reforms suggested for Office of Governor
- Sarkaria Commission (1988) & Punchhi Commission (2010) regarding appointment of governor
- Appoint governor by consulting CoM
- Politically active persons especially in last 5 years not to be appointed
- Appoint eminent persons in some walk of life as governor
- Not to be appointed in home state
- Not to be from opposite party in a state
- While recommending President rule, governor to highlight grounds of constitutional machinery failure
- To be allowed to complete 5 years
- Should always ask government to prove majority on floor of house
- Punchhi Commission on removal of governor
- To be on the same lines as that of President mutatis mutandis (change whatever that needs to be changed)
- Should be allowed to complete 5 year term
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