Do Governors Enjoy More Discretion Than President

Governors enjoy more discretion than President because of duality of functions they have to perform.

Nature and Scope:

The nature of the study is that of a comparative analysis between constitutional provisions to understand who among the President and the Governor has more discretionary power under the Constitution and why. To maintain brevity, the enquiry into constitutional provisions has been limited to the extent of establishing a difference in level of discretion exercised by President and the Governor, and not to determining the full extent of the discretionary power. Also, judicial reviewability of actions performed under discretion is not enquired into, as per se it has no bearing on the extent of discretionary power.

The Scope of this project is limited to certain areas where there might be existence of discretion with President or the Governor. They are – clemency power, assent to bills, dissolution of House, dismissal of ministry and appointment of Prime Minister and Chief Minister. There other areas where Governor or President might have discretionary power such as asking for any information under Art. 78. All other areas are not included in the scope of this study. Also, the study is only regarding constitutional provisions and does not look into various statutory discretions available to both Governor and President (ex – Sec. 423, CrPC).

Research Methodology:

The researcher has followed an analytical method of research, relying on primary sources which include case laws and the Constitution of India. Also, to have a holistic understanding, reports of various government appointed commissions such as National Commission To Review The Working of the Constitution (NCRWC), Law Commission Reports, Constitutional Assembly Debates, Sarkaria Commission etc. have been referred to.

1. Why is there a difference between powers accorded to the President & the Governor?

Though both are regarded as the Head of State, there is some fundamental difference between the position of Governor and the President. The selection of Governor is an undemocratic process [1] , whereas, President is elected indirectly by representatives of the people [2] . Governor is nominated by President on the advice of Council of Ministers, which give them the status of being ‘agent of the Centre’. As per the Constitutional Assembly Debates, it was decided to have a nominated Governor rather than elected, as presence of both Chief Minister and Governor as elected bodies may lead to conflict [3] .

Governor performs a three-fold role [4] –

Head of the State

Link between Centre and State.

Agent of the Centre. (ex – report under Art. 356(1) )

He helps in maintaining the democratic form of government and cordial relation between Centre and State. He has a duty to inform Centre in cases where the State violate the federal structure envisaged in the constitution or act unconstitutionally otherwise [5] . President on the other hand is the constitutional head of the country and has a task of preserving and protecting the Constitution.

There is a difference in power afforded to the President and the Governor under the Constitution as they have different mandates to follow, under the Constitution. The researcher has approached the project keeping this fundamental constitutional reality in mind. This project further delves into analysis on separate powers accorded to the President and the Governor to determine who has more discretion in exercise of which power and why. They are –

Power of Pardon

Assent to Bills

Appointment of Prime Minister and Chief Minister

Dissolution of Ministry

Dissolution of House

In the end, it looks into a general power of discretion available both to the President and the Governor, under all the provisions.

2. Power of Pardon

Relevant constitutional provisions [6] :

Articles 72 & 161. They invest the power of pardon in the President [7] and the Governor [8] of a state respectively

.

Suspected areas for discretion:

S1. Granting/Refusal to grant pardon sue moto, without seeking advice of Council of Ministers?

S2. Granting/Refusal to grant pardon against the advice of Council of Ministers?

Textual understanding :

Art. 72 and 161 are power conferring articles and do not specify the procedures to be followed in their application. The articles limit the exercise of pardoning power under the constitution to the President and the Governor. The manner in which the power is to be exercised is not specified. Thus no clear power of discretion can be read in them.

Judicial Interpretation:

Supreme Court in Maru Ram v. Union of India [9] (1980, Constitutional bench, SC) settled the position with respect to President in S1, where it held that President cannot exercise his power under Art. 72 without seeking advice from Council of Ministers. No other decision of Supreme Court has afforded a contrary view, after the judgement in this case.

The High Court of Madras, in 1991, cleared the position of Governor in respect to S1 when it quashed the order of Fatima Biwi, the then Governor of Tamil Nadu, refusing grant of pardon to 4 convicts of Rajiv Gandhi murder case, as the Governor had not sought the advice of Council of ministers [10] .

Regarding S2, in the case of Satpal v. State of Haryana [11] (2000, Division bench, SC) which was subsequently upheld in Epuru Sudhakar v Government of Andhra Pradesh [12] (2006, Division bench, SC) court has opined the view that both, the President and the Governor, should not act mechanically on the advice of Council of ministers and has insisted on ‘application of mind’ by them. The observation was made while listing the situations where judicial review of decisions under Art. 72 and 161 is possible. Nevertheless, it is an evidence of existence of discretion with President and the Governor, in acceptance of the advice tendered by the Council of Ministers.

In light of the above mentioned discussion, the researcher is of the opinion that both President and Governor exercise same level of discretion in exercise of their clemency power under the constitution.

