Chapter- VII

Judicial Review of the Exercise of Discretionary

Powers of the Governor

7.1 Introduction:

Constitution of India itself provides some discretionary powers to the

Governors. Sometime Governors do not exercise their discretionary powers

judiciously. Here the role of the judiciary starts and many times judiciary has

provided valuable guidelines for the Governors. The role of the courts can be

discussed in relation to the different discretionary powers as follows:

7.2 Appointment of the Chief Minister:

Judicial approach regarding the appointment of Chief Minister was

highlighted in Mahabir Prasad vs Prafulla Chandra1 in which, it was laid down

that the power of Governor is absolute with regard to appointment of Chief Minister

and court cannot call in question the same, since it is his sole discretion.

In Pratap singh Raojirao vs Governor of Goa2 the court held that

for the purpose of the appointment of the Chief Minister, Governor acts in his sole

discretion and while taking decision in his sole discretion he enjoys immunity under

Article 361 of the Constitution.

1
AIR 1969 Cal. 198.
2
AIR 1999 Bom. 53.

285
 In Jagdambika Pal vs State of U.P.3 the Supreme Court directed

convening of special session of the Assembly and to have a composite floor test

between contending parties to ascertain who out of two (Sh. Kalyan Singh and Sh.

Jagdambika Pal) enjoys a majority in the Assembly.

About the discretionary power of the Governor in appointing or

dismissing the Chief Minister, the Gauhati High Court observed that the repository

of power to appoint Chief Minister or to withdraw the pleasure contemplated under

Article 164 and/or dismissal of ministry are exclusively pleasure-cum-discretion of

the Governor. He is the sole and exclusive authority to appoint a Chief Minister.4

About the appointment of a non-legislator as the Chief Minister in

B.R. Kapur vs State of Tamil Nadu,5 court held that a non-legislator can be made

Chief Minister only if, he has the qualification for membership of the Legislature

prescribed by Article 173 of the Constitution and is not disqualified from the

membership thereof by reason of the disqualification set out in Article 191 of the

Constitution on the date of his appointment. A person convicted of any offence and

sentenced to imprisonment for not less than two years cannot be appointed as a

Chief Minister because the Constitution is superior to mandate. The Court also held

that the suspension of the execution of the sentence does not alter or affect the fact

that the offender has been convicted of a grave offence and does not remove the

disqualification against the offender.

3
AIR 1998 SC 998.
4
Jogendra Nath vs State of Assam, AIR 1982 Gau. 25.
5
AIR 2001 SC 3435.

286
 The Supreme Court quashed the appointment of Ms Jayalalitha as

the Chief Minister of Tamil Nadu. The Supreme Court has now very clearly laid

down that the Governor's discretion in the appointment of a Chief Minister is not

unfettered or absolute. If Governor appointed a person as the Chief Minister, who

was not qualified to be a member of the State Assembly, his appointment would be

ultra-virus under Article 164 of the Constitution. The Court also laid down that,

The Governor cannot in the exercise of his discretion or otherwise, do anything

that is contrary to the Constitution.6

7.3 Dissolution of State Assembly:

In S.R. Bommai vs UOI,7 the Supreme Court held that dissolution of

the Assembly is subject to judicial review and if the court is convinced that it is

malafide, it can even revive the Assembly, before fresh elections are held. The

Supreme Court also held that the dissolution of the Legislative Assembly is not a

matter of course and that it should be resorted to only where it is found necessary

for achieving the purposes of proclamation, which is to carry on the government of

the State in accordance with the provisions of the Constitution.

When the Bihar Legislative Assembly was dissolved on the basis of

the Governors report, NDA challenged the dissolution of the Bihar Assembly in

the Apex Court and pleaded that it was the responsibility of UPA Government to

prove in the court that Governor Buta Singhs report, on the basis of which the

Bihar Assembly was dissolved, was neither politically motivated, nor hasty. But the

6
The Tribune, Sept. 30, 2001.
7
AIR 1994 SC 1918.

287
Bommai judgement specifically says that there are no judicially discoverable and

manageable standards to decide the allegation of horse-trading. The Cabinet

earlier held an emergency meeting late into the night after receipt of the Governors

report recommending dissolution of the State Assembly. The Assembly had been in

suspended animation since the imposition of Presidents Rule in the State in March

after the elections in February, 2005, which threw up a hung verdict, where no party

or alliance of parties was in a position to form the government.

