The Supreme Court’s Madhya Pradesh Government Formation Judgment: Round-Up

Below is a round-up of the six posts discussing the judgment of the Supreme Court in the Madhya Pradesh government formation case.

  1. A Question of Jurisdiction (by Rishav Ambastha)
  2. On the Powers of the Governor (by Anmol Jain)
  3. On the Powers of the Governor: A Response – I (by Amlan Mishra)
  4. On the Powers of the Governor: A Response – II (by Nivedhitha K)
  5. On the Powers of the Governor: A Rejoinder (by Anmol Jain)
  6. Some Concluding Remarks

The Supreme Court’s Madhya Pradesh Government Formation Judgment – VI: Some Concluding Remarks

[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 (e.g., the introduction of structural mechanisms to ensure accountability)].


Late last month, this blog hosted an extensive debate on the Supreme Court’s judgment in the Madhya Pradesh government formation case (see Rishav Ambastha’s initial post on jurisdiction; Anmol Jain’s post questioning the correctness of the judgment; Amlan Mishra and Nivedhitha K.’s posts responding to Amlan; and Amlan’s rejoinder). The judgment is a particularly important one, because it is the first reasoned verdict by the Supreme Court, after many years of interim orders that were passed every time a government formation crisis arose.

In this post, I want to offer a few brief concluding remarks, drawing from the debate. Recall once again that the key question before the Supreme Court was whether the Governor of a state had the power to direct a convening of the legislative assembly, for the purposes of holding a floor test. The Supreme Court held that the Governor did indeed have that power. The key constitutional question was whether this power fell under the “discretion” of the Governor – i.e., whether it was an exception to the general principle that the Governor could only act upon the “aid and advice” of the Council of Ministers. The Supreme Court held that it did.

As the debate between Anmol, Amlan, and Niveditha on this blog demonstrates, a close reading of the Constituent Assembly Debates does not yield a definitive answer to this question. This is why the answer lies in a structural and purposive reading of the Constitution: which interpretation better fits with the Constitution’s overall structure and guiding principles? According to the Court, the argument goes something like this: in the ordinary course of things, when you have an existing government and a functioning house, the accepted way of challenging that government’s legitimacy is through a no-confidence motion, which then culminates in a floor test ordered by the Speaker. However, there may arise situations where a government that has lost the confidence of the legislature impedes or prevents the holding of a floor test, and continues in office de facto. This would be a violation of the principle of collective responsibility, and undermine executive/legislature relationship within a parliamentary structure. It is therefore justified for the Governor to step in, and direct a floor test, for the limited purpose of determining whether or not the government continues to enjoy the confidence of the house. The power of the Governor is thus derived from a structural reading of the Constitution, and the principles of parliamentary democracy.

The problem with the argument, however, is this: the protection of one principle of parliamentary democracy (executive accountability to the legislature) comes at the cost of another: the sovereignty of the legislature to determine the proceedings within the house, and the supremacy of the Speaker. This, indeed, is the key distinction between a government formation dispute after elections but before the formation of the government (which is what happened, for example in the first Karnataka case in 2018), and a government formation dispute when the composition of a functioning house is altered because of the resignation of sitting MLAs. This distinction was drawn by Dr. Singhvi during oral arguments, but was rejected by the Court. The distinction, however, is crucial, for the reasons pointed out above.

Now, the argument made by the Court – and in Amlan’s piece – is that vesting the discretion with the Governor is required because the standard method of bringing down a government that has lost the confidence of the house – i.e., a no-confidence motion – can be circumvented either by an adjournment of legislative proceedings, or by the Speaker simply sitting on the no-confidence motion (indeed, readers will recall that during the previous NDA government at the centre, the Speaker – quite literally – did not allow a no-confidence motion tabled by the Opposition to be voted upon). However – and this came out in Anmol’s rejoinder piece – both these attempts have a straightforward solution: judicial review. The UK Supreme Court has recently taught us exactly how and when a Court may declare a prorogation unlawful: when it is clear that the effect of that prorogation is to defeat the constitutional principle of executive accountability to the legislature. And our own Supreme Court, last November, while considering the issue of money bill, provided strong and persuasive reasons when the discretion of the Speaker can be challenged in Court. If mala fide certification of bills as money bills attracts judicial review, there is no reason why mala fide refusal to hold a no-confidence vote cannot.

The question, therefore, boils down to this: structurally, which is the better option to ensure executive accountability: the Governor or the Court? It is, to my mind, obvious that it is the latter, for the very straightforward reason that the Governor is a central government appointee, and judges are not. Given a choice, further accretion to the powers of the Governor infringes the federal structure in a way expanded judicial power does not.