3. Assent To Bills

Relevant constitutional provisions [13] :

Articles 111, 200 & 201.

Articles 111 and 200 deal with assent to Bills passed by Parliament and Legislature of states respectively. Presidential assent is required for a Bill passed by Parliament [14] and assent of Governor for a Bill passed by Legislature of the State. Under Art. 200, Governor is also empowered to reserve any Bill for the consideration of the President [15] . Art. 201 gives power to the President to assent to or withhold his assent from such Bill [16] .

Suspected areas of discretion:

S1. Discretion with regard to the time limit within which assent is to be given?

S2. Discretion of Governor in reserving a Bill for consideration of the President?

S3. Discretion with regard to withholding of assent?

Textual understanding:

Though, there is presence of a subjective limit of ‘as soon as possible’ in Art. 111 [17] and 200 [18] , no time limit is specified in the text of the constitution within which declaration of assent, withholding of assent or reserving for the assent of the President should be made. Also, the phrase ‘as soon as possible’ has been employed only for the case where a Bill is returned without any assent. No constitutional convention exists in regard to this. Since, Council of Ministers enjoy the majority support in the House, any Bill sent for obtaining assent can reasonably be deemed as the mandate given by Council of Ministers and it is in exceptional circumstances that Council of ministers would advice otherwise than assenting to the Bill. In light of this, the provision for reserving a Bill for the assent of President under Art. 200 may be read in a manner to give some discretion to the Governor. This interpretation is in consonance with the dual role of Governor as explained in the first section. No guidelines have been provided by the Constitution regarding matters where assent shall be withheld.

Judicial Interpretation:

With regard to S1, in Purshottam Nambudiri v. State of Kerala [19] (1962,single judge bench, SC), it was held that under Articles 200 and 201, there is no time limit for the President or the Governor for granting assent to a Bill. With regard to S2, in Shamsher Singh v. State of Punjab [20] (1974, 7 judge bench, SC) it was held that Governor has no discretion under Art. 200, “whether it relates to …returning a Bill for reconsideration or assenting or withholding assent to the Bill” and he has to act as per the advice of the Council of Ministers. Though, the court observed that Governor can exercise discretion under situations where reserving the Bill is mandatory under the constitution. Furthermore, in Hoechst Pharmaceuticals v. State of Bihar [21] (1983, 3 judge bench, SC) it was held that Governor’s power to reserve a Bill for president’s assent is not judicially reviewable. Also, court was of the opinion that Governor can act in his discretion in reserving a Bill for the consideration of the President. Reconciling these 2 cases, it can be inferred that Governor has some discretionary power in reserving Bill for President’s consideration.

As per my best knowledge, there are no case laws or conventions regulating granting or withholding of assent by President. Moreover, there are instances where President has taken decision on a Bill referred to him after 12 years. Ex – The Trade Unions (West Bengal Amendment) Bill, which was referred to the President in 1969 and President withheld his assent to the Bill in 1982 [22] .

Constitutional Assembly Debates:

Dr. Ambedkar Speech, referred to by T T Krishnamachari [23] , :

‘…Governor will not be exercising his discretion in the matter of referring a Bill back to the House with a message….if the Governor sends back a Bill for further consideration, he does so expressively on the advice of his Council of Ministers.”

NCRWC:

According to NCRWC [24] , power to withhold assent shall not be a discretionary power of the Governor, as among many other reasons, he is a ‘mere appointee’. For the same reason, the President is claimed to be having discretion in withholding assent as he is elected by members of Parliament and the State Legislatures [25] .

Sarkaria Commission:

As per Sarakaria Commission, in reserving Bills for consideration of the President under Art. 200, Governor exercises his discretion [26] . Governor, in exceptional circumstances can disregard the advice of the Council of Ministers and reserve the Bill for consideration of President. For e.g., if the provisions of Bill are ‘patently unconstitutional’ or pose a threat to the sovereignty, unity and integrity of the nation, it is imperative for the Governor to reserve the Bill, even if Council of Ministers advice otherwise [27] .

Researcher has reached to the conclusion that Governor has more discretionary power than President under Articles 111,200 and 201. Though, most of the powers are same, the rationale for the conclusion is that prima facie discretion to decide whether a law passed by State Legislature is violative of the Constitution rests with the Governor.

Governor, in exercise of his discretion :

Can choose to keep the Bill in ‘cold storage’ and not declare anything.

Can act contrary to any advice of Council of Ministers which have the effect of violating any provision of the constitution

Can reserve a Bill for President’s consideration.

President can, in exercise of his discretion :

Can choose to keep the Bill in ‘cold storage’ and not declare anything.

Can act contrary to any advice of Council of Ministers which have the effect of violating any provision of the constitution

4. Appointment of Prime Minister & Chief Minister

Relevant constitutional provisions:

Articles 75(1) and 164(1).

