A Chequered History of Governors’ Discretionary Powers under Article 163
| DOI | 10.1177/0019556117720592 |
| Date | 01 September 2017 |
| Published date | 01 September 2017 |
| Author | Atul Kumar Tiwari |
| Subject Matter | Articles |
Article
Indian Journal of Public
Administration
63(3) 380–401
© 2017 IIPA
SAGE Publications
sagepub.in/home.nav
DOI: 10.1177/0019556117720592
http://journals.sagepub.com/home/ipa
1 Resident Commissioner of Karnataka, New Delhi, India.
Corresponding author:
Atul Kumar Tiwari, D1/139, Satya Marg, Chanakyapuri, New Delhi 11002, India.
E-mail: atulkt@gmail.com
A Chequered
History of Governors’
Discretionary Powers
under Article 163
Atul Kumar Tiwari1
Abstract
This article examines how governors have made more use of their discre-
tionary powers than the president. The reason is found in Article 163 of the
Constitution that allows use of discretionary powers of the governors. Despite
being antithetical to the responsible governments in the states, such powers
were assigned to the governors after contentious debates in the Constituent
Assembly in order to retain a strong centre in the aftermath of unification of
India. This article recommends that there is a need for some reforms particularly
with regard to appointment and tenure of the governors that aid and abet the
constitutional transgression by the governors. It also holds that codification of a
body of conventions would further bring the actions of the governors within the
accepted canons of interpretation of the Constitution.
Keywords
Indian Constitution, discretionary powers, governor, president, Constituent
Assembly Debates, Article 163
An idea that has developed and put into action is more important than an idea that exists only as
an idea.
—Buddha
Introduction
The opening scene from the latest constitutional potboiler would start with a state-
ment issued from Rashtrapati Bhavan on 12 September 2016. It would state that
Tiwari 381
Arunachal Pradesh Governor Sri Jyoti Prasad Rajkhowa will ‘cease to hold the
office’. Then, it would go into flashback: How almost two months earlier the
Supreme Court restored the Congress government in the state, accusing the gov-
ernor of violating the Constitution. In the aftermath of the Supreme Court deci-
sion, the governor had refused to resign from his post and wanted the president to
order his dismissal under Article 156 of the Constitution. The controversy revolved
around the manner in which Sri Rajkhowa had called an Assembly session in a
makeshift venue a month ahead of schedule during which the government of
Nabam Tuki was ‘dismissed’. The Supreme Court reinstated the Congress gov-
ernment on 13 July 2016, striking down the impugned decisions of Sri Rajkhowa
that has precipitated its fall in January 2016. The five-judge Constitution bench,
in its 331-page order, also advised that ‘the Governor must remain aloof from any
disagreement, discord, disharmony, discontent or dissension, within individual
political parties’ (Nabam Rubia v. Dy. Speaker of Arunachal Pradesh 2016 (8)
SCC 1).
Sri Rajkhowa may not be the last governor whose ‘discretion’ precipitates a
constitutional crisis compelling consideration by a constitutional bench of the
Supreme Court. Supreme Court had minced no words on 24 January 2006 to
declare dissolution of newly elected assembly in Bihar as unconstitutional and role
of Bihar Governor Sri Buta Singh as illegal and mala fide (Rameshwar Prasad
and Others v. Union of India and another 2006 (2) SCC 1). Admittedly, the focus
in the past has more often been on the Presidential rule in the states under Article
356. But as we delve deeper, we find that Article 356 is but a manifestation of
Article 163. It is Article 163 that enables use of discretionary powers by the gov-
ernors at the expense of democratically elected governments in the states. One is
tempted to view this anachronism in Democratic Republic of India as something
of a design or drafting defect in the Indian Constitution. But as we read through
well-meaning but facetious words spoken about responsible government in the
Constituent Assembly, it was a considered choice. A dim view was taken about
responsible governments in the states while extolling it at centre; a theme that runs
across the centre–state relations in India. We may concede that fragility of nascent
Indian nation required a strong centre in 1949, and it was not possible to put con-
ventions styled as the Instrument of Instructions to Governors into the body of
Constitution as a schedule. But if we have witnessed considerable constitutional
improprieties by the governors ever since we adopted our Constitution, can we
concede that some reforms in terms of the manner in which they are appointed
and removed are still not possible? Though short of constitutional amendments,
would it not be better to codify conventions that guide the discretionary actions of
governor than to let it be battled out, every time in the courts?
The President Is More Ceremonial than Functional
Our Constitution with 395 Articles and eight Schedules (originally) was modelled
on the British parliamentary system of government with some federal features.
The president wields limited discretionary powers that are comparable to the
British crown—to advise, to encourage and to warn.
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