Monthly Archives: June 2018

Guest Post: Navigating Gubernatorial Discretion: The Riddle of a Hung Assembly

(This is a guest post by Riddhi Joshi).

Over the past 68 years, there have been many controversies regarding the role of the Governor and the discretion accorded to her ‘by or under this Constitution’. The most recent example of this was the controversy in Karnataka, which began with Mr. Yeddyurappa of the BJP being sworn in as Chief Minister, and ended instead with the Congress-JD(S) alliance winning the floor test. While it appears that the worst of the political crisis has passed, a petition in the case of G. Parameshwara v. Union of India on the question of exercise of the Governor’s discretion in the appointment of a Chief Minister is pending before the Supreme Court.

On the face of it, it appears that there are two main questions which the Supreme Court must address- a) Whether, despite Articles 163(2) and 361, the Court can hear a challenge to a Governor’s decision inviting a party or combination of parties to form the government, taken in the exercise of her constitutional discretion; and b) Whether the Court has the authority to circumscribe such discretion, specifically in the appointment of a Chief Minister under Article 164(1) in the case of a hung assembly.

Through this post, I aim to analyse past judicial pronouncements and the bearing they will have on the outcome of G. Parameshwara v. Union of India.

Understanding the Scope of Gubernatorial Discretion

Unlike the President, the Governor has been accorded some discretion in the exercise of her duties by way of Article 163-

  1. Council of Ministers to aid and advise Governor

(1) There shall be a council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this constitution required to exercise his functions or any of them in his discretion;

(2) 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;

(3) The question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired into in any court.

While the President is bound to act in accordance with the aid and advice of the Council of Ministers, the Governor exercises three kinds of powers

  1. executive power taken in the name of the Governor;
  2. power exercised by her on the aid and advice of the Council of Ministers, headed by the Chief Minister; and
  3. power exercised by her in her sole discretion.

In the case of Samsher Singh v. State of Punjab (para. 153), the Supreme Court recognised some situations in which the Governor acts in her own discretion. Through a merely indicative and not an exhaustive list, the appointment of a Chief Minister where the paramount consideration is that she should command a majority in the House, the dismissal of a government which has lost majority but refuses to quit office, and the dissolution of a House, were seen as part of the Governor’s discretionary power. That, however, leaves one question unanswered: are there any circumstances in which the Courts can review the Governor’s exercise of her discretionary powers?

On Judicial Review

Judicial review is the power of the judiciary to examine the actions of the co-ordinate branches, ie., the executive and legislature, under the Constitution or statutes. Judicial review, especially in instances of formation of government, presents a distinct dilemma in India. Considering that India is a nation with a quasi-federal structure as well as the Westminster system of parliamentary democracy, there have been recurring conflicts between Parliamentary Sovereignty and Judicial Supremacy.

A.V. Dicey defined Parliamentary Sovereignty as the right of the Parliament to make or unmake any law whatever; and further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament. This is a feature prevalent in the unitarian system followed in the United Kingdom. However, as far back as in 1861, J.S. Mill observed that there can be no true federal spirit without the power of judicial review. Amongst the various organs and levels of the government, there must be an independent umpire to settle disputes. The supremacy of the Constitution, and the authority of the Court to interpret it, can never be questioned.

Applying this in the Indian scenario, it means that the conduct of Parliament is not immune to questioning by the Court. In fact, in In Re., Keshav Singh (para. 38), the Supreme Court clearly observed that the dominant feature of the British Constitution, ie., parliamentary sovereignty, has no place in a federal constitution as in India.

In view of this, it can be inferred that the Court can also look into questions pertaining to formation of government. Yet, if one were to go by the bare text of the Constitution, there is no scope to challenge a decision taken by the Governor in her discretion, one of the many such decisions being the appointment of a Chief Minister. In fact, there is an explicit bar against this, expressed in Articles 163(2) and 361, stipulating that the Governor shall not be answerable in any court of law for the exercise and performance of her powers and duties.

There already exists jurisprudence on the issue of judicial review of the Governor’s sole discretion. Beginning with the landmark case of B.R. Kapur v. State of Madras (para. 51), the Court struck down the appointment under Article 164(4) of Ms. Jayalalitha as Chief Minister while she was still a non-legislator, on the ground that she suffered from disqualifications under Article 191. While placing some constitutional limitations on the powers of the Governor (a point discussed later in this post), the Court also took cognisance of Article 361. Here, the Court judicially reviewed the Governor’s discretionary action on the ground that the immunity under Article 361 does not extend to the appointee. Therefore, while the Governor herself cannot be held responsible, the Court can still go into the question by making the appointee prove the constitutionality of her own appointment.

