Indian Constitutional Law Review [ISSN: 2456-8325] Edition V [July 2018]

GOVERNOR’S DISCRETIONARY POWER IN APPOINTING CHIEF MINISTER:

HOW FAR JUSTIFIED WITH THE PRINCIPLES OF RULE OF LAW?

Brijraj Deora Student, 2nd Year, National Law University, Gandhinagar,

ABSTRACT This research paper critically analyses the Discretionary Powers of the Governor in India with special reference to the appointment of Chief Minister under the constitutional Scheme and its judicious use by this Constitutional post. The main focus of this paper is to analyse this discretionary power in the light of breaching the Rule of law principle. It is important to note here that Constitution of India empowers the Governor to allow his discretion in calling any majority party or largest coalition or group to form the Government. Hence does this unguided discretion lead to violation of the Rule of law principles or not? This paper also examines the judicial reviewability of such Discretionary Power and how far could courts intervene to protect the Supremacy of law concept. This intrinsic research also put forth various past events where the governor has used his discretion to appoint the Chief Minister of many states. This paper also concerns about the uniformity lacking in the practice of calling leader of Majority party or Largest Coalition to form the government.

Key Words: Governor, Discretion, Appointment, Chief Minister and Rule of law.

INTRODUCTION Discretion means freedom to act according to one’s own judgment. It means the power or right conferred upon one by law and discretionary power is a term which involves an alternative power i.e. power to do or refrain from doing a certain thing or power of free decision or choice within certain legal bounds.90

In the context of the Governor, discretionary powers can be defined as the powers of the Governor which he exercises without any external aid or advice of the Council of Ministers. The Governor while discharging his responsibilities as the Head of the State, exercises similar powers as the President does as the Head of the Union. The Constitution provides for the aid and advice of Council of Ministers with the Chief Minister at the head, to the Governor in exercise of his functions.91 Under normal circumstances, Governor acts on the aid and advice of his Council of Ministers but under certain circumstances, the Governor can

90 P. RAMANATHA AIYAR, LAW LAXICON 565-566 (Wadhwa & Company, 2000). 91 INDIA CONST. art. 163, cl. 1. 45

Published by Agradoot Web Technologies LLP Indian Constitutional Law Review [ISSN: 2456-8325] Edition V [July 2018] exercise his discretionary powers. In these circumstances the Governor is not bound to seek or accept the advice of his Council of Ministers.

In the landmark judgment of S. Dharmalingam v. Governor of Tamil Nadu92, the Madras High Court held that certain powers are available to the Governor under Article 163 which he would exercise in his sole discretion. The immunity of the Governor is absolute, when he acts in his own discretion. Also, in the case of Pratap Singh Raojirao Rane v. Governor of Goa93, the court held that the Governor is not answerable to the court even in respect of charges of malafide.

DISCRETIONARY POWERS OF THE GOVERNOR MAY BE DIVIDED INTO TWO PARTS: 1. Specific discretionary powers, and 2. Circumstantial discretionary power.

1. Specific Discretionary Powers:

Those circumstances which are expressly provided in the Constitution, and under which the discretionary power of the Governor may be exercised by him, are called specific discretionary powers. The Constitution confers certain responsibilities on the Governor and he may by acting on his discretion fulfil these responsibilities and under such circumstances he is not bound to seek the aid and advice of his council of Ministers.

In the landmark case of Ganamani v. Governor of Andhra94, the court observed that “All the powers exercisable by the Governor can be exercised on the advice of the Council of Ministers except insofar as the Constitution expressly or perhaps by necessary implication says that he can exercise those powers in his individual discretion”

These are the Articles which give specific discretionary powers to the Governor:

Article 239: Article 239 provides that a Union Territory shall be administered by the President through an Administrator with such designation as he may specify or a Governor of a State, adjoining the Union Territory, may be appointed as the Administrator of that Union Territory.95 Where the Governor of a State is appointed as the Administrator of an adjoining Union Territory, he shall exercise his functions as the Administrator without the aid and advice or independent of his Council of Ministers.

