[Editor’s Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against a former Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances.]
[This is the fifth post in the series examining the Supreme Court’s judgment in Shivraj Singh Chouhan v Speaker, Legislative Assembly of Madhya Pradesh and Ors. This is a guest post by Anmol Jain.]
We must be careful to remember that the desirability of a particular rule of law, should not in any event by confused with the question of existence of the same, and constitutional morality should never be replaced by political morality, in deciding what the Constitution mandates.
-Shrimanth Balasaheb Patil v. Hon’ble Speaker, Karnataka Legislative Assembly
On the Constituent Assembly Debates
In my previous post, I had argued that the action of the Governor in the Madhya Pradesh government formation case, directing the Chief Minister to hold a trust vote in the Assembly, was unjustified. Based on the two responses on my article (here and here), I stand corrected that Article 163 is not the source of the power of the Governor, but that it merely guides the exercise of power vested, for the present matter, under Articles 174 r/w 175(2) of the Constitution. However, while maintaining my argument, I shall attempt to further substantiate it in this post.
Let’s start with the interpretation of the contentious part of Article 163. It states that:
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.
Relying on the Constituent Assembly debates, I had argued that the Governor can act in his discretion only in those scenarios where the Constitution specifically empowers her. In the general opinion of the Assembly – also shared by Dr. Ambedkar and T.T. Krishnamachari – these were set out by Articles 175 and 188 of the Draft Constitution. And Dr. Ambedkar had indeed stated on 1st June 1949 that:
I personally myself would be quite willing to amend the last portion of clause (1) of Article 143 if I knew at this stage what are the provisions that this Constituent Assembly proposes to make with regard to the vesting of the Governor with discretionary power. My difficulty is that we have not yet come either to Article 175 or 188 nor have we exhausted all the possibilities of other provisions being made, vesting the Governor with discretionary power. If I knew, I would very readily agree to amend Article 143 and to mention the specific Article, but cannot be done now.
Nivedhitha points out the fact that these two provisions were subsequently amended by the Constituent Assembly to remove the discretionary power of the Governor, and despite Mr. Kamath’s comment on the 3rd of August recalling the Assembly that it must now delete the clause granting discretionary powers upon the Governor, the clause sustained in the Constitution. And thus, she argues:
Therefore, the final text of the Constitution provided for complete ministerial responsibility. It is thus clear that the debates and the final text of Article 163 have no nexus between them.
I argue that there is a nexus between the debates and the final draft. The central argument that was mooted and widely accepted in the Assembly was that being a nominated member, the Governor must not be given discretionary powers that can override the decisions of an elected government. And thus, the discretionary powers of the Governor must be limited. But is such discretion limited to only those provisions that explicitly state that the Governor must act ‘in her discretion’ or it also extends to those scenarios where the Governor does not have the access to the aid and advice of the Council of Ministers and thus, is circumstantially required to act in her discretion? The comments by Dr Ambedkar or Krishnamachari would indicate that the former situation is correct. However, I argue these comments were made based on the narrow study of the provision. It is important here to refer to what Pandit Thakur Das Bhargava had to say about Mr. Kamath’s proposal to delete the clause granting discretionary powers to the Governor:
Sir, I beg to oppose the Amendment of Mr. Kamath. Under Article 143 the Governor shall be aided in the exercise of his functions by a Council of Ministers. It is clear so far. … My submission is that it is wrong to say that the Governor shall be a dummy or an automation. As a matter of fact according to me the Governor shall exercise very wide powers and very significant powers too. If we look at Article 144 it says: “The Governor’s ministers shall be appointed by him and shall hold office during his pleasure.”
So her has the power to appoint his ministers. But when the ministers are not in existence who shall advise him in the discharge of his functions? When he dismisses his ministry then also he will exercise his functions under his own discretion.