On January 24, 2006 a five-judge constitutional bench, by a majority

of 3-2, held that the dissolution of the Bihar Assembly was without any evidence to

show that "a majority was being cobbled up by offering allurement and through

unethical means". The majority judgment held that there was no material, let alone

relevant, with the Governor to recommend dissolution and the drastic and extreme

action of dissolution cannot be justified on mere ipse dixit, suspicion, whims and

fancies of the Governor. The five-judge bench, while declaring the dissolution of

the State Assembly as unconstitutional had however allowed the Election

Commission to hold fresh elections to constitute a new Assembly in the facts and

circumstances of the case. It did not direct status-quo ante and revival of the

Assembly because in its view the election process had been set in motion and was at

an advanced stage and judicial notice could be taken of the fact that considerable

amount must have been spent; enormous preparations made and ground works done

in the process of election.

Therefore, the court molded the relief and permitted completion of

the ongoing election process with the fond hope that the electorate may again not

288
give a fractured verdict and may give a clear majority to one or other political party.

The majority bench, which included Justice B. N. Aggarwal and Justice Ashok

Bhan said, in this case clearly the Governor has misled the Council of Ministers at

the Centre, which is destructive of the democratic system.

When the facts of the present case are considered, the bench said that

the challenge to the presidential proclamation made by Mr. Rameshwar Prasad and

others must succeed. The majority verdict also held that the action of the Governor

was drastic and extreme and the court could not be a silent spectator to such

subversion of the Constitution.8

7.4 Dissolution of the Ministry:

In Mahabir Prasad Sharma vs Prafulla Chandra Ghose9 the

Calcutta High Court has ruled that if the Council of Ministers refuses to vacate the

office of ministers, after the defeat of the confidence motion in the House, then the

Governor may withdraw his pleasure. The Court also held that the right of the

Governor to withdraw his pleasure during which the minister is to hold office is

absolute, unrestricted and unfettered and the exercise of discretion in withdrawing

the pleasure cannot be called in question in a court of law.

In Jagdambika Pal vs State of U.P.10 the Supreme Court directed to

convene a special session of Legislative Assembly and to have a composite floor

test between contending parties to ascertain who out of two (Sh. Kalyan Singh and

Sh. Jagdambika Pal) enjoys a majority in the Assembly. It shows that the

8
Rameshwar Prasad vs UOI (2006) 2 SCC 1.
9
AIR 1969 Cal. 198.
10
AIR 1998 SC 998.

289
Governors discretion to dismiss the ministry should be exercised only when the

Chief Minister fails to prove the majority on the floor of the House by any means.

In S.R. Bommai vs UOI,11 it was observed that in the circumstances

of any doubt that whether a ministry enjoys the majority, the best way of testing is

the floor of the House and the majority of the ministry is not the matter of personal

opinion of the Governor.

7.5 Summon and Prorogue the State Assembly:

It is observed in the case of State of Punjab v Satyapal Dang,12 by

the Supreme Court that Article 174 (2), which enables the Governor to prorogue the

Legislature, does not indicate any restrictions on this power.

It is declared in H. Siddaveerappa and others vs The State of

Mysore13 that under Article 174 of the Constitution the power is conferred on the

Governor to summon or prorogue either House of the Legislature. The power of

proroguing a session of the Legislature is exclusively that of the Governor in whom,

rests the power to summon the same.

In K.A. Mathialagan vs The Governor,14 the court held that the

exercise of the function of the Governor in proroguing the Assembly under Article

174 is not a function which he can exercise in his discretion that is to say to the

exclusion to the ministerial advice. In the matter of proroguing the Governor is

bound by the advice of the Council of Ministers.