92 S. Dharmalingam v. Governor of Tamil Nadu, A.I.R. 1989 Mad. 48 (India). 93 Pratap Singh Raojirao Rane v. Governor of Goa, A.I.R. 1999 Bom. 53 (India). 94 Ganamani v. Governor of Andhra, A.I.R. 1954 A.P. 9 (India). 95 INDIA CONST. art. 239. 46

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Para Nine of Sixth Schedule: Para nine of the 6th Schedule is related to licences or leases for the purpose of prospecting for or extraction of minerals. Part-1 of para nine of 6th Schedule provides that “such share of the royalties accruing each year from licences or leases for the purpose of prospecting for or extraction of minerals guaranteed by the government of the State in respect of any area within an autonomous district as may be agreed upon between the government of the State and the District Council of such District shall be made over to that District Council. Part-2 of para nine of 6th Schedule provides that if any dispute arises as to the share of such royalties to be made over to a District Council, it shall be referred to the Governor for determination and the amount determined by the Governor in his discretion shall be deemed to the amount payable under part-1 of para 9 of 6th Schedule to the District Council and the decision of the Governor shall be final.

Article 371: Article 371 of the Constitution provides that the President may confer special responsibilities upon the Governor with respect to the State of Maharashtra and Gujarat for the establishment of separate Development Boards for Vidarbha, Marathwada, Saurashtra, Kutch and the rest of Gujarat with the provision that a report on the working of each of these Boards will be placed each year before the State Legislative Assembly. Article 371 A of the Constitution has conferred special responsibilities on the Governor of Nagaland for certain purposes.96 Article 371 C of the Constitution 12 confers special responsibilities upon the Governor of Manipur to secure the proper functioning of a Committee of the Members of the Legislative Assembly consisting of the members representing the Hill Area.

2. Circumstantial Discretionary Powers:

Circumstantial discretionary powers are not expressly provided by the Constitution. These powers are implied powers, exercise of which is done according to varying circumstances. The role of the Governor becomes controversial many a times, when he acts in such circumstances. It raises a concern whether the Governor is merely a figure head, who is to exercise his powers as per the aid and advice of his ministers responsible to the Lower House or any real power is vested to him. Any question concerning whether the Governor is or is not empowered by the Constitution to act in his discretion upon a matter, the decision of the Governor in his discretion shall be final and the validity of anything done by the Governor

96 INDIA CONST. art. 371, cl. A. 47

Published by Agradoot Web Technologies LLP Indian Constitutional Law Review [ISSN: 2456-8325] Edition V [July 2018] shall not be called in question on the ground that he ought or ought not to have acted in his discretion.97

The following are the circumstances in which the Governor may use his discretionary powers: i) Appointment of the Chief Minister; ii) Governor’s Assent to Bills; iii) Dissolution of State Assembly; iv) Dismissal of Ministry; v) Summon and Prorogue the State Assembly; vi) Recommendation of President’s Rule; vii) Pardoning Power; and viii) Appointment of the Vice-Chancellor.

DISCRETION OF GOVERNOR IN THE APPOINTMENT THE CHIEF MINISTER The Constitution empowers the Governor to use his discretion in the appointment of the Chief Minister. It depends upon the situation that arises to use the extent of discretion in the appointment of the Chief Minister. Governor does not have any discretionary power in the appointment of the Chief Minister when one party or group has an absolute majority the leader of the majority party is invited to form the government. However, in a situation where the majority party in the Legislature asks to appoint such a person as the Chief Minister, who is not qualified to be a member of the Legislature or who stands disqualified, the Governor can use his discretion and refuse to appoint the leader of the majority party as the Chief Minister.98

