President and Governor: where discretion really lies

India follows the parliamentary system, in which the real executive power lies with a council of ministers answerable to the legislature, and the head of state acts on its advice. The President at the Union and the Governor in each state are both designed as constitutional heads. Yet disputes about Governors — over appointing chief ministers, delaying assent to Bills, and recommending President's Rule — are among the most frequent flashpoints of Indian federalism. The President rarely generates such controversy.

Why? The answer lies in a few words of text and a long history of practice.

The President: bound by advice

Article 74(1) says there shall be a Council of Ministers headed by the Prime Minister to aid and advise the President, who "shall act in accordance with such advice". This binding language was made explicit by the 42nd Amendment (1976). The 44th Amendment (1978) added a proviso: the President may send advice back once for reconsideration, but must act on the advice given after that reconsideration.

In Shamsher Singh v. State of Punjab (1974), the Supreme Court held that the President and Governors exercise their formal powers on the aid and advice of ministers, except in the few areas where the Constitution itself requires discretion.

Where the President has real room

The President's discretion is situational — it arises from circumstances rather than from a clause granting it.

• Appointing a Prime Minister when no party or pre-poll alliance has a clear majority, or when the Prime Minister dies in office without an obvious successor.
• Dismissing a Council of Ministers that has lost the confidence of the Lok Sabha but refuses to resign.
• Dissolving the Lok Sabha on the advice of a Prime Minister who has lost majority support.
• Returning a Bill for reconsideration under Article 111, and the "pocket veto" created by the absence of a time limit.
• Returning ministerial advice once for reconsideration under Article 74.

In ordinary times, these moments are rare.

The Governor: discretion written into the text

The Governor's position is different in a crucial way. Article 163(1) provides for a council of ministers to aid and advise the Governor "except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion". Article 163(2) adds that if a question arises whether a matter is within the Governor's discretion, the Governor's decision is final.

No equivalent clause exists for the President. So the Governor has two kinds of discretion:

Constitutional (express) discretion:

• Reserving a Bill for the President's consideration under Article 200.
• Recommending President's Rule under Article 356 — the Governor's report on the failure of constitutional machinery.
• Special responsibilities in certain states and areas — for example, under Article 371 provisions and the Sixth Schedule tribal areas in parts of the North-East.
• Functions as administrator of an adjoining Union territory, where so appointed.

Situational discretion, similar to the President's:

• Appointing a Chief Minister when no party has a clear majority.
• Dismissing a ministry that has lost confidence.
• Dissolving the Assembly when the ministry has lost its majority.

Assent to state Bills: Article 200

When a state Bill reaches the Governor, Article 200 gives four options:

1. give assent;
2. withhold assent;
3. return the Bill (if not a Money Bill) for reconsideration — if the Assembly passes it again, the Governor "shall not withhold assent";
4. reserve it for the President's consideration.

The Article says the Governor should act "as soon as possible", but sets no fixed time limit. In recent years, several states have complained that Governors held Bills for long periods without acting.

In State of Tamil Nadu v. Governor of Tamil Nadu (April 2025), the Supreme Court held that a Governor cannot indefinitely sit on Bills and indicated time frames within which action should ordinarily be taken. Questions arising from that judgment — including whether courts can prescribe time limits for constitutional authorities — were subsequently placed before a Constitution Bench through a Presidential Reference under Article 143. Follow the latest position on this, as it is a live question for GS II.

The key judgments

What the commissions recommended

Two major commissions on Centre–State relations addressed the Governor's office:

Sarkaria Commission (report 1988):

• The Governor should be an eminent person from outside the state, not a politician recently active in politics.
• The Chief Minister should be consulted on the appointment.
• Article 356 should be used only as a last resort.

Punchhi Commission (report 2010):

• Governors should have a fixed term of five years and be removed only through a process involving the state legislature.
• There should be a time limit for the Governor's decision on Bills.
• In a hung Assembly, a clear order of preference should guide the invitation to form the government.

How to write about this in Mains

A good answer on the Governor usually has four parts:

1. The constitutional design — a constitutional head, with limited express discretion.
2. The problems in practice — delays on Bills, partisan use of Article 356, contentious appointments of Chief Ministers.
3. The corrective framework — Bommai, Nabam Rebia, recent judgments on assent, and the Sarkaria and Punchhi recommendations.
4. A balanced way forward — convention and restraint, clearer time limits, a more consultative appointment process — while keeping the office's role as a link between the Union and the states.

Practice questions

1. Prelims-type: Under which Article does the Governor's decision on whether a matter is within his discretion become final? Can the Governor reserve a Money Bill for the President's consideration?
2. Mains-type (150 words): Compare the discretionary powers of the President and the Governor.
3. Mains-type (250 words): "The office of the Governor has become a site of friction in Indian federalism." Critically examine, with reference to recent judicial pronouncements.