Editorial

Discretionary Powers Indian Journal of Public

Administration

of the President 63(3) vii–xviii

© 2017 IIPA
SAGE Publications
and Governors in sagepub.in/home.nav
DOI: 10.1177/0019556117721847
India in Constitution http://journals.sagepub.com/home/ipa

and Practice

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
viii Indian Journal of Public Administration 63(3)

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
Editorial ix

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
x Indian Journal of Public Administration 63(3)

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 first 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 first 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.
So far, all presidents have acted in accordance with the constitutional or
nominal role of the president in the affairs of the union and state governments,
including Rajendra Prasad, Giani Zail Singh and R. Venkataraman, who in their
notes, speeches and memoirs gave vent to the opinion that the president does have
discretionary role in some normal or abnormal situations even though they never
acted upon their intents, interpretations and understandings. Rajendra Prasad,
Editorial xi

for example, believed that the powers of the British crown and the Indian presi-
dent cannot be identical, as is commonly argued, for the simple reasons that the
crown is hereditary whereas the president is elected by the elected members of the
parliament and State Assemblies; the United Kingdom is unitary whereas India
is federal where the president is elected by a federal electoral college; and the
crown can do no wrong (as it always acts on the advice of the cabinet collectively
responsible to a sovereign House of Commons) whereas the president is impeach-
able. Zail Singh and Venkataraman were called upon by the Opposition and sec-
tions of the media to act against Prime Minister Rajiv Gandhi in the context of
corruption charge in relation to Bofors arms supply deal. They were inclined to
agree after legal consultations in and out of the government but did not act in
the matter; they have nonetheless left behind controversial opinions that contra-
dict the presumed constitutional and legal provisions and conventions (Singh &
Saxena, 2011, Chapter 5).
Do the president and governors have discretionary powers independent of
cabinet advice in sanctioning prosecution of ministers and civil servants under
various central and/or state laws? The Constitution does give some discretionary
powers to governors of some states under the Fifth and Sixth Schedules of the
Constitution in specified matters. Are there discretionary powers beyond these
explicit provisions? The same question applies to the power of the president and
governor under the Constitution to grant clemency to citizens convicted with
death sentence.
Does the president (and for that matter a governor) have discretionary powers
as visitor or chancellor of universities? These are subject to the parliamentary and
state legislative legislations relating to the central and state universities concerned.
Do the president and governors enjoy any discretionary powers regarding
the dissolution of the popularly elected House of the legislative branch of the
governments at the union and state levels? In the United Kingdom, the advice of
a prime minister as to the dissolution of the House of Commons is absolute in
the conventions of the Constitution now even when such an advice is made by
a prime minister who has lost the majority in the Commons. In Canada in 1926
Prime Minister Lyon Mackenzie King, who faced censure motion in the House
of Commons on a government scandal involving customs officials, requested
Governor General Julian Byng to dissolve the Commons and call for a fresh elec-
tion. Byng refused and appointed the Conservative Party leader Arthur Meighen
as the PM who failed to keep the confidence of the House and had to resign. In the
ensuing election Mackenzie King was returned with a clear majority. Since then
no governor general has done so, setting an established constitutional convention
in the matter. The practice in India has diverged both at the state level since the
late 1960s and at the centre since the late 1970s, though, to my memory subject
to correction, there are perhaps only a few cases since the early 1970s and the late
1970s. In 1971, when Prime Minister Indira Gandhi’s Congress government was
reduced to a minority after the 1969 great split in the party and her government
survived with the legislative support of the Communist Party of India and Dravida
Munnetra Kazagham without joining the government, she decided for a midterm
poll and President V. V. Giri accepted her advice (Singh, 1981). When the Janata
xii Indian Journal of Public Administration 63(3)

