Decision to first invite the majority Party to take a stab at forming the government was perhaps a legitimate exercise of his constitutional discretion.
Understand the origins of the office of Governor:
- It is important to understand the origins of the office in the colonial British regime.
- Through the course of the early 20th century, the Indian nationalist movement managed to extract gradual and incremental reforms towards responsible government from the British rulers. These reforms culminated in the Government of India Act, 1935 which established provincial legislative assemblies elected from a limited franchise.
- However, in order to ensure that overriding power remained with the British, the Act retained the post of Governor (a holdover from the old, “diarchy” system), and vested him with “special responsibilities” that, in essence, allowed for intervention at will.
- In a searing critique, K.T. Shah (who was later one of the most articulate members of the Constituent Assembly, or CA), wrote that the Governor would inevitably be biased in his functioning, and his actions would remain at odds with those of popularly elected Ministers.
- The office of the Governor represented one such “choke point” in the Constitution (ordinances and emergencies are others), where federalism and the popular will were to be kept in check from above, if the occasion ever arose.
- It is to demonstrate that the post of the Governor, by constitutional design, acts as a check upon both federalism and popular democracy.
Idea of the Governor:
- The idea of the Governor standing as a bulwark against secessionism, or providing legislative expertise to States otherwise starved of it, are no longer valid justifications.
- On the other hand, the Governor’s interference with the democratic process is both real and continuing. As history shows, the solution is not to tinker around the edges, or hope that the courts will come to our rescue. It is to ask whether the constitutional “choke point” of the Governor serves any valid purpose in 2018 — and if not, whether it should continue to exist. Would it not be better, for example, to clearly specify the rules governing government-formation in the Constitution itself, and reduce swearing-in to a purely ceremonial action, to be performed by the Chief Justice of the relevant High Court? This — or any other potential solution that does away with the “choke point” — is what must now be debated.