Office of the Governor is not meant to be

an ornamental sinecure- ARC

vGovernor’s Office is suigeneris.
vThe Governor in our system does not function as
constitutional head for the whole gamut of his
responsibilities.
vThere is an important area, though limited and subject to
Constitutional constraints, within which he acts in the
exercise of his discretion.
vHe is the Linchpin of the constitutional apparatus of the State
vThe Governor continues even on the expiry of his 5 year term
till his successor takes over. Thus, the institution of Governor
assures continuity of the process of Government.
vHe fills the political vaccum as and when there is a
breakdown of the constitutional machinery in the State.
vthe functions of the Governor are at once diverse and
important. Functioning in normal times as the constitutional
head of the State and as a vital link between the Union and
the State, he becomes an agent of the Union in certain
special circumstances
q The role of the Governor is one of the key issues in
Union-State relations
q chronic instability in several State Governments
especially after 1967,led to the prominence the
Governors’ office and they were exercising wdiely
the discretionary powers.
q The manner in which they exercised these
functions has had a direct impact on Union-State
relations. Points of friction between the Union and
the States began to multiply
q This has brought the discussion on the functioning
of the Governor’s Office .
q Governor has come in for attack on the ground that
some Governors have failed to display the qualities
of impartiality and sagacity expected of them and
they lack objectivity in their functioning.
q Governors’ role in recommending President's rule,
in reserving State Bills for the consideration of the
President, evoked strong resentment, utilising the
Governors for its own political ends ,
q frequent removals and transfers of Governors
before the end of their tenure ,
q acting as agents of the Union

– all lowered the prestige of the office.

Historical Background:
q The Government of India Act, 1858 - transferred the responsibility
for administration of India from the East India Company to the
British Crown.
q The Governor then became an agent of the Crown, functioning
under the general supervision of the Governor-General.
q The Montagu-Chelmsford Reforms (1919) ushered in responsible
Government, albeit in a rudimentary form.
q However, the Governor continued to be the pivot of the Provincial
administration.
q Under the Government of India Act, 1935 Governor was required
to act on the advice of Ministers responsible to the legislature.
q However, certain special responsibilities such as prevention of
grave menace to the peace or tranquility of the Province,
safeguarding the legitimate interests of minorities and so on was
left with the governor.
q He functioned under the general superintendence and control of
the Governor-General
qIn 1937, when the Government of India Act, 1935 came
into force, the Congress Party which commanded a
majority in six provincial legislatures, foresaw certain
difficulties when the Governor exercised his individual
judgement for the discharge of his special responsibilities.
The Congress Party agreed to assume office in these
Provinces only after it received an assurance from the
Viceroy that the Governors would not provoke a conflict
with the elected Government.
q Independence inevitably brought about a change in the
role of the Governor. Until the Constitution came into
force, the provisions of the Government of India Act, 1935
as adapted by the India (Provisional Constitution) Order,
1947 were applicable. This Order omitted the expressions
'in his discretion', 'acting in his discretion' and 'exercising
his individual judgement', wherever they occurred in the
Act.
q The framers of the Constitution accepted, in principle, the
Parliamentary or Cabinet system of Government. The
Constituent Assembly discussed at length the various
provisions relating to the Governor
q It was recognised that the co-existence of an elected
Governor and a Chief Minister responsible to the
Legislature might lead to friction and consequent
weakness in administration.
q The concept of an elected Governor was therefore
given up in favour of a nominated Governor.
q Jawaharlal Nehru observed that “an elected Governor
would to some extent encourage that separatist provincial
tendency more than otherwise. There will be far fewer
common links with the Centre."
q Following the decision to have a nominated Governor,
references in the various articles of the Draft Constitution
relating to the exercise of specified functions by the
Governor 'in his discretion' were deleted
q The Constitution envisages that normally there shall
be a Governor for each State (Article 153).