Due to the constraints of length in the paper, a brief analysis is provided for this section.

Suspected area of Discretion:

S1: Appointment of PM/CM in case where no party commands majority support in the House?

Textual Understanding:

Text of the Constitution do not specify who shall be appointed as the Prime Minister/Chief Minister. No criteria for their selection is provided. For most of the time, the practise is guided by constitutional convention of inviting the party with the majority support in the House to form the government. Problem, however, arise when no party has complete majority in the House.

In such a situation, it can be inferred that President/Governor have to act in his independent discretion and not according to the advice of Council of Ministers as they would have lost the mandate of the people.

Judicial Interpretation:

In was held in Madan Murari v. Chaudhary Charan Singh [28] (1980, Cal HC) that appointment of Prime Minister is a discretion of President and not controlled by aid and advice of Council of Ministers. Ex –

Appointment of Chandra Shekhar as PM, though he led a minority group.

Narshimbha Rao was appointed Prime Minister in 1991, because he was the leader of the largest party. Though, he did not command majority in the House.

It was held in Mahabir Pd. v. Prafulla Chandra Ghosh [29] (1969, single judge, Cal HC) that Governor has ‘sole discretion’ while appointing Chief Minister. The same view was reiterated in many other High Court decisions like Madras HC in S. Dharmalingam v. His Excellency Governor of Tamil Nadu [30] (1989, single judge bench, Mad HC). Guwahati HC in Jogendra Nath v. State of Assam [31] (1982, division bench, Gau HC) declared the power to appoint Chief Minister as an absolute discretion of the Governor.

Committee of Governors:

Committee of Governors [32] also recognise existence of this discretionary power with Governors and have given detailed guidelines for regulating their conduct in appointment of Chief Minister.

In light of the case laws and Report of Committee of Governors, researcher has reached to the conclusion that both, the President and the Governor, enjoy same level of discretion in appointment of Prime Minister and Chief Minister respectively.

5. Dissolution of Ministry

Relevant constitutional provisions:

Articles 164(1)(2) and 75(2)(3).

Suspected area of discretion:

S1 : Power to dismiss the ministry when the ruling party has lost majority support in the House against the advice of Council of Ministers?

Textual understanding:

Council of Ministers are collectively responsible to the House and hold office during the pleasure of the President/Governor [33] . Thus, they can be dismissed when they are stop being responsible to the House (i.e. loose majority support) or when President/Governor withdraws their pleasure. However, there is nothing in the text of the constitution that suggests that a Ministry should be dismissed on losing support in the House.

Judicial interpretation:

In Mahabir Pd. v. Prafulla Chandra Ghosh [34] (1969, single judge, Cal HC) it was held that Governor can withdraw his pleasure during which the Council of Ministers hold their office if they have lost support of the majority in the House and a no confidence motion has been passed against them. In Jogendra Nath Hazarika v. State of Assam [35] (1982, division bench, Gau HC), Governor’s right to withdraw his pleasure was held to be under his sole discretion and termed as “absolute, unrestricted and unfettered..” One limitation to the sole discretion of Governor in dissolving the ministry was spelled out in Pratapsingh Raojirao Rane v. Governor of Goa [36] (1999, division bench, Bom HC). It was held that Governor’s sole discretion is only restricted when the Council of Ministers enjoy majority support in the House. Same was observed by the apex court in Jagdambika Pal v. Union of India [37] (1998,3 judge bench, SC). In Shamsher Singh v. State of Punjab [38] (1974, 7 judge bench, SC) it was held that President shall use his discretionary power for dismissal of a government which has lost the majority support but refuse to vacate the office.

The discretion, as held in most of these cases, should be exercised after conducting a floor test in the House.

Administrative Reform Commission:

It has suggested that in case of suspicion loss of majority support in House, Governor may summon the Assembly, even against the advice of Chief Minister [39] .

Constitutional Assembly Debates:

Dr. B.R. Ambedkar had told the Constituent Assembly that the President could not act contrary to or without the advice of the Ministers [40] Subsequently, he stated that in appointment of Prime Minister and dismissal of government, he will enjoy discretionary powers [41] .

Researcher has reached to the conclusion that both Governor and the President enjoy similar discretion in the abovementioned matter. Both have the discretion of dissolving the House when :

Ruling party has lost the majority support in the House.

Floor test has been conducted or Council of Ministers have denied to face the House

No other criteria are specified for any of them.

6. Dissolution of The House

Relevant constitutional provisions:

Articles 85(2)(b) and 174(2)(b)

Article 356

Suspected areas of discretion:

S1: Can House be dissolved without the advice of Council of Ministers?

S2: Can House be dissolved/not dissolved contrary to the advice of Council of Ministers?

S3: Can State Assembly be dissolved under Art. 356?

