Guv’s role under question

The recent political situation in Karnataka demonstrated a unique constitutional issue surrounding the office of the Governor and provided food for thought to legal experts across the country. So far, many governors have come under attack for unjustified dismissal of duly elected governments, but not so often for the appointment of a chief minister. In the Karnataka case, the very act of inviting B S Yeddyurappa to form the government was perfectly in conformity with constitutional propriety, though Yeddyurappa failed miserably to do so.

Governor Vajubhai Vala exercised his discretion in accordance with specific facts and circumstances, based on the subjective satisfaction of the office of governor. It is improper to impute charges of impartiality against him, except for the act of granting an exceptionally long window of 15 days to Yeddyurappa to prove his majority, which could have facilitated poaching of MLAs from the other parties. Of course, the midnight hearing at the apex court led to immediate course correction on that aspect.

There is an erroneous impression in general that the governor is an employee and agent of the Centre and should consult the Union government before taking decisions even in matters where the governor has discretionary powers. The powers of the governor fall under three categories: (i) the executive power taken in the name of the governor, (ii) the power exercised by him with the aid and advice of the council of ministers headed by the chief minister; and (iii) the power exercised by him in his sole discretion.

Though the immunity under Article 361 is not available with regard to the first two categories of an exercise of powers, the governor has to satisfy himself that the person he invites to form the government commands a majority in the Assembly, although the Constitution does not indicate how he is to satisfy himself.

Sir Edward Coke, a famous English Jurist, described discretion as a “science of understanding, to discern between falsity and truth, between wrong and right, between shadows and substance… and not to do according to (men’s) wills and private affections…”

Discretion is to be exercised cautiously and in a reasonable manner. Though gubernatorial discretion varies from situation to situation, the discretionary power of the governor should not be exercised under coercion or dictation or on extraneous considerations or for an improper purpose. It is also imperative that the exercise of discretion should not smack of arbitrariness or whimsicality or be prejudicial or smack of partisan fervour.

The apprehension of misuse of discretionary power of the governor has been rightly echoed in the Constituent Assembly debates by a great leader of Odisha, Biswanath Das (Congress): “If I were to have my leaders in office continuously, if I were to have men like Pandit Jawaharlal Nehru and Sardar Vallabhbhai Patel, I have absolutely no complaint...there is no knowing which party will be in power (in the future). It may be that a party absolutely different from that in the Centre may be functioning in office in a province. What would then be the position?

The governor, who is the constitutional head under the Act, has to be appointed on the advice of the Prime Minister of India, leader of another party. I would have cited how the governor, who was the agent of British Imperialism, had all along been attempting to smash my party. What was being done by British Imperialism may also be repeated by the party (at the Centre).” That apprehension holds even today.

The apex court has time and again observed that the governor’s discretion in the appointment of a chief minister is not unfettered. The discretion of the governor is very much conditioned by the party position in the House (Mahabir Prasad v Prafulla Chandra, 1969).

After the Sarkaria Commission (1988), even though its guidelines are not legally binding, non-observance of the guidelines will certainly raise questions on the impartiality of the governor. In the Karnataka case, the governor had invited the single largest party, which is in accordance with the Sarkaria Commission’s recommendations.

Sarkaria panel guidelines

To deal with a Karnataka-like scenario, the commission recommended that the governor would be well within his rights to invite the largest pre-poll alliance combination. If this fails to materialise, the governor would then call the single largest party to stake the claim by claiming the support of other MLAs, including Independents. It is only at the third stage that the governor may call a post-poll alliance of political parties that claim to be able to form a “stable” government.

In S R Bommai v Union of India (1994), the apex court held explicitly that in case of a hung Assembly, the final decision rests not with the various feuding parties but with the concerned legislature through a “floor” test.

However, in the case of Rameshwar Prasad (2006), the apex court held that, “If a political party, with the support of other political party or other MLAs, stakes claim to form a government and satisfies the governor about its majority to form a stable government, the governor cannot refuse formation of the government and override the majority claim because of subjective assessment that the majority was cobbled by illegal and unethical means. No such power has been vested in the governor. Such a power would be against the democratic principles of majority rule”. But the distortion of the established principles in states like Meghalaya, Mizoram and Goa regrettably set wrong precedents.

The office of governor is not merely of symbolic importance, it plays a crucial role in smooth functioning of our federal polity. There are an umpteen number of instances in which governors have acted as spineless creatures, puppets in the hands of the central government.

The problem does not lie with the appointment of governors; it is in the nature of the office itself in as much as it enjoys discretionary power, which is a recipe for confrontational politics. According to C Rajagopalachari, “the governor is like a federal fireman” and “they should be above partisan politics”, which should be the guiding spirit for this great office.

(The writer is a Supreme Court lawyer)