Hours after resigning from the post of the chief minister of Bihar, Nitish Kumar has once agian been sworn in as the chief minister of the state. Senior BJP leader Sushil Kumar Modi took oath as the deputy chief minister of the state. Soon after resigning from the post of chief minister of the Bihar government led by the Grand Alliance (which included Janata Dal (United) or JD(U), Rashtriya Janata Dal (RJD) and the Congress), Kumar joined hands with the BJP to regain the position of chief minister.
This emerges as a very important development, from the Constitutional stand point. Here is an exceptional situation where a governor of a state is able to exercise his discretion in asking an individual to form the state government ahead of another party which figuratively is the single largest party. How does a Governor decide in this case? ...based on his own judgement or discretion or is he required constitutionally to seek advise. If yes, then whom does a Governor seek advise from under such extra ordinary situations?
The answer perhaps lies in the fact that the Constitution of India allows certain discretionary powers, which the governor can use when no party gets a clear majority, and the governor can use his discretion in the selection of chief ministerial candidate to prove the majority as soon as possible. However, these powers need to also viewed in conjunction with the fact that while the President of India is "elected", the governor is "selected" by an incumbent Union (central/federal) government. That is why there have been many instances in past when governors appointed by a previous government were removed by an incoming government. The reasons for such appointments being more political, the Supreme Court has ruled that governors should be given security of term but this is generally not adhered to.
In this context, we may refer to the observation of Dr. B. R. Ambedkar, the Chairman of Constituent Assembly on the discretionary powers granted to the Governors. Dr.Ambedkar had expressed that, “Because the Provincial (state) Governments are required to work in subordination to the Central Government and therefore, the Governor will reserve certain things in order to give the President the opportunity to see that the rules under which the Provincial Governments are supposed to act according to the Constitution or in subordination to the Central Government are observed.” The Governor of a state in this sense is an agent of President directly (and indirectly of the central government). P.S : Indian federal system is tilted towards the union i.e central (or union) government is more powerful compared to states and to exercise this power effectively, central government sends its agent in every state in the form of the Governor.
