Discretionary power of Governors

By Aladi Aruna

Undoubtedly, the AIADMK has the right to form the Government in Tamil Nadu thanks to its landslide victory in the elections. The dispute is not about formation of the Ministry by the AIADMK but the Council of Ministers under the Chief Ministership of Ms. Jayalalithaa. Admittedly she has been punished in three criminal cases; she is not eligible to contest elections as per Section 8(3) of the Representation of the People Act, 1951 and her nominations were duly rejected. In spite of all these factors, she met Ms. Fathima Beevi, Governor of Tamil Nadu, and claimed that she should be invited to form the Ministry because she had been elected by the AIADMK Legislature Party to be the head of the Ministry. Now the questions are: whether the decision of the AIADMK Legislature Party and the claim thereof by Ms. Jayalalithaa are valid, tenable and sustainable in the court of law and whether the Governor is bound by the decision of AIADMK Legislature Party.

The AIADMK has every right to have anybody as its leader but the AIADMK Legislature Party, which is distinct from its parent party, has no right to ask the Governor to allow a disqualified person to be the head of the Ministry. When the Legislature Party put such an unlawful and illegal claim before the Governor, Ms. Fathima Beevi, who has taken oath to preserve, protect and defend the Constitution and the law, could have wisely advised the party to elect a qualified person to head the Ministry. Had Ms. Jayalalithaa persisted with her claim in accordance with the decision of her Legislature Party, the Governor could have resisted and promptly reminded her of Article 173(c) of the Constitution, under which she is not qualified to be a member of the legislature. Even then if she clung to her stance, the Governor could have referred the matter to the Election Commission under Article 192 and should have acted in accordance with its opinion.

In the case of Brindabun Naik vs. the Election Commission (AIR 1965 SC 1892) the Chief Justice, Mr. Gajendra Gadhkar, observed: ``The decision on the question raised under Article 192(1) has no doubt to be pronounced by the Governor, but that decision has to be in accordance with the decision of the Election Commission. When the Governor pronounces his decision under Article 192(1), he is not required to consult the Council of Ministers; he is not even required to consider and decide the matter himself. He has merely to forward the question to the Election Commission for its opinion and as soon as the opinion is received, he shall act according to such opinion.'' In other words, the Governor has no option except to accept the opinion of the Election Commission. In the case of N.G. Ranga and others vs. the Election Commission (AIR. 1978 SC 1609), the Chief Justice, Mr. Y. V. Chandrachud, categorically declared that in the matter of disqualification, the opinion of the Election Commission was final and binding.

Unfortunately, throwing legality, legitimacy and valid arguments against the claim to the winds, Ms. Fathima Beevi invited Ms. Jayalalithaa to form the Ministry under Article 163 and invoked Article 164 as well. The discretionary power exercised by the Governor is no doubt a naked and aggressive violation of constitutional provisions and subversion of the basic structure of our Constitution.

It is argued that the decision of the Governor in his discretion shall not be called in question on the ground that he ought or ought not to have acted in his discretion. It does not mean the Governor can wield the sword of his discretionary power in an arbitrary manner subverting the Constitution. The Justice Sarkaria Commission has observed: ``The area for the exercise of his discretion is limited. Even this limited area of choice of action should not be arbitrary or fanciful. It must be a choice debated by reason, activated by good faith and tempered by caution... In any case they are unnecessary and it should be assumed that a Governor will use his discretionary power properly in accordance with the spirit of the Constitution.'' If the Governor in his official capacity fails to defend the Constitution, it is the right of any citizen to seek remedy through a court of law. In the past also, some Governors abused their discretionary power. Consequently, the High Courts as well as the Supreme Court intervened, questioning the validity of their actions. So the claim of immunity by the Governors have been set aside by the Supreme Court.

The Governor has the right to invoke Article 164 and nominate a Minister who is not a member of either House of the Legislature. But the nomination of Ms. Jayalalithaa as Chief Minister under Article 164(4) is a flagrant violation of constitutional law and convention. The Governor has no right to nominate any disqualified person as a Minister because it is an enabling provision to nominate a non-elected qualified person to the Council of Ministers. The very noble object of providing an opportunity to an eminent person to become a Minister has been mauled by the Governor. This is the first time in history that a Governor has aggressively abused this power to place the Council of Ministers under a disqualified person. The Governor could have advised Ms. Jayalalithaa to become a qualified person for nomination. To remove the hurdles of disqualification, the Governor could have advised her to expedite her appeals pending before the High Court. If the convictions were set aside or the sentences reduced enabling her to contest election, the claim of Ms. Jayalalithaa has to be accepted by the Governor.

Under the scheme of our Constitution, only one office - the office of the Governor - has been safeguarded from the fire of scrutiny and the axe of punishment. The President, judges of the Supreme Court and High Courts and members of Public Service Commissions can be impeached with necessary formalities by Parliament. Members of Parliament and the State Legislature have the right to move no confidence motion against the Prime Minister and Chief Ministers respectively.

Nevertheless, we have no right to take any action against any Governor. Under our system, the office of the Governor is more colonial, imperialistic and authoritarian than it was during the British system, prior to our Independence. Governors are unduly protected from any form of disciplinary action. They are unfettered and free from the fire of scrutiny. So it is quite natural that absolute power corrupts absolutely.

Alas, with the blessings of the Governor, our Government is placed under a disqualified person. How are we going to release ourselves from the iron clutches of a government under a disqualified person? Though the Governor enjoys immunity, any action taken and order issued by her can be brought under the scrutiny of the court. The defacement and defilement committed by the Governor on the basic structure of our Constitution has been already placed before the Supreme Court, praying it to restore the rule of law and restrict the criminalisation in politics at least in the higher level. Let us wait for the verdict of the apex court. Indian democracy has been on many occasions protected by the decisions of the Supreme Court rather than the vigilance of the public and parliamentarians.

(The writer is a former Law Minister of Tamil Nadu.)

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