Two supposedly high constitutional offices - namely governors in the state and speakers of state legislative assembly - are probably the most talked-about offices at the time of political crisis. Both these offices which otherwise don’t have any real power compared to the authority of a chief minister and other ministers suddenly becomes the most important positions when a political crisis erupts in the state at the time of defections from the ruling party. In such a situation, both these offices are open to abuse of powers. While the governor usually belongs to the ruling party at the centre, and thus bats on its behalf, the speaker belongs to the ruling party of the state and bats for it.

Role of governor

Though governors of states are supposed to be apolitical and the office is largely ceremonial, he is required to act only “on aid and advice of the council of ministers” headed by the chief minister, but, these political appointees suddenly become very useful at the time of a political crisis like defections from the ruling party, etc, when governments at centre and states belong to different political parties. That is why whenever there is a change of government at the centre, one of the first thing they always do is replace the governor appointed by the previous government. It is done by either persuading him/her to resign or to face punishment “posting” in the form of transfer to a far corner of country or removal/termination.

During the last 25 years both these so-called high constitutional offices have repeatedly come under judicial scrutiny and invited adverse comments from the Indian courts.

Some of the cases that came under judicial scrutiny due to  the controversial role of the governors :

*In 1994, an unusually large and rare nine-judge Bench ruling of Supreme Court in S. R. Bommai case discussed at length provisions of Article 356 of the Constitution of India and related issues. This case had huge impact on Centre-State Relations. The landmark judgment attempted to curb blatant misuse of Article 356 of the Constitution of India, which allowed the President's rule to be imposed over state governments.

*The court case in the Rameshwar Prasad Vs. Union of India case, 2006. In the case, a five-judge Constitution Bench recommended a commission report on Center-state relations, which had emphasized on the impartiality of Governors and their role in upholding the constitutional mandate.

*A 2016 five-judge constitution bench judgment from Arunachal Pradesh in state chief minister Nabom Rebia case. The apex court questioned the Governor’s decision to hold the assembly in the state one month early in December 2015, which led to political instability.

*And finally, the latest political drama of Rajasthan involving Chief Minister Ashok Gehlot and sacked Deputy Chief Minister Sachin Pilot. Though the matter has since been amicably settled, and a truce has been announced, with some of the demands of rebel Congress leader Sachin Pilot being accepted by party president Sonia Gandhi.

From these court cases, it can be safely summarized that in the opinion of the Supreme Court following is the position of law: 

*Governor does not have any absolute discretion to appoint or remove a chief minister or to summon a House.

*Normally governor must always act “on aid and advice of Council of Ministers headed by chief minister except

*When it is reasonably clear to him that chief minister has lost confidence of the House i.e. majority support. In that situation and that situation alone governor need not wait for the advice of CM and order summoning of House to test the majority.

*Majority of a person staking claim to form the government can be tested only on the floor of the House and not Raj Bhawan

*The House must be summoned to meet in shortest possible time reducing the window for horse-trading

It may be noted that most of the controversial court cases, except for S.R. Bommai of 1994 and Rameshwar Prasad of 2006, happened when the National Democratic Alliance (NDA)-led by Prime Minister Narender Modi was in the saddle at the Centre and all governors belonged to the BJP fold and governments sought to be brought in or dislodged belonged to other parties mostly Congress.

Bommai and Rameshwar Prasad (Bihar) happened when Congress/United Progressive Alliance (UPA) were in power at the centre and they tried to dislodge the non-Congress governments in respective states.

S.R. Bommai was actually not a single case but actually six different cases from six states - Karnataka, Meghalaya, Nagaland, Madhya Pradesh, Rajasthan and Himachal Pradesh - all bunched together.  The events leading to these cases happened between 1988 and 1992 when the Congress government at the centre sought to dismiss state governments belonging to different political parties. The central government at that time was headed by Prime Ministers Rajiv Gandhi and P.V. Narasimha Rao. Those days the favourite action of central government found to get rid of a non-Congress government at the state was by imposing president/governor’s rule under Article 356 of the Constitution in the state by using the power bested to the governor – all loyal to the party – by the Constitution.

Though the Tenth schedule (Anti-Defection law) was already on the statute book, the central government achieved the same purpose of dislodging opposition state governments through the route of the imposition of president/governor rule in a state under Article 356 rather than using the power of the speaker. The goal was the same.   

Since in all the cases covered in the 1994 judgment and 2006 Rameshwar Prasad court case related to the imposition of President’s rule in the state by dismissing non-Congress state governments, the S.R.Bommai judgment mostly discussed the true scope, reach and limitation and the true intent of Article 356. Both judgments were not unanimous judgments but majority judgments. Law laid down in the Bommai case was :

*Majority claimed by the chief minister and his team can be tested only on the floor of the House (and not at any other forum);

*Court cannot question the advice given by the central council of ministers to the president which led to a proclamation under Article 356; but

*Court can ask for and look at the material behind president’s satisfaction. The court can only enquire into three questions - whether there was at all any material behind the satisfaction? Was the material relevant? Was there any mala fide use of power (to remove a government and impose president’s rule);

*Some guidelines were also laid down for the exercise of this extraordinary power. 

Rameshwar Prasad’s case from Bihar is a very unique case, probably the only of its kind in India’s political history when a newly constituted state assembly was sought to be suspended even before the first session of the assembly could be held.

Brief facts are: Elections to Bihar assembly were held in February 2005. Before  elections, the government in the state belonged to Rashtriya Janata Dal of Lalu Prasad Yadav with his wife Rabri Devi as chief minister. (Lalu had been facing criminal charges in the famous fodder scam of Bihar and had been in jail). No party or alliance got a majority. Pre-poll alliance of BJP and JDU got 92 seats out of a total 243 and emerged the largest pre-poll alliance. Lok Janashakti  Party (LJP) of present central minister Ram Vilas Paswan had fought the election against NDA and won 29 seats. The majority mark was 122. RJD was an alliance partner of UPA at the center-led by Manmohan Singh. 

Though the five-judge Constitution bench of Supreme Court did pass some adverse comments against the imposition of President rule, the judgment in 2006 became infructuous  and purely academic as new general elections were held in Bihar in October 2005 before the judgment. Nitish Kumar of JDU took as chief minister in November 2005, even though he was not even an MLA but a member of the Upper House (Member of Legislative Council) 

This year’s Rajasthan case of Gehlot and Pilot may be the only curious case in which the chief minister was requesting for an urgent session of the legislative assembly to prove his majority and Governor Kalraj Mishra (formerly BJP) was delaying the session by asking questions. The only possible reason appears to be BJP’s desire to give more time to BJP and to Sachin Pilot to engineer more defections from Congress party to muster enough support of MLAs as both sides were within striking distance of the majority mark.

Role of speaker

While most of the court cases were on the role of governors, the Rajasthan case centered around the speaker's role - his powers, duties, and functions under Tenth Schedule and courts’ power, duty and authority to interfere in the speaker’s domain.

The law is confined to the statute book. The spirit of law is not for our politicians. Though always claiming to act ‘for larger public good’, they rarely rise above their own petty personal or political benefits.

Probably morality cannot be enforced by law and maybe we, as a country, are still far away from enforcing morality in our private and public life.

(The writer is a former legal correspondent. The views expressed are personal. He can be contacted at vinod.aggarwal@uniliftcargo.com)