Then again, when the Governor calls upon the leader of a party for the choice of ministers, after a previous ministry has been dissolved, in that case there will be no ministry in existence; and who will be there to advise him? Therefore he will be exercising his functions in his discretion. It is wrong to assume that the Governor will not be charged with any functions which he will exercise in his discretion. Article 175 and 188 are the other Articles which given him certain functions which he has to exercise in his discretion.” (Emphasis mine)
And perhaps on a later realization about such situations and the requirement of the Governor to act in his discretion, no amendment was proposed even when Mr. Kamath reminded Dr Ambedkar of his previous speech. Therefore, the debates are very much necessary for us to appreciate the fact that Article 163 vests discretionary powers to the Governor to the extent that there are explicit provisions in the Constitution that requires her to act in her discretion. Such provisions might either clearly state that the Governor must act ‘in her discretion’ or omit so because it is only logical that in the absence of Ministers’ aid and advice, the Governor has to act in her discretion.
Moreover, this understanding not only makes the debates relevant, but also allows us to interpret the Constitution in a workable fashion. Lastly, if Article 163 (or 143 in the draft Constitution) would have been amended only because Articles 175 and 188 were subsequently amended to divest the Governor of her discretionary powers, this would mean that the phrase ‘under the Constitution’, appearing in Article 163, had no purpose to serve.
Before to I move on the specifics of the judgment in the Madhya Pradesh government formation case, it is important to briefly note the developments on the discretionary powers of the Governor. Post 1950, the discretionary powers of the Governor were expanded through certain amendments. Even judicially, the courts have upheld the exercise of discretionary powers of the Governor in exceptional cases in order to avoid ‘complete breakdown of constitutional machinery’. In this regard, Justice Lokur noted in Nabam Rebia that:
As the years have gone by, more and more unusual if not extraordinary situations have arisen. These situations have led, in theory, to greater discretionary powers being conferred on the Governor through decisions rendered by this Court and the High Court. In my view, this is really a step backward and contrary to the idea of responsible government advocated in the Constituent Assembly.
It is in this light that we must approach the decision of the Supreme Court in the Madhya Pradesh government formation case.
On the decision of the Supreme Court
In the introduction to his post, Amlan notes my argument that ‘while directing a government to face a no-confidence motion, initiated inside the house, is within the scope of the Governor’s ‘discretionary directions’ [Part A], independently directing a trust vote when no such motion exists is beyond his discretion. [Part B].’ I shall respond to both these parts in seriatim.
With respect to Part A, the decision of the Supreme Court in Nabam Rebia provides us the necessary guidance. The Court, at ¶152, explicitly notes that in case there is a no-confidence motion against the government, and the Chief Minister and his Council of Ministers advise the Governor to prorogue the Assembly to deny a vote on the motion, then ‘the Governor need not accept such advice.’ The reasoning for this is quite straightforward: the executive must always be accountable to the Legislature and hold its confidence. If the executive recommends any action that denies the Legislature an opportunity to exercise checks on the executive, then the Governor, upholding the larger principle of executive accountability, must act against the advice of the Council of Ministers. This norm attempts to uphold the principle of executive accountability beyond the bare text of the Constitution and I shall come back to this later in this post.
Now coming to Part B, I must initiate our discussion with the Sarkaria Commission and the Punchhi Commission reports regarding the discretionary powers of the Governor with respect to summoning of the Legislative Assembly. At ¶4.11.19 of its report, Sarkaria Commission noted that:
“Normally, the State Legislature is summoned by the Governor on the advice of the Chief Minister. … However, the exigencies of certain situations may require a departure from this convention. The Governor, then, exercises his own discretion to summon the Assembly. He exercises this discretion only to ensure that the system of responsible government in the State works in accordance with the norms envisaged in the Constitution.” (Emphasis mine)
After noting certain situations like ‘where the Chief Minister designedly fails to advise the summoning of the Assembly within six months of its last sitting’, the Commission notes that:
“The exigencies of the situations described above are such that the Governor must necessarily over-rule the advice of his Ministry if he is to ensure that the relevant constitutional requirements are observed both in letter and spirit. … [T]he Governor would, in the special circumstances, be within his constitutional right in summoning the Assembly in the exercise of his discretion. … We, therefore, recommend that, if the Chief Minister neglects or refuses to summon the Assembly for holding a “Floor Test”, the Governor should summon the Assembly for the purpose.” (Emphasis mine)
Similarly, the Punchhi Commission noted that:
4.5.03 … He [The Governor] should advise the Chief Minister to summon the Assembly as early as possible. If the Chief Minister does not accept the Governor’s advice, the Governor may, summon the Assembly for the specific purpose of testing the majority of the Ministry. (Emphasis mine)
These excepts make it amply clear that the Governor must exercise her discretionary powers to summon the Legislative Assembly only in those scenarios where the Assembly is not in session and the Government is not advising the Governor to summon the Assembly as it fears losing the motion of confidence. However, the Madhya Pradesh scenario was different.
