New Delhi: The political crisis that has gripped Maharashtra since the assembly elections last month has brought Governor Bhagat Singh Koshyari’s office under the scanner.
In their petition filed before the Supreme Court, Shiv Sena, Congress and NCP have specifically challenged Koshyari’s decision to reject their stake to form government in the state as “unconstitutional”.
The verdict is expected Tuesday.
In a dramatic turn of events Saturday, Koshyari administered the oath of office to BJP’s Devendra Fadnavis as chief minister and NCP’s Ajit Pawar as deputy CM. The early morning event — which came after the President’s rule was lifted at 5.47 am — has drawn criticism across the broad.
However, this is not the first time that the Governor’s office has often been criticised for furthering political interests. In the past too, governors have invited the Supreme Court’s ire for not acting independently multiple times. Here is a list.
Allegations against past governors
The first instance of a Governor facing fire for exercising their “discretion” was in 1952 when Governor Sri Prakasa invited C. Rajagopalachari to form the Congress government in the former state of Madras. Prakasa’s actions were criticised, highlighting the fact that Rajagopalachari was not an elected member of the assembly and had not participated in the then elections.
Since then, there have been multiple allegations against different governors for “towing the party line” instead of acting independently, especially in situations of government formation in a hung House.
In 1996, Gujarat Governor Krishna Pal Singh recommended President’s Rule in the state, even after then CM Suresh Mehta of the BJP proved his majority in the House.
In 2005, Bihar Governor Buta Singh allegedly tried his best to not allow the NDA to form the government and recommended dissolution of Bihar assembly instead, despite the JD(U) and the BJP claiming that were capable of forming the government with the support of 115 MLAs in the 243-member assembly.
All these heads belonged to the Congress before their appointment as the Governor.
In 2017, BJP-appointed Bihar Governor Keshari Nath Tripathi ignored the claim of the single largest party, RJD, and appointed Nitish Kumar the chief minister after the latter’s JD(U) broke its grand alliance with Congress and RJD in Bihar, and formed a post-poll alliance with friend-turned-foe BJP to stake claim to form the government.
Supreme Court to the rescue
In several of such cases, the Supreme Court had to interfere and order a floor test immediately.
For instance, in 1998, the apex court ordered a composite floor test in Uttar Pradesh, after then Governor Romesh Bhandari dismissed Kalyan Singh as the chief minister and replaced him with Jagdambika Pal. The test led to Singh winning 225 votes, as against Pal with 196 votes. Singh was reinstated as the CM.
In 2005, Jharkhand Governor Syed Sibtey Razi installed Jharkhand Mukti Morcha’s Shibu Soren as the chief minister, despite the NDA claiming the support of 41 MLAs in the 80-member assembly. Soren, however, failed to prove his majority in the House, after the Supreme Court ordered a floor test.
The Governor’s decisions in Uttarakhand and Arunachal Pradesh in 2016 also saw censure by the Uttarakhand High Court and the Supreme Court, respectively.
More recently, last year, the results of the 2018 Karnataka assembly elections led to a hung assembly, with the BJP emerging as the single largest party with 104 seats, but falling short of a majority in the 225-member assembly.
Then Governor Vajubhai Vala, however, invited the BJP to form the government in the state and administered the oath of office to B.S. Yediyurappa, despite the Congress and the JD(S) forging a post-poll alliance and staking claim to form the government.
This was followed by a rare midnight hearing by the Supreme Court on 16-17 May 2018, and a perusal of a letter, which the court noted, did not contain the names of the MLAs who pledged support for Yediyurappa. The court finally ordered a floor test in the Karnataka assembly the next day, as against Vala’s order granting 15 days.
SC advice — stay away from ‘political horse-trading’
Many of these cases where the actions of the governors after assembly elections were questioned ended up in courts, which pulled them up for their decisions.
In 2016, the Supreme Court made stinging observations on the role of the Governor while quashing Arunachal Governor Jyoti Prasad Rajkhowa’s decision to advance the assembly session from 14 January 2016 to 16 December 2015, a move that triggered political unrest in the sensitive border state and led to the declaration of President’s Rule on 26 January 2016.
A five-judge constitution bench had asserted that governors should steer clear of “political horse-trading, and even unsavoury political manipulations, irrespective of the degree of their ethical repulsiveness”.
In his concurring opinion, Justice M.B. Lokur pulled up Rajkhowa for having acted “arbitrarily and in a manner that certainly surprises a sense of juridical propriety”.
‘NDA government acting like a private party’
In 2016, Uttarakhand Governor K.K. Paul had also courted controversy after he recommended the dismissal of the Harish Rawat government following a rebellion by nine Congress MLAs led by former chief minister Vijay Bahuguna.
Then President Pranab Mukherjee had promptly obliged, prompting Rawat to move the high court.
Handing a major political setback to the BJP-led NDA government at the Centre, then HC chief justice K.M. Joseph (who is now a Supreme Court judge) had said the court was “pained” by the central government’s actions in the case and that it was acting like a “private party”.
This was after the court took note of the central government’s attempts to revoke President’s Rule in the state before the court could pronounce its verdict.
“If they [the Centre] revoke Article 356 and try and form a government…What is it but a travesty of justice?” Justice Joseph had then asked.
The high court order was upheld by the Supreme Court and the Rawat government was subsequently reinstated after it proved its majority.
‘Governor’s discretion open to judicial review’
Political parties have often relied on Article 361 of the Constitution to guard Governor’s orders — whether it is an invitation to form the government or recommendation to impose President’s Rule under Article 356.
However, the top court had held that despite Article 361, the discretion given to the governors is open to judicial review on the grounds that the action is “mala fide or based on wholly extraneous and irrelevant grounds”.
This was asserted in January 2006 by a five-judge Constitution bench in the Bihar President’s Rule case, when the Supreme Court held that the immunity under Article 361 “does not, however, take away the power of the court to examine the validity of the action including on the ground of mala fides”.
In 2016 as well, while examining the Governor’s discretionary power in the context of the constitutional crisis that arose in Arunachal Pradesh, the top court had ruled that the Governor’s discretion to call parties to form the government or the act of giving 15 days’ time to prove a majority were entitled to judicial review.
Small wins and misses
There have also been times when the top court upheld the Governor’s discretionary power.
In the 2017 state elections in Goa, the BJP had won 13 out of the 40 seats, while the Congress got 17. However, Governor Mridula Sinha invited late BJP leader Manohar Parrikar to form the government, prompting Goa Congress Legislature Party leader Chandrakant Kavlekar to approach the Supreme Court.
The apex court sided with Sinha, observing that the “instant sensitive and contentious issue…can be resolved by a simple direction, requiring the holding of a floor test at the earliest”.
There have also been times when such cases did not even reach the top court.
In March 2017, the assembly elections in Manipur saw the Congress emerging as the single largest party by winning 28 seats in the 60-member House. However, BJP, with 21 seats, quickly entered into alliances with regional parties such as the National People’s Party and the Naga People’s Front, which had won four seats each, and the Lokjanshakti Party and the Trinamool Congress, which had won one seat each.
Instead of inviting the single largest party, then Manipur Governor Najma Heptullah favoured the post-election alliance, and the Congress accepted it.
A year later, a similar situation was witnessed in Meghalaya, when the Congress won 21 seats in the 60-member House and the BJP got only two seats. The BJP went on to form the government with the help of regional parties.
Even then, Governor Ganga Prasad, a former BJP MLC from Bihar, favoured the post-poll alliance.