"The President, or the Governor or Rajpramukh of a State, shall not be answerable to any court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties" (Art. 361, The Constitution of India). The black letter law suggests that in order to facilitate the free excersize of Executive powers and duties (functions) of the President of India or the Governor of the State, their actions are not answerable to any Court. However, the discretion excersized by these Constitutional Authorities is not immune from the domain of judicial review. Every discretion excersized in arbitrary manner is susceptible to judicial review. In Rameshwar Prasad v. Union of India (2006), the Apex Court declared the imposition of President's rule U/A- 356 of the Indian Constitution as unconstitutional. In one of paras, while dealing with the role of Governor, the Apex Court referred the statement of then Prime Minister, Dr. Manmohan Singh, "You are the representatives of the center in states and hence, you bring a national perspective to state level actions and activities" (Emphasis Supplied).
In the present Karnataka issue, there might be at least two ways to think this specific situation. The technical or mechanical compliance of Law may favour BJP. However, in Rameshwar Prasad v. Union of India (2006), The Supreme Court of India, while dealing with the moment of crisis like hung Assembly and Dissolution of Assembly, came out with three possible alternatives in lexical priority, taking clue from Sarkaria Commission: (1) The Biggest pre-poll alliance has the first claim to form the Government; (2) The Single Largest Party; and (3) The biggest post- poll alliance. Here BJP passes the muster for the second condition and the Congress- JD(S) post-poll alliance qualifies for the third condition. These alternatives were also echoed by Punchhi Commission. But in Rameshwar Prasad (Supra), the Supreme Court of India echoed the pragmatic voice of Sarkaria Commission in these few words:
"It is clear that the leader of the party which has an absolute majority in the Legislative Assembly should invariably be called upon by the Governor to form a Government. However, if there is a fractured mandate, then the Commission recommends an elaborate step-by-step approach and has further emphasized that 'the Governor, while going through the process of selection as described, should select a leader who, in his judgement, is most likely to command a majority in the Assembly'".
It's difficult to say how to read the Constitution, even more difficult to articulate how not to read it. A serious student of Constitutional Law should avoid reading the Constitution in terms of Black letter interpretation. The study of Constitution is not only in its expressions but in its "silences" (See Chelameshwar J. In 4th Judges' case). Every political crisis or "Politics of Crisis" brings forth the bright scope to transform Constitutional interpretation in sync with crisis, to reaffirm the very "demosprudential ethos" (Upendra Baxi, Jurisprudence v. Demosprudence) which is expected from every Constitutional Authority. The power of Governor is a symbolic one in a republican democracy like India. They are responsible, not only to adhere with every text and its context of the Constitution, but also the very Constitutional ethos, which is no less than to raise upto the stature of Justice, Equity, and good Conscience.
When numbers are prima facie supporting the Congress-JD(S) alliance. Asking BJP to form the Government is an act of negation and abdication; not only of the precedents established in Goa and Manipur in contemporary epoch, where post-poll alliance got preference over the single largest party, but also the Constitutional ethos which asks the Governor to be above the suspicion like a Caesar's Wife!
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