Examining Governor’s Discretionary Powers

By B M Lanong

 In a rare tussle in the corridor of the powerful, or rather in the first of its kind in the State of Meghalaya, the State Governor, Tathagata Roy ignored the advice of the Council of Ministers to appoint the Administrator in the Khasi Hills Autonomous District Council (KHADC) where the ruling and opposition group command equal number of members on two recent occasions, when the trials of strength were conducted, inviting thereby a stalemate in the Council. Acting on his discretion by consulting the Deputy Commissioner’s authority and by ignoring again the mandatory administrative practice which requires to deal with any matter exclusively with the concerned department, that is, the Department of District Council Affairs (DCA), the Deputy Chief Minister, Prestone Tynsong, in reaction against the Governor’s role, fired his emotional catharsis, that if this be the case, better to abolish the said Department and consult the Deputy Commissioners henceforth.

 What is baffling is, what are the considerations and the justification for the Governor to resort to his discretion in approving the result of the election of new CEM held on November 22 last when the United Democratic Alliance (UDA) group which secured 14 members 2 days before the said election, that is,  during the motion of No- Confidence on November 20, withdrew from the election to the CEM and the opposition Peoples Democratic Front (PDF) group which also secured 14 members only 2 days ago, repeated the same strength of 14 members. The Chairman, P N Syiem however, added one vote to the opposition by circumventing the rules and Article 100 of the Constitution of India, which stipulates that the Speaker or Chairman of the House may apply his casting vote only in case of a tie. The Chairman owes an answer, under which rule he cast his vote in favour of the PDF candidate during the election of new CEM in absence of a tie.

 Similarly too, the Governor owes an answer, under which discretionary provision of the law, he rejected the government’s advice by acting on his own accord. Article 163 of the Constitution of India, clearly stipulates that the Governor shall exercise his functions under the advice of the Government, except when there is a constitutional requirement, that necessitates the discretion and in such a situation, his discretion is final. Mark the words ‘constitutional requirement.’

The State government having considered the outcome of the above two occasions, that is, the motion of no-confidence and the election of new CEM in KHADC, where both the groups secured equality number of votes, which events have plunged the KHADC in a dire situation of instability, perceived the seriousness of the situation. Arguably, the political equations do normally alter, especially in the House or Council, where the Tenth Schedule Provision is not applicable. Hence, time factor merits acting on time, rather than go on gambling for precarious chances.

   The Maharashtra case is a fresh incident, happening in the State Assembly, where the anti-defection law prevails. However, when, how and to what extent such alteration of equations will happen, no political pundit can predict.

     Be that as it may, the moot question hanging in the balance, is to examine the discretionary powers of the Governor under Art 163, which requires unambiguous clarity, whenever it is resorted to. For such an exceptional exercise, warranting the Governor to adopt his own constitutional option, by deviating from the above constitutional provisions, requires a fair amount of justification. In this case, what is the Constitutional obligation mentioned in Article 163, vis-à-vis his discretionary powers ?

  Hypothetically, even if the government’s advice is inconsistent with the meaning of Article 163, yet it does not justify any Governor to blatantly act beyond the mandate of the constitutional provision. Since the discretionary powers of the Governors are found to be limited, as such, there is no scope for applying their discretion at their whim and fancy.

     While giving fair credence to Art 163 of the Constitution of India, in a case involving Motor Vehicle Act in A Sanjeevi Naidu vs State of Madras 1970, when the DMK government of Chief Minister Karunanidhi was in power, the Supreme Court Bench, headed by the Hon’ble Chief Justice M Hidayatullah, observed that under the Constitution of India, the Governor is essentially a constitutional head, but in exercise of that power, he has to be aided and advised by the Council of Ministers, with the Chief Minister at the head. (AIR 1970-1102) and 1970 SCC (1) 404.

   The present manifold controversies have arisen therefore, out of the hasty approval of the Governor in the appointment of Latiplang Kharkongor as CEM of the KHADC, who secured 14 votes in the House of 29 (1 member since deceased) the UDA group of 14 abstained and the Chairman also added to the controversy, when he unnecessarily cast his vote, as aforementioned.

     But a more serious controversy which needs an immediate panacea, is when the state Governor has consciously or unconsciously failed to act in accordance with the advice of the state government, where the impact of a serious legal and constitutional fall-out came into a direct collision, how and when will the said controversial disaster, which legally appears to have turned out as null and void, be retrieved?

(The writer is former Deputy Chief Minister, Meghalaya)

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