Party Prime Minister Morarji Desai resigned after apparent loss of majority in
July 1979, he did not advise dissolution of the house to President Sanjiva Reddy.
The first case occurred when Prime Minister Charan Singh (heading a minority
government of the Lok Dal splinter of the Janata Party supported by Congress
party from the parliamentary floor in the wake of the fall of the Janata Party
government) having sensed the loss of majority in the Lok Sabha in 1980 advised
President Sanjiva Reddy to dissolve the House. President Reddy without going
through the motion of giving opportunity to one among several claimants, includ-
ing the newly emergent leader Jagjivan Ram of the largest single party, the Janata
Party, ordered dissolution and fresh election (Reddy, 1989, Chapters 6 and 7).
President Venkataraman also faced a fluid political condition in 1991 and dis-
solved the Lok Sabha on the advice of Prime Minister Chandra Shekhar (of
the Samajvadi Janata Party supported by the slippery support of the Congress
party from the parliamentary floor) who had lost the confidence of the House
(Venkataraman, 1994, pp. 481–482). Additionally, there were no competing claims
to form an alternative government. Arguably, by and large, discretionary powers
of the constitutional heads of the federal or regional states in India appear to be
well established in refusing automatic dissolution in case of a head of government
who has lost parliamentary or legislative majority, notwithstanding a couple of
precedents to the contrary in case of the president, which are far from crystal clear
in terms of causal efficacy of a single factor (Reddy, 1989, Chapters 6 and 7 on
Morarji Desai and Charan Singh episodes). My explorations about the two resig-
nations by the minority governments led by Prime Minister Atal Bihari Vajpayee
in 1996 after thirteen days in office and in 1998 after thirteen months in office
following the withdrawal of outside support of BSP and AIADMK, respectively,
suggest that the PM bowing out of office did not advise dissolution to the presi-
dent. The president explored the possibility of forming an alternative government
on both occasions, successfully in 1996 leading to the installation of the H. D.
Deve Gowda-headed Janata Dal-led United Front government, and having failed
in the second instance called for a snap election in 1998. When Prime Minister I.
K. Gujral lost majority following the withdrawal of support by Congress party,
he resigned but did not advise dissolution. Congress’ claim to form an alternate
government lacked evidence of credible support. President Narayanan ordered a
fresh poll (Gujral 2011: chapter 65).
While the Constitution has not expressly provided for discretionary powers
of the president, it has, on the other hand, made such provisions in relation to the
governors. Article 163(1) reads:

There shall be a Council of Ministers with the Chief Minister at the head to aid and
advise the Governor in the exercise of his functions, except in so far as he is by or under
this Constitution required to exercise his functions or any of them in his discretion.

Clause (2) of this article makes the decisions of the governor final in determining
the matters in respect of which his discretionary powers apply and the validity of
this issue ‘shall not be called in question on the ground that he ought not to have
acted in his discretion’. Clause (3), as in the case of the president, stipulates that
Editorial xiii

‘the question where any, and if so what, advice was tendered by Ministers to the
Governor shall not be inquired into in any court’.
As already stated above, a most important discretionary power of the president
and governor is the selection of the head of the government in a hung House.
The first Commission on Centre–State Relations chaired by Justice R. S. Sarkaria
has offered some guidelines for the governor in this regard, which mutatis mutandis
also apply to the president. In case of a majority party enjoying absolute majority
in the Vidhan Sabha the governor has no discretion; the majority will of the people
and the House must be honoured. In case of a hung House, the governor should
generally go about in choosing a chief minister in ensuring the appointment of
the party or a coalition with the widest support in the Legislative Assembly.
Additionally, s/he should proceed in the following order and in accordance of
the following principle: (a) the coalition that was formed prior to the election,
(b) the largest single party staking the claim, (c) a post-election coalition of parties
with all the parties joining the government and (d) a post-election coalition with
some parties joining the government and some, including non-party independ-
ents, supporting the government from outside. The governor should select a leader
who in his assessment is most likely to command a majority in the Assembly
(Government of India, 1988, Para 4.16.10).
An obvious area of presidential and gubernatorial discretion is the dismissal
of a state government and/or dissolution of the Assembly by the union executive
on account of the failure of constitutional machinery in a state under Article 356.
Here governor’s discretion is not subject to state cabinet advice, but it is subject
to the directive of the president, that is, union cabinet.
In terms of Article 244 of the Constitution read with Fifth and Sixth Schedules,
the governor is required to act in his discretion in administration and control of
Scheduled Areas and Scheduled Tribes (under provisions of the Fifth Schedule
in any state applicable to the states other than the states of Assam, Meghalaya,
Tripura and Mizoram where the Sixth Schedule is instead applicable). In the Fifth
Schedule states, the governor is not obliged to act on state cabinet advice in decid-
ing and notifying which Act of Parliament or State Legislature shall not apply
to a Scheduled Area or any part thereof. Instead, the governor must ‘consult’
in this matter where a Tribal Advisory Council (TAC) exists in the state. The
TAC consists of not more than twenty members of whom, as nearly as may be,
three-fourths shall be representatives of the Scheduled Tribes in the Legislative
Assembly of the state. The governor is also empowered to make regulations for
‘peace and good government’ in Scheduled Areas. My talk with a former gover-
nor of Sikkim indicates that the governors usually leave the matter to be disposed
of by the Ministry though only their advice ought to be sought before final deci-
sion by the governor. This is corroborated by several scholarly articles on the
Scheduled Areas in this special issue of our journal.
In Sixth Schedule Tribal Areas in the states of Assam, Meghalaya, Tripura and
Mizoram, the Constitution provides for the formation of District Councils and
Regional Councils largely elected on the basis of adult franchise and partly nomi-
nated by the governor. These bodies are endowed with the power of making laws,
with the assent of the governor, dealing with matters relating to land, agriculture,
forest, canal irrigation, village and town committees, appointment or succession
xiv Indian Journal of Public Administration 63(3)

