Discretionary Powers of Governor and Constitutionalism
Constitutionalism
Constitutionalism is the idea that the exercise of political power is limited by a written or unwritten constitution, with the purpose of protecting individual rights and promoting the common good. It is based on the principle that government must act within the bounds of the law, and that laws and institutions must be established to ensure that political power is exercised in a transparent, accountable, and fair manner.
Governor and His Discretionary Powers
The governor is the constitutional head of a state in India and holds office for a five-year term. The governor is appointed by the President of India and has discretionary powers that are granted to him by the Constitution of India. These powers include:
- Appointment of the chief minister
- Dissolution of the state assembly
- Recommendation of President’s Rule
The discretionary powers have been given to the governors to ensure that the state government functions smoothly and in accordance with the provisions of the Constitution. The governor is empowered to act as a mediator between the state government and the Centre, and to resolve any disputes that may arise between them. These powers must be used in a manner that is consistent with the principles of constitutionalism and the democratic process.
Governor’s Power to Appoint the Chief Minister
The governor has the power to appoint the chief minister of a state. The chief minister must have the support of a majority of the members of the state assembly and should be likely to command the support of a majority of the members.
Examples of Abuse of This Power
- Appointment of a minority government in Jammu and Kashmir in 2018, where the PDP-BJP coalition chief minister, not having a majority, was appointed.
- Appointment of B.S. Yediyurappa as the Chief Minister of Karnataka in 2007, even though BJP did not have a majority in the assembly.
This has resulted in the subversion of the democratic process and has undermined the legitimacy of the state government.
Governor’s Power to Dissolve the State Assembly
The Indian Constitution grants the Governor discretionary power to dissolve the state assembly under certain circumstances, such as when a government loses the confidence of the assembly or when the governor perceives that the assembly is unable to perform its duties.
Examples of Abuse of This Power
- In Jammu and Kashmir (1984), the governor dissolved the assembly despite the ruling party having a clear majority.
- In Arunachal Pradesh (2016), the governor dissolved the assembly while the ruling party was forming a government — an act later struck down by the courts.
Judicial approaches have varied:
- In Arunachal Pradesh vs. Rameshwar Prasad (2006), the Supreme Court held the governor’s actions unconstitutional.
- In S. R. Bommai vs. Union of India (1994), the Court upheld the power but limited its scope to constitutional breakdown.
Courts have emphasized that governors must act in a non-partisan and non-political manner.
Governor’s Power to Recommend President’s Rule
The Indian Constitution allows the Governor of a state to recommend President’s Rule if he believes that a state government is not functioning as per the Constitutional provisions.
Examples of Abuse of This Power
- In Arunachal Pradesh (2016), the Supreme Court declared the recommendation of President’s Rule unconstitutional due to partisan behavior by the Governor.
- In Uttarakhand (2016), the Supreme Court ruled the Governor’s recommendation unconstitutional, citing lack of constitutional breakdown.
Abuse of this power can lead to:
- Suspension of elected government
- Administration by the central government
- Undermining of democratic process
- Erosion of public trust
- Political instability
Conclusion
The discretionary powers of the governor are an important aspect of the constitutional framework in India, but they have been subject to abuse by constitutional authorities. Various examples of powers that have been abused by governors have been discussed, leading to a digression from constitutionalism. This has had a significant impact on the functioning of state governments, undermining the democratic process and causing concern among scholars and citizens.
The discretionary powers of the governor are meant to be exercised in a manner that is consistent with the principles of constitutionalism and the democratic process. It is crucial that these powers are used in a judicious and non-partisan manner to ensure that the constitutional framework and the democratic process are protected.
References:
- M P Jain, Indian Constitutional Law (8th edn, LexisNexis 2018).
- Constitution of India, art 157.
- Constitution of India, art 163.
- Constitution of India, art 174.
- Constitution of India, art 356.
- Constitution of India, art 163.
- BBC News, ‘BJP’s J&K Gamble: Why End Alliance with PDP Now?’ (19 June 2018) https://www.bbc.com/news/world-asia-india-44525973 accessed 11 February 2023.
- Sanjay Kumar, ‘BJP’s rise in south India: The case of Karnataka’ (2011) 43(1) Economic and Political Weekly 17.
- Constitution of India, Art. 356.
- M. J. Akbar, “Betrayal of Democracy: How the Indian State Deviated from Constitutionalism in Jammu and Kashmir,” Economic and Political Weekly 37, no. 22 (2002): 2073-2076.
- Congress vs. Governor of Arunachal Pradesh & Ors. [2016] 10 SCC 1.
- Arunachal Pradesh vs. Rameshwar Prasad, W.P. (C) No.255 of 2005.
- S.R. Bommai v Union of India, AIR 1994 SC 1918.
- Constitution of India, art 356.
- Centre for Public Interest Litigation v Union of India, (2016) 7 SCC 1.
- Arunachal Pradesh v Union of India, (2016) 8 SCC 1.
- S. Datta, ‘Governors and the Erosion of Democracy in India’ [2020] J DEMOCR 72.
- Granville Austin, ‘Working a Democratic Constitution: The Indian Experience’ (OUP 1999).
