Rajiv Gandhi assassination: SC judgment outlines limits of guv’s powers

Governor is but a shorthand expression for the state government, the Supreme Court underscored on Wednesday as it reminded the constitutional functionaries of their limitations.

As the bench headed by justice L Nageswara Rao ordered the freedom of one of the convicts in the Rajiv Gandhi assassination case, it highlighted that the Governor’s powers are qualified by the constitutional mandate, chiefly requiring them to act in aid and advice of the council of ministers.

The bench, which also comprised justice BR Gavai, was emphatic that there are only two sources of power the Governor has – first, those conferred on him or her on the aid and advice of the council of ministers, and second, where the Constitution specifically requires him to act in his discretion.

In its 29-page judgment, the top court clearly demarcated the spheres of powers of not only the Governor but also that of a state government to dispel the daze, citing the pertinent constitutional provisions.

The court began by referring to Article 161, which talks about the power with the Governor to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of an offence against any law related to which the executive power of the state extends. At this point of the judgment, the bench proceeded to explain the laws in relation to which the state government has the executive power.

Article 162 makes it clear that the executive power of the state shall extend to matters with respect to which the legislature of the state has power to make laws, which will include the matters enumerated in the State List (List II) and also those which are within the concurrent jurisdiction of the Union government and the state (List III).

Explaining further, the top court referred to the next constitutional provision, Article 163 that provides 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.”

The references to the Governor’s powers in the order come at a time when many states ruled by non-BJP parties have seen friction between the elected government and the Governor nominated by the Union government.

Under the Cabinet system of Government as embodied in our Constitution, the court added, the Governor is the constitutional or formal head of the state and he exercises all his powers and functions conferred on him by or under the Constitution on the aid and advice of his council of ministers except in spheres where the Governor is required by or under the Constitution to exercise his functions at his discretion.

“Even though the Governor may be authorised to exercise some functions, under different provisions of the Constitution, the same are required to be exercised only on the basis of the aid and advice tendered to him under Article 163, unless the Governor has been expressly authorised, by or under a constitutional provision, to discharge the function concerned, in his own discretion,” maintained the judgment.

Illustrating the areas where the Governor needs to act in his discretion or to the satisfaction of the President, the judgment harped upon a few relevant constitutional provisions relating to promulgation of ordinance, suspension of a member of a public service commission and proclamation of emergency in the state to map out some instances where the Governor can exercise his discretion. The court, however, was quick to add a caveat.

“The satisfaction required by the Constitution is not the personal satisfaction of the President or of the Governor but is the satisfaction of the President or of the Governor in the constitutional sense under the Cabinet system of Government. It is the satisfaction of the council of ministers on whose aid and advice the President or the Governor generally exercises all his powers and functions,” underscored the bench, referring to the Supreme Court’s 1974 judgment in Samsher Singh Vs State of Punjab.

Following elucidation of the scope of the Governor’s powers, the bench relied on a constitution bench ruling in 1980 to emphasise that the Governor must act on the state government’s while exercising the constitutional power of granting pardon under Article 161.

“…the Governor is the formal head and sole repository of the executive power but is incapable of acting except on, and according to, the advice of his Council of Ministers. The upshot is that the state government, whether the Governor likes it or not, can advice and act under Article 161, the Governor being bound by that advice,” the constitution bench ruling in Maru Ram Vs Union of India held.

Summing up, the bench held: “The constitutional conclusion is that the Governor is but a shorthand expression for the state government.”