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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