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What Supreme Court said on Gov’s role in earlier rulings

The Supreme Court had said the Governor’s action should be to protect the Constitution and not to promote the political interests of any political party.

Written by Ananthakrishnan G | New Delhi |
November 25, 2019 3:02:46 am
Maharashtra Governor Bhagat Singh Koshyari at Raj Bhavan. (Express photo by Prashant Nadkar)

THE SUPREME Court on Sunday sought the letter submitted by Devendra Fadnavis to Maharashtra Governor Bhagat Singh Koshyari claiming majority support, and the Governor’s letter inviting him to form the government. A perusal of these documents will help decide whether due process was followed in inviting the BJP leader to take oath as Chief Minister.

A corollary to this is the independence of the office of the Governor, as discussed in various judgments of the top court, starting with the historic March 1994 decision in the S R Bommai case.

Discussing the scope of exercise of powers under Article 356 of the Constitution, the Supreme Court, in the Bommai judgment, had laid down limits of the President’s power in dismissing state governments, and established that the floor of the House is the only place to conclusively test majority.

In their petition, the Shiv Sena, NCP and Congress have contended that at the time of government formation, the Governor is duty bound to select a chief minister who can demonstrate that he enjoys the confidence of majority of the legislators in the House. They have cited the Supreme Court’s decision, in January 2006, in the case of Rameshwar Prasad and Others Vs Union of India and Another to buttress this.

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Discussing the role of Governors in government formation, a bench headed by then Chief Justice of India Y K Sabharwal, and including then Justices K G Balakrishnan, B N Agrawal, Ashok Bhan and Arijit Pasayat, had said that a political party having prima facie support has to be permitted to form the government, and it would have to ultimately prove majority on the floor of the House.

The petitioners have said there has to be some cogent material, in the form of letters of support, to arrive at such a prima facie conclusion, and the discretion bestowed on the Governor cannot be arbitrary, but must be bound by constitutional provisions and conventions.

The petition says the BJP has shown no such demonstration, either by way of letters of support or physically parading the MLAs, and the party clearly falls short of the halfway mark. The three parties have also contended that the BJP cannot achieve the numbers by breaking other parties in view of the anti-defection law.

The verdict in the Rameshwar Prasad case referred to the Bommai judgment, which was delivered by a nine-judge bench, and said the role of the Governor had come in for considerable criticism on the ground that some Governors had failed to display the quality of impartiality expected of them. The Sarkaria Commission Report, the court noted, had said that “many have traced this mainly to the fact that the Governor is appointed by, and holds office during the pleasure of the President, i.e., in effect, the Union Council of Ministers.”

The Supreme Court had said the Governor’s action should be to protect the Constitution and not to promote the political interests of any political party. “Undisputedly, a Governor is charged with the duty to preserve, protect and defend the Constitution and the laws, has a concomitant duty and obligation to preserve democracy and not to permit the ‘canker’ of political defections to tear into the vitals of the Indian democracy,” it had said, adding that the courts could look into any malafide decision.

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