By Sarvesh Kumar Shahi
The role of the Governor has emerged as one of the key issues in Union-State relations. Problems which arose in the working of Union-State relations were mostly matters for adjustment in the intra-party forum and the Governor had very little occasion for using his discretionary powers. The role of the Governor has come in for attack on the ground that some Governors have failed to display the qualities of impartiality and sagacity expected of them. It has been alleged that the Governors have not acted with necessary objectivity either in the manner of exercise of their discretion or in their role as a vital link between the Union and the States.
The recent Karnataka election results where BJP secured 104 seats against 78 seats of Congress and 38 seats of JDS has put the ball in Governor’s court to exercise his discretion on appointment of the Chief Minister of party proving majority in the assembly. However, such instances are not unfamiliar to Indian politics. One can debate endlessly, whether the fallout events of situations, such as the present one, are lethal to our democracy or not, but the fact remains that these testing times have made the institutions more stable and stronger over a period of time. To understand the issue, it is pertinent to discuss the constitutional role and powers of the Governor in detail.
Articles 163 and 164 of the Constitution deal with the Council of Ministers in the states. Article 163 states that there shall be a Council of Ministers headed by the Chief Minister that should aid and advice the Governor in exercise of his functions, except in so far as he is by or under the Constitution required to exercise his functions or any of them in his discretion.
It also states that if any situation arises whereby the Governor is by or under Constitution required to act in his discretion, the decision taken by him shall be final and that the validity of anything done by the Governor must not be called in question. In such a situation, the Governor has the discretion to invite anyone to form the government and his decision can’t be questioned in any court. He said that, in his opinion, the Governor should allow the single largest to prove majority.
Constitution clearly says that the Governor shall appoint the Chief Minister and appoint other Ministers on his advice. It is entirely up to the Governor to decide in his discretion that who in his opinion is likely to command majority in the House. The Governor’s discretion can’t be questioned even in the court of law.
In B.R. Kapur v. State of Tamil Nadu and Another, AIR 2001 SC 3435, Apex Court considered the role of the Governor in appointing the Chief Minister. It was held that the Governor can exercise his discretion and can decline to make the appointment when the person chosen by the majority party is not qualified to be member of Legislature. It was observed that in such a case the Constitution prevails over the will of the people.
It was further observed that accepting submissions as were made in that case that the Governor exercising powers under Article 164(1) read with (4) was obliged to appoint as Chief Minister whosoever the majority party in the Legislature nominated, regardless of whether or not the person nominated was qualified to be a member of the legislature under Article 173 or was disqualified in that behalf under Article 191, and the only manner in which a Chief Minister who was not qualified or who was disqualified could be removed was by a vote of no-confidence in the legislature or by the electorate at the next elections and that the Governor was so obliged even when the person recommended was, to the Governor’s knowledge, a non-citizen, under age, a lunatic or an undischarged insolvent, and the only way in which a non-citizen, or under age or lunatic or insolvent Chief Minister could be removed was by a vote of no-confidence in the legislature or at the next election, is to invite disaster.
Going back to 1983, the government had appointed Justice RK Sarkaria Commission to examine the balance of power between the states and the Centre. According to the principles laid down by the commission, the Governor while choosing the Chief Minister should consider following: i. The party or the alliance of parties that commands the majority shall be invited to form the government. ii. The Governor’s task is to see that a government is formed in the state and not try to form a government; the place where the majority has to be proved is the floor of the House.
Later, MM Punchhi Commission in 2007 stated that a pre-poll alliance be treated as a single party. It said that the largest pre-poll alliance commanding the largest number be given the chance. But recently, new trends were set when in Goa, Manipur and Mizoram where the single largest party Congress was not given preference to form the government. In Goa, the Congress had won 17 seats in 40-member Assembly but the BJP with the help of regional parties formed the government. In Manipur and Mizoram too, the Congress had emerged as the single largest party but the BJP was invited to form the government.
Thus, it can be said that The Constitution of India empowers the governor to appoint chief minister but it remains silent on the issue of his/her role in case of a fractured mandate. As a result, it’s entirely the governor’s discretion whom to call for government formation when there is no clear majority to a single political party or a coalition of the pre-poll alliance partners.