11
Supra note 7.
12
AIR 1969 SC 903.
13
AIR 1971 Mysore 200.
14
AIR 1973 Mad. 198.

290
 In Raja Ram Pal vs Honble Speaker, Lok Sabha & others,15 court

held that Article 174 creates an obligation on the State Legislature to meet at least

once within a space of six months. The power to summon the State Legislature has

not been given not to the House(s) but to the Governor.

7.6 Presidents Rule:

Court scrutinizes the imposition of Presidents rule from time to

time, when it is challenged in courts and also provides the guidelines for the use of

the Article 356. The use of Article 356(1) of the Constitution is not immune from

judicial review. The Supreme Court and High Court can strike down the

proclamation, if it is found to be mala fide or based on wholly irrelevant or

extraneous ground.16

In 1965 in Kerala General Assembly Elections, when no party got

majority in Kerala, then the Governor after consulting the party leaders

recommended for the imposition of Presidents rule. K.K. Aboo, a member of

Legislative Assembly challenged the imposition of Presidents rule on March 24,

1965 in the Kerala High Court17 on the ground that the State Legislature could not

have been dissolved without its meeting at all. The courts rejected the ground and

dismissed the petition.

15
(2007) 3 SCC 184, 293.
16
Kameswari, G., Article 356 of the Constitution A Boom or a Bane to Federalism, AIR
1999, Journal Section, p. 99.
17
K.K. Aboo vs UOI, AIR 1965 Kerala 229.

291
 In Ghulam Sarwar vs Union of India18 a question arose as to

whether declaration of emergency could be challenged on the ground of malafide

but the question was not decided.

In 1968, the act of the Centre to impose the Presidents rule in

Haryana was challenged in the High Court19, but court rejected the writ petition and

ruled that:

a) The court cannot go into the validity or legality or propriety of the

proclamation because the President had issued the same in pursuance of

his constitutional power under Article 356(1), which is not an executive

action of the Union and the President himself is not amenable to the

jurisdiction of the court in view of Article 361(1).

b) The consideration of the proclamation has been specifically vested by the

Constitution in Parliament and this excludes the jurisdiction of the courts.

c) The conclusion reached by the Governor in his report to the President

cannot be questioned in the court as those are matters for the consideration

of the President and Parliament. The court has no jurisdiction to require

disclosure of material forming the basis of the Presidents satisfaction.

When the Presidents rule was imposed in the West Bengal in 1970,

it was challenged in the Calcutta High Court,20 on the ground that in making the

proclamation the President should have acted in his discretion and not on

ministerial advice. But court rejected this plea and held that in the matter of making

18
AIR 1967 SC 1335.
19
Rao Birinder Singh vs UOI, AIR 1968 Punj. 441.
20
In Jyotirmoy Bose vs UOI, AIR 1971 Cal. 122.

292
a proclamation under Article 356, the President acts as a constitutional head and

must act as advised by the Council of Ministers.

When the government of Nandini Satpathi in Orissa fell in 1973, due

to the defections from the Congress Party, Bijayanand Patnaik, the leader of Pragati

Party, commanded strength of 70 members in a House of 139 excluding Speaker,

then the Governor did not invite him to form the government. The Governor

recommended the Presidents rule which was imposed on March 3, 1973, by taking

the plea that political defection in the State had become common and Shri

Bijayanand Patnaik would not remain in office for long and be stable. He

challenged the proclamation in the Orissa High Court.21 The court criticized the

conduct of the Governor to recommend the Presidents rule without calling Shri

Bijayanand Patnaik to form the government but rejected the challenge and held that:

a) In sending the report under Article 356 to the President, the Governor is

to act directly and not on the advice of the Council of Ministers.

b) Whether the report is malafide or based on any extraneous facts cannot

be question in court.

c) The satisfaction of the President under Article 356 is not justiciable and

the President can act under this Article in a number of situations.

