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The scope and ambit of the power of a governor has often been open to debate. A recent high court obiter has created a flutter as to the extent of his discretionary powers

By Vinay Rai


The governor of a state has certain powers in his discretion, as opposed to functions which he can perform only “on the aid and advice of the council of ministers”.As the Consti-tution does not give any exhaustive list of such functions, the matter is generally left to convention and practice.

Thus, sending a report to the president under Article 356 of the constitution, and reserving bills for his consideration under Article 200 have been held to be some of the functions which the governor can exercise in his discretion.
In this context, the observations of a Lucknow Bench of the Allahabad High Court need to be noted. On June 22, while disposing a PIL (Ranjana Agnihotri vs State of Uttar Pradesh) seeking issue of mandamus to the governor to use his discretion while nominating members to the state’s legislative council, the Bench observed that he is not bound by the aid and advice of the council of ministers while nominating members. This observation could only be considered an obiter (made or said in passing) without any legal effect.

POWERS LAID DOWN
The Sarkaria Commission, in its report to the central government in 1988, set out the matters where the governor has to act in his discretion. They are:

  • In choosing the chief minister
  • In testing the majority of the government in office
  • In the dismissal of a chief minister
  • In dissolving the legislative assembly
  • In recommending president’s rule
  • In reserving bills for the consideration of the president

The commission clearly concluded that the governor has no discretionary power in the matter of nominations to the legislative council or the legislative assembly. If at the time of making a nomination, a ministry has either not been formed or has resigned or lost majority in the assembly, the governor sho-uld await the formation of a new ministry, the commission had recommended. (Para-graph 4.16.18).

Article 163 (2) leaves the scope of a governor’s discretion unlimited, as it lays down that if at any time any doubt arises whether he is required to act in his discretion, his decision shall be final. Further, the validity of anything done by him shall not be called in question on the ground that he ought or ought not to have acted in his discretion.
Strangely, the brief order of the Lucknow Bench is silent on Article 163(2). The first case of exercise of discretion in regard to such nomination arose as early as in 1952, in Madras, when C Rajagopalachari was nominated to the legislative council and was then appointed chief minister. The issue later cropped up in Maharashtra.

NO PROVISIONS

The Sarkaria Commission was clear that Article 171 of the constitution does not provide for the exercise of discretion by the governor. Similarly, it said, no discretion is avai-lable to him to make a nomination to the legislative assembly under Article 333, which deals with representation of the Anglo-Indian community in the legislative assemblies of the states.

Senior Congress leader Digvijaya Singh alleges that the chief minister had his name replaced with that of Union Minister Uma Bharti in a tampered excel sheet.

The Sarkaria Commission report mentions that state governments told the commission that the governor should exercise his discretion, in public interest, not arbitrarily, so as to subserve the purpose for which discretionary power has been conferred. One state government told the Commission that the discretionary power needs to be curtailed, as the interpretation of the scope of this power is a potential threat to the auto-nomy of states and the right of the people to be governed by a responsible government.

Justice Rajinder Singh Sarkaria, head of the Sarkaria Commission
Justice Rajinder Singh Sarkaria, head of the Sarkaria Commission

The Sarkaria Commission, however, was of the view that the discretionary power of the governor as provided in Article 163 should be left untouched. When a governor finds that it will be constitutionally improper for him to accept the advice of his council of ministers, he should make every effort to persuade his ministers to adopt the correct course. He should exercise his discretionary power only as a last resort, the commission had recommended.
In Ranjana Agnihotri vs State of Uttar Pradesh, heard by Justices Arun Tandon and Anil Kumar, the petitioners sought a writ of mandamus directing the governor of the state not to act on the recommendations of the cabinet in the nomination of members to the legislative council of the state in exercise of powers conferred under Article 171 (3)(e) of the constitution.

NO INFLUENCE

The petitioners contended that the governor, under this Article, makes nominations at his own discretion, and such discretion cannot be influenced by the cabinet, in any manner. This is because the petitioners claimed that the latter part of Article 163(1) clarifies that in matters where the power is to be exercised by the governor on his own discretion, the advice of the council of ministers is neither required nor is it binding on him.

The petitioners contended that under Article 171(5), the governor of the state must examine as to whether the nominated member stands disqualified under provisions of the RP Act, 1951, or not. This is because it is settled law that what cannot be achieved directly cannot be achieved indirectly by getting nominated to the legislative council, by a person who stands disqualified from contesting the elections for the legislature under the RP Act, 1951. While this issue may require the governor to use his discretion, the Bench asked the petitioners to approach the right forum to seek remedy, as the high court lacks jurisdiction to intervene in the matter.

The court noted that the practice of nomination by the governor on the aid and advice of the cabinet has continued only because a petition filed earlier, and raising a similar grievance, is still pending before the court. (Writ Petition No.5722 (MB-PIL) of 2009). The Bench asked the petitioners in the pending case to request the chief justice of the high court to constitute a special Bench to hear the matter expeditiously.

PREMATURE PETITION

The court, however, found the petition premature. As the court put it, the nomination of 1/3 members of the legislative council is made by the governor in his discretion of persons having special knowledge or practical experience in the fields prescribed. This discretion has to be exercised within the parameter of the constitution and not beyond it, the court held.

It also held that in the matter of nomination under Article 171(2)(e), the advice of the council of ministers is not binding upon the governor. He is to act on his own discretion, it said.
However, as the governor is still to nominate the members, the court could not prejudge his action, it suggested by implication.

The governor’s  discretion to  nominate  members for the legislative council was first used in 1952  to nominate  C Rajagopalachari, in Madras
The governor’s discretion to nominatemembers for the legislative council was first used in 1952 to nominate C Rajagopalachari, in Madras

The court asked the petitioners to come back to it for seeking remedy as and when the governor makes nominations, and if they find there is infringement of constitutional provisions. On the non-retirement of at least 1/3 members of the legislative council every two years as per Article 172 (2), the Lucknow bench expressed its inability to adjudicate the matter in the absence of relevant facts in the pleadings.

As the Bench has not given any immediate relief to the petitioners in this case, its observation regarding the use of discretion by the governor in the nominations to the legislative council can only be considered as obiter dicta. Shorn of any legal reasoning, it lacks even persuasive value.

 

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