Constitutional Contours of the Discretionary power of the Governor under The Indian

Constitution
A reading of the text of Indian Constitution indicates that it does not explicitly
grant any discretionary powers to the President of India, especially after the 42nd
and 44th Amendments (1976 and 1978). The president is expressly required by
Article 74 of the Constitution to always have a council of ministers to aid and
advise and to always act in accordance with its advice in exercise of one’s func-
tions. The original Constitution had left the presidential action in conformity of
the advice of the ministerial council subject to the constitutional convention
in this regard without including any express provisions to this effect. But the
Constituent Assembly Debates, excepting sceptical queries by its President
Rajendra Prasad about the absence of any explicit provisions binding the presi-
dent of the forthcoming Indian republic to cabinet advice and final acquiescence
with the general consensus in the constituent group, left no ambiguity about the
intents and purposes of the founding fathers. This was subsequently reiterated by
the Supreme Court in its interpretation of the Constitution and the jurisprudence
of the original intentions of the makers and convention of the Constitution in
Shamsher Singh v. State of Punjab, AIR 1974 SC 2192. The subsequent constitu-
tional amendments (42nd and 44th) made it a matter of a written constitutional
provision, leaving the president the only leeway that s/he ‘may require the Council
of Ministers to reconsider such advice, either generally or otherwise’, but added
that ‘the President shall act in accordance with the advice tendered after such
reconsideration’ (44th Amendment). The amendments thus incorporate the case
law laid down on this issue by the Supreme Court of India in Shamsher Singh vs.
State of Punjab referred to above. Article 74(2) also adds: ‘The question whether
any, and if so what, advice was tendered by ministers to the President shall not be
required into in any court.’ The use of ‘ministers’ in plural implies the council of
ministers here barring individual ministerial advice to the president. In case law it
is, however, established that clause 2 of this Article does not bar judicial scrutiny
of ministerial advice to the president (S. P. Gupta v. President of India AIR 1982
SC 149; State of Rajasthan v. Union of India, AIR 1977 SC 1361). Moreover, courts
can justifiably look into the basis of the advice subject to the provisions of section
123 of the Evidence Act (Kartar Singh v. State of Punjab, 1944, 3 SCC 569).
Academic studies specifically focused on discretionary powers of the president
and/or governors are not available with the solitary exception of a recent book
on presidential discretions (which is also not exhaustive of all dimensions of this
power, e.g., clemency powers) i.e. Chatterjee (2016).
The president seems to enjoy considerable discretion in the appointment
of the prime minister (PM), if not of ministers. Article 75(1) provides: ‘The
Prime Minister shall be appointed by the President and the other Ministers shall
be appointed by the President on the advice of the Prime Minister.’ However,
Article 75(3) goes on to add that ‘[t]he Council of Ministers shall be collectively
responsible to the House of the People’. This clause restricts the president’s choice
to appointing the leader of the party or coalition of parties enjoying majority in
the House of the People after an election and any subsequent contingency as to
political realignment, etc., in an existing House. However, in case an uncertain
electoral verdict or subsequent political realignments among parties or coalitions
produce a hung Lok Sabha, the president does acquire an enormous scope for dis-
cretionary cracking of the nut impliedly, and arguably, subject to judicial review.
In 1989, President Venkataraman appointed V. P. Singh as the PM as he was
the leader of the largest party, Janata Dal, and its post-election coalition, National
Front, in the newly elected Lok Sabha. The president did this after Rajiv Gandhi,
leader of the largest single minority party, Indian National Congress (INC) ahead
of the Janata Dal, declined the offer to form a government. However, within
less than a year, Chandra Shekhar defected from the Janata Dal and formed the
Samajvadi Janata Party causing the fall of the V. P. Singh government. President
Venkataraman consulted the INC and the Bharatiya Janata Party (BJP), the largest
two national parties in the House, for an alternate government formation, but
both declined. Thereafter, he accepted the claim of Chandra Shekhar in 1990 to
form a government with the support of the INC from parliamentary floor without
joining the government after verifying the assurance of unconditional support by
Rajiv Gandhi of INC. But within a few months INC toppled the Chandra Shekhar
government unceremoniously. After the 1991 Lok Sabha elections that followed,
President Venkataraman appointed P. V. Narasimha Rao, the leader of the largest
minority party, INC, as the PM of a minority government with no formal coalition
with any major party but with no evident opposition from any party. There was,
in fact, an implicit understanding of conditional support by BJP to INC. Rao ruled
with Kautilyan tactics for about half of the term as a minority government but
managed to fabricate a majority in the second half. Andhyarujina (2009) argues:
President Venkataraman evolved a rule that in a Parliament where no party had a
major-
ity, political parties in order of their strength should be given the opportunity to form
a government and the President was not to consider the viability of a government so
formed. According to him, that was to be left to the Lok Sabha.
In 1996, President Shankar Dayal Sharma invited Atal Bihari Vajpayee, leader of
the largest minority party in the newly elected hung House, to form a government,
advising him to seek a confidence vote. Vajpayee failed to prove his majority and
resigned after a long speech in the House without a formal test of majority within
thirteen days. Thereafter, President Sharma offered the opportunity to the Janata
Dal-led United Front which formed a government headed by H. D. Deve Gowda
with the outside legislative support of the INC, which also fell midstream due to
withdrawal of support by its Congress ally in legislative coalition with it demand-
ing the change of Prime Minister Deve Gowda for his alleged insensitivity to the
interests of INC. Deve Gowda was replaced by I. K. Gujral. Gujral too had to bow
out of office in 1997 when Congress President Sitaram Kesri pulled the rug under
his feet after the United Front government declined to drop Dravida Munnetra
Kazagham ministers in the coalition government who had been indicted by the
Jain Commission inquiring into the conspiracy behind Rajiv Gandhi’s assassina-
tion. The outgoing PM advised dissolution of the House and fresh election.