The (Constitution 38th Amendment) Act, 1975, barred judicial

review of proclamation of emergency under Article 356 on any ground and gave

more powers to Centre to interfere in the administration of the State. It also

21
Bijayanand vs President of India, AIR 1974 Orissa 52.

293
provided that the satisfaction of the President to impose the Presidents rule is

conclusive and final, which shall not be questioned in any court on any ground.22

When the Janta Party formed the government in the Centre in 1977,

the then Central Home Minister, Shri Charan Singh, wrote a letter on April, 1977 to

the Chief Ministers of some States commanding different political parties,

suggesting them that they should advice the respective Governors to dissolve the

Assemblies and obtain fresh mandate from the electorate. The State of Rajasthan

along with six other States filed a suit under Article 131 in the Supreme Court23 and

prayed to declare the directives of the Home Minister as unconstitutional and

illegal. The suit was designed to prelude the invocation of Article 356 on the ground

mentioned in the letter. The court dismissed the suit unanimously and held that it

could not interfere with the Centres exercise of power under Article 356 merely on

the ground that it cuddled political and executive policy and expediency unless

some constitutional provision was infringed. The letter of the Home Minister was

characterized as not being a directive but only advisory in nature. The grounds

given in the letter were not malafide or extraneous or irrelevant. It is also observed

that the satisfaction of the President is a condition precedent to exercise the power

under Article 356 (1) and if it can be shown that there is no satisfaction of the

President at all, the exercise of the power would be constitutionally invalid.

The court also held that the satisfaction of the President under

Article 356 (1) is subjective satisfaction and thus it is challengeable. It was held by

22
Clause (5) to Article 356, this clause was omitted by The (Constitution 44th Amendment)
Act, 1978.
23
State of Rajasthan vs UOI, AIR 1977 SC 1361.

294
the Supreme Court that the sufficiency of grounds and existence of the satisfaction

of the President while issuing the order under Article 356 fall outside the courts

jurisdiction except in cases of patent or indubitable mala fides or excess of power

because if the satisfaction is mala fide or is based on wholly extraneous and

irrelevant grounds, in that case there would be no satisfaction of the President at

all.24

In 1989 due to the defection of members, Karnataka State Assembly

headed by Shri S.R. Bommai was dissolved in spite of the request of the Chief

Minister that the Assembly session be called to test the majority on the floor and

imposition of Presidents rule was recommended. S.R. Bommai challenged the

validity of the imposition of Presidents rule in the Karnataka High Court25. A

special bench of three judges of the High Court dismissed the petition. The court

held that the declaration of proclamation of Presidents rule is not wholly out side

the pole of judicial scrutiny. The court may examine that the satisfaction of the

President which is condition precedent for the proclamation under Article 356 that

may not be based on malafide or irrelevant or extraneous grounds. The court also

pointed out that recourse to floor test was neither compulsory nor obligatory and

was not a pre requisite to sending the report to the President.

Shri S.R. Bommai was not satisfied with the decision of the

Karnataka High Court and he appealed against it in the Supreme Court.26 A bench

of nine judges was constituted to consider the various issues. The Supreme Court

24
Ibid.
25
S.R. Bommai vs UOI, AIR 1990 Kant. 5.
26
Supra note 7.

295
was also called upon to decide the validity of the proclamations of Presidents rule

imposed during 1989 to 1992 in the States of Meghalaya, Nagaland, Madhya

Pradesh, Himachal Pradesh and Rajasthan. The Supreme Court held that the

proclamations of Presidents rule in Karnataka, Meghalaya and Nagaland are

unconstitutional and the proclamations of Presidents rule in Madhya Pradesh,

Himachal Pradesh and Rajasthan are valid. The Supreme Court ruled that the

Karnataka High Court was wrong in holding that floor test was neither compulsory

nor obligatory nor a pre-requisite to sending the report to the President

recommending imposition of Presidents rule under Article 356(1).

