Governor’s Discretion while Choosing CM: An Analysis of the Recent Karnataka Drama

Discretion granted to a person most probably opens the floodgates for partisan decisions. Situation aggravates if the person has political interests and the decision is unchallengeable.  We are speaking about the office of the Governor in India. Ever since the Madras State elections in 1952, the office of the Governor has been controversial on several fronts. The Governor’s discretion in choosing a chief minister has been a significant bone of contention. Several suggestions such as the appointment of a non-political person as Governor, setting parameters for the Governor to exercise his/her discretion, the abolition of the office of the Governor etc. have been doing the rounds. This article concentrates on the need to set standards to prevent the Governor from exercising his discretion to choose a Chief Minister in an arbitrary and fanciful manner. Towards that end, the recent Karnataka happenings are taken as a case study

The Karnataka Stage Show

Elections were held to 222 of the 224 Assembly seats in the state. A party or coalition needed the support of 112 members to have simple majority in the house.  The BJP turned out to be single largest party with 104 seats with eight short of a majority. The Congress which won 78 seats extended unconditional support to the Janata Dal (Secular) with a 37 seats to form and head the government. Three independents completed the picture. Both the BJP and JD(S)-Congress met the Governor and staked their claims. The Governor surprisingly invited BS Yeddyurappa, leader of the single largest party BJP, to form the government, though there was absolutely no evidence of him having the sufficient numbers. Fifteen days were provided (Yeddyurappa requested for one week) to prove majority on the floor of the house. The Congress-JD(s) challenged the Governor’s decision before the Supreme Court. Their main prayers were to set aside the Governor’s invitation to Yeddyurappa , stay his swearing-in and advancement of the floor test. They also challenged the appointment of the Pro-tem Speaker by the Governor. The Supreme Court refused to stay the swearing-in but ordered an immediate floor test. Since pursuing the challenge against the appointment of the Pro-tem Speaker would have delayed the floor test, the court as a pacifying measure ordered a live telecast of the floor-test. Yeddyurappa resigned just before the floor test and the rest of the story is well-known. Now in a curious move, the Akhil Bharatiya Hindu Mahasabha has challenged the Governor’s decision to invite HD Kumaraswamy of the JD(S)-Congress alliance to form the government alleging that the Governor did not exercise his power under the Constitution in the right spirit.  For a better understanding, it is absolutely necessary to discuss the law pertaining to such situations and spontaneously we are guided to Article 164 of the Constitution.

Legal Basis of Governor’s Discretion

 Article 164 (1) provides that the Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by the Governor on the advice of the Chief Minister, and the Ministers shall hold office during the pleasure of the Governor. According to Article 164(2), the Council of Ministers shall be collectively responsible to the Legislative Assembly of the State. Article 164(1) does not supply any further details as to whom the Governor shall invite as the Chief Minister. Here lies the much controversial circumstantial discretion of the Governor. This is just one of the instances as provided under the Constitution where the Governor can exercise his general as well as circumstantial discretion. The Sarkaria Commission on Centre-State Relations (1988) justified the position of Governor as it is “indispensable for the successful working of the Constitutional scheme of governance”. Dr. Ambedkar too felt that this sort of discretion is not contrary to the idea of responsible government. He remarked,  “the Provincial 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”. (Vol. VIII, CAD at 502)