of chiefs and headmen, property and succession, marriage and divorce, social
customs, etc. In these spheres, the representative autonomous District Councils
and Regional Councils replace the Legislature and cabinet in the state as the
surrogate competent authorities for the Sixth Schedule Tribal Areas.
Functions of a governor appointed to be an administrator of a union territory
are also featured with discretionary powers.
In other cases, the governor must act on the advice of the council of ministers
(Rai Sahib Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549; A. Sanjeevi
Naidu v. State of Madras, AIR 1970 SC 1102). Moreover, the function of hearing
appeal against Public Service Commission by a governor is also to be performed
on cabinet advice (UP Public Service Commission v. Suresh, AIR 1987 SC 1953).

II
Our special issue this year on discretionary powers of constitutional heads of the
regional and federal states has received more contributions on the governor than
on the president. This is rather surprising as the Rashtrapati Bhavan is a more
glamorous symbol of republican regalia than the more numerous Raj Bhavans.
But the response pattern of our contributors may be reflective of two reasons.
First, the president has expressly been given no discretionary powers by the
Constitution, whereas the governors have been. Second, the presidency has in
practice been less prone to criticism and controversy in the exercise of its implied
or circumstantial discretionary power than the governors, both in the context of
implied as well as explicit discretionary powers.
The appointment and role of governors have been a persistent theme of a mal-
functioning clog in the federal political machinery in the country, especially since
the late 1960s, than any other aspect, with the possible exception of the party
system. Some other aspects of the federal system have undergone some reme-
dies following the transformation of the party system of Congress dominance
into a multiparty system of regionalised pluralism and the increasing judiciali-
sation of the political process. However, gubernatorial partisan malfunctioning
has not undergone reforms to a significant extent. This has been so despite the
very rich reformist discourse contained, over the decades, in the first Centre–
State Commission Report in two volumes (Chair Justice R. S. Sarkaria), the
National Commission to review the working of the Constitution in two volumes
(Chair Justice M. N. Venkatachaliah), and the second Centre–State Relations
Commission Report in multiple volumes, especially volume 2 (Chair Justice
M. M. Punchhi). Perhaps the earliest reformist deliberation in this context
happens to be the Bhagwan Sahay Committee of Governors on the role of gover-
nors appointed by President V. V. Giri in 1970. The Committee saw the role/duty
of the governor as the head of the state ‘to see that the administration of the state
does not break down due to political instability’ and ‘to take care that responsible
government in the state is not lightly disturbed or suspended...’ (Government of
India 1971:68–69).Only very few and marginal recommendations of these reports
have been implemented by parties in power at the union and state levels.
Out of twelve articles in this issue, only two focus on the presidential discre-
tionary powers. Rajendra K. Pandey in his concern with what he calls ‘context
Editorial xv