Justice Sawant in this case 27 observed that if the fabric of pluralism

and pluralist democracy and the unity and integrity of the Country are to be

preserved, the judiciary in the giving circumstances28 is the only institution which

can act as the savior of the system and of the Nation. On the basis of the

consensus among the judges in this case the following judicial guidelines can be

traced:

a) Article 356 is not completely beyond the judicial review. It is judicially

reviewable to the extent of examining whether it was issued on the basis

of any material at all or whether the material was relevant or whether the

proclamation was issued in the malafide exercise of the power.29

27
Ibid.
28
Circumstances for proclamation of Presidential Rule are mentioned in the S.R. Bommai
case.
29
Soli J. Sorabjee, S.R. Bommai vs UOI: A Critique, Journal Section (1994) 3 SCC p. 12.

296
 b) The proper method for testing the strength of the ministry and to

determine whether it has lost or still retains the confidence of the House, is

the floor of the House, which is the sole constitutionally ordained forum.

This rule can be departed from only in an extraordinary situation where

because of all pervasive violence a free vote is not possible in the House.30

c) The Governor should explore the possibility of installing an alternative

ministry, when the erstwhile ministry loses support in the House.31

d) The State Assembly cannot be dissolved merely upon the issue of

presidential proclamation and before parliamentary approval is accorded

as required by Article 356 (3).32 The Legislative Assembly can be

suspended until Parliament grants approval to the proclamation.33

e) Secularism is a basic feature of our Constitution and its violation is a valid

ground for exercise of power under Article 356.

f) The power conferred on the President under Article 356 is not an absolute

power but it is conditional power. The existence of the material is a pre-

condition to invoke Article 356. The President satisfaction must be formed

on relevant material.

30
Id. at 26.
31
M.P. Jain, Indian Constitutional Law, Wadhwa and Company 2003, p. 816.
32
Supra note 29 at 24-25.
33
In Feb. 1999, when Article 356 (1) was invoked, the State Legislature was suspended.
The proclamation was approved by Lok Sabha but in Rajya Sabha it would not be
approved. So, the Government revoked the proclamation on March 8, 1999 under Article
356 (2) and the State Government revived.

297
 g) The material upon which the President had formed requisite satisfaction

does not form part of the advice tendered by the Council of Ministers to

the President. The Supreme Court and High Court can compel the Union

Government to disclose that material. The court will not go into the

correctness of the material or its adequacy. Its enquiry is limited to see

whether the material was relevant to the action taken.

In Rajasthan vs UOI,34 it was viewed that when proclamation is

issued under Article 356 then the State Legislature can be dissolved by the Centre

without waiting the approval of the proclamation by the Parliament. But Supreme

Court in Bommai case35 disapproved this view on the ground that if the

proclamation is not approved within two months by the Parliament, it would lapse

automatically thereafter and it would be inevitable to revive the dissolved Assembly

and no fresh election can be held for the House within the short period of two

months.

Ahmadi J. observed in Bommai case36 that merely because a

different political party is elected to power at the Centre, even if with a thumping

majority, is no ground to hold that a situation has arisen in the State, in which the

government cannot be carried on in accordance with provisions of the

Constitution.

34
AIR 1977 SC 1391.
35
Supra note 7.
36
(1994) 3 SCC 1 (79).

298
 In Rameshwar Prasad vs UOI,37 the Supreme Court holding the

Presidents rule in Bihar dated May 23, 2005, as unconstitutional and said that the

Council of Ministers should have verified the facts stated in the report of the

Governor before hurriedly accepting it as a gospel truth as to what the Governor

stated. The Supreme Court emphasized that the Governor while recommending the

dissolution of an Assembly has to annex with his report to the Union Government

relevant material substantiating his decision.

7.7 Pardoning Power:

It is fairly well settled that the exercise or non-exercise of pardon

power by the President or the Governor, as the case may be, is not immune from

judicial review.

In K.M. Nanavati vs State of Bombay,38 when Bombay High Court

sentenced Nanavati to imprisonment for life, the Governor of Bombay suspended

the sentence until the appeal filed by the accused is disposed off by the Supreme

Court. The Supreme Court in this case held that the order of the Governor to

suspend the sentence is unconstitutional because it is conflicted with the rules of the

Supreme Court made under Article 145 of the Constitution,39 requiring the

surrender of a petitioner having sentence to a term of imprisonment before his

petition is heard.