But there could be safeguards checking the abuse of this discretion. The Sarkaria Commission (1988) opined that those “safeguards cannot be reduced to a set of precise rules of procedure or practice because of the very nature of the office and the role of the Governor. The safeguards have mostly to be in the nature of conventions and practices”. But searching conventions and practices in this regard would put one in a spot of bother. All sorts of conventions are available in history. Governors had invited the leaders of the single largest party, pre-poll alliances and post-poll alliances. The offices of the Governor have been remaining as separate islands in different states and at different times, exhibiting no sense of uniformity in their practice (in the selection of Chief Minister). Since conventions are leading us to nowhere as it is easier to exhort to debate the abolition of the office of the Governor as Advocate Gautam Bhatia and Prof. NR Madhava Menon do. Contrary to Gautam Bhatia’s beliefs, secessionism is a still a potent threat looming large over nation India and Indian democracy is still not matured enough to be ready for absolute federalism.  It is indispensable to carry on with the quasi-federal nature of the Constitution, with the Governor acting as an ambassador and liaison officer linking the Centre with states. Instead of doing away with the office of the Governor, attempts should be made at setting well-defined parameters for the Governor to exercise discretion.

Whether Discretion is Unfettered Freedom?

 According to Black’s Law Dictionary, discretion means “a power or right conferred upon public functionaries by law of acting officially in certain circumstances, according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others. This discretion undoubtedly is to some extent regulated by usage, or, if the term is preferred, by fixed principles”. Thus discretion demands the employment of subjective reasons by public functionaries which of course should be articulated within the confines of accepted principles, for example, conventions and constitutional principles. In Nabam Rebia case, the apex court held that ‘the appointment of the Chief Minister is based on the postulate that he commands or is expected to command the support of a majority of Members of the Legislative Assembly. Therefore, it is not as if the Governor has untrammeled discretion to nominate anyone to be the Chief Minister of a State”. In the Karnataka episode, it was not even a hung assembly. The Congress-JD(S) combine had the sufficient numbers to form a stable government. Even with the addition of all independents, the BJP would not have secured the majority. Only available option before the BJP was to cause a break-up and encourage defections from other two parties.

In Kihoto Hollohan v. Zachillhu & Ors,  while upholding the validity of the Tenth Schedule, the Supreme Court observed that defections undermine the cherished values of democracy and Tenth Schedule was added to the Constitution to combat this evil. Unethical political defection was explained as “a canker eating into the vitals of those values that make democracy a living and worthwhile faith”. The Karnataka Governor’s decision to invite the leader of the single largest party which did not have the support of sufficient elected representatives was a green signal to indulge in poaching and horse trading. The Governor was supposed to act in tune with the spirit of the Constitution, i.e., not furthering unethical defections but he acted just in the opposite. The Governor can be accused of malafides, abusing the discretion he was bestowed with. Here comes the relevance of Article 361(1) which inter alia, provides that the Governor 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 purported to be done by him in the exercise and performance of those powers and duties. Despite this personal immunity, a Governor’s actions can be judicially challenged. The Supreme Court in Rameshwar Prasad case made the following observations:

“.. The personal immunity from answerability provided in Article 361 does not bar the challenge that may be made to their actions. Under the law, such actions including those actions where the challenge may be based on the allegations of malafides are required to be defended by Union of India or the State, as the case may be. Even in cases where the personal malafides are alleged and established, it would not be open to the Governments to urge that the same cannot be satisfactorily answered because of the immunity granted. In such an eventuality, it is for the respondent defending the action to satisfy the Court either on the basis of the material on record or even filing the affidavit of the person against whom such allegation of personal malafides are made. Article 361 does not bar filing of an affidavit if one wants to file on his own. The bar is only against the power of the Court to issue notice or making the President or the Governor answerable..”

Since the challenge of the Karnataka Governor’s action has become infructuous, it is highly unlikely for the Supreme Court to proceed with the case. Still, the court can use the Hindu Mahasabha challenge as an opportunity to clarify the law governing discretionary powers of the Governor while choosing a Chief Minister. This naturally takes us to previous non-judicial attempts in this regard.

Commission Recommendations

The President appointed a Committee of Governors on November 26, 1970, to study the role of Governors. The Committee of Governors suggested the following guidelines for the appointment of the Chief Minister:

1. Where a single party commands a majority in the assembly, the Governor is to call upon its leader to form the government.


