It would be interesting to note at the outset that whereas Article 74 does not bestow on the President any discretionary powers, Article 163 makes the Governor sole judge in matters in which he is required to act in his discretion.
There shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion.
The question whether any, and, if so, what advice was tendered by ministers to the Governor shall not be inquired into in any court.
1. Article 166(3) which states that the Governor can make rules of business except in cases where he can act in his discretion,
2. Article 200 which says that the Governor can reserve a bill for the consideration of the President.,
3. Article 356(1) which provides that the Governor can make a report about the failure of the constitutional machinery in the state.
4. Article 239(2) which gives him certain functions when appointed to be Administrator of a union territory,
5. Article 239(2) which bestows on him the power to make rules, and
6. The Sixth Schedule, which gives the Governor of Assam two discretionary powers; the first deals with the disputes between the Government of Assam and an autonomous Tribal District Council with respect to the sharing of royalties that accrue from the lease of mining rights within the State. Governor may apply certain special administrative provisions in the Constitution with respect to tribal areas in Assam vis-a-vis particular tribal areas.
Besides, the Governor has certain special responsibilities to discharge according to the directives issued by the President under Articles 371(2), 371 A(1) (b), 371 (C) etc. He does not have to consult the C.M. or his council of ministers in this context. Although the words ‘in his discretion’ are mentioned in the Constitution, the provisions relating to the exercise of these powers are couched in general and vague terms. K.V. Rao, a noted political scientist, lays the blame for this vagueness on the defective composition of the Constituent Assembly and lack of time at the disposal of the Assembly.
He says: “The whole set of articles numbering about 20 concerning the state governments were passed in a hurry in one day that the whole Constitution and its structure was envisaged in such a way as if the Congress and its then high command would be in power for a long time.
The authority of the Governor even in the discretionary field is not unrestrained. If it is misused, either as a result of personal ambitions or as partisan in the currents and cross-currents of state politics, the President can always check him; if necessary, he may even remove him. “Discretion has to be exercised so as not to jeopardize the working of parliamentary democracy”. It would be profitable to look at a few possible cases wherein the Governor may have to exercise his discretion.
Appointment of a Chief Minister
When there is a party in the state legislature with a clear-cut majority, the Governor has no discretion because he has only to invite the leader of that party to become the Chief Minister. This did not pose any problems till 1967 because the Congress enjoyed a comfortable majority both at the Centre and in the states.
The post 1967 period posed a dilemma as the Congress, after the general elections of 1967, was reduced to a minority in eight states. Several questions of importance arose. In case there was no party with an absolute majority in the state legislature, should he invite the leader of the single largest party? This could be the Congress again in some states and asking it to form the government. “The voters may or may not have voted in government would be wrong. “The voters may or may not have voted in favour of the opposition; one thing is clear that they certainly voted against the Congress. Or, should he ask the leader of the single largest opposition party or a group of parties merged into a coalition to form the government?
K. Subba Rao opines that the leader of the opposition should be invited unless his chances of forming the government are bleak.
The term ‘stability’ is taken to mean not only the numerical superiority of the ruling party but also its ability to hold on to the majority strength and continuing with it. In both cases, the problem becomes embarrassing and complicated due to the presence of independents in the legislature and defections from one party to the other.
No easy solutions are available and “whichever minority party or group of parties was called upon to form a government, stood the chance of converting itself into a majority by securing the support of defectors from other parties by promising ministerial office to the leaders of the defectors”.
How, then, is the Governor to make his choice? For this purpose, the Governors have generally employed three methods: List system, Parade system or Physical verification and List-Cum-Parade system. Under the first method, he can ask the contenders to provide a list of their supporters and to enquire from each member on the list about his choice. If the balance is held by the independents he must enquire from each independent, his verdict.
The Parade system is the physical verification of the list in the Assembly. He must summon the session of the Assembly and ask the contenders to show their strength without the least possible delay. The result is not very satisfactory and does not give effect to the verdict of the electorate. In case he uses both the methods, it is known as the List-Cum-Parade method.