StudyPulse
StudyPulse.online
CoursesExam Information Hub
← Back to UPSC Civil Services Notes

Governor's Discretionary Powers

UPSC Civil Services• POLITY• State Executive• Governor's Discretionary Powers
Explains the Governor's discretionary powers under Article 163, covering government formation in a hung Assembly, floor tests, dissolution, reservation of Bills, Article 356 reports and special constitutional responsibilities under the Fifth Schedule, Sixth Schedule and Articles 371A and 371H. Also covers the limits of discretion, judicial review, major Supreme Court judgments, Sarkaria and Punchhi Commission recommendations, UPSC Prelims facts and traps, Mains perspective and quick revision.

Governor's Discretionary Powers

Introduction

The Governor normally acts on the aid and advice of the Council of Ministers headed by the Chief Minister.

However, the Constitution recognises certain situations in which the Governor may exercise:

Discretionary Powers

These powers are limited and must be exercised within the constitutional framework.

The Governor's discretion is particularly important in situations involving:

  • Government formation
  • Hung Assembly
  • Floor tests
  • Reservation of Bills
  • Constitutional breakdown
  • Special constitutional responsibilities

1. Constitutional Basis

The main constitutional provision is:

Article 163

Article 163 provides for a Council of Ministers to aid and advise the Governor, except where the Constitution requires the Governor to exercise functions in discretion.

Therefore:

Normal Rule → Aid and Advice

Exception → Constitutional Discretion


2. Meaning of Discretionary Power

Discretionary power means the Governor may act without being bound by the advice of the Council of Ministers in constitutionally recognised situations.

However, discretion does not mean:

Personal or unlimited authority

The Governor remains subject to:

  • Constitution
  • Constitutional conventions
  • Judicial review
  • Federal principles
  • Democratic norms

3. Appointment of Chief Minister in Hung Assembly

One of the most important areas of discretion arises when:

No political party or alliance has a clear majority

This is known as a:

Hung Assembly

The Governor may exercise discretion in inviting a person to form the government.

The objective should be to identify the person most likely to:

Command the confidence of the Legislative Assembly


4. Order of Preference in Government Formation

In a hung Assembly, constitutional conventions generally favour inviting:

  1. Pre-poll alliance with majority
  2. Largest party with support of others
  3. Post-poll alliance with clear majority support
  4. Other claimant capable of demonstrating majority

The ultimate consideration should be:

Ability to prove majority on the floor of the House


5. Floor Test

If there is doubt about whether the Council of Ministers enjoys majority support, the Governor may call for a:

Floor Test

The Legislative Assembly is the appropriate forum to determine whether the government has majority support.

The Governor should not substitute personal assessment for a floor test.


6. Dismissal of a Ministry

If the Council of Ministers clearly loses the confidence of the Legislative Assembly and refuses to resign, the Governor may take constitutionally appropriate action.

The Governor may require the Chief Minister to:

Prove majority on the floor of the House

If the government fails the floor test, the constitutional position may require the ministry to resign.


7. Dissolution of Legislative Assembly

The Governor normally dissolves the Legislative Assembly on the advice of the Council of Ministers.

However, exceptional circumstances may create a discretionary constitutional situation.

For example:

  • Government loses majority
  • No alternative government can be formed
  • Chief Minister advises dissolution after losing majority

The Governor must consider whether an alternative government can command the confidence of the House before accepting a request for dissolution in certain circumstances.


8. Reservation of Bills

Under:

Article 200

the Governor may reserve certain Bills for the consideration of the:

President

In specified constitutional situations, reservation may be mandatory.

The Governor may also have discretion to reserve a Bill in constitutionally permitted circumstances.


9. Bill Affecting High Court Powers

The Governor must reserve a Bill for the President if the Bill would:

So derogate from the powers of the High Court as to endanger the position which the High Court is designed to fill under the Constitution.

This is a constitutionally significant mandatory reservation.


10. Article 356 Report

The Governor may send a report to the:

President

if the Governor believes that the government of the State cannot be carried on in accordance with the Constitution.

This can contribute to consideration of:

President's Rule under Article 356

The Governor's report is not automatically conclusive.


11. Special Constitutional Responsibilities

In certain States, the Constitution assigns the Governor specific responsibilities involving discretion.

Examples include provisions relating to:

  • Tribal areas
  • Scheduled Areas
  • Special constitutional arrangements

These powers depend on the specific constitutional provision applicable to the State.


12. Governor's Discretion in Scheduled Areas

The Fifth Schedule gives the Governor special responsibilities relating to:

Scheduled Areas and Scheduled Tribes

The Governor may have powers concerning:

  • Application of laws to Scheduled Areas
  • Modification of laws
  • Regulations for peace and good governance of Scheduled Areas

These powers operate within the framework of the Fifth Schedule.


