BJP President Lal Kishenchand Advani has labelled Jharkhand Governor Syed Sabte Razi as 'the supari killer of democracy' because the pre-poll combine of BJP-JDU was not asked to form the new government in the state despite claiming a majority of 41 legislators in a House of 81, with the BJP itself emerging as the single largest party in the new legislative assembly.
There's no reasonable doubt to acquit Razi as the hired assassin of democracy because he was appointed governor by the Centre (on the prime minister's advice) under Article 155 of the Indian Constitution and, therefore, is constitutionally regarded as an agent of the Centre. Not in doubt, further, is that he was in close touch with the UPA supreme/bosses in New Delhi till he took the decision of appointing Shibu Soren of the JMM-Congress alliance as the new chief minister. He was given the supari all right.
Hence, Advani's label on His Excellency Razi's lapel is justifiable, however crude, vulgar and uncouth it may appear.
But the truth is that Razi acted under the influence of Constitutional insanity, whether temporary or not, one does not know.
Below are the facts.
Although Emergency Gandhi's 42nd Constitution Amendment Act, 1976, explicitly stated that the President shall act in accordance with the advice of the council of ministers, no such provision exists for state governors.
A governor has the authority under Article 163 to exercise any of his functions 'in his discretion.'
What's more, where the governor acts in his own discretion, no juridical review is possible. (Pratap Singh Rane v Government of Goa, AIR 1999 Bom 53, 91, paragraphs 29, 36 (DB) as cited by P/M Bakshi in The Constitution of India, Universal Law Publishing Co, 2000, page 148.)
In Hargovind Pant v Raghukul Tilak (AIR 1979 SC 1109), the Supreme Court held that the office of the governor is not an employment under the Government of India; he is not subordinate or subservient or under control of the Government of India, nor is he amenable to its directions; nor is he accountable to it for the manner in which he carries out his functions and duties.
According to the court, the governor's 'is an independent constitutional office which is not subject to the control of the Government of India.'
It may be argued that, well, this is only the theoretical position and that, in practice, the position is totally different. Yes, but the law is the law, and a governor may not mind living dangerously, always under the threat of dismissal by the Centre via the President.
Who decides whether a certain function of the governor can be exercised at his discretion? [Article 163 (1)]. The governor himself!
Believe it or not, vesting the governor with discretionary powers was justified by the wise men of our Constituent Assembly that gave us the Constitution of India.
What all functions of the governor fall within this discretionary category?
The Constitution given to us by its founding fathers provides no guidelines! Therefore, exercise of discretionary powers by the governor as the Centre's representative is justifiable.
In the specific matter that sent Advani into a rage, the Guwahati high court has ruled that that the governor is the 'sole and exclusive authority' to appoint the chief minister.
In Jogendranath v Assam (AIR 1982 Gau 25) the court held that the governor as the head of the state 'is the sole judge to ascertain as to who commanded the support of the majority in the assembly.
When loyalties of the legislators can undergo frequent changes and loyalties can be won of some legislators with a flexible conscience of the governor's role becomes crucial. And that's when a supari comes on the scene.
A Razi and a Buta Singh may accept, an S M Krishna may refuse it.
To each one his conscience and loyalty to the dynasty -- with a capital 'D.'
It was precisely in order to a uniformity in action to promote sound democratic parliamentary government principles that the Administrative Reforms Commission suggested in 1969 that some guidelines should be evolved to enable exercise of the governor's discretionary powers. The Commission felt the guidelines are necessary to ensure uniformity, to preserve and protect democratic values.
In March 1975, however, the central government decided against the recommendation regrettably, and preferred allowing convention to grow up. And we know who was in power in 1975 and what followed just a few months later, don't we?
And so, Mr Advani, we understand your moral outrage and the BJP's fear of Emergency II. But remember that the Constitution and the case law is against you. Be prepared then for just one outcome: the hired assassin losing his job.