V. Kumaresan
Background:
In Karnataka, the election to the State Legislative Assembly was held on May 12, 2018 after the completion of 5 year rule of Congress party. The Congress Party, Bharatiya Janata Party and Janta Dal (Secular) were the major political parties that contested the Assembly elections independently. The election results showed that none of the individual parties has won the Assembly seats securing the absolute majority (112) in the total of 223 constituencies, for which elections were held. The position of the parties securing their strength is as follows:
Congress party 78, Bharatiya Janata Party 104, Janta Dal (Secular) 37, Bhaujan Samaj Party 1, Karnataka Janata Party 1, and Independent 1.
No political party has won the minimum of 112 seats to secure the absolute majority. There was no pre poll alliance between the parties. Then the crisis commenced. When no party has secured the absolute majority, the Congress Party gave its unconditional support to Janata Dal (Secular) allowing the chief ministership to JD(S) leadership. Owing to the post-poll alliance, the absolute majority card has exceeded to 117 (78 + 37+2) seats. The single largest combine, Congress – Janata Dal (Secular) alliance and BSP staked their claims to form the Government in the State. The Governor had to exercise his discretion. The exercise of discretion cannot be mechanical but must be coupled with prudent and reasonable approach on the part of the governor. The majority of Governors are appointed due to their proximity, contribution and loyalty to the ruling party at the Centre at the time of appointment. Some of them may be from the side of retired bureaucrats or judges of the apex judiciary. The discretion of inviting the individual party / alliance by the Governor has to be devoid of their closeness or loyalty to the ruling party which appointed them.
In Karnataka, the Governor invited at FIRST the BJP, the single largest party to form Government without any rationale that the party would prove its majority at the floor of the Assembly. Besides, the claim staking BJP had asked for one week’s time to prove the support for absolute majority but the Governor had allowed 15 days liberally. When the claim staking party did not provide to the Governor suitable proposal to prove the majority, allowing 15 days time would only lead to horse trading of the elected representatives, which is an unbecoming act against the democratic principles, enunciated in the Indian Constitution.
The Governors of States are neither elected by the people directly or by the already elected representatives indirectly. They are only appointed by the President of India with the proposal made by the Central rulers. Such appointees, not elected by the people, decide the fate of the State Government to be formed on the electoral mandate of the people.
There were enough explicit reasons to invite Congress – Janata Dal (Secular) combine to form Government. The support of MLAs was evidenced through the list furnished to the Governor by the leader of the combine. The unconditional support of the Congress Party had explicitly stated by its leadership. Besides during the election campaign, despite the political parties contesting against each other in all the constituencies, the founder – president of the Janata Dal (Secular) party had openly stated that in case of emergence of hung assembly after the declaration of the election results, the Janata Dal (Secular) would not join with the BJP, a non secular party. All these factors must have been reckoned by the Governor prior to inviting the BJP to form the Government. Invitation by the Governor was extended to BJP by 9.00 pm on the previous day and the next morning by 9.30 a.m., the oath taking ceremony by the BJP of Chief Minister took place. All these developments are ample proof on the biased exercise of his discretion by the Governor of Karnataka State.
The issue involved here is not the power of exercising the discretion vested with the Governor but his application of mind reflecting the mandate of the electorate in democratic terms while exercising the discretion.
The aggrieved post-poll alliance combine knocked at the door of the apex court of the country at midnight. After admitting the petition and hearing the views of the petitioner – post poll alliance combine, and the respondent– Government of India from mid night till early morning the Supreme Court did not stall the swearing in ceremony of the BJP but allowed one day’s time to produce the papers submitted by the BJP while staking claim to the Governor. When sufficient evidences are not available in BJP’s letter staking claim, the Supreme Court directed to conduct the floor testing of majority by the next day, curtailing the 15 day time allowed by the Governor. The advancing of floor testing minimized the chance of horse trading of MLAs by BJP, though not completely arrested the move. Had the BJP succeeded in horse trading and proved the majority in the floor test, definitely the BJP would be in the ruling position of the State, whatever may be the nature and manner of the exercise of discretion by the Governor inviting the BJP to form the Government. The apex Court of the country would have been helpless despite having delivered many judgments by Constitution Benches in respect of the exercise of the discretion by State Governors to invite the party / parties to form State Governments. When the BJP failed to prove its majority, the Governor had to invite the Congress – Janata Dal (Secular) combine alternatively.
Though the Government has been formed by the Congress – Janata Dal (Secular) combine, the manner of exercise of discretionary power of the Governor in respect of inviting the party / parties to form the Government continues to remain unresolved. In a democratic polity, no hierarchy of powers can be sovereign except the mandate of the people. Understanding the spirit behind the mandate of the people and translating it while exercising the power by the respective hierarchy of authorities in the governance of the State is vital, guiding factor in democracy.