When no party has a clear majority in the Legislature, the role of the Governor becomes very crucial. Here comes the discretionary power of Governor in the appointment of the Chief Minister, where no single party or group obtains absolute majority after the General Assembly elections. Any person whom the Governor thinks fit to form the government. Also, in situations where there occurs death or resignation on any political ground of the Chief Minister or after the Chief Minister being defeated in the House, any party or group is not having majority, the Governor may appoint such person as the Chief Minister whom he thinks fit. There are no specific guidelines provided by the Constitution to the Governor for the appointment of Chief Minister in such circumstances. This is the main reason why no uniform practice is followed by the Governors. On some occasions Governors have invited the leader of single largest party to form the government and where as sometimes the leader of the United Front is invited to form government, whether it was formed prior to election or after the election. About the discretion of the Governor in the appointment of the Chief

97 INDIA CONST. art. 163, cl. 2. 98 B.R Kapur v. State of Tamil Nadu, A.I.R. 2001 S.C. 3435 (India). 48

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Minister, Justice Mitra in the case of Mahabir Prasad v. Prafulla Chandra,99 observed that “the appointment of the Chief Minister by the Governor under Article 164 (1) of the Constitution is in his sole discretion. The exercise of this discretion by the Governor cannot be called in question in High Court. There is no warrant in the Constitution itself to read in Article 164 (1), a condition or restriction that the Governor must act on the advice of Council of Ministers as provided in Article 163.

In the past as well as the recent Karnataka elections have shown that the Governors role have been controversial many a times and have arbitrarily used his discretionary powers, largely with impunity and understandably on the behest of the union government. Some grey areas have been left by the constitution in this regard. The founding fathers had not foreseen it. They have also been belied on the development of healthy conventions. The first is related to the appointment of the Chief Minister (Article 164). When a Party enjoys clear majority, the Governor’s exercise of discretion is closed. However, when there are multiple and contested claims of having majority, or when a majority government loses its strength and claims and counterclaims fly in the air, the Governor’s choice assumes significance. The second is the proroguing and dissolution of the Assembly [Article 174 (1) and (2a and 2b)] particularly when the Chief Minister’s command over majority has become questionable. The third is the recommendation of President’s rule in a state (Articles 356 and 357). The fourth is the reservation of certain bills including ordinances for the assent of the President (Articles 200 and 213).

DISCRETION SHOULD BE USED JUDICIOUSLY Looking at the various committee reports and past experiences it is judicious use of the discretion in the appointment of the Chief Minister, if Governor makes all attempts to form a stable government in the State and appoints the Chief Minister in accordance with the following order:

i. The leader of the majority party in the Legislature; ii. In case there is no majority party in the Legislature, then the leader of the pre-poll alliance parties, who is in a position to form the government; iii. In case there is no majority of the pre-poll alliance in the Legislature then the leader of the single largest party having position to form the government;

99 Mahabir Prasad v. Prafulla Chandra, A.I.R. 1969 Cal. 198 (India). 49

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iv. In case, single largest party is not in a position to form the government, then the leader of the post-poll alliance parties may be called to form the government. v. In case the leader of the post-poll alliance parties is not in a position to form the government, then he should invite another who is in the position to form the government and this process may go on till the formation of the government. vi. Re-poll or the imposition of the President’s rule should be the last attempt.

PAST EVENTS WHERE GOVERNOR USED HIS DISCRETION IN THE APPOINTMENT OF THE CHIEF MINISTER There are many examples when the Governor used his discretion in a judicious manner:

 In 1952, in Madras all the opposition parties formed United Democratic Front under the leadership of Shri T. Prakasham had the strength of 166 members and the Congress had the strength of 155 members out of 321 members, the Governor Shri Sri Prakasa appointed Mr. C. Rajagopalachari, the leader of Congress Party as Chief Minister.  In 1967, in Kerala and in 1969, in West Bengal after the mid-term elections the Governors judiciously appointed the Chief Ministers.100 On November 22, 1967 the Governor of West Bengal Mr. Dharam Vira appointed Dr. P.C. Ghose as the Chief Minister, when the then Chief Minister Mr. Ajoy Mukherjee refused to face the Assembly.  In Rajasthan, in Fourth General Assembly Elections in 1967, the Congress Party won 88 seats and became single largest party. There were also non- Congress parties which claimed majority support of 93 members in the House of 183 members but the Governor, Dr. Sampurnanand invited the leader of Congress Party, Mr. M.L. Sukhadia to form the government.  After the General Assembly Elections in May 1982 in Kerala, the Governor called the leader of United Democratic Front (pre-electoral group of Non- Communist Parties) to form the ministry. It was the judicious use of discretionary power by the Governor, Sh. Syed Sibte Razi to appoint Sh. , leader of the BJP-JDU alliance, as the Chief Minister of on March 12, 2005, when Shibu Soren failed to prove his majority on the floor of the House on March 11, 2005.  After the sudden demise of Andhra Pradesh Chief Minister, Sh. Y.S. Rajasekhara, Governor appointed Sh. K. Rosaiah as caretaker Chief Minister of Andhra Pradesh on 3.09.2009.

