Discretionary powers of the governor: Some Raj Bhavans are on the war path

News: There have been some incidents that show the friction between the delicate relationships of the constitutional head of state and the elected government.

What were the incidents all about?

Maharashtra: Governor refused to accept the date of election of the Speaker recommended by the State government.

However, this refusal goes against the principle of constitutional government. Under Article 178, the constitution did not assign any role to the governor in the election of the speaker. It is the house rule which says the governor shall fix the date. So, if the governor refused to accept the date of the election, the house can make amendments to that particular rule which empowers the governor to fix the date. It is the first time in the history that governor refused to fix the date of the election and so the election has not been held

Kerala: Governor alleged that he made the reappointment of Vice-Chancellor of Kannur University under the pressure of the Kerala government. Although, the reappointment has been done in accordance with the law. Further, the governor said that he does not want to hold the position of chancellor, which he got in an ex officio capacity.

This move has been in question as here the governor was not required to act on the advice of the Council of Ministers, also clarified by Supreme Court in Gopalakrishnan vs Chancellor, University of Kerala case. Here the governor can act independently, and make the choice considering the merit of the appointee before signing the appointment letter.

Other instances have been witnessed in other states like West Bengal, Rajasthan etc where the differences have been visible.

Also read: Reasons for frictions between Puducherry CM and LG
About the discretionary powers of the governor

Before independence, the governor was the absolute ruler of the province, who was answerable only to His Majesty. B.R. Ambedkar, while framing the constitution, ensured to make governor only a constitutional head and to vest executive powers in the elected government. But, at the same time, certain discretionary powers have been allotted to the government to ensure independence.

The powers of government in the constitution create some ambiguity. Article 163, which was simply re-produced from section 50 of the Government of India Act in 1935, introduced vagueness about the actual powers of the governor. This was corrected by the Supreme Court of India in Shamsher Singh(1974) case and later in Nabam Rebia (2016). The courts have held that the executive power of the governor can only be exercised with aid and advice of the council of ministers, except in exceptional circumstances.

Read here: Governor’s discretion has its limits
How the governor should work?

It was seen that that confrontation takes place only in opposition-ruled states, which shows that political expediency has overtaken constitutional propriety. The governor should work in an impartial manner and should not try to create a parallel government.

In the words of Pandit Thakur Das Bhargava, “the governor will be a man above party, and he will look at the minister and government from a detached standpoint”

Source: This post is based on the article “Some Raj Bhavans are on the war path” published in The Hindu on 10th January 2022.

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