Notwithstanding that Rameshwar Prasad (VI) v. Union of India (para. 173) is a case pertaining to the declaration of Emergency under Article 356, the Court still had to navigate the immunity granted by way of Article 361. In this case, the Governor had acted in his sole discretion by claiming a breakdown of constitutional machinery in the state of Bihar, as no single party had been able to secure a majority in the Legislative Assembly, and thereby, the Governor had been unable to appoint a Chief Minister. In this case, the Court’s approach was that the personal immunity from answerability provided in Article 361 did not bar the challenge that may be made to the actions of the Governor. In such a situation, it becomes incumbent on the respondent state government to defend the exercise of gubernatorial discretion.

The momentous decision in S.R. Bommai v. Union of India (para. 118) expanded the scope of judicial review and held it to be a basic feature of the Constitution, which could not be done away with even in exercise of constituent powers. In this case, when the support to the ruling party in Karnataka was declining, the Governor recommended a proclamation of Emergency to the President. The Court held that in cases where the Governor’s decision smacked of mala fides, arbitrariness, or irrelevant considerations, the Court had the power to strike it down.

Lastly, the position regarding justiciability of a Governor’s discretion was cemented in Nabam Rebia and Bamang Felix v. Deputy Speaker, Arunachal Pradesh Legislative Assembly (para. 148). Here, the Court applied the doctrine of harmonious construction by analysing the provisions surrounding Article 163 to conclude that if the decision of a Governor in her discretion were to be final, she would be converted into an all-pervading super-constitutional authority. To avoid this, the Court would have to be conferred the power of judicial review.

Hence, in light of the above considerations, it is likely that the Court will permit judicial review of the Governor’s sole discretion in G. Parameshwara v. Union of India.

 On Gubernatorial Discretion: Three Possibilities

There could be three possible outcomes of this petition. The Court could (a) uphold full discretion to the Governor in the aspect of appointment of a Chief Minister, or (b) circumscribe the discretion with judicially enforceable guidelines, or (c) completely restrict the Governor’s power to exercise his discretion in this regard.

Complete Discretion

The consequence of upholding full discretion of the Governor in the appointment of a Chief Minister is that the Court would not have the power to review any exercise of such sole discretion. There are a number of High Court decisions that have ruled so in the past. From S. Dharmalingam v. Governor of Tamil Nadu to Sapru Jayakar Motilal C.R. Das v. Union of India, the common reasoning appeared to be that the Governor acting under Article 164(1) exercised absolute, final discretion and that there was no possibility in the Constitution to read into Article 164(1) any restriction or condition.

This view, however, has been rejected by the Supreme Court when it overruled the cases of M.P. Sharma v. P.C. Ghose and Pratapsingh Raojirao Rane v. State of Goa in Nabam Rebia v. Speaker, Arunachal Pradesh Legislative Assembly (para. 155.6). Both M.P. Sharma and Pratapsingh upheld the view that the appointment of a Chief Minister fell within the ambit of exercise of the Governor’s discretion, and that the same could not be questioned in any Court.

Hence, it is highly improbable that the Supreme Court will decline to intervene in the matter, considering that the prevailing view seems to be that the exercise of pleasure under Article 164(1) does not lie solely in the domain of the Governor’s discretion.

Limited Discretion

If the Court were to adopt this approach, it would uphold the Governor’s discretionary power, yet temper it with enforceable guidelines, to be applied specifically in the situation of a hung assembly. Therefore, while the Governor would still act without the aid and advice of the Council of Ministers, she would be bound by these guidelines.

In B.R. Kapur v. State of Madras (para. 72), it was held that the Governor was not bound by the will of the people, but rather by the spirit of the Constitution. Consequently, a Governor cannot permit, nor be party to, any subversion of the law. ‘Government, or good governance, is a creature of the Constitution’. The Governor, being the topmost executive functionary in a state, bears the responsibility of preserving and maintaining the democratic framework.

In this regard, guidelines have already been stipulated by the Sarkaria Commission in 1988, the recommendations of which were echoed by the M.M. Punchhi Commission in 2010. In its report, it recognised that in choosing a Chief Minister, the Governor’s guiding consideration should be to call that party/alliance which commands the widest support in the Legislative Assembly to form the government. 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.

This appears to be the most likely outcome of the pending petition in question. While retaining a semblance of the constitutional discretion accorded to the Governor, the Court would still exercise ultimate authority over it, by laying down parameters similar to those prescribed in the Sarkaria Commission Report and permitting review of the discretion, should the Governor divert from these guidelines.