q The Governor is appointed by the President and
holds office during his pleasure [Articles 155 &
156(1)].
q Article 154 vests the executive power of the State in
the Governor who exercises it either directly or
through officers subordinate to him in accordance
with the Constitution.
q Under Article 163(1), he exercises almost all his
executive and legislative functions with the aid and
advice of his Council of Ministers.
q Thus, executive power vests theoretically in the
Governor but is really exercised by his Council of
Ministers, except in the limited sphere of his
discretionary action.
qArticle 167 of the Constitution imposes duties on the
Chief Minister to communicate to the Governor all
decisions of the Council of Ministers and proposals for
legislation and such other information relating to the
administration of the affairs of the State and proposals
for legislation as the Governor may call for; and “if the
Governor so requires, to submit for the consideration of
the Council of Ministers any matter on which a decision
has been taken by a Minister but which has not been
considered by the Council'.
qThe information which the Governor is entitled to
receive under clause (b) of the Article, must not only be
related to the affairs of the State administration, but also
have a nexus with the discharge of his Constitutional
responsibilities.
q Article 167 give him persuasive and not dictatorial
powers to override or veto the decisions or proposals of
his Council of Ministers relating to the administration of
the affairs of the State. At best, “they are powers of
giving advice or counselling delay or the need for caution
and they are powers which may be used to build bridges
between the Government and opposition”
q The Governor does not exercise the executive functions
individually or personally.
q The State Government at various levels takes executive
action in the name of the Governor in accordance with
the rules of business framed under Article 166(3).
q Hence, it is the State Government and not the Governor
who may sue or be sued in respect of any action taken in
the exercise and performance of the powers and duties
of his office [Articles 361, 299(2) and 300].
the Governor to act–
(A) in his discretion; or
(B) in his individual judgement; or
(C) independently of the State Council of Ministers;
Instances where the Governor can act according to
his discretion are the following :
(i) Advising the President as to the failure of constitutional
machinery in the State. (Art. 365).
(ii) When the Council of Ministers has lost the confidence
of the House, the Governor has a discretion to dismiss it if it
does not resign : Mahabir Prasad v. Prafullaa Chandra, AIR
1969 Cal. 198.
Such occasions usually give rise to controversy. Dismissal of the
Ajoy Mukherjee ministry in 1967, in West Bengal, of the
Charan Singh ministry in 1970, in U.P., and of the ministry of
Mr. Devaraj Urs in Karnataka in 1978, was in each case followed
by acrimonious controversy in which the Governor was
charged with political partisanship.
q It must be noted that under Art. 163, when a question arises
whether a matter is or is not it is in his discretion is final. The
validity of the Governor’s action cannot be questioned on the
ground that he should not have acted in this discretion. So there is
need to evolve proper conventions to guide the Governor in such
matters.
(iii)The Governor has to reserve for the consideration of the President
any Legislative Bill submitted for his assent, if in his opinion the Bill
when passed would adversely affect the High Court (Art. 200).
(iv) The Governor may be appointed as Administrator of Union
Territory adjoining the State. In such a case his functions as such
Administrator are exercised without reference, to his Council of
Ministers (Art. 239).
(v)The Governor of Nagaland has special responsibilities under Art.
371-A with respect of Law and Order. He exercises his individual
judgment in such cases.
(vi) The Governor of Assam has certain special responsibilities in
relation to District Councils of Autonomous Districts in the Tribal areas
[6th Schedule, Para 9 (2)].
Whether non-member can be appointed as Minister.— In
Verma v. T.N. Singh, AIR 1971 SC 1351, the question
whether a person who is not a member of the Legislature
can be appointed as Chief Minister (or Minister) was
considered. It was held that a Minister ceases to hold office
if he does not become a member of the Legislature within
six months (Art. 164 Clause 4). So a non-member subject to
this requirement, may be appointed as a Minister. The
result of this decision would be that a non-member can be
appointed as and continue to be a Minister for six months.
