Governor Tathagata Roy has rejected the Government’s proposal for Administrator’s rule in Khasi Hills Autonomous District Council (KHADC) following the toppling of the Executive Council led by Teinwell Dkhar. Questions have been raised as to whether the Governor is empowered to act against the advice of the Council of Ministers as per Article 163. This Article stipulates 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 by or under the Constitution required to exercise his functions or any of them in his discretion.
If any question arises whether any matter is or is not a matter as respects which the Governor is by or under the 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 grounds 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.
In the recent KHADC case the Governor appears to have used his discretionary powers for which he cannot be called to question in a Court of law. While both the President of India and the Governor of a State are constitutional heads, there are some fundamental differences between the position of the President and the Governor. While the President is bound by the advice of the Council of Ministers in the discharge of all his functions, in the case of Governors, the aid and advice provision to article 163 applies “except in so far as” the Governor is required to function “in his discretion”. The 42nd Amendment had amended article 74 to provide that the President “shall” act in accordance with the advice. Such an amendment was not made in the corresponding article 163 with respect to Governors.
Governor Roy has evidently used his discretion to withhold his assent to the amended Meghalaya Residents Safety and Security (MRSS) Bill which compels a visitor to Meghalaya who intends to stay here for more than 24 hours to obtain permission through online application. The Bill exempts all central government employees from its ambit. Governors may also have to discharge certain special responsibilities under Articles 371 to 371-I. At this juncture it is perhaps an impropriety for the UDP leadership to accuse the Governor of nursing a hidden agenda.