Negation 

The third option is that the Court could completely restrict the exercise of the Governor’s discretion in the appointment of the Chief Minister. Article 164(1) merely states that the Chief Minister and other ministers shall be appointed by the Governor. No where in the text of the Constitution is it mentioned that the Governor must invite the leader of a party/alliance who will then take oath as Chief Minister after which she, in the case of a hung assembly, would display her strength on the floor of the House.

Instead, the Court could rule to discard all the intermediary steps, and order a speedy floor test (in order to prevent horse trading) after every election verdict which produces a hung assembly. It is accepted (para. 119) that the proper test for the strength of the government is on the floor of the House, and not dependent on the subjective satisfactions of Governor. The floor test would automatically show which party/alliance enjoys the support of the majority of the House. In such a situation, the role of the Governor would simply be limited to just appointing the Chief Minister, thereby not requiring any exercise of her discretion. In fact, this possibility has already been recognised in the case of K. A. Mathialagan v. Governor of Tamil Nadu (para. 11).

This would be in accordance with principles of parliamentary democracy as envisaged in S. R. Chaudhuri v. Union of India (para. 21). Here, the Court observed that representation of people, responsible government, and accountability of the Council of Ministers to the Legislature form the pillars of a parliamentary democracy. There can be no better way to ensure this than by reducing Executive interference and omitting this aspect of the Governor’s discretion. ‘In a democracy governed by rule of law, the only acceptable repository of absolute discretion should be the courts.’

The concerns regarding the abuse of gubernatorial discretion were raised even in the Constituent Assembly. H.V. Kamath, Shibban Lal Saxena, and Rohini Kumar Chaudhuri, all expressed apprehensions that the discretion accorded to the Governor would be wrong in principle and contrary to the tenets of constitutional government. It was considered all the more serious as the Governor was to be nominated and not elected. The view was that the discretion under Article 143 (as it then was) was a colonial relic that should have been done away with. To this, B.R. Ambedkar’s only response was the Article should be retained as the constitutions of Australia and Canada had similar provisions and there had been no need to delete them even after nearly a century.

In today’s times, the concerns of abuse of discretion are valid. Yet, this radical approach of negating discretion completely appears to be an unlikely path for the Court to follow. It, however, poses an interesting academic question.

Conclusion

The judgment in G. Parameshwara v. Union of India is highly awaited as it will finally lay to rest issues pertaining to the Governor’s role in a hung assembly. This will have consequences on the health of the federal democracy and constitutional spirit in the country.

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Freedom of Speech: A Round-Up of Recent Judicial Pronouncements

(Editor’s Note: Over the last few months, I have been unable to write here as frequently as I would have liked to. Over the course of this month, I will try to post a series of round-up pieces summarising some broad developments since January ’18. The first of these posts is about the freedom of speech.)

The Supreme Court’s right to privacy judgment was meant to be about expanding the individual rights against State (and private) power. However, as the last few years have shown, our Courts are experts at turning shields that are meant to guard rights into swords to cut them down. An excellent example of this is the Madras High Court’s judgment in Thiru P. Varadarajan v Kanimozhi, which imposed a gag order upon a Tamil magazine with respect to articles about the “private life” of Kanimozhi. The High Court was hearing an application to vacate an injunction against a magazine that had been granted four years ago. In refusing to vacate the injunction, the Court relied upon the right to privacy judgment – citing copiously from it; the core of its reasoning was this:

“The concluding remarks of Hon’ble Mr. Justice Sanjay Kishan Kaul [in the privacy judgment] are as follows:

‘Let the right of privacy, an inherent right, be unequivocally a fundamental right embedded in part-III of the Constitution of India, but subject to the restrictions specified, relatable to that part. This is the call of today. The old order changeth yielding place to new.’

Therefore, the Hon’ble Supreme Court had while recognising the right of privacy is a fundamental right, in fact called for a new order, which would offer a preeminent position to the right to privacy.”

This is a standard of legal “reasoning” that would get you a failing grade in Legal Methods 101. The High Court cites the closing line of the concurring opinion of one judge out of nine – a line that is self-evidently pure rhetoric, and uses that to invent a mythical “new order” in which privacy has been given “pre-eminence” (over the freedom of speech). The High Court seems to be unaware of the operative part of the privacy judgment, which affirms all the cases that have elaborated upon the scope of the right to privacy after Gobind, including cases where the balance between privacy and free speech was discussed (such as R. R. Rajagopal). The question of whether the balance is to be struck by granting (everlasting) injunctions has been a fraught one, and there is at least one detailed and well-reasoned High Court judgment (Khushwant Singh) that holds that the correct remedy is not to gag speech, but to provide for damages in case privacy is breached.