There are many instances in different States and in different periods of political parties ruling at the Centre, wherein the Governors had acted not uniformly on this democratic principle but acted as per their preference to appease the rulers at the Centre. This sort of approaches in the exercise of discretion of power by Governor is contrary to the federal political set up to be formed with the due participation of the elected representatives of the people from the States. On many occasions, whenever there played vested interest in the exercise of such discretion, either the High Court of the respective State or the Supreme Court was approached to rectify the deficiency in the discretion exercised by the Governor. Even in the recently held elections for the Legislative Assembly of States like, Goa and Manipur the first invitation was extended to the party with less number of MLAs with it than the other single largest party by the Governor of the respective States. Whether it is pre poll alliance, post poll alliance or the single largest party concept, whatever was advantageous to the ruling party at the Centre, was decided by the Governor of the concerned States. There is no uniformity in the mode of inviting the party / parties to form the Government when the same party rules at the Centre. This is not ideal democratic principle.
Many judgments have been delivered by the Constitutional Benches of the Supreme Court on the way State Governors had decided on the crisis for the formation of governments in the respective States. In the judgments many guidelines have been pointed out in the form of obiter dicta (passing references), speaking orders on how to act at the hours of crisis of hung assembly or no confidence motion gets passed to dethrone the rulers. The Governors are acting in their own way by taking the points, here and there mentioned in the Supreme Court judgment in support of their decision. In the Constitution also there is no specific provision for the Governor on how to act at the time of inviting party / parties to form the Government. But many governors both at present and in the past had acted in the manner which cannot be democratically justified. In fact the Governors had acted in a non-democratic manner – it can also be stated that the outcome of their decision had been anti democratic not reflecting the mandate of the people who had elected their legislature representatives.
At this juncture, the position that jeopardizes the democratic process against the mandate of the people is the post of ‘Governor’ of States. What are the origin and the appointment to the position of Governor?
The political rulers at the Centre or States are elected by the people. At the Centre, the constitutional head viz. President of India is elected directly by the Central legislature viz. Parliament as well as State legislative members who are already elected by the people. The democratically elected President of India can decide on who has to be invited to form the Government at the Centre. The berth, ‘Governor’, the constitutional head of State is different. The Governors of States are neither elected by the people directly or by the already elected representatives indirectly. They are only appointed by the President of India with the proposal made by the Central rulers. Such appointees, not elected by the people, decide the fate of the State Government to be formed on the electoral mandate of the people.
This is against the democratic principle. This is the grey area, in fact black area in the Constitution of the democratic polity of the country. The elected governments at States cannot be decided by the appointed constitutional head of States. The positive views expressed by the Constituent Assembly while creating the Governor’s post have proved to be incorrect during the 70 years of independence. If analyzed, the origin of the post, Governor goes back to the British India. In order to control the Government at the State, the Britisher wanted their British representative in that position. When diarchy system of State Governance came into existence in 1920, as per the Montague-Chelmsford reforms, the Governor’s post gained much significance to control the State Governments elected by the Indians. Till the dawn of independence, all the State Governors were the British to run the imperialistic governance of the Indian States. Even after independence, acceptance and implementation of Indian Constitution, the post of State Governor continues. The post of Governor is the continuance of imperialistic fervor possessed by the Britisher. It is the remnant of the British imperialism. How can it be suitable to the independent democratic States? In the British enslaved India, the post of Governor had its own meaning and significance from the angle of the British rulers. Is it required in independent India? What is the necessity of the post of Governor, that too an appointee of the Centre despite being Indian to control the State Government elected by the Indians.
The statement of the social revolutionary, Periyar made at the time of independence of the country is very pertinent and relevant today, more so to the post of Governor. Periyar said, “The country’s independence was not the real transfer of power from imperialistic Britisher to democratic Indians. It was the transfer of power from the imperialistic Britisher to Indian ruler who possesses such attitude and not to the real Indians whose elected mandate is the corner stone for the democratic polity of the country.”
Periyar dubbed the independence of the country from the British rule in colloquial term as ‘made over’. (in respect of the negotiable instruments like demand promissory note, the creditor can transfer his position to others without changing the debtor. In legal parlance the process is called ‘negotiability’ and the mode is called ‘endorsement’. Among the common people the mode is popularly known as ‘made over’. The transfer of creditor status to another takes place without any change in the status of debtor).
By independence it was taken that there happened the transfer of power to govern the country from the British to Indians. Those Indians belong to the indigenous ruling class or the lot who would act as per the wishes of such ruling class. There will not be any change in respect of the ruled class. The same ruled class continues in the independent India. Only the rulers got changed; earlier the rulers were the British; at present they are indigenous.
The remnants of the British imperialism continue in the form of Governor in the States. The late lamented leader Anna (endearing form of C.N. Annadurai) who formed the first Dravidian party government in the State of Tamil Nadu, with deep sense and perception commented that just as a beard was an unnecessary appendage to a goat, post of the Governor was a needless adornment to State Government. What Anna said is still relevant!
The present rulers at the Centre or the political parties staking claim to form the Government in States will not take any concrete step to abolish the post of governor in States except being critical at the hours of crisis where the Governor has exercised his/her discretion when it goes against their respective interests.
People who elect their representatives have to be educated on this line. They have to be enlightened, whether their collective electoral mandate has been reflected in the formation of the Government in the States as well as at the Centre. As stated by Dr. K. Veeramani, President, Dravidar Kazhagam a movement has to be commenced to educate and enlighten the people on the abolition of the post of Governors.
Until then temporal critique will be poured in against the Governor by the aggrieved party / parties due to the exercise of discretion by the Governor to invite to form the State Government!