Then when he, ceases to be minister, he can after an
interval be re-appointed as a minister subject to the
requirement of becoming a member within six months
thereafter. This can go on again and again. This seems to be
a lacuna. It should be removed.
Repeated appointment of a non-legislator as minister
unconstitutional.— The Supreme Court in S.R.
Chaudhuri v. State of Punjab, AIR 2001 SC 2707 held that
it would be subverting the constitution to permit an
individual who is not a member of the legislature to be
appointed repeatedly for a term of six consecutive
months without getting himself elected in the
meanwhile. Such a practice is normally derogatory to
the constitutional scheme, improper, undemocratic and
invalid. Art. 164 (4) is only an exception to the normal
rule that only a member of the legislature can be
appointed as a Minister. It is essentially required to be
used to meet very extraordinary situation. It must be
construed strictly and used sparingly
A person without qualification or with disqualification cannot be
a Chief Minister even if elected by majority of M.L.A’s.— In
B.R.Kapur v. State of Tamil Nadu, AIR 2001 SC 3435 the Supreme
Court held that even if a person elected as the leader by the
elected members of the legislative assembly commanding a
majority of seats in the assembly and such person either does not
possess the qualification enumerated under Art. 173 or incurs
disqualifications for being chosen as a member of the legislative
assembly enumerated under Art. 191, the Governor though has
descretion under Art. 164 (1) of the constitution would not be
bound to respect the will of the elected members of the political
party commanding the majority in the House. It is because, the
Government takes oath under Art. 159 of the constitution to
preserve, protect and defend the constitution and the law and
shall devote himself to the service and for the well-being of the
people. It would be against such oath if he appoints a person who
does not possess the qualifications and incurs disqualification for
being chosen as a member or to be appointed as Chief Minister.
The court held that the constitution prevails over the will of
the people as expressed through the majority of the
people. The people of India and also the elected
members to the legislative assembly are bound by the
constitution and the members have to uphold the
constitution. In UK the Parliament is supreme but in India
it has no application. The supremacy of the Parliament or
legislature in our country is limited under a written
constitution. The people of the country the organs of the
Government legislatures, executive and judiciary are all
bound by the constitution. All the institutions,
representatives and legislatures are subservient to the
constitution. The constitution occupies the primary place.
The primary function of the written constitution is that of
controlling the organs of the Government. The
constitution is antecedent to Government.
Art. 164 (1) and (4) and Nature of restrictions on appointment
of Chief Ministers and Ministers.—In Ashok Pandey v.
Mayawati, (2007) 10 SCC 16, the Supreme Court clarified the
scope and nature of restrictions under Art. 164 (1) and (4) for
the appointment Chief Minister and Ministers in a State. The
question in this case was whether a person who is a Member
of Rajya Sabha can be appointed as Chief Minister or Minister
of a State.
The petitioner’s argument is that as they are already Members
of Rajya Sabha the requirement under Art. 164 (4) of their
being elected to the Legislative Assembly within a period of six
months does not apply to them. The Supreme Court negatived
the contention on the ground that Art. 164 (4) is not a source
of power or an enabling provision for appointment of a non
member of a legislature as a Chief Minister or Minister. It is
only a disqualification for a non-member for continuation if
appointed unless he gets elected to the Assembly within six
months.
Whether Governor can allow the Ministry to function even
after the dissolution of the Legislative Assembly.— In
Rajgopal v. Karunanidhi, AIR 1971 SC 1551, it was held that it
is open to the Governor to continue the ministry even after
the dissolution of the Legislative Assembly.