There is, therefore, no warrant for the High Court’s free-floating conclusion that “the theory that there cannot be a prior restraint or a gag order upon the press or Media stands diluted… after Puttaswamy’s Case.” Puttaswamy has absolutely nothing to say about prior restraint or gag orders. Puttaswamy was never dealing with the issue of balancing competing rights (in this case privacy and the freedom of speech), and did not change the law in this regard in any manner. Mercifully, the High Court does not, in the end, grant a blanket injunction, but a qualified one (albeit with entirely vague contours, banning any articles about the “private life” of Kanimozhi), along with a blanket right of reply.

Unfortunately, the Madras High Court’s order is not even the worst of the gag orders in recent times. That prize is jointly shared by two Delhi High Court orders: the incoherent, four-page stream-of-consciousness order gagging Cobrapost from reporting its sting on Dainik Bhaskar, and the order restoring the gag upon the publication and sale of Ramdev’s biography; as well as the Gujarat High Court order gagging The Wire from publishing about Jay Shah. Notably, the latter two examples are of High Courts stepping in to restore gag orders after trial courts hearing the cases have vacated them.

These “interim” orders, which have the luxury of being virtually unreasoned because they are granted before any kind of substantive hearing, effectively kill the speech in question, given how long legal proceedings take in India. They are effectively decisions on the merits without any kind of examination of merits, and they choke off the marketplace of ideas at the very source. In developing a philosophy of “gag first, ask questions later“, the High Courts seem to be blissfully oblivious of the fact that what is at stake is a foundational fundamental right (Article 19(1)(a)); this is not some civil suit where you direct “status quo” pending final resolution. The more that “gag first, ask questions later” becomes standard judicial practice, the more Article 19(1)(a) will be reduced to a dead letter – and the doing of the deed will not be by the executive, but by the judiciary.

Unfortunately, the Supreme Court has tended to be as careless with words as the gagging High Courts. A recent example of this is Bimal Gurung v Union of IndiaThe case was about transferring FIRs to an independent investigation agency. While the FIRs were, in part, based on violent demonstrations, there was no need for the Court to go into the constitutional status of demonstrations in the first place. However, it chose to do so, and then came up with this:

“Demonstrations are also a mode of expression of the rights guaranteed underArticle 19(1)(a). Demonstrations whether political, religious or social or other demonstrations which create public disturbances or operate as nuisances, or create or manifestly threaten some tangible public or private mischief, are not covered by protection under Article 19(1).”

The Constitution is a carefully-drafted document. The framers agonised over the fundamental rights chapter, and in particular, there were long and stormy debates about the restrictions that were being placed upon fundamental rights. Every word that finally made it into the Constitution was debated extensively, and there were many words that were proposed and dropped. This is why Article 19(2) has eight very specific sub-clauses that list out the restrictions on speech. They include “public order”, “the sovereignty and integrity of India”, and “incitement to an offence” (among others). They do not include “nuisance”, “disturbance”, or “private mischief.” Apart from the fact that these are very vague terms that a judge can apply in a boundlessly manipulable fashion to shut down speech that he doesn’t like (recall that similarly vague provisions were struck down as unconstitutional in Shreya Singhal), there is an excellent constitutional reason why “nuisance” and “disturbance” are not part of 19(2). That is because if only acceptable speech was legally permitted, you would never need to have a fundamental right guaranteeing it. It’s only speech that is, in some ways, a nuisance or a disturbance, which a government (or powerful private parties) would like to curtail. This is especially true for demonstrations: the whole point of a demonstration is to put your point across by causing a degree of nuisance and disturbance (short of violence or incitement to offences). What that degree is, is a matter of judicial determination, by applying a reasonable time-place-manner test.

It may be argued that we should not make much of these stray observations, made in a case that was about an entirely different issue (a transfer of FIRs). However, that misses the point: words matter, and they matter especially when the Supreme Court is the author. The normalisation of “disturbance” and “nuisance” as invented restrictions on free speech can have a creeping effect on the scope of 19(2), especially given how stray Supreme Court paragraphs are regularly cited before lower Courts, and regularly applied by judges. In that context, there is an even greater obligation upon the Supreme Court to be careful with words.

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Filed under Chilling effect, Free Speech, prior restraint, Privacy, Public Order