Governor's Discretion And The Cascading Effects On Constitutional Balance

Governor

Constitutions across the world, by their inherent nature, do not provide for an isolated functioning of any organ of the government and provide for a holistic system of governance with corresponding inter-play between different organs of the State. So thus the Constitution of India. Whereas the essence of checks and balances must be imbibed in the functioning of every organ, it comes with certain limitations, mostly emanating from the doctrine of separation of powers and judicial principle of self restraint. The recent political crisis in Maharashtra has concretised the rising concerns regarding the office of Governor, as envisaged in the Constitution. In an electoral democracy, it is believed, as well as expected, that the role of electorate is not just restricted to the exercise of franchise, but extends to the ultimate goal of the formation of government. However, this expectation is betrayed time and again in every state election in which the electorate fails to offer majority numbers to one party/pre-poll alliance, thereby leaving enough space for constitutional improprieties by constitutional functionaries.


Despite multiple claims by different alliances, the Governor chose to invite the BJP-NCP alliance on the faith of a letter with 54 signatures of NCP MLAs and oath was administered to the Chief Minister and Deputy Chief Minister in the early hours of the day. The first examination lies in whether the material before the Governor was sufficient enough to form a satisfaction upon it. Whereas it is, no doubt, true that the satisfaction of Governor in extending invitations for government formation need not be preceded by a process of "counting heads" or "roving enquiry", it is equally true that, when constitution entrusts a function to an individual, the same is to be exercised in a manner that does not reek of perversity or prejudice or abuse of the power. This, bare minimum standards are implied. Borrowing words from the recommendations of the Sarkaria Commission, the Governor's task is to see that a government is formed and not to try to form a government which pursues policies which he approves and the satisfaction of Governor must be in harmony with the ultimate fulfilment of this task.

The Constitution of India is an organic document and even the seemingly unguided provisions seek guidance from other words in their company. Article 164 empowers the Governor to appoint a Chief Minister in the state, but this power is not an unfettered one. The grant of discretion to the Governor to choose a Chief Minister comes with an underlying pre-requisite of the certainty of a stable government, and unless the material before the Governor is sufficient to ensure that his invitees are capable of forming a stable government, reliance upon such material would be nothing but an unwarranted exercise of discretion. The office of Governor, despite its shortcomings and unguided structure, is a very crucial office in the federal set-up and the higher the office, higher should be the level of circumspection and cautiousness in acting under its colour. Such circumspection and cautiousness are often found wanting in the cases of government formation post elections. This brings me to an even graver aspect of this piece - What is the impact of this wanton exercise of power on the constitutional balance of the organs of the State?

Every such exercise of power, with its peculiar features varying from state to state, falls before the Supreme Court for constitutional scrutiny. Whereas it is true that the Apex court is the last arbiter on the questions of constitutional interpretation, I find the idea of over-exhausting the remedies of a constitutional court as troublesome, particularly in situations involving other constitutional functionaries. I argue so because the role played by the Court vis-a-vis other constitutional functionaries is confined to the imposition of a 'check and balance'. The Court merely checks and balances, and does not sit as a 'regulator' on the discretionary exercise of power by the Governor, thereby meaning that the Court has limited remedies to offer in such cases. Even the Court, time and again, has recognised its incapability to delve deeper into the questions of executive satisfaction and discretion because, strictly speaking, one constitutional organ cannot micro-manage another constitutional organ as they are products of the same document.

As an implied consequence of this inherent limitation, the scrutiny of the Apex court gets limited and despite glaring presence of questions of constitutional interpretation, the court finds itself compelled to steer clear from answering them, so as to prevent its over-arching influence into the workspace of other organs of the State, and to protect the idea of separation of powers. In Dr. G. Parameshwara and Ors. (Karnataka case), the Court, in its order dated 10th May, 2018, noted:
"In a matter like this, detailed hearing is required in order to decide as to whether action of the Governor in inviting respondent no.3 to form the Government was valid in law or not."

The detailed hearing never happened. Similar question of law arose in the present case (Maharashtra case). However, the sense of urgency in both the cases needed expedient remedy from the Court and the remedy was administered in the name of floor test. Another peculiar feature here is that, unlike other cases, all the parties involved in these petitions stand satisfied with the direction of floor test and there is no desire to get the questions of law adjudicated because truth be said, political parties do not want 'their' Governors to work in a watertight manner under rigid court guidelines. The retention of scope for colourable exercise of power is desirable. The Court, on the other hand, is bound by the inherent constitutional constraint of self-restraint, as also resonated by the Court in Shiv Sena & Ors. v. Union of India, in the following words:
"However, there is a need and requirement for recognizing institutional comity and separation of powers so as to tailor judicial interference in the democratic processes only as a last resort."

What is seemingly the last resort is on the verge of becoming the first resort because of the inherently capricious exercise of power by the Governors in a routine manner. This practice has rendered the Court as an institution to mechanically advance the dates of floor tests in the name of prevention of horse trading. Strictly put, the determination of dates for floor tests is a matter of prudence and not of law and frequent indulgence by the Court into this question opens it for routine public criticism. Neither the fixation of date of floor test nor the prevention of horse trading should be a constitutional court's routine job.

It is true that the Supreme Court, as the Apex court, cannot shut its doors entirely. Nevertheless, its compulsion to steer clear from final adjudication on the legal questions emanating from official acts of the Governor has restricted it to an ad-hoc body. This is nothing but the cascading effect of erroneous functioning of one organ upon the other. The routine nature of this branch of litigation is widening the scope of concerns and because of the unguided and unprincipled functioning of one constitutional organ, another is being dragged into the fire. The Apex court needs to evolve a consistent judicial policy in dealing with these matters. Questions regarding the dates of floor test should be determined on fixed principles within pre-decided timelines, so as to preserve the judicial time and sanctity of the principle of judicial consistency.