The political crisis in the state of Karnataka demonstrates a unique constitutional issue surrounding the office of the Governor and food for thought to legal experts of the country.

So far, many governors have come under attack for unjustified dismissal of duly elected governments, but not too often have they been criticised for the appointment of Chief Minister.

In the instant case, the very act of trying to form a government by B S Yeddyurappa was perfectly in conformity with constitutional propriety though he failed miserably to do any impropriety.

If the discretion exercised by the Governor of Karnataka has to be tested, he exercised it in accordance with specific facts and circumstances considering the fluid political situation in the state.

It is improper to impute the charge of bias against the Governor considering the political situation of the state except the time of 15 days he allowed, which is a bit too long and facilitates the chances of poaching.

There is an erroneous impression in general that the Governor is an employee and agent of the Centre and should consult the Union government before taking decisions even in matters where he has discretionary powers.

If one analyses the power of a Governor it falls under three categories: (i) the executive power taken in the name of the Governor, (ii) The power exercised by him with the aid and advice of Council of Ministers headed by the Chief Minister; and (iii) the power exercised by him in his sole discretion.

Though the immunity under Article 361 is not available with regard to the first two categories of exercise of powers, the Governor has to satisfy himself that the person, who commands majority strength in the Assembly alone becomes the Chief Minister. How he is to satisfy himself is not indicated by the Constitution.

Sir Edward Coke, a famous English jurist 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 cautiously and in a reasonable manner.

Though Gubernatorial discretion varies from situation to situation, the discretionary power of the Governor should not be exercised under coercion or dictation or on extraneous considerations or for improper purposes. It is also imperative that the exercise of discretion should not smack arbitrariness or whimsicality or prejudice.

The apprehension of misuse of discretionary powers by Governors had been rightly echoed in the Constituent Assembly debate by a great leader of Odisha, Biswanath Das (Congress). He said: “If I were to have my leaders in office continuously, if I were to have men like Pandit Jawaharlal Nehru and Sardar Vallabhbhai Patel, I have absolutely no complaint… there is no knowing which party will be in power (in the future).

It may be that a party absolutely different from that in the Centre may be functioning in office in a province. What would then be the position? The Governor, who is the constitutional head under the Act, has to be appointed on the advice of the Prime Minister of India, leader of another party.

I would have cited how the Governor, who was the agent of the British Imperialism, had all along been attempting to smash my Party. What was being done by the British Imperialism may also be repeated by the Party (at the Centre).” (Constituent Assembly Debates, 31 May 1948). The said apprehension is very much alive today.

The apex court has time and again observed that governor’s discretion in the appointment of a chief minister is not unfettered. The discretion of the governor is very much conditioned by the party position in the House (Mahabir Prasad v Prafulla Chandra, 1969). As for the Sakaria Commission (1988), even though its guidelines are not legally binding, non-observance of the guidelines will certainly raise questions on the impartiality of the
governor.

In the Karnataka case, the governor had invited the single largest party which is in accordance with the Sarkaria recommendations. The Commission while dealing with Governor’s power to call the single largest party outlined the convention to be followed in case of a fractured mandate where no single party is in a position to form a Government. In such a scenario, it recommended that the Governor would be well within his rights to invite the largest pre-poll alliance combination.

If this fails to materialise, the Governor will then call the single largest party to stake claim by claiming support of other MLAs, including Independents. It is only at the third stage that the Governor may call a post-poll alliance of political parties that claims to form a “stable” Government.

In S.R. Bommai v Union of India (1994), the apex Court held explicitly that in situations where there is a hung assembly, the final decision rests not with the various feuding parties but with the concerned legislature through a “floor” test.

However, in the case of Rameshwar Prasad (2006), the apex Court held that, “If a political party with the support of other political party or other MLAs stakes claim to form a Government and satisfies the Governor about its majority to form a stable Government, the Governor cannot refuse formation of the Government and override the majority claim because of subjective assessment that the majority was cobbled by illegal and unethical means. No such power has been vested on the Governor. Such a power would be against the democratic principles of majority rule.”

But the distortion of the established principles in states like Meghalaya, Mizoram and Goa regrettably set wrong precedents. The office of Governor is not merely of symbolic importance, it plays a crucial role in smooth functioning of our federal polity.

There are umpteen numbers of instances where the Governors have acted as spineless creatures or as puppets in the hands of the Central Government. The real problem does not lie in the appointment of governors; it is in the nature of the office itself inasmuch as it enjoys discretionary power which is a recipe for confrontational politics.

The ruling party at the Centre should not utilise Raj Bhavans as offices of rehabilitation for the aged and loyal politicians who have lost elections, former babus, judges, police officers or service personnel who have been useful to the ruling party while in office, caste or community satraps and personal loyalists.

Rather it should choose people with constitutional knowledge, impeccable integrity and impartiality. According to C. Rajagopalachari, “governor is like a federal fireman” and “they should be above partisan politics” which should be the guiding principle for this great office.

The writer is an Advocate, Supreme Court of India.