Textual understanding:

Articles 85(2)(b) and 174(2)(b) empower the President and the Governor to dissolve the House of The People [42] and the Legislative Assembly [43] respectively. However, no provision specifies the procedures or considerations to be kept in mind while dissolving the House. Art. 356 does not expressly allow for dissolution of State Assembly.

Judicial Interpretation:

In Pu Myllai Hiychoo v. State of Mizoram [44] (2005, constitutional bench, SC) it was held that satisfaction of the Governor or the President does not amount to their personal satisfaction, but satisfaction in constitutional sense, which included aid and advice of Council of Ministers. In S R Bommai v. Union of India [45] (1994, 9 judge bench, SC), it was observed that though not expressly provided, State Assembly can be dissolved by the President by exercising the powers of the Governor under Art. 174(2)(b) read with Art. 356(1)(a), for achieving the purposes of the Proclamation issued under Art. 356. However, it is not a discretionary power of the President as it is subject to approval from both the Houses of Parliament. Rationale for this limitation is that since Presidential proclamation is subject to approval from Parliament, until such approval is obtained, President should not take any irreversible steps such as dissolving the State Assembly [46] .

Committee of Governors:

With regard to S2, it was submitted that Governor shall dissolve the House when so advised by Council of Minister. Only exception to this rule being, lack of majority support by Council of Ministers in the House [47] .

Sarkaria Commission:

Governor should ask the Council of Minister to act as a caretaker before dissolving the Legislative Assembly under Art. 174(2)(b) [48] .

NCRWC:

It also noted that text of the constitution provides no criteria under which House can be dissolved [49] .

As mentioned in the scope, no further enquiry will be conducted in any issue once it is established that discretion exercised by President and Governor are relatively on different points on a scale. In this case, present analysis has helped researcher to reach to the conclusion that Governor enjoys more discretion than President in the above mentioned matter.

President in exercise of his discretion can:

dissolve Lok Sabha under Art. 85(2)(b) in exercise of his discretion under certain circumstances.

Though he can also dissolve State Assembly under Art. 174(2)(b) in exercise of powers of governor read with Art. 356, it requires prior approval from Parliament and thus, cannot be considered as a discretionary power.

Governor, in exercise of his discretion can:

dissolve State Assembly under Art. 174(2)(b) in exercise of his discretion under certain circumstances

Furthermore, Governor can, in his discretion send a report to the President under Art. 356. He has discretionary power because of the duality of tasks he has to perform. Though he is the Head of the State, he also has a responsibility of protecting the Constitution under Art. 159 [50] . Thus, in preparing a report under Art. 356, he can choose to disregard the advice of Council of Ministers [51] .

7. When advice tendered is against provisions of the Constitution

It is the contention of the researcher that in any case, where the President or the Governor is supposed to act according to the aid and advice of Council of Ministers, if the advice tendered by them has the effect of violating the constitution, an implied discretion is available to both of them to disregard the advice. Acting according to such an advice would amount to violation of Constitution by President/Governor. This position has been taken by Seervai [52] where he goes to the extent of suggesting that President should reject any such advice of Council of Ministers and ‘if necessary, dismiss the Ministry if it persists in its advice.’ I do not concur with this extremist position.

President under Art. 60 [53] and Governor under Art. 159 [54] are under an obligation to ‘preserve, protect and defend the Constitution’. The nature of this obligation, irrespective of protection under Art. 361 is personal in nature as President can be impeached for violating the Constitution. Thus, President is under a constitutional obligation to reject any advice of Council of Ministers which is of the nature of violating the constitution.

For e.g., if under Art. 111, a Bill is returned to the President after reconsideration, he is not allowed to withhold his assent there from. In such as case, if for any reason, Council of Ministers advice the President to withhold his assent for the Bill, it is an advice which violates a provision of the Constitution, and President shall reject such advice.

Conclusion

Governor veils more discretion than President, primarily because of his dual role of Head of a State and representative of Centre in the State. He is given higher discretionary powers, for proper functioning of the Constitution. He has prima facie discretion in deciding whether a proposed law by a State is violative of the Constitution. He also has greater discretion with regard to dissolution of Legislative Assembly when it does not function according to the Constitution. This can also be related to a correlative duty of protecting the Constitution as a representative of the Centre. Though President has discretionary powers in many cases, relatively, these powers are less than those exercised by the Governor. It is also observed that in cases where discretion is given to the post of Head of the State, both the President and the Governor exercise similar discretion. Instances can be found in exercise of clemency powers and dissolution of ministry by both the functionaries. Also, since both are under an oath to protect the Constitution, discretionary power to reject advice of Council of Ministers which is violative of the Constitution rests with both. In the end, the researcher concludes that amongst various incidences of overlapping or similar discretion, Governor has more discretion in exercise of his powers than President.