Karnataka governor's decision to invite BJP to form govt legally correct, immune to any review by judiciary

The past few days have seen a great deal of jurisprudential analysis on the role and powers of a governor of a state, under the scheme of the Indian Constitution. The issue is however very simple and just requires a plain reading of the Constitution to yield a straightforward answer. The order of the Supreme Court, delivered in the early hours of Thursday morning, has added to the complexity of the issue. It needs to be stressed with authority that the order suffers from at least two legal vices. Firstly, it is in direct conflict with Article 163(2) of the Constitution of India, which says:

(2) 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

There are two important takeaways from the literal reading of the provision. First, if there is a question with regard to whether any matter falls in the domain of discretionary powers of the governor or not, then only the governor himself is the appropriate authority to answer this. Second, his action in pursuance to such discretion can’t be questioned, merely because he shouldn’t have acted in his discretion. [caption id=“attachment_4473041” align=“alignleft” width=“380”] Governor Vajubhai Vala administers oath to BS Yeddyurappa. PTI[/caption] In its latest order by merely admitting the petition to hear the challenge against the discretionary power of the governor, the Supreme Court has explicitly tried to do what has been prohibited by the constitutional mandate, as stated above. Secondly, the order of the court, requiring production of letters sent to the governor by Yedurappa, is also legally incorrect. By examining such letters, the court is trying to infer which political group has the majority in the House. The Supreme Court itself in a nine-judge bench decision in SR Bommai versus Union of India has held that majority can only be established on the floor of the House. A three-judge bench of the court can’t go against the law laid down by a higher judge bench. The Supreme Court has no jurisdiction to determine this through the examination of letters sent to the governor. The effect of Bommai decision is that the majority can also be not established by parading the MLAs in front of the governor or anywhere else, which the Congress and the JD(S) tried to do. It is important to realise that the governor has these discretionary powers for a reason, which is to preserve the scheme of federalism, as envisaged under the Constitution. Under the principles of interpretation of Constitution, it is an established practice to refer to the Constituent Assembly Debates (CAD), whenever there is a doubt with regard to the meaning of any provision in the Constitution. In this light, it is important to refer to a statement made by Dr Ambedkar himself in the CAD:

“Because the provincial governments are required to work in subordination to the Central government and therefore, the governor will reserve certain things in order to give the president the opportunity to see that the rules under which the provincial governments are supposed to act according to the Constitution or in subordination to the Central government are observed.”

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This simply means that the Constitution emphasises on a federal nature of our polity, wherein the Central government has disproportionate powers to dominate over a provincial government. The correct position of law seems to be laid out by the Gauhati High Court in the case of Jogendra Nath versus State of Assam, wherein it has been held that:

“The governor is the sole and exclusive authority to appoint the chief minister. He is also the sole judge to ascertain who commanded the support of the majority in the Assembly.”

The governor is the representative of the Central government in the state and hence if he is seized with a matter, in most cases he has to take a decision which prioritises the interests of the Central government. A political corollary of the above argument means, that the governor will also prioritise the political interests of the Central government or the party ruling the Centre. It has been firmly established in the Indian Constitutional Law, that governor is a political appointee serving at the pleasure of the president, his actions therefore, are necessarily motivated by the politics of the party in power at the Centre. There is nothing wrong in this, instead the Constitution itself gives validity to such functioning of the governor, possibly to quell any differences arising between the Central and state governments. In the event of no party getting the majority, the governor has the discretion to ask any political group to prove majority. This discretion is very wide, and the governor can also appoint an elected person to be the chief minister of the state, as has happened with J Jayalalithaa, when she was appointed as the Chief Minister of Tamil Nadu, even though she herself wasn’t a member of the state Assembly. Therefore, the decision of the Governor of Karnataka, inviting the BJP to form the government and giving it 15 days to prove the majority, is not only absolutely correct in the eyes of law, but also immune to any review by the judiciary. Hence, in the current scenario there is no other legally correct position other than respecting the discretion of the governor. The author is a senior fellow with the Department of Humanities and Social Sciences, IIT-Bombay, Mumbai. He tweets @raghavwrong Follow all the LIVE updates here