Power to dissolve legislative assembly is not explicit

The Indian Constitution prescribes for an impartial Governor with a deep sense of constitutional morality and fair play, though the power to dissolve the Legislative Assembly is neither explicit nor rooted in any well-established convention.

Article 174 (2) (b) of the Indian Constitution merely states that the Governor may, from time to time, dissolve the Legislative Assembly, but the Constitution is silent as to when and under what circumstances he will dissolve the House.

This vital issue echoed during the great Constituent Assembly debates. Mohammed Tahir, a member of the Constituent Assembly, sought to amend the draft Article 153 in order to incorporate the reasons for dissolution, but he was unsuccessful.

The recent decision by the Governor of Jammu and Kashmir, Satya Pal Malik, to dissolve the state assembly, which was kept suspended after the fall of the PDP-BJP coalition in June 2018, has once again ignited a major controversy surrounding the office of Governor.

Governor Malik is alleged to have not acted in accordance with constitutional principles. Theoretically, he has the authority to dissolved the House, but the justification given by him does not augur well for constitutionalism.

While the Constitution grants discretionary powers to the Governor, such powers can only be used after all facts of a case have been examined. But to be sure, the Governor’s discretion should not be guided by apprehensions such as possible “exchange of money” without any proper corroboration.

His doubts over ‘longevity’ and ‘competing claims of the majority’ of the political arrangement are on thin ground. In a democracy, the numerical strength of the elected members dictates the formation of a government and not the belief of the Governor.

When the solution to his apprehension of instability was available on the floor of the House through a vote, he could have explored that option. Similarly, the Governor need not assume the role of an astrologer to forecast the longevity of the coalition. No such authority has been vested in him.

An early dissolution of House is warranted only under certain exceptional circumstances. They are i) when the Chief Minister, who enjoys majority support, advises the Governor to dissolve the legislative assembly, ii) due to defection, the ruling party becomes a minority, iii) another party or coalition of parties is not in a position to form the government and iv) on the basis of the report sent by the Governor that the constitutional machinery of the State has failed, the President may dissolve the legislative assembly on the recommendation of the Union Cabinet. India has witnessed many such recommendations by the Governor to the Centre for the dissolution of state assemblies, citing constitutional breakdown.

In recent times, the office of the Governor has suffered on account of politically-motivated actions.

The apex court has deprecated such action in SR Bommai Vs Union of India (1994) and Rameshwar Prasad Vs Union of India (2006) cases.

But the constitution bench of the apex court in the Nabam Rebia judgment (2016) ruled that Article 163 does not give governors a “general discretionary power”, as is often misunderstood.

Even the Sarkaria Commission underscores the perilous position of the office and an incorrect gubernatorial tradition. Raj Bhawans have continued to be indoctrinated by political dispensations, forcing the Supreme Court to intervene.

In his 'Discovery of India’, Nehru said that governors were acting on instructions from New Delhi or Simla. That position continues even now and all attempts at reform have come to naught.

If Governor Malik had any problem in exercising discretion properly, he had ample guidance from various committees and commissions’ to choose a political formation, which could have formed a government. He could easily have applied his mind to save the state from premature election or judicial intervention, as had earlier taken place in Uttarakhand,

Arunachal Pradesh and Karnataka. Unfortunately, the political man behind the Constitution won the battle. Our Governors must remember that there is no music as sweet to Indian ears as the music of constitutionalism.

The writer is a senior advocate