By MV Jagadodhara Gupta
The institution of Governors has once again come under the severe criticism with the recent political imbroglio in Karnataka. Surprisingly, both the political groupings have logically argued in their favour and they were correct to a great extent. While BJP, the largest party in the Karnataka assembly was right in claiming the stakes on the pretext not only from the point of view of majority (though short of absolute strength), but from the mood of the mandate of the people of Karnataka by rejecting the ruling Congress & the distant third runner JDS, they cannot have an unholy alliance after the elections, just to capture power. On the contrary, Congress + JDS were correct going by the arithmetic in the assembly as well as due to the recent precedences in Goa, Manipur & Meghalaya where post poll combinations were invited leaving aside the majority party, when it was suiting the BJP. Both the national parties viz., Congress in the past & BJP in the present have misused the constitutional posts of Governors. Much has been debated on Governors, whether in Sarkaria Commission or S.R.Bommai case and number of rulings in various courts and the irony lies with the political parties themselves not interested in streamlining or settling once & for all, the discretionary powers vested with the Governors, for it avoids their manipulation, when in power.
It would be impossible to rule out the misuse of discretionary powers by Governors, if we continue with the present system of appointing Governors by the ruling party at centre, since most of these appointments are being made on the basis of political leanings & as political doles to accommodate the partymen. Most of the problems arising with the biased functioning of Governors can be addressed to a great extent by reforming the very process of appointment by placing ‘apolitical’ people like retired judges, social activists, renowned people from various walks of public life. On the same analogy now being adopted by the Union Government for selecting the Padma awardees, suggested names of eminent persons can be taken from the general public through online or e-poll amongst the panelists.
Further, the discretionary powers as regards to ‘Who should be called to form the government in the case of hung assembly’, the order of precedence should be inserted at Article 164 of the Indian Constitution as under :
(a) Leader of the pre-poll coalition, if enjoying majority above halfway mark.
(b) In case of no pre-poll coalition, willingness of the single largest party to form Government and their ability to prove majority within the shortest time frame such as 24 to 72 hours, so as to avoid horse trading & other illegal practices.
(c) Leader of post-poll coalition.
(d) Suspended animation of the assembly & imposition of President’s rule till the resolution of political imbroglio.
(e) Re-conducting elections to state assembly, if no popular government is possible within a time frame of 6 to 9 months.
Moreover, any decisions as regards to discretionary powers by the Governors, even as returning the bills passed by the assembly etc has to be a reasoned judgment in the form of speaking order. Mr Venkaiah Naidu, Hon’ble Vice president of India & Chairman of Rajya Sabha, while rejecting the petition by Opposition Parliamentarians for removal of CJI of Supreme Court has given 10 to 12 page reasoning after consulting the various constitutional experts, thus could not be challenged in any court of law. The best possible option with any constitutional appointee in case of doubtful situations is by resorting to conciliation amongst the disputing parties and resolving the issue like an arbitrator by considering their claims and counterclaims. Even, the Supreme Court has not found any fault with the invitation by the Governor in calling the single largest party to form the government, but only questioned the premise for arriving at the decision regarding the majority by asking for the letters handed over to Governor by the claimants. On hearing the arguments, Hon’ble Supreme court has reduced the time frame of 15 days for proving the majority to just 24 hours, since it may lead to unethical and illegal practice of horse trading of MLAs as being apprehended by the rival grouping. This embarrassing situation could have been avoided, if the Governor had acted like an arbitrator after hearing both the parties and thereafter, giving his reasoned decision, duly taking into consideration the apprehensions of both parties. By doing so, there would not have been space for judicial interference at all and the dignity of the office of the constitutional appointment such as Governors could have been upheld.
To conclude, a strong political will is required amongst all the political parties to cleanse the polity. Brazenly in few states, several defected MLAs continue in the legislative assemblies as members or even holding the post of ministers, in spite of strenuous provisions of Anti-Defection law and this is possible only due to the discretionary powers vested with the people at the helm of affairs.
(The writer is an octogenarian & senior advocate in Andhra Pradesh)