In democratic countries, law and politics interact in strange ways, not always explainable in terms of given theories and principles.
The recent Karnataka episode is an example of this phenomenon. It is possible for minorities to govern with majority support according to democratic norms in India.
Discretion is an indispensable element in governance and Governors, too, have it. Constitutions do provide for checks and balances to avoid excesses in exercise of discretion, though they are often not effective enough to control arbitrary exercise of power.
In mature democracies, there are conventions and best practices that have become part of constitutional law binding on constitutional functionaries. An independent judiciary with the power of judicial review can intervene if conventions and constitutional morality do not check arbitrary decision-making while exercising discretionary authority. This is what happened in the Karnataka imbroglio.
The question being raised in public discourse is whether it is possible to set binding constitutional directions to guide the discretion of Governors in situation where elections throw up hung assemblies.
No doubt it is possible, yet no system can ever hope to eliminate discretion altogether. This is where constitutional propriety and political morality matter on the part of high constitutional functionaries.
According to Bommai judgment, which is binding law, in case of hung assemblies, the Governor is supposed to invite the party having the largest number of elected members to form the government. And that appears to be a sound principle to be followed.
But the problem is about majorities manufactured by political parties through ad hoc alliances either prior to polls or after the declaration of results. Should there be different standards depending upon whether the alliance is cobbled up before elections or after, or whether the alliance is based on a common agenda or one of convenience to grab power? In resolving such situations, the Governor has to necessarily exercise discretion to form a judgment that does not do violence to constitutionalism and the spirit of democracy.
In doing so, he can seek the advice of political parties, legal experts and adopt best practices followed in other democracies. Legislating in this regard to bind his discretion is neither possible nor desirable as situation cannot be anticipated for all times. The only choice available is to choose the Governors wisely and avoid extra-constitutional interference from power centres within the system or outside.
In this context, it is time to consider whether the office of the Governor is necessary to be continued at all. It has been a source of avoidable controversies and the functions involved are not too many to justify its continuance.
It is possible to think of entrusting whatever residual responsibilities Governors have to other constitutional functionaries like the Speaker, the Election Commission or the Chief Justice of High Court.
All said and done, nobody can murder democracy in India as politicians allege.
We, the people of India, are completely in command and can stop the game if the play goes out of bounds. A vigilant media and a fearless judiciary are on the side of the people to keep the Constitution alive and democracy kicking even when politics and politicians take to ugly behaviour for power.
(The author is the founder director of the National Law School of India University (NLSIU) and has been conferred the Padma Shri for shaping modern legal education in India. Views are personal)
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