I think this issue is particularly important, because in deciding these cases, the Court must necessarily navigate through three sets of facts that it cannot turn a blind eye to (and indeed, all three are flagged in the judgment). First: Governors should be neutral, but they are not. They act effectively act as agents of the central government. Second: Speakers should be neutral, but they are not. They effectively act as agents of their parties. And third: horse-trading happens. Legislators are paid staggering amounts of money to switch sides and bring down the government, and the technique of resignations is used to circumvent the rigours of the anti-defection law. A judgment that proceeds on the assumption that any one of these three things does not exist essentially operates in a parallel reality, where constitutional principles have come entirely unmoored from the factual situation that they are meant to apply to.

Now given these facts, how should the Court decide? In a previous post, I argued that the judicial doctrine should evolve in a manner such that the Court does not determine substantive outcomes (such as installing or replacing a government); but also, that the Court needs to ensure that the impact of the three issues highlighted above, upon the democratic process, is minimised. So, for example, in cases involving government formation immediately after a closely-run election: the Court cannot stop horse-trading from happening, but it can – by ordering an immediate floor test – minimise the time open to parties to engage in horse-trading, and curtail gubernatorial abuse (as happened in the Karnataka case). Once again, if in the case of a sitting government, a host of MLAs resign in a coordinated fashion to alter the composition of the house, this is not something the Court can stop; what it can do, however, is prevent the emergence of collusive situations involving the governor and the political party that appointed the governor, by eliminating him from the power equations at play. In addition, the Court’s approach should be informed by the fact that coordinated resignations suggest that horse-trading is going on. Thus, just as there is an overriding need in post-election government formation cases to prevent horse-trading through an immediate floor test, when the horse-trading has already happened (through resignations), an immediate floor test that does not allow the Speaker at least a reasonable amount of time to decide upon the resignations (the extent of the Speaker’s discretion here is a debate for another day) will have the effect of entrenching horse trading.

Some of these factors, I suggest, were bracketed by the Court, as it did not believe it could go into such issues. That, however, is a mistake: the Court is already making (correct) assumptions about the lack of neutrality of the Speaker, when it gives to the Governor the power to direct a floor test. What is sauce for the goose is sauce for the gander: in an ideal world, Speakers and Governors are neutral, and horse-trading does not happen. But we cannot recognise one departure from the ideal – the politicisation of the office of the Speaker – without recognising the other – i.e., bringing down governments through horse-trading. A holistic recognition of the structural problems involved, I would submit, would lead one to Anmol’s answer as the preferable one: the no-confidence motion remains the sole means of testing the continued legitimacy of an elected and functioning government, with the possibility of judicial review in case of an impediment is thrown up.

A final, somewhat unrelated point: as I have noted above, the Court acknowledges, towards the end of its judgment, that horse-trading is a feature of the polity. But here’s the thing: horse-trading is enabled and facilitated by vast amounts of money sloshing through politics, and for the last two years, the sloshing of unimaginable sums has been enabled by the mechanism of electoral bonds, which allow opaque and limitless corporate donations to political parties.  Constitutional challenges to the electoral bond schemes have been pending in the Supreme Court for more than two years, and successive Chief Justices have dodged, ducked, and evaded hearing the case. For this reason, one can only read judicial lamentations about horse-trading with a wry smile: the institution that actually has the power to do something about it (even if is a little bit) is the institution that is refusing to act. Of course, the decision to hear the case lies with the Chief Justice; therefore, it is not that the two judges who authored this judgment are responsible for the delay. But that, unfortunately, is becoming an enduring issue with the poly-vocal character of the Supreme Court: the same institution, speaking through different judges, criticises horse-trading, while refraining from hearing a case that would have a non-trivial impact upon that same horse-trading. If the Supreme Court is to retain its character as a constitutional Court, this problem desperately requires a solution.

The Supreme Court’s Madhya Pradesh Government Formation Judgment – V: A Rejoinder [Guest Post]

[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.

Concluding Remarks

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.

The Supreme Court’s Madhya Pradesh Government Formation Judgment – IV: A Response to Anmol Jain (2) [Guest Post]

[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 fourth 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 Nivedhitha K.]


In this essay, I respond to Anmol Jain’s post on the recently delivered judgment in Shivraj Singh Chouhan & Ors. v. Speaker, Madhya Pradesh Legislative Assembly & Ors. The facts of the case were summarised in the previous post. The crux of the case was: whether the 14th March 2020 communication of the Governor directing a floor test on 16th March was constitutional. Thus, the question that needed to be answered was whether the Governor had the power under the Constitution to direct a floor test to be conducted.