2.  It is not incumbent on the Governor to invite the leader of the largest party (not in the majority) to form the government. The ultimate test for the purpose is not the size of a party but its ability to command a majority in the House.


3. If before the election, some parties combine and produce an agreed programme and the combination gets a majority after the election, the commonly chosen leader of the combination should be invited to form the
   government.


4. If no party is returned in a majority at the election and thereafter two or more parties come together to form the government, the leader of the combination may be invited to form the government.


5. The leader of the minority party may be invited to form the government if the Governor is satisfied that the leader will be able to muster a majority support in the House.

The Sarkaria Commission Report on Centre-State relations while dealing with the situation suggested the following recommendations:

• The party or combination of parties which commands the widest support in the Legislative Assembly should be called upon to form the government.


• The Governor's task is to see that a government is formed and not to try to form a government which will pursue policies which he approves.

Thus, if there is a single party having an absolute majority in the Assembly, the leader of the party should automatically be asked to become the Chief Minister.

If there is no such party, the Governor should select a Chief Minister from among the following parties or group of parties by sounding them, in turn, in the order of preference indicated below:

1.  An alliance of parties that was formed prior to the Elections.


2. The largest single party staking a claim to form the government with the support of others,
   including “independents.


3.  A post-electoral coalition of parties, with all the partners in the coalition joining the government.


4.  A post-electoral alliance of parties, with some of the parties in the alliance forming a government and the remaining parties, including “independents” supporting the government from outside.

The Governor, while going through the process of selection described above, should select a leader who, in his  (Governor’s) judgment, is most likely to command a majority in the Assembly. The Governor's subjective judgment will play an important role.

The Poonchy Commission Report on Centre-State Relations (2010) suggested the following guidelines while dealing with the situation:

The party or combination of parties which commands the widest support in the Legislative Assembly should be called upon to form the government.If there is a pre-poll alliance or coalition, it should be treated as one political party and if such coalition obtains a majority, the leader of such coalition shall be called by the Governor to form the government.

In case no party or pre-poll coalition has a clear majority, the Governor should select the Chief Minister in the order of preference indicated below:

• The group of parties which had pre-poll alliance commanding the largest number;


• The largest single party staking a claim to form the government with the support of others;


• A post-electoral coalition with all partners joining the government; and


• A post-electoral alliance with some parties joining the government and the remaining including independents supporting the government from outside.

In Rameswar Prasad case, the apex court attested the Sarkaria Commission Report and expressed the desirability of its recommendations guiding the discretion of the Governors. It is evident from these guidelines that the paramount consideration for the Governor is the majority of a party or combination in the Legislative Assembly.  Only if no concrete option is available, the Governor should sail through the order of preferences mentioned in the above recommendations. In the Karnataka episode, the letters of support were already submitted to the Governor indicating the widest support in the Legislative Assembly. Still, he preferred to invite leader of the single largest party which did not have the majority to form the government. Thus, the Governor was not following the spirit of these three sets of guidelines mentioned above. The Hindu Mahasabha petition argued that the Governor has to exercise his discretion to ascertain the people will in favor of the majority party failing which to find out ways for stable and popular government. If these twin elements are missing, the Governor is not bound to invite a political party who has only 38 seats and accept the support of a party which was its arch rivals in the elections. According to the petition, the post-poll alliance is against the republic form of government and against the basic feature of the Constitution. But to be fair, the Constitution has nothing against post-poll alliances and in fact, it is a necessity in a country where multi-party contested election is the mode. The Hindu Mahasabha is trying to assign new meanings to a parliamentary form of democracy and basic features of the Indian Constitution.