13. Sixth Schedule

The Sixth Schedule provides special arrangements for certain tribal areas in:

  • Assam
  • Meghalaya
  • Tripura
  • Mizoram

The Governor has specific constitutional responsibilities in relation to these arrangements.

The exact nature of the Governor's discretion depends on the relevant constitutional provision.


14. Special Responsibilities in Certain States

The Constitution contains special provisions assigning particular responsibilities to Governors in certain States.

Examples may arise under:

  • Article 371
  • Article 371A
  • Article 371H
  • Fifth Schedule
  • Sixth Schedule

These provisions should be studied separately because the nature and extent of discretion differ.


15. Article 371 — Special Responsibilities

In certain States, the Constitution assigns the Governor specific responsibilities.

For example, Article 371 provides special responsibilities concerning:

Maharashtra and Gujarat

The Governor has responsibility for certain regional development matters as specified by the President.


16. Article 371A — Nagaland

The Governor of Nagaland has a special responsibility regarding:

Law and order

in the State, subject to the constitutional provisions of Article 371A.

The Governor may act in individual judgment in the specified constitutional situation.


17. Article 371H — Arunachal Pradesh

The Governor of Arunachal Pradesh has special responsibility with respect to:

Law and order

The Constitution provides a specific discretionary role in this area.


18. Types of Governor's Discretion

Governor's discretion can broadly be classified into:

A. Constitutional Discretion

Discretion expressly or necessarily arising from constitutional provisions.

Examples:

  • Hung Assembly
  • Reservation of Bills
  • Article 356 report

B. Situational Discretion

Discretion arising from political circumstances where constitutional conventions guide the Governor.

Examples:

  • Choosing whom to invite to form government
  • Calling for a floor test
  • Considering dissolution when the ministry has lost majority

C. Special Constitutional Responsibilities

Specific responsibilities assigned to Governors by special constitutional provisions.

Examples:

  • Fifth Schedule
  • Sixth Schedule
  • Article 371A
  • Article 371H

19. Discretion vs Aid and Advice

The basic constitutional relationship is:

Normal Situation
      ↓
Governor
      ↓
Aid + Advice
      ↓
Council of Ministers

Exceptional situation:

Constitutionally Recognised Situation
      ↓
Governor
      ↓
Limited Discretion
      ↓
Constitutional Principles
20. Governor's Discretion Is Not Absolute

The Governor cannot claim discretion merely because a political question is controversial.

Discretion must arise from:

Constitutional provision
Constitutional convention
Established judicial principles

The Governor cannot use discretion as a substitute for:

Democratic majority

21. Floor Test as Constitutional Safeguard

Where the question is:

Does the government have majority support?

The answer should ordinarily come from:

Floor of the Legislative Assembly

not from:

Personal assessment of the Governor

This protects democratic legitimacy.

22. Judicial Review

The Governor's discretionary actions are not completely immune from judicial review.

Courts may examine whether:

Constitutional provisions were followed
Relevant considerations were taken into account
Power was exercised mala fide
Constitutional limits were violated
Democratic principles were undermined

However, courts generally respect the constitutional position of the Governor and do not replace the Governor's judgment with their own except where constitutional illegality is established.

23. Important Supreme Court Judgments
S.R. Bommai v. Union of India — 1994

Important for:

Article 356
Federalism
Floor Test
Judicial Review

The judgment strengthened the principle that majority should ordinarily be tested on the floor of the House.

Nabam Rebia v. Deputy Speaker — 2016

The Supreme Court examined the Governor's discretionary powers in Arunachal Pradesh.

The Court emphasised that the Governor's powers are subject to:

Constitutional limitations

Rameshwar Prasad v. Union of India — 2006

The Supreme Court examined the dissolution of the Bihar Legislative Assembly.

The case highlighted the need to prevent constitutional powers from being exercised on:

Mala fide or irrelevant grounds

Shamsher Singh v. State of Punjab — 1974

The Supreme Court established the broader principle that the Governor normally acts on the:

Aid and advice of the Council of Ministers

except in constitutionally recognised discretionary situations.

24. Governor's Discretion and Federalism

The Governor's discretionary powers have a major impact on:

Centre-State Relations

Because the Governor is appointed by the President, concerns may arise regarding:

Political neutrality
Central influence
Government formation
Article 356
Reservation of Bills

Therefore, the Governor must maintain:

Constitutional neutrality + Federal sensitivity

25. Issues with Governor's Discretion
1. Political Bias

A Governor may be accused of favouring the Union ruling party.

2. Delay in Government Formation

Unclear conventions can create disputes after elections.

3. Floor Test Delays

Delaying a floor test can create constitutional uncertainty.

