J&K: Guv can't exercise subjective discretion

In the face of efforts to form a government in Jammu and Kashmir, the governor's decision to dissolve the Assembly has put the focus back on the role of constitutional head. In a scenario, where no single party enjoyed majority in a House, the governor has to exercise his discretion, not an untrammelled one, as to who is to be invited to form the government.

But where the parties, even of opposite ideologies, have apparently joined hands and expressed explicitly their willingness to form the government, the governor has to go by the principles laid down in the nine-judge decision of the Supreme Court in the S R Bommai case (1994).

“The principle of democracy underlying our Constitution necessarily means that any such question should be decided on the floor of the House. The House is the place where the democracy is in action. It is not for the governor to determine the said question on his own or on his own verification. This is not a matter within his subjective satisfaction. It is an objective fact capable of being established on the floor of the House,” the SC has said.

In a hung Assembly, the Sarkaria Commission on Centre-State relation (1988) recommended that the leader of pre-poll alliance and then the leader of single largest party if supported by other parties, should be invited to form the government. The M M Punchhi Commission (2000) said the party or combination of parties claiming widest support in the legislative Assembly should be called to form the government.

In exploring the possibility of government formation, 'the National Commission to Review the Working Of the Constitution', said a reasonable degree of stability of government and a strong government is important.

These guidelines are surely not binding but its non-adherence could invite a charge of the governor not being impartial.

In case of Jammu and Kashmir, Governor Satya Pal Malik on Wednesday dissolved the 87-member House, where PDP with 28 members, Congress having 12 MLAs, along with outside support of NC's 15 legislators have decided to form the government.

This decision would be amenable to judicial review, though according to Article 361, the governor enjoys complete immunity, but validity of his actions are subject to judicial scrutiny, including on the ground of mala fide and being arbitrary.

Despite best efforts, if ultimately a viable ministry fails to emerge, the Sarkaria Commission said, “The governor should ...consult the leaders of the political parties concerned.” As major parties cried foul over the governor's decision, this recommendation again is appeared to have been disregarded.

In case of Rameshwar Prasad and others Vs Union of India (2006) (Bihar Assembly), the Supreme Court said, “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 government and override the majority claim because of his subjective assessment that the majority was cobbled by illegal and unethical means. No such power has been vested with the governor. Such a power would be against the democratic principles of majority rule. Governor is not an autocratic political Ombudsman.”