The power of
the Governor under Article 356 to recommend failure of Constitutional machinery
in a state has always been hotly debated. A lot of times it has been seen that
the governor has acted as a mere puppet of the Central Government. However,
things are changing now as the awareness among the public and the media has
increased many folds. A fair of amount credit in this respect must be given to
the courts of our Country. Time and again, the court has reminded the
constitutional functionaries of their pious obligation towards the nation and
towards the Constitution of India in particular. The case of Rameshwar
Prasad & Other v. Union of India is a landmark case in this
respect. It has handsomely dealt with whole of the jurisprudence relating to
Article 356 of the Constitution of India. The present post contains relevant
excerpts from the Rameshwar Prasad’s Judgment relating to Article 356.
Control of
the Central Government over the Governor
An important
role that the Governor has to play under the Constitution is of making a report
under Article 356 where he finds that a situation has arisen in which the
Government of the State cannot be carried on in accordance with the provisions
of the Constitution.
The Sarkaria
Commission has noticed that more often than not, the provisions under article
356 have been misused, to promote the political interests of the party in power
at the Centre. There have been examples where the power of Article 356 was invoked
improperly if not illegally.
However, it has
been held in plethora of cases that the Governor is not amenable to the
directions of the Government of India, nor is he accountable to them for the
manner in which he carries out his functions and duties. He is an independent
constitutional office which is not subject to the control of the Government of
India.[1]
Justice Krishna
Iyer says that “the mode of appointment can never legitimize any form of
interference in the working of the Governor, else the concept of "judicial
independence" would not be tenable, as even the judges of the High Courts
and the Supreme Court are appointed by the President”[2].
Also, time and
again, the courts have noted that whether it is a case of existing Government
losing the majority support or of installation of new Government after fresh
elections, the act of the Governor in recommending dissolution of Assembly
should be only with sole object of preservation of the Constitution and not
promotion of political interest of one or the other party.
Relevance of
the Governor’s Report under Article 356
Rameshwar
Prasad’s also case states that:
“It is true
that action under Article 356 is taken on the basis of satisfaction of the
Union Council of Ministers but on that score it cannot be said that 'legal mala
fides' of the Governor is irrelevant. When the Article speaks of the
satisfaction being formed on the basis of the Governor's report, the legal mala
fides, if any, of the Governor cannot be said to be irrelevant. The Governor's
report may not be conclusive but its relevance is undeniable. Action under
Article 356 can be based only and exclusively upon such report. Governor is a
very high constitutional functionary. He is supposed to act fairly and honestly
consistent with his oath. He is actually reporting against his own Government.
It is for this reason that Article 356 places such implicit faith on his
report. If, however, in a given case his report is vitiated by legal mala
fides, it is bound to vitiate the President's action as well.”
Role of
Governor in the Formation or Falling of Government
Whether the
council of ministers have lost the confidence of the House is not a matter to
be determined by the Governor or for that matter anywhere else except the floor
of the House. The principle of democracy underlying our Constitution
necessarily means that any such question should be decided on the floor of the
House. The House is the place where the democracy is in action. It is not for
the Governor to determine the said question on his own or on his own
verification. This is not a matter within his subjective satisfaction. It is an
objective fact capable of being established on the floor of the House.
If a political
party with the support of other political party or other MLA's stakes claim to
form a Government and satisfies the Governor about its majority to form a
stable Government, the Governor cannot refuse formation of Government and override
the majority claim because of his subjective assessment that the majority was
cobbled by illegal and unethical means. No such power has been vested with the
Governor. Such a power would be against the democratic principles of majority
rule. Governor is not an autocratic political Ombudsman. If such a power is
vested in the Governor and/or the President, the consequences can be
horrendous. The ground of mal administration by a State Government enjoying
majority is not available for invoking power under Article 356. The remedy for
corruption or similar ills and evils lies elsewhere and not in Article 356(1).
Answerability
of the Governor
In the State
of West Bengal and Ors. v. Sallendra Nath Bose[3] it was held that a citizen
is not without redress even though he cannot implead the Governor as a party
but can be given relief. The position in law, therefore, is that the Governor
enjoys complete immunity. Governor is not answerable to any Court for the
exercise and performance of the powers and duties of his office or for any act
done or purporting to be done by him in the exercise and performance of those
powers and duties. The immunity granted by Article 361(1) does not, however,
take away the power of the Court to examine the validity of the action
including on the ground of mala fides.
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