I will divide the post into two sections. In the first section, I will rebut the argument that the discretionary power of the Governor under Article 163 can only be exercised concerning those functions that are expressly within his discretion, under the Constitution. I will argue, invoking the doctrine of necessary implications, that the Governor can exercise his discretionary powers even when such powers have not been expressly conferred under the Constitution. In the second section, I will argue that the submission of the author that the bench’s reliance on Bommai and Rebia is misplaced is erroneous. I will argue that Bommai is a precedent for the exercise of guided discretion by the Governor, when he is met with a situation of political uncertainty such as in this case. I will then argue that in the subsequent reliance on Rebia, the author in contravention to his earlier stand, admits an exception for the exercise of discretionary power when the situation is unworkable. I will conclude by referring to the observation in Shivraj on the importance of the due process of no-confidence motion, as opposed to conducting a floor test through the direction of the Court/Governor.

Power to Direct a Floor Test under Article 174 r/w 175(2)

Anmol’s preliminary point of argument is that the Court holds that the power to direct a floor test falls under Article 163 of the Indian Constitution. I rebut this point. The Governor’s power to direct a floor test is inherent under Article 174 r/w 175(2) and not Article 163.

An excerpt from the communication of the Governor to the Chief Minister is below:

“………, it is necessary for you to gain the trust vote in Vidhan Sabha immediately after my speech on 16.03.2020. In this regard, I by exercising the powers conferred by Article 174 r/w 175(2) of the Constitution and other Constitutional powers vested in me…..”

When the Court held that the communication of the Governor was not ultra vires the Constitution, it accepted the plea that Article 174 r/w 175(2) is the repository of power to direct a floor test.

Article 174 gives the Governor the power to summon, prorogue, or dissolve the Assembly. He used this power to direct that the ‘Session of Madhya Pradesh Vidhan Sabha will begin on 16th March 2020 w.e.f. 11 a.m. in the morning.’ Article 175(2) states that the Governor may send messages to the Assembly with ‘respect to a Bill then pending in the Legislature or otherwise and the house shall with all convenient dispatch consider any matter required by the message to be taken into consideration.’ The Governor relied on this provision to direct that ‘after my speech, only one work will be done i.e. trust vote.’

My argument is that the Governor has the power to direct a floor test under Article 174 r/w 175(2) and that Article 163 does not provide the power to the Governor but merely guides the exercise of power. Article 163(1) 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.” A plain reading of Article 163 is sufficient to conclude that the Governor must exercise his power usually at the aid and advice of the Council of Ministers unless ‘he is by or under this Constitution required to exercise his functions ….in his discretion’. Therefore, aid and advice is the rule and discretionary exercise of power is the exception. To identify the ambit of discretionary exercise of power, it is necessary to interpret the words ‘except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion.’

The Drafting History of Article 163

Anmol refers to the Constituent Assembly debates where the members observed that the Governor shall exercise discretion only when specific functions are expressly stated to be exercised through discretion. Indeed, an amendment was introduced by Mr. Kamath to remove ‘except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion’ from Article 163 (Article 143 in the draft Constitution). Mr. Krishnamachari, Mr. Alladi Krishnaswamy Iyer, and Dr. Ambedkar argued that it was only a question of drafting and that Article 163 was a general provision for the exercise of discretionary powers by the Governor which have been specifically provided under other provisions of the Constitution. Alladi Krishnaswamy Iyer observed:

Sir, there is really no difference between those who oppose and those who approve the Amendment. In the first place, the general principle is laid down in Article 143 namely, the principle of ministerial responsibility that the Governor in the various spheres of executive activity should act on the advice of his ministers. Then the Article goes on to provide: except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion.’ So long as there are Articles in the Constitution which enable the Governor to act in his discretion and in certain circumstances, it may be, to over-ride the cabinet or to refer to the President, this Article as it is framed is perfectly in order.

In this context, there was repeated reference to Articles 175 and 188 of the draft Constitution. Dr. Ambedkar stated that if the House decided to divest the Governor of his discretionary power when provisions that specifically provided discretionary power to the Governor with regard to certain functions such as Articles 175 and 188 were taken up for debate, the general discretionary clause under Article 143 (now Article 163) could be deleted:

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.