100 3(1) R.C.S. SARKAR, THE OFFICE OF THE GOVERNOR 25 (Parliamentary Studies, 1969). 50

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 After the Vidhan Sabha Elections, 2009 in Haryana, Congress Party got 40 seats and Indian National Lok Dal got 31 seats out of 90 seats. Being the head of the largest single party, Sh. Bhupinder Singh Hooda was administered oath as the Chief Minister of Haryana by the Governor, Sh. Jagannath Pahadia on October 25, 2009.  After the Vidhan Sabha Elections, 2009 in Maharashtra, Congress Party and Nationalists Congress Party alliance got 144 seats and Bharatiya Janta Party and Shiv Sena alliance got 90 seats in a 288 members Assembly. Governor of Maharashtra invited, Sh. Ashok Chauhan on November 7, 2009 to swear-in as the Chief Minister.  After the Vidhan Sabha Elections, 2009 in Arunachal Pradesh, Congress Party got 42 seats in a 60 members Assembly. Being the head of the largest single party, Sh. Dorjee Khandu was sworn-in as the Chief Minister of Arunachal Pradesh by the Governor, Lieutenant General Retd. JJ Singh on October 25, 2009. After the Vidhan Sabha Election in Jharkhand, result delivered a fractured mandate. Since, no single party or the pre-poll alliance group got majority in the House, the Governor, K. Sankaranarayanan, called Shibu Soren of (JMM) to form the government on December 27, 2009. He was supported after poll by Bharatiya Janta Party (BJP) and All-Jharkhand Students’ Union (AJSU).  The discretion of Governor’s exercise of power is now strengthened by the development of a convention as well as the constitutional law. After the results of elections declared, as per the convention, the party or pre-election coalition having the largest number of seats in the Assembly would be invited first to form the government. In case if the party does not desire to form government, the next largest party would be invited. For example, after the Assembly elections in in 2013, the BJP emerged as the largest party with 33 seats, although falling short of majority. It refused to form the government. The newly launched AAP was the second largest party. The Lieutenant Governor of Delhi invited the AAP with 27 seats to form the government, although it had already got the support of the Congress Party with eight members. The Supreme Court in the case of S.R. Bommai v. Union of India101 (1994) Supreme Court cases (Vol. 3, pp. 296–299) has stated in details a set of guidelines for the Governor to respond in such a situation.  Recently, in Karnataka State Elections also the role of Governor and his exercise of discretionary power have been called in question where after the results were declared

101 S.R. Bommai v. Union of India, (1994) 3 S.C.C. 296 (India). 51

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no party got clear majority to form Government in Karnataka State. The majority party was BJP with 104 candidates falling short by 8 candidates to get magical figure of 112 to form government in the assembly of 222 total numbers of legislative members. The second largest party was INC with 78 candidates; JDS with 38 candidates was third in the row and 4 were other elected candidates. Now, the stand of INC and JDS was that Governor in such situation should invite the coalition of INC and JDS to form government though BJP being the majority party in elections as it is clear that BJP is not in position to get 112 candidates requisite to form government. Here, in this situation the Governor exercising his discretionary power invited the single largest party that is BJP to form government stating it constitutional with Article 164 of the Constitution. Governor also granted the period of 15 days to the leader of largest party to prove the requisite majority in the house which was also called in question stating it as the abuse of its discretionary power. The petition was filed in Supreme Court challenging the unguided power of Governor as ultra-virus to the Constitution. Court denied looking into the untouchable power of Governor under Article 164 in appointing the chief minister of state but court also ordered the BJP, largest party to prove the requisite majority in house a day after. BJP leader unable to prove the majority has resigned the chief minister post and then Governor invited the INC and JDS coalition to form government in the Karnataka State.

