Opinion A reality check for Raj Bhavans: Governor has no discretionary powers

The state of Madras became Tamil Nadu through the due legislative process — a unanimous resolution passed by the legislative assembly and legislative council in July 1967. Upon receipt of this resolution from the state government, the government of India introduced legislation to alter the name of the state from Madras to Tamil Nadu and enact necessary changes to the First and Fourth Schedules to the Constitution. By casually proposing a change to the state’s name, Ravi has displayed ignorance of the constitutional processes as well as disrespect towards the will of the state legislatures and Parliament.

The Governor’s Address given under Article 176 of the Constitution of India, much like the President’s Address to Parliament, is a formal statement given by the government to the legislature to initiate a discussion among the members of the Assembly. It is nothing more than a curtain-raiser speech on the progress made over the past year and the policies of the government for the upcoming year.

It is now settled law that the governor has no discretionary powers and this has been laid down by the Supreme Court (SC) in the landmark case of Shamsher Singh vs State of Punjab, (1975). The Court, then, held that governor is only a short form for government. Ergo, the courts have consistently held that the constitutional scheme does not make available any powers to the governor to act beyond the aid and advice of the council of ministers.

Any scenario where the governors exercised discretion in their official functions would lead to disastrous consequences. A politically-active governor would give rise to a usurpation of the power of elected representatives. This is alien to our constitutional scheme of Cabinet responsibility. In the past, courts have been slow to interfere with the functions of those occupying high constitutional offices. Nebam Rebia vs Deputy Speaker (2016) saw a definitive shift with the SC holding the governor’s actions unconstitutional.

There is an ideological war brewing to define the constitutional architecture of the country. The fight is essentially between ideologies that preach a conformist, unitary structure and those movements which stand for federalist principles. In many other states, especially Opposition-governed ones, governors have wantonly indulged in extra-constitutional transgressions. It is urged by some that the governors enjoy sovereign immunity and as such, no time frame can be imposed on their functioning. However, in Keisham Meghachandra Singh vs Hon’ble Speaker (2020), the SC issued a mandamus to the speaker to dispose of disqualification petitions within a strict time frame. Similarly, in A G Perarivalan vs State (2022) reiterated, the SC exercised its extraordinary powers under Article 142 of the Constitution to effectively step into the shoes of the governor and commute the sentence of the convicted prisoner.

As such, governors would be well informed that an active judiciary can always issue directions when constitutional authorities have failed to act in a reasonable manner and within a reasonable time. Time may have now come to rethink, review, and revamp the role of governors within our evolving jurisprudential framework to suit modern constitutional morality.

The writer, a lawyer, is spokesperson of DMK