Crown of thorns?

Office Of Governor

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