4. Bill Reservation

Excessive or unnecessary reservation of Bills can create Centre-State tensions.

5. Article 356

Governor's reports can become politically controversial.

6. Lack of Clear Conventions

Some situations require clearer constitutional conventions.

26. Recommendations
Sarkaria Commission

Recommended that the Governor should:

Act impartially
Follow constitutional conventions
Give priority to testing majority on the floor
Exercise discretion carefully
Maintain political neutrality
Punchhi Commission

Emphasised:

Limited discretionary powers
Constitutional neutrality
Cooperative federalism
Greater clarity in the Governor's role
27. UPSC Prelims Facts
Governor's general discretionary framework is associated with Article 163.
Governor may exercise discretion in appointing a Chief Minister in a hung Assembly.
Majority should ordinarily be tested through a floor test.
Governor may reserve certain Bills for the President.
Governor can send a report under Article 356.
Fifth Schedule provides special responsibilities relating to Scheduled Areas.
Sixth Schedule provides special arrangements for certain tribal areas.
Article 371A contains special provisions for Nagaland.
Article 371H contains special provisions for Arunachal Pradesh.
Governor's discretion is not unlimited.
Governor normally acts on the aid and advice of the Council of Ministers.
Discretionary actions may be subject to judicial review.
28. UPSC Prelims Traps
Trap 1

"Governor has unlimited discretionary powers."

False

Discretion is constitutionally limited.

Trap 2

"Governor can determine majority based solely on personal assessment."

False

Majority should ordinarily be tested on the floor of the House.

Trap 3

"Governor always acts independently of the Council of Ministers."

False

The normal rule is aid and advice.

Trap 4

"Governor can dissolve the Legislative Council."

False

The Legislative Council is a permanent House.

Trap 5

"Every Bill can be freely reserved by the Governor."

False

Reservation operates within constitutional provisions and conventions.

Trap 6

"Article 356 is itself a discretionary power of the Governor."

False

Article 356 is a power of the President.

The Governor's role is to submit a report that may form part of the material considered by the President.

Trap 7

"Governor's discretion cannot be reviewed by courts."

False

Discretionary actions remain subject to constitutional and judicial limitations.

29. Governor's Discretion — Master Map
GOVERNOR'S DISCRETION
│
├── GOVERNMENT FORMATION
│   ├── Hung Assembly
│   ├── Invite CM
│   └── Floor Test
│
├── LEGISLATIVE
│   └── Reserve Bills
│
├── CONSTITUTIONAL CRISIS
│   └── Article 356 Report
│
├── SPECIAL RESPONSIBILITIES
│   ├── Fifth Schedule
│   ├── Sixth Schedule
│   ├── Article 371A
│   └── Article 371H
│
└── LIMITATIONS
    ├── Constitution
    ├── Judicial Review
    ├── Federalism
    └── Democratic Majority
30. Quick Revision
ARTICLE 163
      ↓
Aid + Advice
      ↓
EXCEPTION
      ↓
Governor's Discretion
      │
      ├── Hung Assembly
      ├── Government Formation
      ├── Floor Test
      ├── Bill Reservation
      ├── Article 356 Report
      └── Special Constitutional Responsibilities
31. One-Line Memory Trick

Remember:

"Form Government → Test Majority → Reserve Bill → Report Crisis → Special Areas"

These five areas cover the major dimensions of Governor's discretion.

32. Mains Perspective

The Governor's discretionary powers are necessary to deal with exceptional constitutional situations, but their exercise can affect democratic government and federal relations.

The central constitutional challenge is:

Discretion without politicisation

The Governor must balance:

Constitutional Duty + Democratic Mandate + Federalism + Political Neutrality

The most important safeguard is:

Majority → Floor Test

rather than:

Majority → Governor's Personal Assessment

33. Way Forward
Clear Constitutional Conventions

Government formation should follow established and transparent conventions.

Floor Test

Where majority is disputed, the Assembly should determine the issue.

Limited Discretion

The Governor should exercise discretion only where constitutionally necessary.

Political Neutrality

The office should remain above partisan politics.

Timely Decisions

Constitutional decisions relating to Bills and government formation should not be unnecessarily delayed.

Cooperative Federalism

The Governor should function as a constitutional bridge between the Union and State rather than as a political intermediary.

34. Final Takeaway

The Governor's discretionary powers are an:

Exception to the normal rule of aid and advice.

The major areas are:

1. Hung Assembly and Government Formation

2. Floor Test

3. Reservation of Bills

4. Article 356 Report

5. Special Constitutional Responsibilities

The key principle for UPSC is:

Governor's Discretion ≠ Unlimited Personal Power

It is:

Constitutionally Limited + Judicially Reviewable + Subject to Democratic and Federal Principles