37
(2006) 2 SCC 1.
38
AIR 1961 SC 112.
39
Subject to the provisions of any law made by parliament the Supreme Court may from
time to time, with the approval of the president, make rules for regulating generally the
practice and procedure of the court.

299
 In Maru Ram vs UOI,40 the Supreme Court held that all public

power including constitutional power under Articles 72 and 161 could never be

exercised arbitrarily or malafide and ordinarily guidelines for fair and equal

execution are guarantors of the valid play of power. It is also held that

considerations of religion, caste, colour or political loyalty are totally irrelevant and

fraught with discrimination. The constitutional bench also recommended the

framing of guidelines for the exercise of power of pardon.

In Kehar Singh vs UOI,41 the constitutional bench was of the view

that the language of Article 72, itself provides sufficient guidelines for the exercise

of power and having regard to its wide amplitude and the status of the function to

be discharged there under. It was perhaps unnecessary to spell out specific

guidelines since such guidelines may not be able to conceive of all myriads kinds

and categories of cases which may come up for the exercise of such power.

In Satpal vs State of Haryana,42 the Supreme Court held that

pardoning power being constitutional power conferred upon the Governor by the

Constitution is amenable to judicial review on certain limited grounds which are:

i) If the Governor is found to have exercised the power himself without

being advised by the government.

ii) If the Governor transgresses the jurisdiction in exercising the same.

iii) It is established that the Governor has passed the order without application

of mind.

40
AIR 1980 SC 2147.
41
AIR1989 SC 653.
42
AIR 2000 SC 1702.

300
 iv) The Governor has passed the order on some extraneous consideration.

In this case, Governor exercised his power to grant pardon without

applying his mind. He was not properly advised with all the relevant facts and

accordingly Supreme Court quashed the clemency order.

In Dhananjoy Chaterjee vs State of West Bengal,43 the Supreme

Court held that an order passed by the Governor under Article 161 is subject to

judicial review and he shall not be deprived of an opportunity to exercise his

powers in a fair and just manner because court felt that all material facts including

the mitigating factors were not placed before the Governor. The Court directed the

respondent authorities to put up the mercy petition again to the Governor and bring

all relevant facts to the notice of the Governor.

In Epuru Sudhakar vs Government of A.P.,44 the Supreme Court set

aside a remission granted by the Governor of Andhra Pradesh on the ground that

irrelevant and extraneous materials had entered into the decision making. A bench

consisting of Justices Arijit Pasayat and S.H. Kapadia made it clear that the powers

of reprieve, pardon or remission of sentence cannot be exercised on irrelevant

materials. The exercise of the powers must be for bona fide and valid reasons. The

court held that judicial review of the order of the President or the Governor granting

or refusing pardon under Article 72 or Article 161 is available and their order can

be impugned on the following grounds:

i) That the order has been passed without application of mind.

ii) That the order is malafide.

43
(2004) 9 SCC 751.
44
AIR 2006 SC 3385.

301
iii) That the order has been passed on extraneous or wholly irrelevant

consideration.

iv) That the order suffers from arbitrariness.

The court held that if it comes to the knowledge of the government

that the pardon has been obtained on the basis of manifest mistake or patent

misrepresentation or fraud, the same can be rescinded.

In Jagdish vs state of Madhya Pradesh,45 court held that the power

of the President and Governor to grant pardon etc. under Articles 72 and 161,

though couched in imperative terms has nevertheless to be exercised on the advice

of the executive authority. In this background it is the government, which in effect

exercises that power.

In Bani Kanta Das and another vs State of Assam and others,46

court held that the reason for the commutation of a sentence must be given by the

Governor. In this case court set aside the impugned order of commutation of death

sentence to life imprisonment and directed the reconsideration of the application

filed by accused for commutation of sentence. In the impugned order no reason was

indicated as to why the Governor decided to commute the death sentence to that of

life imprisonment, when the accused was guilty of heinous abominable crime.

Accused had murdered brutally four persons of a family.

45
(2009) 9 SCC 495.
46
(2009)15 SCC 206.

302