JUDICIAL REVIEWABILITY OF THE DISCRETIONARY POWERS OF GOVERNOR Constitution of India has vested some discretionary powers to the Governors and sometimes in the exercise of their functions they do not use their discretionary powers judiciously. Which is when the role of the judiciary comes into picture and on many occasions, judiciary has provided valuable guidelines for the Governors. The role of the courts has been decisive and can be elucidated with the following landmark case laws.

In the landmark case of Mahabir Prasad v. Prafulla Chandra102, it was laid down that the power of Governor is absolute with regard to appointment of Chief Minister and court cannot call in question the same, since it is his sole discretion. In another case of Pratap Singh Raojirao v. Governor of Goa103 the court held that for the purpose of the appointment of the

102 Mahabir Prasad v. Prafulla Chandra, A.I.R. 1969 Cal. 198 (India). 103 Pratap Singh Raojirao v. Governor of Goa, A.I.R. 1999 Bom. 53 (India). 52

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Chief Minister, Governor acts in his sole discretion and while taking decision he enjoys immunity under Article 361 of the Constitution.

In Jagdambika Pal v. State of U.P.104 the Supreme Court directed convening of special session of the Assembly and to have a composite floor test between contending parties to ascertain who (Sh. Kalyan Singh or Sh. Jagdambika Pal) enjoys a majority in the Assembly.

About the discretionary power of the Governor in appointing or dismissing the Chief Minister, the Guwahati High Court in the case Jogendra Nath v. State of Assam, observed that ‘the repository of power to appoint Chief Minister or to withdraw the pleasure contemplated under Article 164 and/or dismissal of ministry are exclusively pleasure-cum- discretion of the Governor. He is the sole and exclusive authority to appoint a Chief Minister’.105

In the case of Shiv Sagar Tiwari v. Union of India,106 the Apex Court accepted the presumption against abuse of such power vested in high authority. However, the court didn’t lay down the precise scope or extent of judicial review in matter relating to exercise of discretionary power by public authorities. But, Apex Court has fearlessly highlighted the gross abuse of discretionary powers and endeavoured to rectify the evil by carving out comprehensive discretion with a warning that all the public functionaries would so act that the meeting with destiny really sees the dawn of an era of hope for all.

In Chintalingam v. Govt, of India,107 the court turned down the old rule that public office would discharge their duty honestly and in accordance with the rule of law. The Apex Court rejected the theory of high officials stating clearly that discretionary powers may be abused by both, high or low ranked officials and therefore, no exception can be made in favour of the high ranked officers.

The Hon’ble High Court of Andhra Pradesh in case of U. E. Chaudhary v. State,108 laid emphasis on the fact that necessary guidance for the exercise of discretionary powers was must. No authority can give unbridled discretionary powers to the officers in any circumstance.

104 Jagdambika Pal v. State of U.P, A.I.R. 1998 S.C. 998 (India). 105 Jogendra Nath v. State of Assam, A.I.R. 1982 Gau. 25 (India). 106 Shiv Sagar Tiwari v. Union of India, A.I.R. 1997 S.C. 2725. 107 Chintalingam v. Govt, of India, 1971 S.C.R. (2) 871. 108 U. E. Chaudhary v. State, A.I.R. 1974 A.P. 96 (India). 53

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HOW FAR DISCRETION JUSTIFIED WITH THE PRINCIPLES OF RULE OF LAW? “The bedrock of our democracy is the rule of law and that means we have to have an independent judiciary, judges who can make decisions independent of the political winds that are blowing”

- Caroline Kennedy.