Formal Functions in Relation to the Legislature.— The
Governor is not a member of the Legislature but is a
constituent part of it for the State Legislature consists of the
Governor and the Legislative Chamber (or Chambers). He
summons the legislature to meet at such time and place as
he thinks fit. He addresses the legislature when first
convened after an election and also each year at the first
session. He can prorogue either House i.e. adjourn the
session. He can also dissolve the lower House (i.e., the
Legislative Assembly). A Legislative Bill passed by the
Legislative Chamber becomes law only when the Governor
has assented to it.
q It should be noted that the powers of the Governor in
relation to the Legislature are exercised by him only on
the advice of the Council of Ministers.
q Further, Governor’s return of a Bill may be overridden
for if the Legislature passes the Bill again, the Governor
has no alternative but to give his assent.
q Instead of returning the Bill, the Governor may reserve
it for consideration by the President. In such a case the
President may require the Governor to return the Bill
to the Legislature for reconsideration.
q If it is again passed, it is presented again to the
President for his consideration.
q So far as Money Bills are concerned, they can be
introduced only on the recommendation of the
Governor who of course acts on the advice of the
Ministry. There is no question, therefore, of the veto of
a Money Bill.
 Re-Promulgation of Oridnances

3/16/24 Prof.Dr. T.V. Subba Rao, 20

NLSIU, Bangalore
KRISHNA KUMAR SINGH V STATE OF BIHAR, 2017
Dr. D.Y. Chandrachud J on behalf of himself Bobde, A.K. Goel,
Uday Umesh Lalit, Nageswara Rao JJ – constituted majority
Madan B. Lokur J contra. Thakur , CJI concurrent but separate
Background
A professor of economics who was pursuing his research on
land tenures in Bihar stumbled upon a startling practice.
Ordinances were promulgated and re-promulgated by the
Governor of Bihar – two hundred fifty six of them between
1967 and 1981. These Ordinances were kept alive for long
periods, going upto fourteen years. This academic research into
the re-promulgation of Ordinances became the subject of a
book and a petition under Article 32 of the Constitution. The
book provided the backdrop of a judgment of a Constitution
Bench of Supreme Court in D C Wadhwa v. State of Bihar. The
Constitution Bench held that the practice which had been
followed in the State of Bihar was in disregard of constitutional
limitations.
q The present case was filed long before before High court.
q In appeal it came before supreme court bench
The two judges, Justice Sujata Manohar and D.P. Wadhwa
differed on important points, then referred to three judges
then five and ultimately seven in view of certain previous
decisions and observations there of. ( Bhupendra singh Bose
case, T. Venkata Reddy case, and Satpal Singh Dang case
reconsiderfration of which has become ncessary in view of
Bommai’s case.)
q Majority extensively quoted CAD and analogous
provisions.
q Chapter IV of the Constitution contains a single
constitutional provision: Article 213. The title to Chapter
IV is descriptive of the nature of the power. The power is
described as the “Legislative power of the Governor”. The
marginal note to Article 213 describes it as a “power of
Governor to promulgate Ordinances during recess of
legislature”
q The Constitution has followed the same pattern while
enunciating the Ordinance making power of the President.
Chapter III contains a sole Article, Article 123 which specifies the
“legislative power” of the President to promulgate Ordinances
when Parliament is not in session.
q Constitution (38th Amendment) Act ousted JR but restored by 44
th amendment Act
q Ordinance making power is not purely political question and
may be subject to review ( A.K. Roy v Union of India)
q Is there any difference between Act and ordinance? It is
considered in this case including the impact of the decisions in
Bhupendra singh Bose case, T. Venkata Reddy case, and Satpal
Singh Dang case and Bommai’s case.
