Since the Supreme Court has only issued an order as opposed to a reasoned judgment in the Rameshwar Prasad case, analysis of the ruling is necessarily constrained. The consensus among those who have reacted so far appears to be that the institution of Governors in the states needs an overhaul. Writing in yesterday’s Indian Express, Pratap Bhanu Mehta argues:
“The court’s order will … put pressure on governors to give objective evidence that [they] had made a good faith effort to find a government. In Bihar, the fact that no was even given an opportunity seemed to suggest mala fide. But here civil society should also take some of the blame. We have created an atmosphere where, in the case of fractured verdicts, the use of any possible criteria — single largest party, single largest pre-poll coalition — smacks of partisanship. When being invited determines your ability to form a government, and not the other way round, the governor has a difficult job. But solution is what the President Naryanan [found] in 1999 in inviting the BJP: issue a statement of reasons why a particular party has been invited. If that government fails, the case for dissolution becomes cogent. The courts will now force governors to exercise public reason, not subjective discretion.”
(Aside : He also offers this interesting insight into the manner in which the Supreme Court resolves controversial issues: “[T]his case is symptomatic of the way in which the court operates. It acquires greater and greater formal powers for itself, but is reluctant to use them in opposition to actual political currents. So both Laloo Prasad Yadav and Arun Jaitley can look upon the court as a saviour. This may be a prudent modus vivendi; it is not the first principle of law.”)
Today’s Indian Express carries a column by Soli Sorabjee which contains an overview of the debates among the framers of our constitution on the office of the Governor,and also details some important historical moments in the evolution of the institution to its present state of crisis. He observes:
“The Governors’ role in imposition of President’s rule has been notoriously partisan. Their reports are tailor-made to advance the political aims and machinations of the Centre. The Supreme Court in the case of President’s rule imposed in Nagaland, in Karnataka and in Meghalaya ruled that the Governors’ reports on whose basis President’s Rule was imposed as tainted with malafides and declared the dissolution of the assemblies of those States as unconstitutional. The recent instances of misuse of the Governor’s office as exemplified by the Governors of Goa, Jharkhand and Bihar—the unholy trinity—would make even the angels weep.”
Pankaj Vora makes a similar point while analysing the UPA government’s gubernatorial appointments in today’s Hindustan Times.