Discretionary power of the Governor
Article 163 of the Constitution states that “There shall be a council of ministers with the chief minister as the head to aid and advise the governor in the exercise of his functions, except in so far as he is required to exercise his functions in his discretion (Article 163).
It is clear that constitutional position of the governor differs from that of the president in the following two respects:
1.While the Constitution envisages the possibility of the governor acting at times in his discretion, no such possibility has been envisaged for the President.
2.After the 42nd Constitutional Amendment (1976), ministerial advice has been made binding on the President, but no such provision has been made with respect to the governor.
The Constitution makes it clear that if any question arises whether a matter falls within the governor’s discretion or not, the decision of the governor is final and the validity of anything done by him cannot be called in question on the ground that he ought or ought not to have acted in his discretion. The governor has constitutional discretion in the following cases:
1.Reservation of a bill for the consideration of the President.
2.Recommendation for the imposition of the President’s Rule in the state.
3.While exercising his functions as the administrator of an adjoining union territory (in case of additional charge).
4.Determining the amount payable by the Government of Assam, Meghalaya, Tripura and Mizoram to an autonomous Tribal District Council “as royalty accruing from licenses for mineral exploration.
5.Seeking information from the chief minister with regard to the administrative and legislative matters of the state.
In addition to the above constitutional discretion (i.e., the express discretion mentioned in the Constitution), the governor, like the president, also has situational discretion (i.e., the hidden discretion derived from the exigencies of a prevailing political situation) in the following cases:
1.Appointment of chief minister when no party has a clear-cut majority in the state legislative assembly or when the chief minister in office dies suddenly and there is no obvious successor.
2.Dismissal of the council of ministers when it cannot prove the confidence of the state legislative assembly.
3.Dissolution of the state legislative assembly if the council of ministers has lost its majority.”