Lightning strikes at Raj Bhavans

The Governor’s office has often been misused both by the Centre and by the Governors themselves. Some Governors have shown utter lack of discretion and behaved irresponsibly inviting, even judicial indictment, e.g. in the 1994 Bommai case, the Supreme Court commenting on the conduct of the then Governor inter alia said that ‘‘all canons of propriety were thrown to the winds’’ and his act ‘‘smacked of mala fides’’. As a high constitutional functionary, the Governor ‘‘was expected to conduct himself more fairly, cautiously and circumspectly’’.

Where the elections return a ‘hung’ House with no single party or pre-poll alliance being in a position to command majority support on its own, the role of the Governor becomes most delicate and difficult. Unless the fullest care and caution are exercised, the Governor may get involved in unseemly controversies. The unfortunate stand of some of the Governors in the matter has in fact been largely responsible for the continuing phenomenon of horse-trading and instability of governments.

The Sarkaria Commission, the SC (in the Bommai case) and the Constitution Commission have all held that the question of majority support should be settled only on the floor of the House. The Governor cannot act as a policeman keeping a head-count of supporters of different parties and leaders or verifying the lists of supporters, their signatures and the like. The Sarkaria Commission recommended, and the Constitution Commission endorsed, that in case there is no single party having absolute majority, the Governor should adhere to the following order of preference in calling the leaders to form the government: (i) leader of a pre-poll alliance, (ii) leader of the largest single party, (iii) leader of a post-poll alliance, (iv) leader of the group of parties some of which promise support to the government from outside, and lastly (v) leader who in Governor’s own judgement was most likely to command a majority. It is obvious that in the Jharkhand case, none of the salutary principles was kept in view. Instead of following the order of preference and inviting the leader of the largest pre-poll alliance, who also happened to be the leader of the largest single party, the Governor decided to appoint a person of his own judgement. Even if the Governor wanted to go by the head-count, 41 members constituting majority were paraded before him. It was highly improper for the Governor to decide to meet some of the supporting members separately and individually.

The conduct of the Governor has generated almost universal condemnation for jeopardising respect for democratic institutions and constitutional offices. It has, in fact, caused tremendous damage to the image of the Congress and its leadership. However, it seems unlikely that he was acting on his own. After all, Syed Sibtey Razi is known to be a very decent man. Once the constitutional culture and democratic norms are given a go-by, a vicious cycle is set in motion and one wrong is used to justify another wrong with wrongs getting multiplied. Houses of Parliament not being allowed to function is a case in point.

A way for the Governor to stay out of controversy could have been to send a message under Article 175(2) asking the House itself to elect its leader who could be appointed the chief minister. That way, the decision of majority support would have been taken on the floor of the House, chances of horse-trading would have been minimised and it would not have been necessary to ask such a chief minister to seek a vote of confidence again. When the basic question to be determined is of who commands the majority support in the House, the most obvious and logical course is to ask the House itself. After all, in the 1998 UP case, the High Court had ordered the reinstatement of the former chief minister and the SC had ordered a special session of the Assembly to have a composite floor test between two contending claimants to chief ministership.

The writer is Honorary Professor, Centre for Policy Research. He was secy gen of the Lok Sabha and Chairman of the Drafting Committee of the Constitution Commission