The Governor of a State in our Constitution occupies a unique position. He is, by virtue of his oath, expected to preserve, protect and defend the Constitution and the law. No other high functionary, except the President of India, is sworn-in as per such phraseology. While the oath that a Governor takes is similar to that of the President, unlike him, the Governor is allowed a certain degree of discretion within the constitutional limits.

For instance, Article 163 (2) reads as “if any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final, and 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.” At the time of formation of the Government, when the Chief Minister and the Council of Ministers are yet to be sworn-in, constitutionally there is none to aid and advise the Governor as per the provisions of Article 163 (1).

However, precedents and conventions have evolved which are usually followed by the Governor. Also in this matter, the Sarkaria Commission on centrestate relations had given some concrete suggestions, including that while going through the process he should select a leader who in his judgment is most likely to command a majority in the Assembly. In this context, Article 164 (1) lays down that the Chief Minister shall be appointed by the Governor and further as per Article 164 (4), a minister who for any period of six consecutive months is not a member of the Legislature of the State, shall at the expiration of that period cease to be a minister.

In this context, an unprecedented situation continues to prevail in the sensitive state of Sikkim, where Prem Singh Tamang alias P.S Golay of Sikkim Krantikari Morcha (SKM) was sworn-in as the Chief Minister on 27 May this year. The unusual thing about this swearing-in is the fact that P.S Golay during his tenure as Minister for Animal Husbandry in 1996, was held guilty under the Prevention of Corruption Act for misappropriating Rs. 9.5 lakh meant for the purchase of milch cattle. Golay’s conviction was upheld by the High Court and he was released only after undergoing one year’s imprisonment last year. This conviction and subsequent imprisonment of Golay has brought him under the ambit of Section 8 (1) (m) of the Representation of the People Act, 1951, entailing a disqualification for a period of six years from the date of his release from imprisonment.

Perhaps only on account of this disqualification, Golay did not contest the election to the State Assembly held in April 2019. This also renders him not qualified to be a member of the State Legislature in accordance with Article 173. Despite the disqualification, the SKM elected Golay as their leader and the Governor swore him in as the Chief Minister, being the leader of the party with an absolute majority. It is obvious that the Governor had used his discretion and not followed the principles laid down by the Supreme Court in such matters. The Governor is at liberty to appoint a person as the Chief Minister, who may not be a member of the legislature at that time, provided the State Legislature endorses such a choice, with the condition that he has to get himself elected within a period of six months.

On the other hand, there is this case where the person so elected has the confidence of the House but is not qualified to be elected as a legislator. It was argued in J Jayalalitha’s case by Venugopal, present AG, that in a parliamentary democracy the will of the people must prevail. Justice Patnaik, however, ruled in that case that with the disqualification under Section 8 (3) of the Representation of People Act, staring in the face, the Governor would be acting beyond his jurisdiction and against the constitutional inhibitions and norms in appointing such a disqualified person as the Chief Minister on the sole reasoning that he has been elected leader of the majority party.

The plea taken by the SKM that the relevant amending clause of the Representation of People Act has since been repealed, may not have much strength, as after the amendment has been incorporated in the main body of the Act and notified as such, a later date repealing of the amending Act would not make an impact. But this is also a matter on which the Supreme Court has to take a view whether or not the repealing of this Act was constitutional. The Supreme Court in Jayalalitha’s case also went on to say that the Governor is a functionary under the Constitution and cannot in exercise of his discretion do anything that is contrary to the Constitution and the law.

The situation as it prevails today is that a person disqualified under the law has been in the CM’s chair for the last three months. It is now for the Supreme Court to decide whether the discretion used by the Governor was constitutional or was a matter of indiscretion. In the latter case the appointment of the CM and his entire Council of Ministers would become invalid as happened in the case of Jayalalitha in Tamil Nadu.

(The writer is a former Governor and a Senior Advisor at Pranab Mukherjee Foundation)