Time to lay down the law

Governor’s Role

It has been a common trend in all states and union territories that whenever there is a fractured mandate, it results in political horse-trading. On the question of inviting parties and allocating them time to form the government, the Governor generally acts in a partisan manner, thereby abdicating his constitutional duties and lowering the dignity of such a high constitutional post. The latest instance of this is Maharashtra, where the Governor’s decision inevitably produced a dispute in the Supreme Court. Constitutional silences were meant to allow Governors to act in accordance with constitutional morality to further democracy. They are being abused to advance the interests of the ruling party at the Centre. The office of the Governor has thus become a ‘choke point’ in the Constitution, which has otherwise taken a leap in granting us our rights.

No guidelines

Under the Constitutional scheme, the Governor appoints the Chief Minister who, in turn, advises the Governor to appoint the Council of Ministers. According to Article 164(1) of the Constitution, the Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by the Governor on the advice of the Chief Minister, and the Ministers shall hold office during the pleasure of the Governor. However, the problem arises from the fact that the Constitution does not provide any guidelines as to how the Governor should function in case no party or alliance wins a clear majority during the election. There, therefore, exists constitutional silence. Further, there exist no guidelines from other sources to resolve the issue in case of a fractured mandate.

Constitutional silences

Modern jurisprudence on constitutional interpretation posits that constitutions are characterised by silences and abeyances as an inherent part. Constitutional silences posit that silences are indispensable, deliberate and implicit – these are incorporated though not mentioned in the text per se. Historically, most of the modern constitutions were framed in the backdrop of revolutions and upheavals. Settling chaos and establishing an orderly society was the primary aim of the framers of the constitutions, rather than discussing contentious issues which could lead to a complete breakdown of society and polity. Thus, these constitutions are the result of trade-offs and it is clear that silences were also imposed upon the constitutions by the context in which they were framed.

The Indian Constitution is no different in this respect. It was framed in the backdrop of Partition and consequently, the framers of the Constitution were very much concerned with the unity and integrity of the nation.

Governor’s post

In this context, the framers of the Constitution felt that there was a dearth of competent legislators in the states and a certain amount of centralisation of power was necessary for nascent India. Therefore, silence as to the procedure to be followed by the Governor for the formation of the government was deliberate. It was expected by the members of the Constituent Assembly that Governors would act in a manner befitting their office and would be guided by constitutional morality. It was a move to protect Indian states from secessionist tendencies.

The concept of constitutional morality has been further elaborated by the Supreme Court in its various judgements, in which the court has, most importantly, held that that the value enshrined in the text when a holistic approach is adopted to the same is the essence of constitutional morality. In fact, constitutional morality is that fulcrum which acts as an essential check upon the functionaries as experience has shown that unbridled power, without any checks and balances, would result in a despotic situation, which is antithetical to the very idea of democracy.

However, the concern of Babasaheb Ambedkar seems to be taking the shape of reality: “Constitutional morality is not a natural sentiment. It has to be cultivated. We must realize that our people are yet to learn it. Democracy in India is only a top-dressing on an Indian soil, which is essentially undemocratic.”

Choke point

Despite having taken a transformative leap in terms of universally granting fundamental rights, adopting a parliamentary form of government, the framers of the Constitution were more on the conservative side when it came to the fear of secession. In the words of Benjamin Constant, “Constitutions are seldom made by the will of men. Time makes them. They are introduced gradually and in an almost imperceptible way. Yet, there are circumstances in which it is indispensable to make a constitution. But then do only what is indispensable.”

One such example is the office of the Governor, which Gautam Bhatia, constitutional law scholar, describes as a “choke point” in the Constitution, where federalism and the popular will were to be kept in check from above. The recent examples from Karnataka and Maharashtra clearly demonstrate that the Governor, owing to constitutional silences, has been vested with enough discretion to skew the political process in the direction that the central government desires.

The way forward

Given that Governors have belied the hope of the framers of the Constitution that they would be guided by constitutional morality and would act in the interest of democracy, it is high time that the problem is resolved, because problems due to the office of the Governor are both continuing and real. One may argue that the problem is a case-to-case issue and the courts are adequately suited to deal with the issues. However, the mockery of democracy that is made every time cannot be resolved by the courts and the case-to-case basis approach cannot be the way out. Either a detailed guideline as to the procedure that the Governor should follow should be enacted or the power should be entrusted to the Chief Justice of India or Chief Justice of the concerned High Court.

(The writer is a student at the National Law School of India University, Bengaluru)