Introduction
In India’s parliamentary democracy, the Governor serves as the nominal head of a state, much like the President at the Union level. However, unlike the President, the Governor has certain discretionary powers that often place them at the center of constitutional and political debates.
The Supreme Court of India has repeatedly clarified the limits and responsibilities of these discretionary powers, particularly when they intersect with democratic principles, federal values, and legislative procedures. The role of the Governor has come under scrutiny in instances involving government formation, floor tests, legislative suspensions, and reservation of bills for the President’s assent.
This blog aims to explain in detail the nature of the Governor’s discretionary powers, the concerns arising from their misuse, and the Supreme Court's interventions to protect the sanctity of the Constitution.
Understanding the Role of the Governor
The Governor is the constitutional head of the state and is appointed by the President for a term of five years. As per Article 153 to 162 of the Indian Constitution, the Governor exercises powers related to executive, legislative, and judicial functions, usually on the aid and advice of the Council of Ministers.
However, under certain circumstances, the Governor is permitted to act in their own discretion, without the aid and advice of the Council of Ministers.
What are the Governor’s Discretionary Powers?
Discretionary powers are not exhaustively defined in the Constitution but can be categorized as:
1. Constitutional Discretion
Where the Constitution explicitly provides for discretion:
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Article 163(1): If any question arises whether a matter falls under the Governor’s discretion, the Governor’s decision is final.
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Article 356: Recommending President’s Rule in case of constitutional breakdown in the state.
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Article 200: Reserving a bill for the President’s consideration.
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Article 239AB: Administration of Union Territories like Delhi under special circumstances.
2. Situational Discretion
Exercised based on political circumstances or absence of clear majority:
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Appointing a Chief Minister in case of a hung assembly.
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Dismissing a government that has lost the confidence of the assembly.
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Ordering a floor test to prove legislative majority.
3. Personal Discretion
Exercised in individual judgment but is expected to conform to constitutional morality and judicial scrutiny.
Supreme Court Guidelines and Landmark Judgments
Over the years, the Supreme Court of India has laid down several guidelines to curb the misuse of discretionary powers and maintain constitutional balance.
1. S.R. Bommai v. Union of India (1994)
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The Governor’s recommendation under Article 356 is subject to judicial review.
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Majority must be tested on the floor of the house, not decided in the Raj Bhavan.
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Prevented arbitrary dismissal of elected governments.
Significance: This judgment became a cornerstone for federal integrity and curbed Centre’s misuse of Governor's office.
2. Rameshwar Prasad v. Union of India (2006)
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Held that Governor cannot pre-empt majority formation and recommend dissolution of the Assembly on presumptions.
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Such actions are unconstitutional and mala fide.
Significance: Reaffirmed that discretion cannot override democratic processes.
3. Nabam Rebia v. Deputy Speaker (2016)
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The Governor has no discretion to summon or dissolve the House without the advice of the Council of Ministers.
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Limited the misuse of Article 174, which deals with the summoning and proroguing of the legislature.
Significance: Curtailed discretionary actions that violate the spirit of representative governance.
4. Shiv Sena v. Union of India (2019)—Maharashtra Case
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The SC ordered a floor test within 24 hours, asserting the importance of a transparent trust vote.
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Highlighted that Governor cannot delay or manipulate majority testing.
Significance: Prevented undemocratic government formation through backroom deals or midnight swearing-ins.
Recent Issues and Controversies
The Governor’s discretionary role has drawn criticism for alleged partisan behavior, especially in states governed by parties in opposition to the ruling Union government.
1. Maharashtra (2019)
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Governor's decision to swear in a CM at dawn without majority proof sparked legal and public backlash.
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SC intervention led to floor test and reversal of the situation.
2. Tamil Nadu and West Bengal
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Frequent clashes between the Governor and the state government over pending bills, law & order comments, and delays in giving assent.
3. Punjab and Delhi
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Accusations that Governors and LGs are blocking elected governments’ functioning by withholding approvals or appointments.
Key Supreme Court Principles on Governor’s Discretion
The Apex Court has laid out five cardinal principles:
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Floor of the House is the final test of majority.
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Governor’s discretion is not absolute; it must be exercised within constitutional norms.
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Judicial review is permitted on actions that are mala fide, arbitrary, or unconstitutional.
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Constitutional morality, rule of law, and democratic governance must guide the Governor.
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Non-partisanship is fundamental; the Governor must act as a neutral constitutional functionary.
Recommendations for Reform
To prevent misuse and strengthen democratic accountability:
1. Codify Discretionary Powers
A comprehensive framework should define what constitutes legitimate discretion and when it is to be exercised.
2. Fix Tenure and Transparency
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Provide fixed tenure to Governors with performance review mechanisms.
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Ensure public reasoning for key decisions like inviting parties to form government.
3. Neutral Appointment Process
Establish an independent body or collegium to appoint Governors, moving beyond political patronage.
4. Strengthen Legislative Oversight
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Legislative Committees should be empowered to review Governor’s actions during constitutional crises.
Conclusion
The Governor’s office, when wielded within constitutional boundaries, is vital to India’s federal structure. However, discretionary powers must not become tools of political manipulation. The Supreme Court’s guidelines have played a crucial role in reinforcing the principles of democracy, accountability, and federalism.
Yet, judicial pronouncements alone are not enough. What is needed is a political consensus on respecting democratic conventions, along with structural reforms to depoliticize the role of the Governor. A truly cooperative federal democracy depends on each organ—legislative, executive, and constitutional functionaries—acting within their defined roles and in harmony with the Constitution.
As India continues to evolve as a constitutional republic, the Governor must remain a protector of the Constitution, not a pawn in political gamesmanship.