The Supreme Court’s landmark judgment in Rameshwar Prasad will bring some clarity to the norms governors should abide by before recommending dissolution of assemblies. But whether it will put all controversies to rest concerning this case, or be a catalyst for a higher political morality remains to be seen. Predictably, the UPA government is clutching at every straw in the judgment that will exonerate it of culpability. But read in totality, every single argument that leads the court to rightly indict Buta Singh, should also lead to finding the Centre more culpable. It’s a little bit of a mystery why the court does not pursue its own logic more fully.The heart of the case against Buta Singh is this. He acted out of mala fide and did not simply commit an error of judgment. His over-riding purpose in recommending the dissolution of the assembly was to prevent the formation of a government. It appears that Buta Singh was hoist by his own petard in this matter. His letter to the president clearly suggests that Nitish Kumar may be in a position to form a government. The ground on which Buta Singh claims to have acted was that he was preventing the formation of a government by fraudulent means. This, incidentally, makes the dissenting judge’s claim that no one had actually staked a majority a non sequitor. Clearly Buta Singh was acting under the apprehension that there was someone in the position to cobble together a majority.Just as an aside it was worth speculating what Buta Singh’s legal position would have been if he had simply concluded that, as best he could ascertain, no one was in a position to form a stable government. That might still have been a subjective and debatable judgment, but at least Buta Singh would not have provided evidence that could so easily prove his mala fide.But the question to ponder is this. How does the Court decide that Buta Singh did not simply make an error of judgment but was mala fide? Part of the answer is: he used a patently irrelevant argument on which to base his decision. But why is acceptance of a non-sequitor, not evidence of the Centre’s mala fide? The court seems to be telling the Centre that they should have done a better job of independently verifying the facts before acting upon the governor’s recommendations. But by the court’s own logic, this case does not actually turn upon facts. The court has, rightly, made the argument that allegations of inducement or horse trading are neither here nor there: in the case of fractured verdicts, all kinds of negotiations are not only expected, they are desirable. So the Centre’s fault was not that it did not verify the facts independently. It is rather that it relied on an irrelevant argument, just as Buta Singh had done. The governor’s letter said that he is acting to prevent the formation of a government by fraudulent means. The “fraudulent means” argument is a red herring. The verification of facts would have been irrelevant, the principle the Centre was acting upon was incorrect.Moreover the Centre, in some ways, comes off even worse than Buta Singh. After all, as one of the dissenting judgments in favour of Buta Singh points out, Buta Singh had actually written to the Centre as early as April about his apprehensions of horse trading, even before the formation of a government was imminent. So the Centre knew a few weeks in advance about the basis of the governor’s recommendations. It did not use that time to check out whether that basis would be tenable in law or fact. Why? Another piece of evidence to suggest that Buta Singh’s action was mala fide is the timing of his recommendation, the undue haste he showed in May. But undue haste in coming to a decision can be foisted even more easily on the Centre and the president than on Buta Singh. In short, every argument used to indict Buta Singh of mala fide rather than simply an error of judgment applies to the accepting authority even more than the recommending one. The Congress may be relieved that the explicit strictures on its conduct are not as serious, but there is no doubt that it is egregiously culpable in the mala fide act.This judgment will force governors not to substitute their unfounded apprehensions for the exercise of genuine public reason. It clearly lays down certain guidelines that governors will have to follow. For instance, governors will now have to verify facts personally from MLAs rather than rely on reports. But the judgment will by no means lay to rest all controversies over dissolution. Although the judgment relies on Bommai, it goes further than Bommai in one respect. In Bommai, there was a division of opinion whether judicial review would extend to an inquiry into the truth and correctness of the basic facts relied upon in support of action under Article 356, or whether it would be limited to procedural aspects. This case emphatically confirms that all materials placed before the president that formed the basis of advice are open to judicial scrutiny.But here is one possible uncertainty for the future. The Centre will now be forced to independently verify the basis of a governor’s recommendations; in that sense, the office of the governor has been considerably diminished. But imagine a scenario where a governor recommends the dissolution of an assembly on what appears to be reasonable and legally sustainable. It is always open to the Centre to reject the recommendation of a governor. But would such a rejection be equally open to judicial scrutiny? If we think the quality of the report should determine the Centre’s final recommendation, then surely every turning down of a governor’s report should also be justiciable.This will create some intriguing judicial cases in the future. The point is that it high time we recognised that merely codifying more rules governing the conduct of constitutional officials through legal judgments will not solve all our problems: it will only shift them to different sites within the system. It is an illusion to think that any system can function without the exercise of discretionary judgment, and the exercise of judgment requires virtue, not simply more rules. Congress’s biggest culpability is that it is hiding behind the shield of legal formalism and not answering to the tribunal of constitutional morality.The writer is president, Centre for Policy Research, New Delhi
