The appointment of convicted SKM leader, PS Golay, as Sikkim CM has thrown up some sticky questions about constitutional propriety by the Governor

In the Indian Constitution, the Governor of a State occupies a unique position. He is, by virtue of his oath, expected to preserve, protect and defend the Constitution of the country and uphold the law. No other high functionary, except for the President of India, is sworn in as per such phraseology.

While the oath that a Governor takes is similar to that of the President, unlike him, the Governor is allowed a certain degree of discretion, albeit within constitutional limits. For instance, Article 163 (2) reads, “If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion.”

At the time of formation of a State Government, when the Chief Minister and the Council of Ministers are yet to be sworn in, constitutionally there is no one to aid and advise the Governor as per the provisions of Article 163 (1). However, over time, precedents and conventions have evolved which are usually followed by the Governor.

Also, in this matter, the Sarkaria Commission that was set up in 1983 by the Central Government to examine the Centre-State relationship on various portfolios and suggest changes within the framework of the Indian Constitution, had given some concrete advice.

One of the key suggestions made by the Commission was that while going through the process of Government formation, the Governor  should select a leader who, in his opinion, is most likely to command a majority in the Assembly.

In this context, Article 164 (1) lays down that the Chief Minister shall be appointed by the Governor and further as per Article 164 (4), a minister who for any period of six consecutive months, is not a member of the Legislature of the State, shall at the expiration of that period cease to be a Minister.

In this context, an unprecedented situation continues to prevail in the sensitive State of Sikkim, where Prem Singh Tamang alias PS Golay of Sikkim Krantikari Morcha (SKM) was sworn in as the Chief Minister on May 27, 2019. The unusual thing about this swearing-in is the fact that Golay, during his tenure as Minister for Animal Husbandry in 1996, was held guilty under the Prevention of Corruption Act for misappropriating Rs 9.5 lakh meant for the purchase of milch cattle. Golay’s conviction was upheld by the High Court and he was released only after serving a one-year prison sentence last year.

This conviction and subsequent imprisonment has brought Golay under the ambit of Section 8 (1) (m) of the Representation of the People Act, 1951, entailing disqualification for a period of six years from the date of his release from prison.

Perhaps it was only on account of this disqualification that Golay did not contest the election to the State Assembly held in April 2019. This also disqualifies him from becoming a member of the State Legislature in accordance with the provisions of Article 173.

Despite the disqualification, the SKM elected Golay as their leader and Governor Ganga Prasad swore him in as the Chief Minister, being the leader of the party with an absolute majority. It is obvious that the Governor had used his discretion and not followed the principleslaid down by the Supreme Court in such matters.

The Governor is at liberty to appoint a person as the Chief Minister, who may not be a member of the Legislature, at that time, provided the State Legislature endorses such a choice, with the condition that he has to get himself elected within a period of six months.

Keeping this rule in mind and in a last-ditch effort to secure his position, Golay requested the Election Commission of India to waive his disqualification from contesting polls. He cited Section 11 of the Act, which allows the Commission to remove any disqualifications under Chapter 3 of the Act (which includes Section 8) or to reduce the period of such disqualification. Golay argued that he needed to be elected to the Assembly within six months of his appointment.

On the other hand, there is this case where the person so elected has the confidence of the House but is not qualified to be elected as a legislator. It was argued in late J Jayalalithaa’s case by KK Venugopal, the incumbent Attorney-General that, in a parliamentary democracy the will of the people must prevail.

 Justice Patnaik, however, ruled in Jayalalithaa’s case that with the disqualification under Section 8 (3) of the Representation of People Act staring him in the face, the Governor would be acting beyond his jurisdiction and against the constitutional inhibitions and norms in appointing a disqualified person as the Chief Minister on the sole reasoning that he/she had been elected as leader of the majority party.

The plea taken by the SKM that the relevant amending clause of the Representation of People Act has since been repealed, may not have much strength, as after the amendment has been incorporated in the main body of the Act and notified as such, repealing of the amending Act at a later date would not make an impact.

But this is also a matter on which the apex court has to take a view whether the repealing of this Act was constitutional or not.

The Supreme Court, in Jayalalithaa’s case, also went on to say that the Governor was a functionary under the Constitution and cannot, in exercise of his discretion, do anything that is contrary to the Constitution of the country and its laws.

When requested to wait for the period of six months allowed under Article 164(4) to expire before pronouncing the judgment, the court had taken the view that “appointment of a person to the office of Chief Minister who is not qualified to hold it should be struck down at the earliest.”

The situation as it prevails today is that a person disqualified under the law has been in the Chief Minister’s chair for the last three months. It is now for the apex court to decide whether the discretion used by the Governor was constitutional or was a matter of indiscretion.

In the latter case the appointment of Sikkim’s Chief Minister and his entire Council of Ministers would become invalid as happened in the case of Jayalalithaa in Tamil Nadu. What the future holds and what precedents will be set through the Golay case, only time will tell.

(The author is a former Governor and a senior advisor at the Pranab Mukherjee Foundation)