Koshyari’s Maharashtra action: Of legality and Constitutional morality

New Delhi, Nov 28: As there are different views on the "tearing hurry" shown by Maharashtra governor B S Koshyari in appointing Devendra Fadnavis as the chief minister, who has now resigned, constitutional experts said he was "legally right", but there was a "question of propriety involved" in his action.

Noted constitutional expert Subhash C Kashyap said, "legally, no fault can be found" in Koshyari's action.

"He was within his legal rights and at any time, he can invite anyone to form the government, if he is satisfied with the issue of majority. There was no constitutional violation either in his action," he added.

"But the question of propriety involved in his action is different," Kashyap told PTI.

"We all have our own views on the question of propriety, appropriateness and reasonableness. Only the governor knew whether he had applied his mind or not while inviting Fadnavis to form the government, going by the letter of support from the then NCP legislature party leader Ajit Pawar. But in my view, everyone should apply their mind correctly," he said.

Asked how a governor could take a wrong decision, Kashyap, who was the secretary-general in the seventh Lok Sabha, said a governor had to be guided by his own assessment.

"In Koshyari's assessment, Fadnavis had the majority. But the governor can also go wrong in his assessment. He has the right to go wrong. That was his right. He may fail in his opinion (about majority)," he added.

Kashyap recalled the examples of former prime ministers Charan Singh and AB Vajpayee, who had to resign as they were unable to prove their majority in the Lok Sabha.
Another former Lok Sabha secretary-general, P D T Achary, said though a governor had the discretion to appoint a person as the chief minister when no party had the majority, he had to abide by the guidelines of the Sarkaria Commission (which went into the Centre-states relations).

The Supreme Court too adopted the commission's recommendations in the Bommai and Rameshwar Thakur cases and issued instructions for the governors to follow.

What Koshyari did was "legally, constitutionally and technically correct. He went through the process of calling all the parties one by one to form the government. But sufficient time was not given to the Shiv Sena to work out the alliance", Achary said.

The governor should have known that the process of different parties coming together for government formation was not an easy one as they had to iron out their differences, he added.

Achary, who served as the secretary-general in the 14th and 15th Lok Sabha, felt Koshyari could have given more time to the Shiv Sena-Congress-NCP alliance. "There is nothing wrong in giving more time," he said.

Similarly, the governor committed no wrong in revoking the President's rule in the early hours and swearing-in Fadnavis as chief minister immediately after that, Achary said, adding, "All the constitutional authorities have to function 24x7 and there is no difference of day or night for them."

Instead of going by the letter of Ajit Pawar, Koshyari should have sought a letter of support from Sharad Pawar, the leader of the Nationalist Congress Party (NCP), he said.
"The governor's action is a bit difficult to understand because of this," Achary quipped.

Charan Singh was sworn-in as the prime minister on July 28, 1979, with outside support by Indira Congress, and Yeshwantrao Chavan of the Congress (Socialist) faction was appointed as his deputy. Just before Singh was to prove his majority in the Lok Sabha, Indira Gandhi withdrew support to his government and he resigned on August 20, only 23 days after being sworn-in, thus becoming the only prime minister who has not faced Parliament.

Similarly, the BJP had emerged as the single largest party in the Lok Sabha after the 1996 parliamentary polls and Vajpayee was invited by President Shankar Dayal Sharma to form the government. But after 13 days in office, Vajpayee resigned as he was unable to muster a governing majority. He was in office from May 16 to June 1.