On the same day next week, you will either know who the next Chief Minister of Goa will be, who may even be sworn in and getting to take office, or witness the do or die battle to get the Governor to invite a party or formation to take first shot at governance by using her discretion.
The possibility of Raj Bhavan, becoming the nerve centre of decision making, for the first time since 2005, when the Parrikar government was dismissed by Governor SC Jamir on February 2 2005, is very high. Unless, there is a miraculous majority result, government formation will depend on Lady Luck shining from Raj Bhavan as Smt Mridula Sinha, may end up burning the proverbial midnight oil to come to a decision on who to invite to take a shot at governance.
While there will be the usual discussions and debates and quoting from various judgments to either establish the supremacy of the Governor’s discretion, or countering it by emphasising that Raj Bhavan’s powers are not limitless, when it comes to appointing Chief Ministers, the buck does stop at Raj Bhavan and this is where there is no ambiguity. Every debate and differing viewpoint is consistent that when there is no Chief Minister or cabinet, the Governor’s discretionary powers are supreme.
Discretionary powers of the Governor means the powers of the Governor which he exercises as per his own individual judgement or without the aid and advice of the Council of Ministers. The Constitution is clear on this and the unambiguous constitutional interpretation is this: “If any question arises as to whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final and the validity of any thing done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion.”
Of course the powers of discretion are limited to certain areas and if Governors exercise their discretion beyond the scope of such areas, would certainly be subject to judicial review.
The areas where discretion is permitted are also clear. They are
i) Appointment of the Chief Minister; ii) Governor’s Assent to Bills; iii) Dissolution of State Assembly; iv) Dismissal of Ministry; v) Summoning and Proroguing the State Assembly; vi) Recommendation of President’s Rule; vii) Pardoning Power; viii) Appointment of the Vice-Chancellor.
However with regard to dismissing a Chief Minister, the Supreme Court judgment on the Pratap Singh Raoji Rane vs State of Goa, states that the Governor works on the advice of the Council of Ministers, till they exist. Hence dismissing the Chief Minister is a decision taken while a Chief Minister exists along with the cabinet, and hence the Governor would be limited in his or her discretion. Therefore, a Chief Minister who has proven majority on the floor of the House cannot be forced to relinquish office even if the Governor withdraws his pleasure.
On the appointment of the Chief Minister, there are no limits to his discretion. However there are some broad norms which he is expected to follow. And in doing so, it is interesting to point out that the once powerful and highly revered General Secretary of the CPI(M), the late Harkishan Singh Surjeet’s in a note at the Governors conference in 1997 is seen as one of the most definitive templates for Governors to follow. Of course, let’s get real here and classify this by saying “in ideal circumstances”. So here is the Surjeet template for the invite for government formation:
a) The Governor may call the leader of the largest single party/bloc in a situation where the other parties do not give in writing that they will oppose the formation of such a government.
b) If the major parties represented in the House who constitute a majority of the total strength, give in writing to the Governor that they are opposed to the leader of the largest single party being called to form the government, then the Governor need not call that leader to form the government, as it will be clear that he does not command a majority.
c. The Governor should ascertain if there is any basis for the claim made by a combination of parties that they can command a majority in the House. If so, the leader of this combination can be called to form the government.
d. Here again in all such cases where there is no clear majority for the leader of the Party or combination after being sworn in, the Governor should ensure that the test of strength in the assembly takes place within a week.
While we all know that this isn’t always the best conclusion of an election process, the Governor or even the political parties cannot be blamed if voters fail to deliver a decisive mandate.
