Governor's discretion cannot be arbitrary or fanciful: SC Constitution Bench

In his speech on the constitutional role of Governors, Dr. B.R. Ambedkar described how a Governor should use his discretion not as “representative of a party” but as “the representative of the people as a whole of the State”.

Updated - May 19, 2018 09:06 am IST

Published - May 18, 2018 10:15 pm IST - NEW DELHI

NEW DELHI, 09/04/2013: Supreme Court of India in New Delhi on April 10,  2013. 
Photo: S. Subramanium

NEW DELHI, 09/04/2013: Supreme Court of India in New Delhi on April 10, 2013. Photo: S. Subramanium

The core constitutional issue behind the Congress party's challenge is whether the appointment of V.P. Bopaiah by Karnataka Governor Vajubhai Vala is an “arbitrary” use of gubernatorial discretion.

Article 180 (1) of the Constitution gives the Governor the power to appoint a pro-tem Speaker. The Article says that if the chair of the Speaker falls vacant and there is no Deputy Speaker to fill the position, the duties of the office shall be performed “by such member of the Assembly as the Governor may appoint for the purpose”.

The Supreme Court on Thursday ordered the appointment of a pro-tem Speaker to conduct a floor test to decide the majority in the Karnataka Assembly on May 19. It is the Governor's duty to make the appointment. Article 180 (1) is silent about the extent to which the Governor can use his discretion.

The BJP defends the Governor's appointment of Mr. Bopaiah by quoting Article 163(2) of the Constitution. The latter part of this Article mandates that “the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion”.

But the five-judge Constitution Bench of the Supreme Court led by then Chief Justice J.S. Khehar in the Nabam Rebia judgement of 2016 ruled that Article 163 does not give Governors a “general discretionary power” as is often misunderstood.

“The area for the exercise of his (Governor) discretion is limited. Even this limited area, his choice of action should not be arbitrary or fanciful. It must be a choice dictated by reason, actuated by good faith and tempered by caution,” the Constitution Bench, of which the current Chief Justice Dipak Misra was a part of, held.

The Rebia case dealt with the problem of the Arunachal Pradesh Governor advancing the date for the sixth Assembly session in the northeastern State.

In his speech on the constitutional role of Governors, Dr. B.R. Ambedkar described how a Governor should use his discretion not as “representative of a party” but as “the representative of the people as a whole of the State”.

This begs an answer

One of the issues which may arise is whether or not the discretion of the Governor can be judicially reviewed by the Supreme Court. But a Constitution Bench judgement in 2006 in the Rameshwar Prasad case has held that the “immunity granted to the Governor under Article 361 (1) does not affect the power of the Court to judicially scrutinise the attack made to the proclamation issued under Article 361(1) of the Constitution of India on the ground of mala fides or it being ultra vires”.

The powers of a pro-tem Speaker are wide. The Bombay High Court in its 1994 judgement in the Surendra Vassant Sirsat case holds that a pro-tem is Speaker of the House “for all purposes with all powers, privileges and immunities” until the Speaker is elected.

The Odisha High Court also agreed in the Godavaris Misra versus Nandakisore Das, Speaker, Orissa Legislative Assembly case when it said the “powers of the Speaker pro-tem are co-extensive with the powers of elected Speaker”.

Experts say that any doubts regarding the appointment of the pro-tem Speaker may have to be first dispelled as the proceedings of the Legislature chaired by the Speaker pro-tem are as much protected under the Constitution as those chaired by the elected Speaker.

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