Governor : Discretion


  • TN Governor has come under intense scrutiny for not inviting AIADMK interim general secretary V.K. Sasikala to form the government despite the fact that her faction commanded a majority in the Legislative Assembly.
  • Decision on the remission of seven convicts in the Rajiv Gandhi assassination case.

Discretionary Powers:

  • Article 161 of the Constitution provides the Governor with the power to “remit or commute the sentence of any prisoner”.
  • However, the Governor’s decision will be subject to judicial review by the constitutional courts.
  • Currently, the immediate question is whether there is an independent, discretionary power vested with the Governor with regard to Articles 161 and 163 of the Constitution.

SC view:

  • In the Nabam Rebia and Bamang Felix v. Deputy Speaker (2016) case, the  Supreme Court, speaking through a five-judge Bench, viewed that the discretionary power of the Governor is extremely limited and entirely amenable to judicial review.
  • As a matter of fact, time and again, the courts have spoken out against the Governor acting in the capacity of an “all-pervading super-constitutional authority”.
  • Pertaining to the exercise of discretion, in Samsher Singh v. State of Punjab (1974), a seven-judge Bench of the Supreme Court had held that the Governor may do so only “in harmony with his Council of Ministers”.  
  • In an effort to do so, the Governor is prevented from taking a stand against the wishes of the Council of Ministers.

SC view in case of formation of new government:

A 2001 Supreme Court precedent holds that a State Governor should not always be swayed by “popular will” or the “brute” support a chief minister aspirant enjoys from her party MLAs. It said the Constitution empowers the Governor, while appointing a chief minister, to use his discretion to ensure a stable government.

  • A Constitution Bench of the Supreme Court had held in the B.R. Kapur versus State of Tamil Nadu in 2001 that the Constitution does not give elected members of a majority party unfettered right to elect an incompetent or disqualified person as chief minister.
  • The court also held that “the contention that in all eventualities whatsoever the Governor is bound by the decision of the majority party is not a correct proposition. The Governor cannot be totally deprived of element of discretion in performance of duties of his office, if ever any such exigency may so demand its exercise”.

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