q Governor cannot promulgate an ordinance without instructions
from the president 1. where previous sanction of the
Government is necessary like Art.282, 304; 2. if
Governor deems it necessary to reserve it for the consent
of the President, Art 200; other circumstances like Art. 31(3);
254(2), 286(3) and 288(2) etc
(i) The power which has been conferred upon the President
under Article 123 and the Governor under Article 213 is
legislative in character. The power is conditional in nature: it
can be exercised only when the legislature is not in session and
subject to the satisfaction of the President or, as the case may
be, of the Governor that circumstances exist which render it
necessary to take immediate action;
(ii) An Ordinance which is promulgated under Article 123 or
Article 213 has the same force and effect as a law enacted by
the legislature but it must (i) be laid before the legislature; and
(ii) it will cease to operate six weeks after the legislature has
reassembled or, even earlier if a resolution disapproving it is
passed. Moreover, an Ordinance may also be withdrawn;
(iii) The constitutional fiction, attributing to an Ordinance the
same force and effect as a law enacted by the legislature
comes into being if the Ordinance has been validly
promulgated and complies with the requirements of Articles
123 and 213;
(iv) The Ordinance making power does not constitute the
President or the Governor into a parallel source of law making
or an independent legislative authority;
(v) Consistent with the principle of legislative supremacy, the
power to promulgate ordinances is subject to legislative control.
The President or, as the case may be, the Governor acts on the
aid and advice of the Council of Ministers which owes collective
responsibility to the legislature;
(vi) The requirement of laying an Ordinance before Parliament
or the state legislature is a mandatory constitutional obligation
cast upon the government. Laying of the ordinance before the
legislature is mandatory because the legislature has to
determine: (a) The need for, validity of and expediency to
promulgate an ordinance; (b) Whether the Ordinance ought to
be approved or disapproved; (c) Whether an Act incorporating
the provisions of the ordinance should be enacted (with or
without amendments);
(vii) The failure to comply with the requirement of laying an
ordinance before the legislature is a serious constitutional
infraction and abuse of the constitutional process;
(viii) Re-promulgation of ordinances is a fraud on the
Constitution and a sub-version of democratic legislative
processes, as laid down in the judgment of the Constitution
Bench in D C Wadhwa;
(ix) Article 213(2)(a) provides that an ordinance promulgated
under that article shall “cease to operate” six weeks after
the reassembling of the legislature or even earlier, if a
resolution disapproving it is passed in the legislature. The
Constitution has used different expressions such as “repeal”
(Articles 252, 254, 357, 372 and 395); “void” (Articles 13,
245, 255 and 276); “cease to have effect” (Articles 358 and
372); and ”cease to operate” (Articles 123, 213 and 352).
Each of these expressions has a distinct connotation.
q The expression “cease to operate” in Articles 123 and 213
does not mean that upon the expiry of a period of six
weeks of the reassembling of the legislature or upon a
resolution of disapproval being passed, the ordinance is
rendered void ab initio.
q Both Articles 123 and 213 contain a distinct provision
setting out the circumstances in which an ordinance shall
be void. An ordinance is void in a situation where it makes
a provision which Parliament would not be competent to
enact (Article 123(3)) or which makes a provision which
would not be a valid if enacted in an act of the legislature
of the state assented to by the Governor (Article 213(3)).
The framers having used the expressions “cease to
operate” and “void” separately in the same provision,
they cannot convey the same meaning;
(x) The theory of enduring rights which has been laid down in the
judgment in Bhupendra Kumar Bose and followed in T Venkata
Reddy by the Constitution Bench is based on the analogy of a
temporary enactment. There is a basic difference between an
ordinance and a temporary enactment. These decisions of the
Constitution Bench which have accepted the notion of enduring
rights which will survive an ordinance which has ceased to
operate do not lay down the correct position. The judgments are
also no longer good law in view of the decision in S R Bommai;
(xi) No express provision has been made in Article 123 and Article
213 for saving of rights, privileges, obligations and liabilities which
have arisen under an ordinance which has ceased to operate.