The proviso to Article 175 of the draft Constitution (now Article 200) stated that the ‘Governor may, in his discretion, return the Bill together with a message requesting that the House will reconsider the Bill or any specified provisions thereof … and that if the Bill is passed again with or without the amendment, the bill will have to be assented to by the Governor.’ Dr. Ambedkar introduced an amendment to remove the phrase ‘discretion’ from the provision. Commenting on the introduction of the amendment, he stated that ‘in a responsible government there can be no room for the Governor acting on discretion’. The amendment was accepted, and it led to the present form of Article 200 without the phrase ‘discretion’. Similarly, Article 188 specifically provided the Governor with the discretionary power to exercise his functions without the aid and advice of the Council of Ministers for two weeks if a grave emergency that threatened the peace and tranquillity of the State had arisen. Then, the President might – if he was satisfied – assume to himself the functions of the State. Dr. Ambedkar moved an amendment to delete Article 188 of the draft Constitution. He was of the view that the discretionary power for a short period was ‘futile’ if the President was going to take over after two weeks. This amendment was also accepted. The Governor was also – earlier – expressly provided discretion in the appointment and dismissal of his ministers (Art 144(6)), summoning and dissolution of the legislature (Art 153), the appointment of the Provincial Auditor –in- chief (Art 210) and members of the Public Service Commission (Art 285). Discretionary clauses in all these provisions were deleted.

Mr. Kamath brought to the notice of the House the reassurances of Dr. Ambedkar that Article 163 would be appropriately amended if the specific discretionary powers in the subsequent provisions were removed. However, Article 163 was intact in its entirety in the final text of the Constitution. The only matter in which the Governor was expressly required to act in his discretion was with regard to the administration of tribal areas in Assam for a transitional period. 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.

The interpretation of the phrase ‘by or under the Constitution’ solely relying on the Constituent Assembly debates is erroneous for the following reasons. Firstly, though through a period, the Constituent Assembly debates have been accepted as an aid for interpretation, it cannot override the text of the Constitution. In this case, the debates on Article 163 and the final text of the provision share no nexus. And secondly, an interpretation that makes the Constitution workable will have to be used. If Anmol’s interpretation is accepted, it would render the clause providing general discretionary power in Article 163 redundant since the unamended Constitution did not specifically provide for discretionary exercise of power concerning any of the Governor’s functions.

Reports of Sarkaria Commission and Punchhi Commission

The Sarkaria Commission had interpreted the discretion exercisable by the Governor by the Constitution to include two classifications: (1) through express provisions; (2) through necessary implication. According to the Commission, the phrase under the Constitution means the discretion exercisable by virtue of the rules made under the Constitution. By the amended Constitution, the Governors have been required to expressly act in their discretion with respect to the administration of Arunachal Pradesh, Assam, Meghalaya, Mizoram, Nagaland and Sikkim. The Commission, echoing the words of Pandit Das Bhargava in the Constituent Assembly, observed that there might be situations in which it would not be possible or practicable for the Governor to receive the advice of the Council of Ministers. In such cases, the Governor’s discretionary power can be interpreted through necessary implication. A few of the examples mentioned in the Commission’s report are the appointment of the Chief Minister after an election under Article 164(1), submission of report under Article 356 on the breakdown of the constitutional machinery in the State, and recommendation of a bill for the consideration of the President under Article 200. These views have been accepted by the Punchhi Commission as well.

Power to Exercise Discretion through Necessary Implication

Let us now look at the text of the Constitution independent of the Commission’s report to ascertain as to whether the discretionary power exercisable by the Governor can be read through necessary implications. Article 163(2) states that ‘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.’ If the discretion was only purported to be restricted to express discretionary provisions, the question of the ambiguity of exercisable discretion itself would not arise.

Let us examine two factual situations to identify if excluding the reading of the discretionary power of the Governor through necessary implication would lead to an unworkable Constitution. For the first situation, let us take the example of the latest political crisis in Maharashtra in December 2019. None of the parties had the majority to form the Government, and the coalition among the parties was in the nascent stage in the first week after the election. In that case, there was no council of ministers to aid and advise the Governor on whether there was a breakdown of the Constitutional machinery for him to send a report to the President under Article 356 of the Indian Constitution. For the second situation, let us take the example of the political crisis in Madhya Pradesh in March, 2020. It seemed that the Government no more exercised a majority after twenty-two MLAs submitted their resignations, of which only six were accepted. The numbers were enough for the Governor to form a prima facie objective opinion that the Government might not be enjoying a majority. Let us assume that the Assembly was not in session for another month – unlike the instant case where the Assembly was already summoned for 16 March 2020. In that case, if interpreted to mean only expressly provided discretionary power, the Governor would not hold the power to summon the House unless he was advised by the Council of Ministers – which might be too far-fetched to expect, since it was their majority that would have to be tested in the house. Pandit Das Bhargava brought these contingent situations to the knowledge of the House when he observed: ‘It is quite right that so far as our conception of a constitutional Governor goes he will have to accept the advice of his ministers in many matters but there are many other matters in which the advice will neither be available nor will he be bound to accept that advice.’