Rule of Law stands on the doctrine of supremacy of law. It is a fundamental necessity for a disciplined and organized society. If a government functions in accordance with the principles of rule of law then liberty and rights of individuals can be protected. Its basic principle requires the executive to act under the law, and not by its own decree or fiat, which is also a cardinal principle of the common law system. It is believed that the powers executive possessing are not inherent powers of its own but all its powers flow and emanate from the law, and this principle of Rule of Law plays vital role in all democratic countries of present day. The Rule of law principle implicates that accepted rules and not the arbitrary decisions of rulers should govern people. These rules should be general and abstract, known and certain, and equally applicable to all individuals

Indian Constitution does not define the term “Rule of law”. However it can be seen the term used frequently by the Indian courts in their judgments. There is no doubt that the rule of law pervades the Constitution as an underlying principle. In fact, the Supreme Court has declared the rule of law to be one of the “basic features” of the Constitution109, so even a constitutional amendment also cannot take away this principle. It is also seen as an integral part of good governance.

CONSTITUTIONAL ASPECT OF THE RULE OF LAW PRINCIPLES The Constitution of India lays down a cardinal principle of governance which affords no sanction for the exercise of arbitrary powers by authorities set up there under.110 This principle is popularly known as the rule of law. To be true, a rule of reason, rule against arbitrariness and discrimination, rule of fair play and natural justice forms the basic structure of rule of law.111

The rule of law is the opposite of the rule of power. It stands for the supremacy of law over the supremacy of individual will. It supervises each and every organ of the state and its

109 Indira Nehru Gandhi v. Raj Narain, A.I.R. 1975 S.C. 2295 (India). 110 Mohammad Ghous, Annual Survey of Indian Law, 8 INDIAN LAW INSTITUTE 242, (1972). 111 Alice Jacob, Annual Survey of Indian Law, 26 INDIAN LAW INSTITUTE 365, (1990). 54

Published by Agradoot Web Technologies LLP Indian Constitutional Law Review [ISSN: 2456-8325] Edition V [July 2018] administration. It obligates the instrumentalities of the state to discharge their functions in just and fair manner.112 The primary essential ingredient of the rule of law is the absence of arbitrary power that is the discretion vested upon executive authorities, must be confined within the clearly defined limits.113

It is undoubted fact that the present generation of modern world accepts the concept of the rule of law, and owes to Dicey for his thesis, especially for its three meanings as interpreted by him.114 According to him, the rule of law meant "the absolute supremacy of predominance or regular law as opposed to the influence of arbitrary power and excludes the existence of arbitrariness, or prerogative or even wide discretionary authority on the part of the government.115 He firmly criticized that wherever there prevails discretion, there exists room for arbitrariness to thrive and which leads to insecurity of legal freedom of the citizen. 116 He rejected the privileges and immunities enjoyed by the Crown and the Government under the cover of constitutional maxim that the ‘King can do no wrong'. As per him, those discretionary powers conferred on the executive by the statutes which cannot be called in question in ordinary court of law defeats the spirit of rule of law.117 Therefore he advocated the absence not only of arbitrary but even of wide discretionary powers.

The constitutional principles of rule of law constitute a bulwark between the governor and the governed, shielding the individual from hostile discrimination on the part of those with political power. The most obvious application of this doctrine to constitutional theory is to make sure that the actions of the executive and those of every other civil authorities or government officials should be just and fair as per the law. The concept of Rule of law stands on the belief that by virtue of his office, no one is entitled to disregard the law. No special authority is granted to the administration to act outside his legal power.118 International Commission of Jurists in 1959 firmly supported this opinion to the fact that rule of law should be employed not only to safeguard and advance the civil and political rights of the individuals in free society but also establish social, economic, educational and cultural conditions under which his legitimate aspirations and dignity may be realized.119