Such provisions are however specifically contained in other
articles of the Constitution such as Articles 249(3), 250(2), 357(2),
358 and 359(1A). This is, however, not conclusive and the issue is
essentially one of construction; of giving content to the ‘force and
effect’ clause while prescribing legislative supremacy and the rule
of law;
(xii) The question as to whether rights, privileges, obligations and
liabilities would survive an Ordinance which has ceased to
operate must be determined as a matter of construction. The
appropriate test to be applied is the test of public interest and
constitutional necessity. This would include the issue as to
whether the consequences which have taken place under the
Ordinance have assumed an irreversible character. In a suitable
case, it would be open to the court to mould the relief; and
(xiii) The satisfaction of the President under Article 123 and of the
Governor under Article 213 is not immune from judicial review
particularly after the amendment brought about by the forty-
fourth amendment to the Constitution by the deletion of clause 4
in both the articles. The test is whether the satisfaction is based
on some relevant material. The court in the exercise of its power
of judicial review will not determine the sufficiency or adequacy
of the material. The court will scrutinise whether the satisfaction
in a particular case constitutes a fraud on power or was actuated
by an oblique motive. Judicial review in other words would
enquire into whether there was no satisfaction at all.
Majority held that every one of the ordinances at issue
commencing with Ordinance 32 of 1989 and ending
with the last of the ordinances, Ordinance 2 of 1992
constituted a fraud on constitutional power. These
ordinances which were never placed before the state
legislature and were re-promulgated in violation of the
binding judgment of this Court in D C Wadhwa are
bereft of any legal effects and consequences. The
ordinances do not create any rights or confer the
status of government employees. However, it would be
necessary , the court said, to mould the relief by
declaring that no recoveries shall be made from any of
the employees of the salaries which have been paid
during the tenure of the ordinances in pursuance of
the directions contained in the judgment of the High
Court.
 Recommendations of Sarkaria Commission

q A person to be appointed as a Governor should satisfy

the following criteria:
(i) He should be eminent in some walk of life.
(ii) He should be a person from outside the State.
(iii) He should be detached figure and not too intimately
connected with the local politics of the State; and
(iv) He should be a person who has not taken too great a
part in politics generally, and particularly in the recent past.
q persons belonging to the minority groups should
continue to be given a chance as hitherto.
q It is desirable that a politician from the ruling party at the
Union is not appinted as Governor of a State which is
being run by some other party or a combination of other
parties.
v In order to ensure effective consultation with the State Chief
Minister in the selection of a person to be appointed as
Governor the procedure of consultation should be
prescribed in the Constitution itself by suitably amending
Article 155.
v The Vice-President of India and the Speaker of the Lok Sabha
may be consulted by the Prime Minister in selecting a
Governor.
v The Goveornor's tenure of office of five years in a State
should not be disturbed except very rarely and that too, for
some extremely compelling reason
v the Governor whose tenure is proposed to be terminated
before the expiry of the normal term of five years, should be
informally apprised of the grounds of the proposed action
and afforded a reasonable opportunity for showing cause
against it .
qAs a matter of convention, the Governor should not,
on demitting his office, be eligible for any other
appointment or office of profit under the Union or a
State Government except for a second term as
Governor or election as Vice-Preisent or President of
India. Such a convention shold also require that, after
quitting or laying down his office, the Governor shall
not return to active partisan politics
q (a) In choosing a Chief Minister, the Governor should
be guided by the following principles, viz.:
(i) The party or combination of parties which commands
the widest support in the Legislative Assembly should be
called upon to form the government.
(ii) The Governor's task is to see that a government is
formed and not to try to form a government which will
pursue policies which he approves.
(b) If there is a single party having an absolute majority in the
Assembly, the leader of the party should automatically be asked to
become the Chief Minister.
If there is no such party, the Governor should select a Chief Minister
from among the following parties or groups of parties by sounding
them, in turn, in the order of preference indicated below:
(i) An alliance of parties that was formed prior to the Elections.
(ii) The largest single party staking a claim to form the government
with the support of others, including 'independents'.
(iii) A post-electoral coalition of parties, with all the partners in the
coalition joining government.
