The question of discretion

As SC continues to hear today the Cong-JD(S) appeal against Karnataka Governor Vajubhai Vala’s decision to call B S Yeddyurappa to form the government, an eminent jurist weighs in on a key aspect of the debate

Written by Faizan Mustafa | Updated: May 18, 2018 11:22:07 am
Karnataka elctions government formation So, did the Governor use his discretion in the proper manner while inviting Yeddyurappa to form the government? Illustration: C R Sasikumar

The principle of the Governor’s “discretion” has been invoked to defend Vajubhai Vala’s decision to invite B S Yeddyurappa, leader of the BJP legislature party, to form the government in Karnataka. By not staying the swearing-in on Thursday, the Supreme Court has tacitly acknowledged this discretion. What exactly does discretion mean in legal-constitutional situations such as this?

The English barrister and judge Sir Edward Coke (1552-1634), considered by many to be the greatest jurist of the Elizabethan and Jacobean ages, famously 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 with caution and in a reasonable manner. Absolute discretion is constitutional blasphemy — Justice William Douglas of the United States Supreme Court observed that “absolute discretion is a ruthless master (which is) more destructive of freedom than any of man’s other inventions”. (Dissenting judgment, United States v Wunderlich, 1951)

So, did the Governor use his discretion in the proper manner while inviting Yeddyurappa to form the government?

Discretion is choosing from various available alternatives with reference to rules of reason and justice. The Governor’s rejection of the claim of the group [Congress-JD(S)] that had a clear majority in the House was irrational and illogical. It is odd that the Supreme Court accepted his discretion to appoint Yeddyurappa as Chief Minister.

Also, discretion is to be exercised after proper application of mind to the facts and circumstances of any case. It was clear that the BJP, despite having emerged as the single largest party, did not have the numbers to form the government — and to give it as much as 15 days to make up the shortfall was to pave the way for horsetrading.

Indeed, there are reasons to suspect that the Governor may not have acted as an independent and impartial constitutional functionary. Discretion cannot be exercised under dictation, or for an improper purpose, in bad faith, or by taking into account considerations that are irrelevant. It can also not be exercised in an arbitrary or whimsical manner, or on the basis of prejudice or preference rather than reason or fact.

The “subjective satisfaction” of the Governor on the question of who has majority should be based on “objective facts”. His personal satisfaction is not important; it has to be constitutional satisfaction.

So, what could the Supreme Court have done differently after the extraordinary overnight hearing on Wednesday?

The Supreme Court could have followed its own judgment in the Goa case, where it expressed its inability to intervene in the swearing-in of Manohar Parrikar as he had mustered a majority by moving fast. “…When no political party is in majority, then it is the bounden duty of the Governor to see who can form the government. If nothing happens, then the Governor is duty-bound to call the leader of the single largest party, but if someone goes to the Governor with a list of supporters, then it is a different issue altogether,” a Bench of then Chief Justice J S Khehar and Justices Ranjan Gogoi and R K Agrawal had said. (Chandrakant Kavlekar v Union of India, March 14, 2017) On that occasion, the Congress was the single largest party; in Karnataka, the roles have been reversed.

Alternatively, the Supreme Court could have followed its 2005 order, by which it ordered a floor test in Jharkhand after Governor Syed Sibtey Razi, a UPA appointee, invited Shibu Soren to form the government even though he did not have the numbers. A Bench of Chief Justice R C Lahoti and Justices Y K Sabharwal and D M Dharmadhikari described the action as a “fraud on the Constitution”, and brought forward the floor test. The Bench also restrained the Governor from nominating an Ango-Indian member to the Assembly — a step that the Karnataka Governor took in that state on Thursday.

Historically, how has the role of the Governor and the nature of his ‘discretion’ been envisaged in India?

When the British allowed limited representative government, they retained some special powers for British Governors who could take important decisions in their discretion, without the aid and advice of the Council of Ministers. In 1937, after the Congress won elections in seven provinces, it took office on the condition that the British Governors would not interfere in the functioning of its Ministries, and would refrain from exercising “discretion and special powers”.

Despite the Congress’s opposition to the office of the Governor during the Raj, the framers of the Constitution of independent India chose to retain it in order to preserve the nation’s unity, stability and security. Jawaharlal Nehru favoured the appointment of eminent academics from outside politics and other outstanding and impartial people from other walks of life as Governors. B N Rau, who played a key role in the drafting of the Constitution, proposed that the Governor be elected by the Legislative Assembly. Sardar Vallabhbhai Patel, who headed the Provincial Constitution Committee, recommended that the Governor should be elected by the people of the state with a term of four years, and who could be impeached for “misbehaviour”. Jayaprakash Narain wanted the Governor to be appointed by the President from a panel of four persons selected by the Legislative Assembly and Members of Parliament from the state.

It was finally decided to have a nominated Governor for several reasons: an elected Governor may come into conflict with the Chief Minister; due to his popular support, the Governor may encourage separatist tendencies; he may join hands with the Chief Minister to defy the Centre. Babasaheb Ambedkar argued that the Governor being a figurehead, time or money should not be spent on his election. He said that the Governor will represent the people of the state, not the party at Centre. T T Krishnamachari argued that the Centre should always consult Chief Ministers in appointing Governors, and the CM should have a veto on the appointment. Decades later, in 1987, the Sarkaria Commission made a similar recommendation.

What then, are the qualities of an ideal Governor?

In the early days of the Republic, the Governor had a faint presence, “like a full moon at midday”. His primary role, like that of the Queen in England, was to be the sagacious counsellor who would be consulted, and who would warn and encourage. The Governor is neither a decorative emblem nor a glorified cipher. His powers are limited, but he has an important constitutional role to play in the governance of the state and in strengthening federalism. He must remain true to his oath of preserving, protecting and defending the Constitution.

This ideal has, however, been steadily eroded over time, and Governors have come to act — and be seen — as partisan political animals, a tendency that the Supreme Court has repeatedly assailed. In Hargovind Pant vs Dr Raghukul Tilak & Ors (May 4, 1979), the court made it clear that the Governor is not an employee of the central government, nor is he under its control or accountable to it.

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