“The good governor should have a broken leg and keep at home,” wrote Spanish writer Miguel de Cervantes.
In other words, a governor has to be above politics and must be seen as impartial and fair. But 70 years of India’s independence show that the office of governor has been an assault on federalism at best and constitutional despotism at worst.
C Vidyasagar Rao, governor of Maharashtra, is officiating as governor of Tamil Nadu for last six months. Why does a big state like Tamil Nadu, with 77.88 million people, remain without a regular governor is not known.
In the Arunachal Pradesh case, the Supreme Court observed that governors give a “thrashing to the Constitution and a spanking to governance.” In this respect, The BJP-appointed governors are in no way different from Congress governors.
What Constitution says on chief minister’s appointment
Article 164(1) of the Constitution says the governor will appoint the chief minister but doesn’t specifically state that the leader of the majority party is to be appointed as chief minister.
In case of a hung assembly or defections leading to loss of majority of CM, the governor gets some room of manoeuvring.
But the well-established convention is that governor does not have unfettered discretion in this matter.
Discretion does not mean unrestricted or arbitrary power. The governor has no choice but to invite the leader of the majority party.
Constitutional conventions of this type are as important or sacred as the text of the Constitution. Conventions provide the flesh which clothes the dry bones of the textual provisions.
Parliamentary democracy is the basic structure of our Constitution. Every governor takes an oath under Article 159 “to preserve, protect and defend the Constitution and submit himself to the service and well -being of people of the state”.
He must hold the scales impartially between various factors in the politics of the state. By depriving the people of Tamil Nadu from having an elected government, the governor seems to be in violation of his oath.
Panneerselvam’s resignation cannot be withdrawn
On February 4, AIADMK legislative party elected VK Sasikala. The name was proposed by the outgoing chief minister O Panneerselvam who had put in his papers to make way for Sasikala. Within hours of former chief minister J Jayalalithaa’s death on December 5, 2016, Panneerselvam was administered oath as the CM by the same governor. Thus the delay this time on the part of governor in swearing in Sasikala is clearly deliberate.
Panneerselvam has now revolted against Sasikala and plans to withdraw his resignation. He does not know that once a resignation has been accepted, it cannot be withdrawn. Meanwhile, Sasikala has demonstrated support of 131 MLAs. The majority mark in 234 Assembly is 117. Thus the MLAs are solidly behind Sasikala.
Moreover, the governor cannot hide behind the impending decision of the Supreme Court on a petition challenging the acquittal of Sasikala by the Karnataka high court. If Sasikala is convicted, she will have no option but to step down.
Rao is finally reaching Chennai today. As a lawyer he knows that he hardly has any choice. One hopes instead of playing politics, he would behave like a statesman and clear the clouds of uncertainty and appoint Sasikala as chief minister.
Faizan Mustafa is vice-chancellor, NALSAR University of Law, Hyderabad
The views expressed are personal