Critically analyze the discretionary powers granted to the Governor by the Indian Constitution. (2015, 15 Marks)
Discretion means acting on one’s own judgement, not binding advice. Article 163(1) makes the Governor act on the advice of the council of ministers except where the Constitution requires him to act “in his discretion”. No comparable carve-out exists for the President in Article 74. The design was a Governor who reigns but does not rule. The difficulty lies in who decides where reigning ends.
What the Constitution grants
Express discretion (named in the text):
- Reserving a bill for the President (Art. 200).
- Special responsibilities: law and order in Nagaland (Art. 371A) and Arunachal Pradesh (Art. 371H); development boards in Maharashtra and Gujarat (Art. 371(2)); mining-royalty disputes with autonomous district councils (Sixth Schedule, para 9).
- Acting independently as administrator of an adjoining Union Territory (Art. 239(2)).
Situational discretion (where no valid advice exists):
- Choosing a Chief Minister in a hung assembly; dismissing a ministry that has lost its majority.
- Reporting a breakdown of constitutional machinery (Art. 356).
- Sanctioning prosecution of a minister against a biased cabinet (M.P. Special Police Establishment v. State of M.P., 2004).
The case for discretion
In a parliamentary system, someone must act when the ministry cannot advise, or should not. B. R. Ambedkar held that some discretion was “in no sense contrary to … responsible Government”, while describing the clause as “a very limited clause”. The Punchhi Commission (2010) accepted discretion, provided it is exercised with reason and in good faith.
Critique
- Self-certifying power. Article 163(2) makes the Governor’s own decision on whether a matter is discretionary final and unquestionable.
- Union’s agent. A Governor appointed and removable at the Union’s pleasure (Art. 156; B. P. Singhal, 2010) exercises discretion that tends to follow the Union’s interest. Examples include Kerala 1959, N. T. Rama Rao‘s dismissal (1984) and the Bihar dissolution (2005).
- Uncodified. The Sarkaria Commission‘s order of preference for inviting parties (1988) is guidance, not law, as the 2017 Goa and Manipur invitations showed.
- Discretion by inaction. Bills were held for years in Tamil Nadu, Kerala and Punjab. The November 2025 advisory opinion held decisions under Articles 200 and 201 non-justiciable and rejected judicial timelines, permitting only a limited mandamus against indefinite delay.
- Judicial correction is late. S. R. Bommai (1994) moved the majority test to the floor. Nabam Rebia v. Deputy Speaker (2016) held that Article 163 confers no general discretionary power and that its use is reviewable. Subhash Desai (2023) found the 2022 Maharashtra floor-test call unjustified, yet could not restore the fallen ministry.
Conclusion
The discretion the Constitution grants is narrow and defensible. The discretion Governors have exercised has been wide and partisan. The problem therefore lies less in the text than in tenure: discretion held at the Union’s pleasure cannot be neutral. Codifying the Sarkaria and Punchhi norms, fixing tenure and requiring reasoned decisions would let the Governor reign as intended without ruling by default.