Governor’s Discretion: A Constitutional Grey Zone Without Clear Limits
Introduction
The Governor’s office sits at an awkward constitutional crossroads. Conceived as a neutral, stabilising link between the Union and the States, it nonetheless regularly appears in headlines as a political fulcrum. This article traces how a post-colonial safety valve, embodied in Articles 153, 163, and 200 of the Constitution, has evolved into a grey zone of discretionary power. By examining the original constitutional design, key judicial pronouncements, and recent controversies surrounding delay and assent, the piece shows that the problem lies not in the existence of discretion per se, but in the absence of procedural guardrails that leave such discretion vulnerable to partisan use.
The Governor
The Governor is the Executive Head of the State within the meaning of Article 153 of the Constitution of India. Under Article 163, the Governor, as the constitutional head, exercises all powers under the Constitution on the aid and advice of the Council of Ministers.
The Governor is also often described as an agent of the Centre, since the Union Government nominates the Governor for each State. However, as held by the Supreme Court in 1979, the Governor is a constitutional authority not subject to the direction or control of the Central Government. It is an independent constitutional office, and mere appointment by the President does not imply subordination. The Governor is neither directly elected by the people nor indirectly elected by a specially constituted electoral college, unlike the President.
How Modern Governors Came To Being
While the office of the Governor was established under the Government of India Act, 1858, post-Independence Governors are vastly different in nature from the institution originally created. Before Independence, influential documents such as the Commonwealth of India Bill (1925) and the Nehru Report (1928) supported retaining the office of the Governor, inspired by the Westminster model of governance.
This model envisaged a responsible parliamentary system with a constitutional head in the provinces, modelled on the British system. It created a need for a neutral, non-elected authority to act as a constitutional link between the State and the Centre. This was especially relevant in the early phase of Independence, when a strong central government was considered vital to prevent secessionist attempts. Over time, this idea gave way to the concept of the Governor acting on the advice of the Council of Ministers, rather than as an active ruler.
The Commonwealth of India Bill, 1931 proposed granting dominion status to India while retaining the Governor as the Crown’s representative in the provinces. The Governor’s executive powers were curtailed, except for limited discretionary powers, particularly during a breakdown of representative government. This ensured continuity of governance even in times of emergency.
The Discretionary Powers Of A Governor
Instead of focusing on the Governor’s ceremonial powers, which are largely similar to those of the President, such as granting pardons or appointing State representatives, this section focuses on the discretionary powers that distinguish the Governor from the President.
Article 163(2)
Under Article 74(1), nothing is left to the President’s discretion, nor is any field excepted by the provision. By contrast, Article 163, the corresponding provision for Governors, expressly carves out certain matters in which the Governor is, by or under the Constitution, required to act in his discretion. No such exception exists in the case of the President.
If the President were to act contrary to ministerial advice, the Ministers would either resign or, since such advice reflects the will of the House of the People, be voted out. The Constitution, however, permits the Governor to exercise discretion in situations where circumstances so demand. It goes further to state that the Governor himself shall decide whether the conditions for exercising discretion exist, and that such a decision shall not be questioned in any court of law. This grants the Governor the ability to act independently in limited situations.
The Court, however, has clarified that such use of discretion must remain an exception and be exercised only when clear constitutional grounds exist. As observed, “any other construction would reduce the Council of Ministers to a nullity,” and since they are the real representatives of the people, this would undermine democracy. The Court thus enunciated that discretion must flow from the Constitution itself, not from convenience or political circumstances. Consequently, when Governors of multiple States withhold Bills without reasons for prolonged periods, it reflects a troubling absence of accountability in the exercise of such discretion.
Article 200 and Article 201
Under Article 200, the Governor may either give assent to a State Bill and convert it into law, return the Bill to the Legislature for reconsideration along with clause-specific recommendations, or reserve the Bill for the consideration of the President.
If the Governor finds the Bill, or any part of it, to be defective, it is his constitutional duty to return the Bill to the House as soon as possible for reconsideration, accompanied by a message suggesting clause-specific amendments as replacements for the defective provisions. It is then for the Council of Ministers to consider such recommendations. If the same Bill is passed again and presented to the Governor, he is constitutionally bound to act upon it, regardless of its form.
The phrase “as soon as possible” in Article 200 is vague and was left undefined by the Constitution’s framers. As a result, there were no explicit guardrails against indefinite delay, allowing a Bill to be withheld for prolonged periods. This vacuum enabled several Governors to sit on Bills for months due to political considerations or personal differences, often paralysing State governments and effectively creating a time-based veto without constitutional sanction.
Initially, the judiciary refrained from defining this phrase, wary of unduly restricting the Governor’s discretionary powers. However, in 2025, the Supreme Court in State of Tamil Nadu v. Governor of Tamil Nadu held that indefinite delay in dealing with State legislative Bills was both “illegal” and “erroneous.”
Drawing inspiration from the Punchhi Commission, which recommended the adoption of definite timelines as salutary conventions, the Court laid down indicative timelines as standards for judicial review. These timelines were intended to provide objective benchmarks to assess the unreasonableness of delay, while still allowing Governors and the President to exceed them where sufficient justification was shown.
Governors could also delay legislation by returning a Bill and subsequently reserving it for the President, thereby invoking Article 201, which prescribes no time limit for presidential assent. This procedural design enabled the possibility of indefinite delay, particularly since even a reconsidered Bill must again be presented to the President. Addressing this constitutional bottleneck, the Supreme Court clarified that once a Bill is re-passed by the State Legislature, the Governor cannot, as a matter of course, reserve it again for the President. In the absence of constitutionally mandated grounds for reservation, the Governor is bound to grant assent and cannot deploy Article 201 to defeat or indefinitely delay legislative will.
In November 2025, a five-judge Constitution Bench of the Supreme Court delivered an advisory opinion on a Presidential Reference concerning the powers of Governors and the President under Articles 200 and 201. Departing from the earlier Tamil Nadu Governor judgment, the Court held that neither Governors nor the President can be bound by judicially imposed timelines or subjected to “deemed assent,” and that decisions under Articles 200 and 201 are not justiciable on their merits. It recognised that Governors enjoy constitutional discretion in choosing between assent, withholding, return with comments, or reservation for the President, without being strictly bound by the aid and advice of the Council of Ministers in this limited context. At the same time, the Court clarified that prolonged, unexplained, and indefinite inaction that frustrates the legislative process may still invite limited judicial review, permitting courts to direct action within a reasonable period without examining the substance of the decision. This “limited mandamus” standard avoids rigid timelines while leaving room for future judicial calibration.
Conclusion
The Governor was conceived as a constitutional safeguard for a fragile federation, and that original purpose remains largely relevant. However, law and practice have drifted apart. Textual ambiguities, such as the phrase “as soon as possible,” coupled with the absence of enforceable procedures, have allowed what was meant to be exceptional discretion to harden into routine leverage. Addressing this mismatch does not require rewriting the Constitution. It calls for clearer statutory or convention-based timelines, greater transparency in the reasons for returning or reserving bills, and firmer judicial standards of review. With these modest reforms, the Governor’s office can return to its intended role as a neutral stabiliser rather than an instrument of political stasis.
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