as pretext’ deals with admirable brevity the British hangover casting its spell on
the Constituent Assembly of India in not providing any explicit discretionary
powers to the President of India. Yet he notes that there are variations between
the two constitutional systems and their contexts, and predictably the President
of India does have some implied discretionary powers, but regrettably there
are very few precedents that have solidified into constitutional conventions.
Ruchi Tyagi goes into great details of how the presidency of India has evolved
under different incumbents impacted by widely varying political circumstances,
especially the changing contours of party systems—national and regional, person-
alities of the prime ministers and presidents, and belatedly the changing temper of
judicial behaviour. She has meticulously charted the roles—discretionary or con-
strained—carved out by different presidents in selection and dismissal of prime
ministers, early dissolution of Lok Sabha and state legislatures, allowance or dis-
allowance of state legislations, etc. In the process, the instruments of suspensive
veto and pocket veto have crystalised or been invented.
The next set of articles deal with gubernatorial discretionary powers in the
general context, by and large. Mahendra Pal Singh, with notable legal precocity,
refers to his early reading of the discretionary powers of governors as early as in
an article published in the Journal of Indian Law Institute in 1971, which was
echoed more fully in some latest judgements of the Supreme Court, for example,
Nabam Rebia & Bamang Felix v. Deputy Speaker and Others (Arunachal Pradesh
Legislative Assembly; 2016). After examining the Constitution, law, practice and
recommendations of the various constitutional commissions, the five-judge bench
came to the conclusion that (a) the discretionary power of the governor is limited
to the scope stipulated in Article 163(1), (b) it is limited to situations where the
Constitution expressly requires him to so act, (c) its scope is not open to wider
construction, (d) there should be no conflict of interest involved, (e) its exercise is
not final and immune from judicial review and (f) the verdicts of the Calcutta and
Bombay High Courts on this issue are not sustainable. In the Documents section
of this issue, we have reproduced some crucial excerpts from this judgement of
the Supreme Court.
Bidyut Chakarborty seeks to make a political theory argument against guber-
natorial discretionary powers in the Indian context where national liberation was
attained through civil disobedience or satyagraha and where there is no room for
these outmoded colonial doctrines that are antithetical to democracy. But in my
opinion in his demos-cratic critique of Article 163 relating to ministerial advice
to the governor and his search for some support for his argument in recent court
judgements overlooks the jurisprudence of the original intentions of the makers
and their rationale as well as the complexities of the asymmetrical federal features
as reflected in Articles 370 and 371 read with the Fifth and Sixth Schedules of the
Constitution.
Atul Kumar Tiwari brings about some needed balance in the ‘demos-cratic’
and postcolonial fervor of Bidyut Chakraborty by advising against getting cynical
against discretionary power of governors. He makes a thorough scanning of the
Constituent Assembly debates and judicial discourse on the topic to a hermeneutic,
constitutionalist understanding of their rationale. He does, however, underline the
need of evolving some constitutionally consistent conventions to bring about a
xvi Indian Journal of Public Administration 63(3)

degree of uniformity in the differential treatment of similar situations by gov-

ernors. He is hopeful of moving in this direction through the instrumentality of
Inter-State Council to guide the governors in the exercise of their discretionary
powers under the Constitution.
Shashi Bhushan Kumar presents a balanced treatment of the subject in terms
of the nature of the office of the governor, its appointees and their role envisaged
by the makers of the Constitution and narrates their belied expectations by the
patterns of governors’ appointment and their actual political behaviour.
In his article titled ‘Reimagining Governor’s Institution and Federalism’,
political reforms activist Dr Jayaprakash Narayan offers a very thought-
provoking piece in a comparative politics perspective with illustrations from
India, Australia and Germany. Even though he admits that having broadly adopted
the Westminster model of government with some federal trappings, there was
certain path-dependency that made the heads of the federal and regional states
largely constitutional and nominal. However, he notes that

it is widely accepted that the constitutional head of state is not a mere rubber stamp or
cipher. He wields considerable moral authority, and has a definite role as the head of
state and impartial custodian of the Constitution. He has a right to be informed regularly
of the affairs of the state. He has a right and duty to advise and caution the Council of
Ministers (through the Prime Minister). He has the constitutional right to send back
a bill or ordinance to the government for reconsideration. Such an action should not
be taken lightly, and wise governments sensitive to public opinion should give great
weight to the President’s views and advice. Reckless reassertion of its recommendation
will almost certainly be politically costly.

