Former Supreme Court Judge V. R. Krishna Iyer has done that again. He has written an article in the New Indian Express suggesting that the Governor should act to the end collective irresponsibility of Kerala Government. While appreciating the validity of Mr. Iyer’s legal points, KeralaViews wants to highlight the complexities and contractions involved in Mr. Iyer’s advice.
Last time, Mr. Iyer wanted the Governor not to act against CPI (M) State secretary Pinarayi Vijayan by sanctioning the CBI’s request to prosecute Mr. Vijayan in a corruption case. His argument was that the Governor did not have the discretionary powers to reject the Cabinet’s advice against prosecution of Mr. Vijayan.
This time Mr. Iyer wants the Governor to act against the Chief Minister V. S. Achuthanandan and dismiss his Cabinet for failing to exercise collective responsibility (in making its recommendation?) What Mr. Iyer wants the Governor to exercise now is indeed a discretionary power which the English Queen will hesitate to exercise even under utmost provocation. (If Cabinet did not show collective responsibility regarding its decision to recommend against prosecution of Mr. Vijayan, that should be reckoned as a good reason for the Governor to use his discretion in the matter)
Earlier, Mr. Iyer had wanted the Governor not to exercise his discretionary powers and act in aid of an alleged attempt to undermine the rule of law. Rule of law is fundamental not only to the Constitution but to any system of governance, whereas the discretionary power that Mr. Iyer wants the Governor to exercise now is only a Constitutional principle that is open to different interpretations.
The pleasure principle is something that should be invoked with due circumspection and fair judgment of the situation. The Governor cannot easily dismiss a government even in the case of break down of the rule of law. If the Governor has erred in sanctioning prosecution of Mr. Vijayan, he will be erring more seriously if he dismisses the Chief Minister.
This is not to say that the Achuthanandan Government has a right to continue. KeralaViews has said that the Achuthanandan Ministry had breached collective responsibility much before Mr. Iyer wrote about that. However, as stated in an earlier post, Cabinet Ministers are appointed by the Chief Minister and he has every right to drop Ministers who do not enjoy his confidence. So, if Ministers breach the principle of collective responsibility, it is for the Chief Minister to take action. If it is the Chief Minister himself who is responsible for the situation, it is for the Legislative Assembly to express no confidence in him. Mr. Iyer himself notes, quoting Kashyap, that the Council of Ministers is collectively responsible to the House of People.
If the Achuthanandan Government is continuing in office despite the gross breach of constitutional principles, it is the Legislature that should hold the Government accountable. The Governor is to act only if the legislators fail to exercise their legitimate role for want of moral authority or other reasons. Then, what the Governor should do is not only to dismiss the Government, but also to dissolve the Assembly, paving way for the people to elect a responsible Government. However, when the legislators are not acting, the Governor is in a position similar to Bhishma, who had to remain silent when Panchali was dishonoured. Dharma is subtle, Bhishma said.
Like his previous article, this article of the Mr. Iyer is a double edged sword.