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But the issue is that the Article does not lay down the extent to which this power can be exercised. The Congress party’s challenge in the Supreme Court that the appointment of V.P. Bopaiah by Karnataka Governor Vajubhai Vala is an “arbitrary” use of his discretion. The BJP defended the Governor’s appointment by quoting Article 163 (2) of the Constitution, which says that “the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion.”
In the Nabam Rebia judgement of 2016 given by a Bench of the Supreme Court led by then Chief Justice J.S. Khehar observed that the Article does not give Governors a “general discretionary power”. This time around, the Constitution Bench has laid down that the area of discretion of the Governor is limited and in this limited area, the choice of action should not be arbitrary or fanciful. Dr. B.R. Ambedkar described in one of his speeches that a Governor should use his discretion not as “representative of a party” but as “the representative of the people as a whole of the State”.
This also raises a question as to whether or not the discretion of the Governor can be judicially reviewed by the Supreme Court. A Constitution Bench judgement in 2006 in the Rameshwar Prasad case observed that the “immunity granted to the Governor under Article 361 (1) does not affect the power of the Court to judicially scrutinise the attack….”
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