In fact, Jayaprakash Narayan makes out a case for discretion in some select areas,
for example, the practice of appointing defectors facing disqualification proceed-
ings under the Tenth Schedule of the Constitution as ministers, appointment of
legislators against whom charges are framed in courts, granting sanction for pros-
ecution of public servants under Section 19 of the Prevention of Corruption Act,
constitutional appointments, prevention of enactment of laws violative of funda-
mental rights, repromulgation of ordinances, wholesome judicial appointments in
interest of constitutional balance, etc.
Then, in a group of four papers, the authors discuss the working of the
asymmetrical federal features of the Indian political system in relation to the
Fifth and Sixth Schedules of the Constitution of India. Jagdish K. Patnaik exam-
ines the crucial role of the governor in the working of Autonomous District
Councils (ADCs) in the states of Assam, Meghalaya, Tripura and Mizoram under
Articles 244(2) and 275(1). As a representative of the President of India, it is the
duty of the governor to ensure autonomy of the ADCs from the general majoritar-
ian ministry of the state through his discretionary executive power independent
of the state government. But the realities on the ground suggest that files to
the governor are actually routed through the Ministry of District Council and
Minority Affairs in Mizoram and the former is guided by the latter and virtually
acts as the nominal or constitutional head of the state. This defeats the whole intents
and purposes behind designing the Sixth Schedule as a mini-Constitution with a
different grain from the main Constitutional framework.
Editorial xvii

Nayakara Veeresha analyses the role of the governor in the governance of the
Fifth Schedule Areas through discourse and documentary study of the annual gov-
ernors’ reports accessed through the Centre for Policy Research, New Delhi. He
finds that some court judgements have found some ambiguity in the discretionary
powers of governors in Scheduled Areas in central India. Some other evidence is
found in his study regarding the fulfilment of constitutional obligations of dis-
cretionary powers under Article 244(1) independent of state government in areas
such as prevention of alienation of lands of tribals in particular and in making
regulations for peace and good governance in general. The author emphasises the
need for a more proactive role on the part of the governors in this context and the
need for financial allocation as well as an administrative cell for this jurisdiction
in the Raj Bhavan.
Thongkholal Haokip examines the role of the governor of Manipur in fulfilling
his ‘special responsibility’ under Article 371C of the Constitution of India to
ensure proper functioning of the Hill Areas Committee. He postulates a politics
of what he calls a ‘political quadrangle’ in this context comprising the state gov-
ernment, the union government, the governor and the Hill Area Committee in
which the role of the first two entities severely constrict the discretionary powers
of governors and the autonomy of the Hill Area Committee constituted to protect
the rights of the minority tribes. Reform in this state of affairs is stressed by the
author.
Gadadhar Mohapatra examines the working of the Tripura Tribal Areas
Autonomous District Councils (TTAADCs) under the Sixth Schedule of the
Indian Constitution. He offers a detailed study of this institution in the state and its
executive, legislative, financial and judicial powers, its role in decentralised plan-
ning, and emerging issues and concerns. His analysis indicates that the govern-
ance of the Sixth Schedule TTAADCs is better, at least in relative terms, though
he also concludes with a note on the rising expectations of the people and the need
of improved performance in governance.
The articles in the issue are followed by a section of Documents with relevant
Articles of the Constitution, excerpts from two Supreme Court judgements, some
book reviews and a comprehensive bibliography bearing on the theme of this
special issue prepared by the Library of IIPA.

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Government of India (1971). Report of the Committee of Governors. New Delhi: President’s
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xviii Indian Journal of Public Administration 63(3)

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Mahendra Prasad Singh

Editor