Immediate Floor Test Could Cure an Arbitrary Decision

In the past, Governors had resorted to physical verification of elected members at his/her residence. But floor test has evolved out as the sole criterion for ascertaining the majority of a party or combination though in the SR Bommai case (1994), the apex court was little circumspect (speaking in the context of the dissolution of assemblies) as to the role of floor test. It observed:

“The floor-test may be one consideration which the Governor may keep in view. But whether or not to resort to it would depend on the prevailing situation. The possibility of horse-trading is also to be kept in view having regard to the prevailing political situation. It is not possible to formulate or comprehend a set of rules for the exercise of the power by the Governor to conduct floor test. The Governor should be left free to deal with the situation according to his best judgment keeping in view the Constitution and the conventions of the parliamentary system of Government.

Though Sarkaria Commission and Rajamannar Commission, headed by two distinguished Judges of this land, recommended floor-test, it could only mean that that is a consideration which must cross the mind of the Governor. It would suffice to say that the Governor should be alive to the situation but he would be the sole judge on the question whether or not conditions are conducive to resort to floor- test”. (para 263)

In the Jagadambika Pal case, the Supreme Court directed convening of a special session of the Assembly and to have a composite floor test between contending parties to ascertain majority in the Assembly. The Supreme Court ordered floor tests in other instances too (Jharkhand and Goa).  The Karnataka Governor actually granted 15 days for BS Yeddyurappa to prove majority through floor test. But the Supreme Court preponed the floor test and ordered the same to be conducted within two days. This along with the order for the live telecast of the floor test proceedings allayed the fears of horse-trading expressed in the Bommai case and in fact, nullified the Karnataka Governor’s intention to create a conducive atmosphere to further defection. Incidents that followed justified the apex court’s position.

Needed: An activist approach

As noted in the Rameswar Prasad case, a Governor while subjectively assessing the majority claims shall not be concerned about whether the majority was ‘cobbled by illegal and unethical means’. Such a power would be against the democratic principles of majority rule. But a Governor is constitutionally bound not to facilitate horse trading and defection through discretionary decisions as happened in Karnataka. Rather than thinking about the desirability of doing away with the office of the Governor, the nation should debate about a legal framework within which a Governor can exercise discretion in choosing a Chief Minister. It could either be through a parliament law or norms set by the apex court. Since regimes at the Centre may not be interested in such a move as they are immersed in making use of the office of  Governor as a political pawn. Hence the apex court will have to exhibit its activist avatar to do complete justice to people who cast their votes considering the malfunctioning of a constitutional functionary and bring uniformity in the proceedings. Still one should applaud the bits and pieces approach adopted by the court in checking arbitrary decisions of the Governor.

 References

 SR Bommai vs Union Of India on 11 March, 1994 available at http://indiankanoon.org/doc/141126788/

Nabam Rebia vs Deputy Speaker on 13 July, 2016, http://indiankanoon.org/doc/192490620/

Rameshwar Prasad & Ors vs Union Of India & Anr on 24 January, 2006, http://indiankanoon.org/doc/79280249/

Kihoto Hollohan vs Zachillhu & Ors,  available at https://indiankanoon.org/doc/1686885/

Sarkaria Commission Report on Centre-State Relations (1988) downloadable from http://interstatecouncil.nic.in/report-of-the-sarkaria-commission/

Poonchy Commission Report on Centre-State Relations (2010) downloadable from http://interstatecouncil.nic.in/report-of-the-commission-on-centre-state-relations/

Apoorva Mandhani (2018), “Hindu Mahasabha challenges Governor’s order inviting Congress-JD(S) to form government in Karnataka” available at http://www.livelaw.in/hindu-mahasabha-challenges-governors-order-inviting-congress-jds-to-form-government-in-karnataka-read-petition/

Gautam Bhatia, “Do we need the office of the Governor?” available at http://www.thehindu.com/opinion/lead/do-we-need-the-office-of-the-governor/article23971800.ece

Prof NR Madhava Menon (2018), “After Karnataka saga, it’s time to consider whether Governors are needed at all”, available at https://www.news18.com/news/opinion/after-karnataka-saga-its-time-to-consider-whether-governors-are-needed-at-all-1754435.html

[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]