(iv) A post-electoral alliance of parties, with some of the parties in the
alliance forming a Government and the remaining parties, including
'independents', supporting the government from outside.
The Governor while going through the process described above
should select a leader who in his (Governor's) judgement is most likely
to command a majority in the Assembly.
q (c) A Chief Minister, unless he is the leader of a
party which has absolute majority in the Assembly,
should seek a vote of confidence in the Assembly
within 30 days of taking over. This practice should
be religiously adhered to with the sanctity of a rule
of law.
q The Governor should not risk determining the issue
of majority support, on his own, outside the
Assembly. The prudent course for him would be to
cause the rival claims to be tested on the floor of
the House.
q The Governor cannot dismiss his Council of
Ministers so long as they continue to command a
majority in the Legislative Assembly. Conversely,
he is bound to dismiss them if they lose the
majority but do not resign.
Ø (a) When the Legislative Assembly is in session, the
question of majority should be tested on the floor of the
House.
Ø (b) If during the period when the Assembly remains
prorogued, the Governor receives reliable evidence that
the Council of Ministers has lost 'majority', he should not,
as a matter of constitutional propriety, dismiss the
Council unless the Assembly has expressed on the floor
of the House its want of confidence in it. He should
advise the Chief Minister to summon the Assembly as
early as possible so that the 'majority' may be tested.
Ø (c) Generally, it will be reasonable to allow the Chief
Minister a period of 30 days for the summoining of the
Assembly unless there is very urgent business to be
transacted like passing the Budget, in which case, a
shorter period may be allowed. In special circumstances,
the period may go up to 60 days.
qSo long as the Council of Ministers enjoys the confidence of
the Legislative Assembly, the advice of the Council of
Ministers in regard to summoning and proroguing a House of
the Legislature and in dissolving the Legislative Assembly, if
such advice is not patently unconstitutional, should be
deemed as binding on the Governor.
q (a) The Governor may in the exigencies of certain situations,
exercise his discretion to summon the Assembly only in
order to ensure that the system of responsible government
in the State works in accordance with the norms envisaged
in the Constitution.
q (b) When the Chief Minister designedly fails to advise the
summoning of the Assembly within six months of its last
sitting, or advises its summoning for a date falling beyond
this period, the Governor can summon the Assembly within
the period of six months specified in Article 174(1).
q When a Chief Minister (who is not the leader of the
party which has absolute majority in the
Assembly), is not prepared to summon the
Legislative Assembly within 30 days of the taking
over or within 30 days or 60 days, as the case may
be, when the Governor finds that the Chief
Minister no longer enjoys the confidence of the
Assembly the Governor would be within his
constitutional right to summon the Assembly for
holding the “Floor Test”.
q If a notice of a no-confidence motion against a
Ministry is pending in a House of the Legislature
and the motion represents a legitimate challenge
from the Opposition, but the Chief Minister advises
that the House should be prorogued, the Governor
should not straightaway accept the advice. He
should advise the Chief Minister to postpone the
prorogation and face the motion.
q(a) When the advice for dissolving the Assembly is
made by a Ministry which has lost or is likely to
have lost majority support, the Governor should
adopt the course of action as recommended
above.
q(b) If ultimately a viable Ministry fails to emerge,
the Governor should first consider dissolving the
Assembly and arranging for fresh elections after
consulting the leaders of the political parties
concerned and the Chief Election Commissioner.
q(c) If the Assembly is to be dissolved and an
election can be held early, the Governor should
normally ask the outgoing Ministry to continue as a
caretaker Government.
qHowever, this step would not be proper if the
outgoing Ministry has been responsible for serious
mal-administration or corruption.
v(d) A convention should be adopted that a care taker
Government should not take any major policy decisions.
v(e) If the outgoing Ministry cannot be installed as a caretaker
Government for the reason indicated in (c) above or if the
outgoing Ministry is not prepared to function as a caretaker
Government, the Governor, without dissolving the Assembly,
should recommend President's rule in the State.
