Recently, Mr K Chandrasekhara Rao, the Chief Minister of Telangana, advised the Governor to dissolve the Assembly and accordingly the later dissolved it with about six months of its present term remaining. So it would be reconstituted by a new election at a time fixed by the Election Commission. However, this happened because the Governor and the Chief Minister were on the same page. But if the Governor differs with the Chief Minister in this matter, the political chaos may ripen into a constitutional crisis.
In this connection, however, two questions naturally come up – 1) Whether or not the Governor can take personal initiative in such dissolution, and 2) Whether he can refuse to grant a dissolution when the Chief Minister seeks it.
In answer to the first question, it can be emphatically claimed that in some situations, an untimely dissolution remains the only remedy.
Under Art. 174 (2) (b) of the Constitution, the Governor can, at his will, dissolve the Assembly and, in that case, a mid-term poll comes out as the natural concomitant. It is to be remembered that Art. 174
(2) (b) has not, in any way, enjoined that in such case, the Governor requires advice of his Chief Minister. It has rather vested in him the sole authority to decide whether or not dissolution of the House is warranted by the realistic circumstances.
Thus, from purely legalistic point of view, the gubernatorial authority of dissolution cannot be curbed by the Chief Minister’s power. The aforesaid Article has given him an unconditional authority to dissolve the House. It is to be noted that the Constitution has given some discretionary powers to the Governor.
It is stipulated by Art. 163 (2) that if a question regarding the scope of such discretion arises, his decision shall be conclusive. So, as Dr MV Pylee writes, a Governor can rightly claim that dissolution comes within such wide authority.
Obviously, the Governor may have, on this issue, a difference of opinion with the ministry. But, significantly, the Constitution has, in no way, granted the Chief Minister any scope to dictate to the Governor in such matter. In fact, he may not be properly advised by the council of ministers to dissolve the Assembly. In such case, he is fully entitled to act according to his own discretion. But the answer to the second question is surely more controversial.
Though it is often held that the Governor must act upon ministerial advice, yet he is not legally bound to grant dissolution, because this is another contingency in which he can sometimes take a different view.
However, on such issue, a reference to the British system has become a customary affair. Harold J. Laski, relying upon his doctrine of ‘automatism,’ opined that the King/Queen could, in no case, refuse to grant a dissolution, because, in his view, “it was to place the responsibility for the Government squarely to the electorate where, in the circumstance, it ought to lie.” But, Dr AB Keith has taken a different view and has held that the King was bound to act upon the PM’s advice only when the latter approached him with it for the first time. If, in his view, the PM makes similar appeal after the dissolution of the House and the resultant reconstitution of the cabinet after his victory in the polls, then the King, can rightly refuse to oblige him. Some other authorities, however, more firmly stood for royal supremacy in this affair.
For example, Lord Haldane observed, “His Majesty may, instead of granting it, dismiss the Minister who gives it or receive his resignation.” Similarly, Lord Esher pointed out, “His Majesty could dispense with the advice of Ramsay Macdonald, but only if he could find in Baldwin or Asquith another Prime Minister to take the responsibility.”
But perhaps the best interpretation has stemmed from the writings of Sir Ivor Jennings. According to him, the King can avoid a dissolution only when the formation of an alternative cabinet from the existing House is eminently possible. In other words, if a new Prime Minister can not be found out, nothing short of a dissolution can resolve a political impasse. Similarly, Lord Lascelles has held that the King can rightly grant a dissolution if, in his opinion, (1) the House is no longer found to be vital, viable and capable of performing its tasks; or (2) an untimely election would not be detrimental to the national economy, or (3) the formation of an alternative cabinet is beyond feasibility.
In fact, the alternative to dissolution is the formation of a new cabinet. A prudent sovereign must choose between these two alternatives.
When he can form a new Government out of the existing House, a dissolution may easily be avoided. But, if the political condition rules out the possibility of choosing a durable cabinet then a dissolution remains the only way-out. As Sir Jennings has rightly pointed out, the Queen has always ried to explore the possibilities of forming an alternative Government after the defeat of a Ministry either in polls or inside Parliament and that the prerogative of dissolution has been used only when she has failed to find a new PM. So, our Governors should make a similar attempt to keep the House intact, but if it is impossible, they must dissolve it according to the ministerial advice.
In yesteryears, the issue of dissolution of the Assembly has evoked much dispute, because while some Governors have promptly dissolved the House on the advice of the Chief Minister, others have refused to grant a dissolution. In fact, instances of both acceptance and rejection of the ministerial advice for dissolution are not insufficient. But, more often than not, such dissolutions have served the political purpose of the ruling authorities. In Britain, however, the King/Queen normally grants a dissolution to the Prime Minister. But, as Dr AC Kapur holds, Britain cannot be a model for India.
According to him, the Indian provinces are now cluttered with a large number of political parties. Often coalition-cabinets come to power on the basis of temporary adjustments. If the coalition breaks up, the Chief Minister loses the majority support and begs for a dissolution. But, in such cases, there can be no legitimacy in asking for a dissolution, because a new type of coalition may come up from the same Assembly. The Governor should, in such case, see whether or not a new Chief Minister can be found out by keeping the House alive.
For this reason, Dr SL Sikri opines, “it is not obligatory on the part of the Governor to agree with the advice of a defeated Ministry to dissolve the House.” The Administrative Reforms Committee (ARC) has, however, opined that the Governor should, without hesitation, grant dissolution to the defeated Chief Minister. In its view, this is in conformity with the norms of parliamentary democracy because in such a system a Chief Minister, after a defeat in the House, may claim that in spite of a defeat in the House, he continues to represent the people. Only a mid-term poll after dissolution can determine whether or not his claim has practical weight.
But, the Governor should, instead of dissolving the House, give the Opposition- leader a fair chance to form a cabinet. For this reason, the Governor should have the right to take the final decision in this matter. It is to be remembered that in 1973, the Governor of Orissa dissolved the House on the advice of Nandini Satpathi, the then Chief Minster, without giving any chance to the Opposition leader (Biju Patnaik), and hence, the High Court passed strictures against him.
According to the Court, the Governor must behave in a way so that the bona fides of his action remain immune from any possible misgiving. Of course, it is difficult on the part of a Governor to exercise such power independently. He is appointed by the Centre and can be dismissed by it for any reason.
As Dr SC Kashyap has remarked, “the Governor has no security of tenure. He may be removed by the President at any time.” In case he earns the wrath of the Centre, he is sure to lose his job, but the aggrieved Chief Minister cannot oust him. So, if the former belongs to the party which is not in power at the Centre, his advice to dissolve the House can be defied with impunity.
Particularly, our politics have become very complex in the context of present multi-party crisis. This is why the issue of dissolution has often evoked a heated controversy. In fact, the position of the Governor has verily changed after 1967. As different parties and groups now take the reins at the Centre and in the states, he is no longer a passive onlooker. Of course, during the hey-day of the Congress, the Governors had to play a passive role and, resultantly, the Chief Ministers dominated state-politics.
But with the emergence of the federal panorama after 1967, the Governors have often been called upon to play an active role. In fact, coalition politics, combined with political instability have tremendously increased their power in state affairs. He has now to play a dual role – as the Head of the Province and as an agent of the Centre. As such, he cannot be always expected to act upon ministerial advice. For this reason, the dissolution of the Assembly often reflects the desire of the Centre and not the intention of the Governor or the Chief Minister.
The writer is a Griffith Scholar and former Reader, New Alipore College, Kolkata.