Open Forum
New
Delhi, 24 May 2018
Office Of Governor
CROWN OF THORNS?
By Dr S Saraswathi
(Former Director, ICSSR, New Delhi)
Karnataka has earned a unique distinction of having
given some important lessons on the office of the Governor -- the chief
executive power of the State in the parliamentary system of government adopted
in India in a federal polity. In the tradition of being a major player in
elucidation of principles and practices of the Constitution and Constitutional
offices, the State today is projecting some more controversies surrounding the
role of the Governor which will doubtless end in some more clarity.
More specifically, Karnataka exhibits a variety
of situations arising after elections thus drawing the attention of all State
governments and political parties for the past several days. Some of these are
tempted to seek review and reopening of their own position years after its
settlement much to the amusement of beholders.
The recent State election in Karnataka has
yielded a hung Assembly with no party or alliance of parties winning majority
of seats. It placed a tremendous responsibility on the Governor who has to
follow rules and conventions that are applicable and also use his discretion
where situations have no parallel. He has to act in the interest of providing a
stable government to the State without ignoring the mandate given by the
electorate. While going through complicated issues, the State is giving to the
country a third important lesson on the office of Governor -- a Constitutional
post which is really a crown of thorns.
The first was in 1994 that gave the famous
Bommai Judgement which ruled that the test of majority must be done on the
floor of the Assembly -- a rule which has since become inviolable. It related
to the Janata Government headed by S.R.Bommai, which formed the government on
13th August 1988 and was dismissed on 21st April 1989 on
the ground of having lost its majority without getting an opportunity to prove
its majority. A case filed in the Supreme Court was heard by a 9-judge
Constitution Bench, which gave the historic verdict in 1994 that the question
of majority must be tested on the floor of the House. The judgement made it
clear that the assessment of majority is “not a matter of private opinion of
any individual, be he the Governor or President”. Therefore, list of names with
signatures and parade of supporters in front of the Governor/President cannot
decide parliamentary majority.
The second was in 2011 when serious tussle
broke out between the Governor and the BJP government involving several
developments in sequence -- defections, disqualifications, reinstatements, and rejection
of the Governor’s report recommending to the Union government dismissal of the
State government and imposition of President’s rule keeping the Assembly under
suspended animation. The Governor was obliged to give a second chance to the
BJP to prove its majority. The Supreme Court also provided an interpretation of
the Anti-Defection Law by holding that all differences do not amount to
defection from a party to be punished with disqualification. Thereby inner-party democracy has been
protected and defection is equated to defying party whip and voting against the
official stand of the party.
The present third lesson from Karnataka centres
around the discretionary power of the Governor on inviting a party to form the
government which results in different decisions taken by Governors in different
States. Are uniform rules applicable to deal with different situations that
require some judgement of the deciding authority?
The matter does not seem to be blind
application of precedents. It involves weighing of the chances of forming a
stable government, particularly if post-poll alliance of small parties is concerned.
The cardinal virtue expected of the Governor in a federal system is
impartiality. And it is this quality, absolutely required in exercising
discretionary powers, that often comes into question in issues relating to
Governor’s role in inviting a party/alliance to form government.
In the present Karnataka episode, the
Congress has twice challenged the action of the Governor in the Supreme Court within
24 hours. One is about inviting the largest single party to form the government
which had no majority support, and the other is about appointment of protem Speaker.
The Governor is bound by the aid and advice
of the elected Council of Ministers except when there is no Council of
Ministers. Inviting the leader of the
majority party to form the government clearly is his prerogative and trouble
starts when no party has majority.
In the Constituent Assembly, Sardar Patel
attempted to strike a balance. While ministerial responsibility is the rule,
the Governor could exercise his discretion in certain matters. Summoning and dissolving Assemblies was one
such matter.
The Constitution does not provide for judicial
review of any action of the Governor. Under Article 163, determining which
matters fall within the discretion of the Governor, the Governor’s decision is final.
It also provides 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”.
However, the matter may go to the Supreme
Court through other routes. As a result, in course of working the Constitution
and through several episodes in States dragging political parties, State
governments, and Governor’s decisions into question, the role of the Governor
has declined slowly making inroads into his discretionary powers.
In the present Karnataka case, the party
first invited to form government is short of a very few seats to make majority
whereas the challenger is post-poll alliance of two rivals one of whom is the
defeated party. It is difficult for any impartial authority to choose between
the two.
Regarding appointment of Protem Speaker,
under Article 180 (1) of the Constitution, the Governor has exclusive right in
the absence of Speaker and Deputy Speaker. It is purely a matter of discretion
of the Governor, but according to a ruling of the Supreme Court in 2016, the
choice of the Governor should not be arbitrary or fanciful, but must be a
choice dictated by reason, actuated by faith, and tempered by caution. There is
no rule to follow any convention.
The Governor of UP, Sarojini Naidu once described herself as a
“bird in a golden cage”. The responsibility of the Governor until the fourth General
election in 1967 was restricted mainly to furnishing fortnightly report to the
President. Even this task, discharged as a matter of duty and with seriousness,
created a controversy about the role of Governor in writing this report. The
Administrative Reforms Commission maintained that it was not necessary to send
a copy of the report to the Chief Minister. But, it was recommended that the
Governor should normally take the CM into confidence unless there were
overriding reasons against that.
The question of providing guidelines to
Governors for action in times of unclear situations is rising again and again. The
Constitution does not confer the power of providing instructions or guidelines
to Governors like the Instruments of Instructions mentioned in the Government
of India Act of 1935. The issue is likely to be reopened for judicial
instructions in the wake of legal challenges fought in the Court after recent
Karnataka elections. ---INFA
(Copyright, India
News & Feature Alliance)
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