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Discretionary power should not be arbitrary

Discretionary power should not be arbitrary

The relevance, area of functioning and power of state Governors have been controversial subjects at all times. This has now become an urgent need to start serious deliberations in the backdrop of Karnataka incidents.

The decisions taken by the respective Governors of different states during the uncertainty following certain elections in the recent past have only one common principle: all of them were in favour of the BJP. The alliance comprising the BJP was given power where it was not the single largest party. Congress was the single largest party (17 seats; for BJP it was 13) in Goa. However, it was the coalition formed by the BJP that was invited by the Governor to form the government. Though the Congress had 21 seats in Meghalaya, the Governor gave BJP which had only two seats, an opportunity to form a coalition government. While Congress had 28 seats in Manipur, BJP secured 21 seats. The Governor invited BJP-led coalition which had no majority to form a government and not the Congress which was the largest party. When the BJP which formed alliances in all these places came to power, Congress which was the largest party was bypassed. But the situation in Karnataka changed. Although BJP is the largest party there, when the Congress and Janata Dal (Secular) formed an alliance, they became a coalition with majority. However, Governor Waju Bhai Wala ignored the alliance with majority and invited BJP, the largest party. Given that BJP lacks majority on its own, and that the opposite side possesses it, what is the point in giving 15 days to prove the majority by handing over governance to the BJP? This is nothing but the Raj Bhavan backing gross horse-trading. Between the BJP which has only 104 seats in the 224-member assembly and the Congress-JDS alliance that has the support of 117 members, the Governor found BJP, which has no majority, eligible. It is blatant misuse of discretion that occurred here.

There were criticisms over the decisions of Governors in several other states being illogical and anti-democratic. In Karnataka, the favoritism displayed by the Governor only became more evident. What is amusing is the fact that, even while the alliance was given an opportunity by ignoring the single largest party, when the largest party with no majority was given a chance by sidelining the coalition that had majority, the Supreme Court gave it validity. The court has only one justification; that it falls under the Governor’s discretionary power. The court upheld the law before them. However, what is ‘discretionary power’? What are its criteria? It is not implementing the people’s verdict for sure. If the decision of the Karnataka government is in accordance with the discretionary power, that power should be dubbed arbitrariness. How can the decision that stands against the verdict of the people, which is apparent through the elections, be justified by calling it the Governor’s ‘discretion’? If the Raj Bhavan has the power to act arbitrarily, what is the need of elections? Given that the Centre has appointed individuals in different states, who display party partisanship more than the sense of democracy, the loopholes in the law are putting democracy under the gallows.

Article 164 (1) of the Constitution says that the Chief Minister shall be appointed by the Governor. Does this mean that the Governor can act arbitrarily? The explanation of the Sarkaria Commission that the Governor should invite the ‘party or alliance which has the support of majority’ to form a government, is relevant. When the largest party lost majority in Karnataka (2003), Jharkhand (2005), Delhi (2013), Goa (2017), Manipur (2017) and Meghalaya (2018) and the smaller parties formed an alliance securing a majority, that explanation had been a justification for handing over the power to them. But in Karnataka there is nothing as such- only that the Governor felt like doing so. That is all. In the case of Goa, the Supreme Court had said that ‘if no party is in clear majority, the party or combination of parties that has won largest number of seats must be invited to form the government’. The Supreme Court during the 2006 Rameshwar Prasad case had directed that if any party joins hands with other parties and lays claims, then opportunity should be given to prove that. It is the same Supreme Court that we witness, annulling an anti-democratic move which is against the precedent over dubious excuses of Governor’s discretionary powers. Although the order that the majority should be proved immediately and not in 15 days brings a little relief, the danger in the implicit conclusion that the Governor’s discretionary power is absolute, , should be recognized. The guidelines which the Governor should follow in such circumstances must be formed immediately.

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