112 S. P. Gupta v. Union of India, A.I.R. 1982 S.C. 149 (India). 113 S. G. Jaisinghani v. Union of India, A.I.R. 1969 S.C. 1427 (India). 114 th A. V. DICEY, LAW OF THE CONSTITUTION 183 (8 ed, 1885). 115 th A. V. DICEY, LAW OF THE CONSTITUTION 198 (8 ed., 1885). 116 nd M. P. JAIN AND S. N. JAIN, PRINCIPLES OF ADMINISTRATIVE LAW 14 (2 ed., 2005). 117 Id. 118 T. R. S. Allan, Legislative Supremacy and the Rule of Law : Democracy and Constitutionalism, THE CAMBRIDGE LAW JOURNAL, 113 (1985). 119 JOSEPH RAZ, THE AUTHORITY OF LAW 211 (1979). 55

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The Rule of law by its constitutional principle aims to serve as a potent weapon to bridge the gap between the legal doctrine of Parliamentary sovereignty and political doctrine of sovereignty of the people. Here, what becomes important is that being a constitutional dogma, the rule of law operates as a weapon to strengthen democracy by mandating that the powers of government democratically derived, are applied with proper respect for the legitimate expectations of the government. Thus the doctrine widely pronounced as ultra vires has therefore, emerged as a powerful weapon to protect the abuse of discretionary powers granted by statute, and what is required is that rule of law must be adhered to strictly so that the rights and aspiration of the people are not too readily sacrificed to official convenience.

It is not evil to have discretionary power but at the same time it holds true that it gives much opportunity to be misused. It is an undoubted fact that discretion is wholly dependent on subjective satisfaction of the administrative authorities as it is a rule free area. It is impractical for law to visualize every action and frame provisions for it; hence it becomes inevitable for the rule making authorities to check the functioning of administration using discretionary powers. Also it can’t be falsified that this discretion exercised by administration leads to despotism, and ignores the aim for which the powers are delegated.

Therefore, the remedy for this cannot be sought by the abolition the power itself but in establishing a proper procedure. Thus framing parameters for proper exercise of discretionary powers has become essential. It is the duty of judiciary to make sure that the concerned authorities are forced to exercise discretion in an open, fair and honest manner.

CONCLUSION The Constitution of India provides for federal structure with a strong and indestructible Centre where the Governor of a State is also vested with the key functions in the system envisaged by the Constitution. The Constituent Assembly also justified empowering Governor with discretionary powers on the ground that the Provincial Governments are required to work in subordination to Central Government. Certain special and extra ordinary powers were also deliberately conferred on the Governor by the founding fathers of our Constitution. Article 164 (1) of the constitution of India confers a discretionary power on the governor to appoint the Chief Minister of the State in case there is no majority of the single party. The Governor is not required to act on the advice of the Council of the Ministers the only effective limitation on his discretion is that he has to appoint that person, as C.M., who he believes will be able to prove majority support in the assembly. So in case of a crisis 56

Published by Agradoot Web Technologies LLP Indian Constitutional Law Review [ISSN: 2456-8325] Edition V [July 2018] where no single party is in position to prove majority, Governor can call any party – be it a coalition or single largest party to form government by proving majority.

Thus, right from the adoption of the Indian Constitution, the discretionary power of Governors has been a matter of debate. The framers of our Constitution envisaged the Governor as the one who will act as a friend and sagacious advisor of the Council of Ministers. He should be a person who is expected to be above party and politics. But very soon these pious hopes were shattered. Arguments and counter-arguments started generating more heat but less light after 1967 because there after Governors have come to be seen or suspected as the agents of the Union government. Thus, Governor in many occasions started misusing his discretionary power as per his whims and fancies, ignoring the well-known principles of Rule of Law. This showed the functionary of Governor tilting contrary to the vision of the makers of Constitution.

This paper concludes that the discretion of Governor is undoubtedly a constitutional upbringing of the Article 164 but the use of such discretion should not be unguided and hence as rightly asserted by the Supreme Court in many landmark cases, the exercise of such discretion should be within the constitutional limits and cannot be contrary to it at any cost. Supreme court has already accepted the principles of Rule of law as basic structure of the constitution and therefore the discretion exercised by the Governor has to pass through the test of compliance with the Rule of law as well as this exercise of discretion is not untouchable from the Judicial Reviewability.

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