Let’s unfold the sequence of events so that I can put forth my argument more clearly. Here is a news report dated February 13, 2020 which notes that ‘[t]he Budget Session of the Madhya Pradesh Assembly shall begin here from March 16.’ Therefore, the Governor had, with the aid and advice of the Council of Ministers, duly summoned the MP Legislative Assembly to meet on March 16th. On account of certain developments – like the submission of resignations by the MLAs – on March 14th, two days prior to the scheduled meeting of the Assembly, the Governor addressed a letter to the Chief Minister directing him to face a trust vote in the Assembly. When the Assembly met on the 16th, the opposition did not move any motion of no-confidence. If the Assembly had lost the confidence in the Government, such a motion should have been moved. After the day’s proceedings, the Assembly was adjourned.
Two important events must be noted. First, the Council of Minister had duly advised the Governor to summon the Assembly. Second, despite certain political events, they stood by their advice and the Assembly met on the 16th. This scenario is completely different from the one noted by the Sarkaria Commission and the Punchhi Commission or even the one noted by the Supreme Court in Nabam Rebia. Therefore, I argue that in the peculiar setting of events in the Madhya Pradesh case, the Governor had no discretion to direct the Government to face a trust vote.
At this stage, we must confront the question regarding adjournment of the Assembly. Amlan argues that the adjournment circumvented the scope of having a ‘political process’ to roll out inside the Assembly and as the Government indulged in ‘delay tactics’, the exercise of discretion by the Governor was justified. Though I agree with him on the first part, I contest that the exercise of discretionary powers was the right answer to this ‘constitutional impasse’.
I argue that when the Assembly was adjourned by the Speaker, and thus effectively denying the Legislature an opportunity test whether the executive government holds the confidence of the Assembly, the opposition must have challenged the adjournment based on the principle of executive accountability. And thereby, a ruling must have come from the Supreme Court, perhaps on the lines of the UK Supreme Court’s prorogation judgment, that the action of adjournment by the Speaker denied an opportunity to the elected legislative body to exercise its constitutional powers as well as the statutory power to move a no-confidence motion in order to check whether the executive holds the confidence of the Assembly.
For a consequentialist, the above arguments might not matter because ultimately – be it through a no-confidence motion or through the exercise of Governor’s discretion – the government would have had to face a trust vote. But when seen from a larger perspective, these are nothing but incremental steps that hinder the development of constitutional conventions. An impasse in the Assembly must be resolved within the Assembly. A ruling must have come on the checks on the power of the Speaker to adjourn the Assembly when the ruling party stands in a weak position. The creation of another situs of power would not resolve the situation. The ideal position must be to create checks on the existing power. When the Sarkaria Commission recommended the exercise of discretion by the Governor in summoning the Assembly, the recommendation was towards checking the unfettered nature of ‘aid and advice’ clause that effectively dilutes the rule of executive accountability to the Assembly. Similarly, in the present matter, a desirable position was imposing checks on the power of the Speaker and not to make that Office nugatory. If the Governor can direct the Government to face a trust vote even in those cases where the Assembly is duly summoned, then the entire purpose of having the process of no-confidence motion stops making sense. The opposition, then, will always rush to the Governor and seek a direction for holding a trust vote. So, instead of having executive accountability to the Legislature, it creates a regime of executive accountability to the Legislature through a nominated Office.
I started this post with an observation made by the Supreme Court in Shrimanth Balasaheb Patil v. Hon’ble Speaker, Karnataka Legislative Assembly and wish to conclude by quoting another observation from the same decision:
The scrupulous discharge of duties by all guardians of the Constitution include the duty not to transgress the limitations of their own constitutionally circumscribed powers by trespassing into what is properly the domain of other constitutional organs.