President K. R. Narayanan first explored the possibility of forming an alternate
government in the existing House, but failing to find it of no avail, ordered a fresh
election. In the newly elected Lok Sabha in 1998, President Narayanan did not go
through the motions of accepting the claim of the largest minority party, BJP, led
by Vajpayee to form the government. Instead, he first sounded all major parties as
to their stand and satisfied himself that the BJP did have the support of the major-
ity in the House before inviting Vajpayee to form a government. The BJP was
asked to furnish letters of support to demonstrate the majority of the National
Democratic Alliance (NDA) led by this party. Vajpayee was then requested to
secure a vote of confidence in ten days which he did. In 1999, an NDA ally, All
India Dravida Munnetra Kazagham, withdrew its support making the government
unsustainable. President Narayanan advised Prime Minister Vajpayee to seek a
vote of confidence. This motion was defeated. Both Vajpayee and INC President
Sonia Gandhi then staked the claims to form an alternate government. The presi-
dent wanted proofs of majority which none could produce. The president then
dissolved the House and ordered fresh polls. In the ensuing elections, the NDA
won a majority and Vajpayee was appointed the PM and completed a full term.
Moreover, following the 2004 Lok Sabha election, President A. P. J. Abdul
Kalam called upon Sonia Gandhi, the leader of the largest party INC and its post-
election United Progressive Alliance (UPA), to form a government. However, she
instead stepped aside and nominated Manmohan Singh for the top governmen-
tal position (Kalam, 2012, p. 135). She instead preferred the top position in the
party as the president and the chair of a semi-governmental National Advisory
Council (NAC) set up by a notification in the Gazette of India. Following the
2009 Lok Sabha election, the INC-led UPA was re-elected with a majority, and
President Pratibha Patil re-appointed Manmohan Singh as the PM. There was a
dual power structure in these two UPA governments in which the party organisa-
tion headed by Sonia Gandhi was more dominant than the government headed
by Prime Minister Manmohan Singh (Hasan, 2012). In the parameter-altering
2014 Lok Sabha election in the summer of 2014, when BJP–NDA prime ministe-
rial candidate Narendra Damodardas Modi won a momentous electoral victory
with a single party BJP majority after three long decades since 1984, President
Pranab Mukherjee had no need to exercise his discretionary power in selecting
and appointing the prime minister in face of an obvious fact (Singh, 2016).
According to Jha (2012) there are two underlying constitutional conventions
regarding the British parliamentary cabinet system which India has ‘destroyed’ or
sought to ‘challenge’. These are (a) the unchallengeable right of the PM to dis-
solve the House of Commons and the Crown’s obligation to accept it, and (b) the
unquestioned ascendancy of the parliamentary wing of a political party over its
organisational wing outside the parliament. Jha contends that India diverged from
the first British convention in 1967 when
the Congress high command prevented its rst chief minister in Madhya Pradesh,
D.P.
Mishra, from asking for a fresh election when faced by the defection of 31 MLAs to
the
opposition, and forced him to resign instead. It did this because it was itself
organising
defection from non-Congress governments in West Bengal, Bihar, Haryana and
Punjab.
‘The second convention was challenged repeatedly within the Congress,’ he
contends,
the rst time in 1950 by Purushottam Das Tandon; a second time in 1969 by the
‘syndi-
cate’ under Congress President S. Nijalingappa, and a third time at the AICC meeting
at
Tirupati in 1992 [during the Congress minority government led by Prime Minister
P.V.
Narasimha Rao] when a slate of regional leaders tried to capture the Congress
Working
Committee. On all three occasions, the parliamentary party withstood the challenge
and maintained its right to decide policy even though in 1969, Indira Gandhi’s effort
destroyed the undivided Congress. [Also see Singh, 1981, on the pre-P. V. Narasimha
Rao Congress events under Prime Minister Indira Gandhi.]
Despite the blanket provision regarding acting in accordance with ministerial
advice mentioned above, does the president have any discretionary powers in the
functioning or malfunctioning of the Government of India and/or the govern-
ments in states in normal or emergency conditions contemplated in Article 352
(national emergency), Article 356 (emergency in a state), and financial emergency
in India or any of the states of the Indian union (Article 360)?
There are only some inconclusive academic debates on powers of the president
in general and in emergencies and otherwise in Alexandrivicz (1957), Munshi
(1997) and Malik (2015). There are weighty yet untested opinions in the notes and
papers and memoirs of presidential incumbents such as Rajendra Prasad (Singh &
Bhatia, 2008), Singh (1997) and Venkataraman (1994). The terrain of emergency
powers is also largely unexplored by the judiciary as well, except for a tome in
terms of judicial reviews of president’s rule in states under Article 356 of the
Constitution since the paradigm shift in judicial behaviour in this area in and since
the S. R. Bommai and Others v. Union of India, AIR 1994SC 1918, which unani-
mously made president’s rule in a state open to judicial review. We give excerpts
of the effective parts of the rulings of the Supreme Court’s nine-judge bench in
this case and the five-judge unanimous judgement of the Supreme Court in the
recent Nabam Rebia case in Arunachal Pradesh in the section of this issue of the
journal on Documents.