It is understood that Governor Ch. Vidyasagar Rao was supposed to come to Chennai on Tuesday, then on Wednesday and finally yesterday. He holds the additional responsibility of Tamil Nadu – a State with 234 MLA along with Maharashtra, another big State. In the time of political turmoil in the aftermath of OPS and Sasikala face-off, he preferred to adhere to a pre drawn programme schedule of attending some convocation etc. at Mumbai before finally arriving at Chennai. Perhaps this discretionary function of the Governor as vested vide Article 163(1) that says “There shall be a Council of Ministers…….to aid and advise the Governor in the exercise of his functions, except in so far as he is or under this Constitution” required to exercise his functions or any of them in discretion.
The law makers back then either didn’t have the foresight to predict actual use of discretionary powers by the Governor or were fully aware that if the Governors were stripped off their discretionary jurisdiction then the political supremacy of the party in power at the centre will have least influence on the state capitals if their party is not there in power in such states.
It may further be stated that in general, the relation between the Governor and his Ministers in the state is similar to that between the President and his Ministers at the Centre. With this, an important difference is that while the Constitution does not empower the President to exercise any function “in his discretion”, it authorises the Governor to exercise some functions “in his discretion”. It is in this aspect that Cabinet’s responsibility in the states differs from that at the centre. It is because of such discretionary jurisdiction of the Governor that no amendment was made by 42nd Amendment Act of 1976 in Article 163 (1) as in Article 74(1) – that makes the President to work in accordance with the advice of Council of Ministers -which in no uncertain terms remove the ambiguity if at all as regards to any discretionary function of the President and did nothing towards the same discretionary functions of the Governor. The subsequent Janata government in 1977 though retained most of the amended text of Article 74(1) but by 44th Amendment Act, added a proviso to the same Article 74(1) that reads “Provided that the President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advise tendered after such reconsideration”. The net result after the 44th Amendment, therefore, is that except in certain marginal or unprecedented cases referred to by the Supreme Court, the President shall have no power to act in his discretion in any case. Alas, the law makers while doing this could have thought the same for the Governor.
It is no wise guess why such amendments were brought during the period of 1976-78 given the then prevailing political climate. The law makers back then either didn’t have the foresight to predict actual use of discretionary powers by the Governor or were fully aware that if the Governors were stripped off their discretionary jurisdiction then the political supremacy of the party in power at the centre will have least influence on the state capitals if their party is not there in power in such states.
It will not be out of place to state here that the time that lapses between the Governor sending a report to Raisina Hill and actual theatre that is being played in the state capital encourages political horse trading and thus creates jokers and junkies. The nation is going to watch it as the drama unfolds in next few days at Chennai with the arrival of its ring master Ch. Vidyasagar Rao from Mumbai – the abode of Bollywood actors and actresses- rehearsing the cliché dialogue “I will send a report to President on present affairs of the State”.
Perhaps this discretionary function as vested with Governors made the position of the Governor more controversial and or vulnerable across different time periods and different political regime in the eyes of the centre or at state, making Raj Bhavans an extension of the power centres at New Delhi. Governors continue to appear as political stooge of the ruling party at the centre. Needless to mention the Governors of most of the politically sensitive states in India are astute politicians, (like Ms. Kamla when Mr. Modi was the CM of Gujarat) who are known for their political stewardship not necessarily for their credibility. Alternatively, they are accused of being mere puppets, ready to take orders from the people at New Delhi, as suspected in case of the incumbent in-charge Governor of Tamil Nadu. who in the behest of his discretionary jurisdiction as vested by the Constitution will procrastinate on the affairs of Tamil Nadu giving some sundry reasons rather than taking a stance to sworn-in Sasikala as the CM of the State, which seems constitutional given the fact that the he himself has accepted the resignation of O Paneerselvam as the CM of the State.
Further, according to Art.163 (2) the Governor is not be required to act according to the advice of his ministers or even to seek such advice. Again, if any question arises whether any matter for which the Governor is required by the Constitution to act in his discretion, the decision of the Governor shall be final, and the validity of anything done by the Governor shall not be called into question on the ground that he ought to or ought not to have acted in his discretion. This provision when read in-between lines gives the Governor sweeping powers and authority to perform anything that his/ her handlers at New Delhi want befitting their political interest. In addition to this, under Article 163(2) the Governor is responsible to the President where he has to act according to circumstances even though they are not specifically mentioned in the Constitution as discretionary functions.
One example of this instance is the right of the Governor to submit a report to the President under Article 356 in lieu of a situation where he thinks that Government in the state is not able to discharge its functions. Such a report may be made against the Government in power and in such cases soliciting advice from the ministers is not possible. This precise power of the Governor of making a report to the president under article 356 is regarded as one such discretionary function of the Governor that has been widely used over the years by all political parties for their political dividends. Fresh cases in points are the episodes in Arunachal Pradesh, Uttarakhand and now in Tamil Nadu. It will not be out of place to state here that the time that lapses between the Governor sending a report to Raisina Hill and actual theatre that is being played in the state capital encourages political horse trading and thus creates jokers and junkies. The nation is going to watch it as the drama unfolds in next few days at Chennai with the arrival of its ring master Ch. Vidyasagar Rao from Mumbai – the abode of Bollywood actors and actresses- rehearsing the cliché dialogue “I will send a report to President on present affairs of the State”.
Last but not the least, it is also pertinent at this point of time to relook at the provision of Article 153 that states that there shall be a Governor for each state, but Amendment in the year 1956 makes it possible to appoint the same person as the Governor for two or more States. The provisions at that time might have benefitted then given the nature of polity where the Governor of Assam was appointed as Governor for Meghalaya as well, whereas Manipur, Tripura and Nagaland were placed under another Governor. This practice though continuing now must be studied given the complexity of contemporary geo-political compulsions arising out of the dominance of regional parties in the states, law and order conditions in the States and overall trust deficit on federal polity.
Was not it warranted to appointment a full time Governor for a State like Tamil Nadu when the State was almost in suspended animation in the aftermath of the health deterioration of its CM Late J. Jayalalitha’s health resulting in her demise? The subsequent election of OPS as AIADMK Legislative party Leader and CM of the state has resulted into a “theatre of absurd”, making it open for allegations and counter allegations from all quarters of political spectrum but without asking the mute question: “Who will bell the cat”?