v(f) If fresh election cannot be held immediately on account of
a national calamity or State-wide disturbances, it should not
be proper for the Governor to install a caretaker Government
for the long period that must elapse before the next election
is held. He should recommend proclamation of President's
rule under Article 356 without dissolving the Assembly.
v(g) If it is too early to hold fresh election, the Assembly not
having run even half its normal duration of five years, the
Governor should recommend President's rule under Article
356 withou dissolving the Assembly.
q The Governor has no discretionary power in the matter of
nominations to the Legilative Council or to the Legislative Assembly.
If at the time of making a nomination, a Ministry has either not been
formed or has resigned or lost majority in the Assembly, the
Governor should await the formation of a new Ministry.
q Where a State University Act provides that the Governor, by virtue of
this office, shall be the Chancellor of the University and confers
powers and duties on him not as Governor of the State but as
Chancellor, there is no obligation on the Governor, in his capacity as
Chancellor, always to act on Ministerial advice under Article 163(1).
However, there is an obvious advantage in the Governor consulting
the Chief Minister or other Ministers concerned, but he would have
to form his own individual judgement. In his capacity as Chanceller
of a University, the Governor may be required by the University's
statute to consult a Minister mentioned in the statute on specified
matters. In such cases, the Governor may be well advised to consult
the Minister on other important matters, also. In either case, there
is no legal obligation for him to necessarily act on any advice
received by him.
qThe Governor, while sending ad hoc or fortnightly
reports to the President, should normally take his Chief
Minister into confidence, unless there are overriding
reasons to the contrary.
qThe discretionary power of the Governor as provided in
Article 163 should be left untouched.
qWhen a Governor finds that it will be constitutionally
improper for him to accept the advice of his Council of
Ministers, he should make every effort to persuade his
Ministers to adopt the correct course. He should exercise
his discretionary power only in the last resort.
qCertain specific functions have been conferred (or are
conferable) on the Governors of Maharashtra and Gujarat
[Article 371(2)], Nagaland [First Proviso to Article
371A(1)(b), Article 371A(1)(d) and Article 371A(2)(b) and
(f)], Manipur [Article 371C(1)], Sikkim [Article 371F(g)] and
qArunachal Pradesh [First Proviso to Article 371H(a)] to be
exercised by them in their discretion. In the discharge of
these functions, the Governor concerned is not bound to
seek or accept the advice of his Council of Ministers.
However, before taking a final decision in the exercise of
his discretion, it is advisable that the Governor should, if
feasible, consult his Ministers even in such matters, which
relate essentially to the administration of a State.
It would be neither feasible nor desirable
to formulate a comprehensive set of
guidelines for the exercise of the
discretionary powers of the Governor. A
Governor should be free to deal with a
situation according to his best judgement,
keeping in view the Constitution and the law
and the conventions of the Parliamentary
system
Art. 200
• Article 200 of the Constitution bestows on
the Governor the power to provide assent
to the Bills passed by the State Legislature.
The Governor can also return the Bill to the
Legislature for reconsideration or suggest
amendments.
State of Punjab v. Principal
Secretary to the Governor of Punjab
and Another (2023).

• A 3-judge bench of Chief Justice of India

(CJI), D Y Chandrachud, Justices J B
Pardiwala, and Manoj Misra has held that
the Governor has to return the bill to the
assembly if he withholds his assent. The
SC clarified this procedure stating that it
was not clearly mentioned under Article
200 of the Constitution of India, 1950.
Government of NCT of Delhi v Union of India
(2023) the Supreme Court upheld the Delhi
government's authority over civil servants and
day-to-day administration of the National
Capital Territory (NCT) of Delhi. This ruling
affirmed the elected Legislative Assembly's
powers as outlined in Article 239AA of the
Constitution, countering the Government of
National Capital Territory (Amendment) Act,
2021.