The majority in Rebia recognised the fallacy of restricting the discretionary power of the Governor to express provisions and observed that there might arise a situation when the Chief Minister no more enjoyed the majority in the House. If the Governor could arrive at an objective opinion that a doubt was cast on the numbers of the ruling party, the Council of Ministers would lose their legitimacy to advice the Governor. In this context, it was observed:

The above position (of aid and advice) would stand altered if the Government in power has lost the confidence of the House. …….. However, where there is reason to believe, that the Government in power no longer enjoys majority support, it is open to the Governor, to take steps to determine the issue of majority by a floor test……….. We find no justification in taking a different view, than the one expressed by the Justice Sarkaria Commission report, conclusions whereof were reiterated by the Justice M.M. Punchhi Commission report. We endorse and adopt the same, as a correct expression of the constitutional interpretation, insofar as the present issue is concerned.

Reliance on Bommai and Rebia

Anmol argues that reliance on Bommai and Rebia by the Court was misplaced. With regard to Bommai, he argues that it is not a precedent for the direction of the floor test by the Governor. He argues that the decision leaves open the question of the process through which the Chief Minister is to prove his majority. Even if assuming for the sake of argument that Bommai did not support a Governor-directed floor test as the only means of testing if the Chief Minister enjoyed the confidence of the House, Bommai would not be immaterial for the adjudication of a factual situation such as Shivraj. According to Bommai, the Governor through his discretionary power could send a report to the President under Article 356 only after he fulfilled his duty of summoning the House and calling the Chief Minister to prove his majority- except when he was faced with a violent situation in the House. Therefore, in Bommai it was observed that the Governor could summon the house even without the aid and advice of the Council of Ministers. If anything, Bommai is a validation of interpreting the discretionary power of the Governor through necessary implications.

No-confidence Motion and Floor Test

Anmol argues – based on Rebia – that even when the Assembly is not in session, ‘no-confidence motion remains significant for initiating the process, and based on this motion, the Governor is empowered to act even against the aid and advice of the Council of Ministers.’ His argument here is two-fold: one, the initiation of the process to prove the confidence of the House must only be through the no-confidence motion, both when the Assembly is in session and is not in session. Second, when the Assembly is not in session, the initiation of the process should be through a no-confidence motion, but the Governor can act against the aid and advice of the Council of Ministers, if through the advice, the Council of Ministers attempts to by-pass proving the majority. In this argument, the author concedes that there may arise situations in which the advice of the Council of Ministers cannot be accepted. Accepting the advice in these situations would abrogate the principle of ministerial responsibility. Therefore, the author has himself carved out an exception for exercise of discretionary power if the situation is unworkable. This is the basis of deducing discretionary power through necessary implications.

His argument that even if the Assembly is not in session, the process of proving the majority has to be initiated through a no-confidence motion is erroneous. According to Rule 143 of the MP Assembly Rules, to introduce a no-confidence motion a member shall seek leave from the Speaker to introduce the motion and on the very same day give a written notice to the Secretary General. For grant of leave for motion, atleast 1/10th of the total number of members must vote in favour of the motion. On grant of leave, the Speaker shall allot a date within 10 days from the date on which the leave is sought. Therefore, it is evident that the no-confidence motion can be initiated only when the Assembly is in session. Thus, if there is a surge of political uncertainty when the Assembly is not in session, the first step is not to initiate a no-confidence motion but rather to summon the Assembly. If the interpretation of the author on the express discretionary power of the Governor is accepted, then neither can a no-confidence motion be initiated by the member nor can a floor test be directed by the Governor.

The bench in Shivraj seemed to be wary of the possible misuse of the discretionary power of the Governor to direct a floor test. It stated that the usual mode of proving the majority is only through a no-confidence motion:

In exercising the constitutional authority to demand a trust vote, the Governor must do so with circumspection in a manner that ensures that the authority of the House to determine the existence or loss of confidence in the government is not undermined. Absent exigent and compelling circumstances, there is no reason for the Governor to prevent the ordinary legislative process of a no confidence motion from running its due course. (paragraph 45)

 

However, the bench did not expound the meaning of the phrase ‘exigent and compelling circumstance’. It was ultimately held that the communication of the Governor was intra vires the Constitution. Therefore, it can be presumed that the Court regarded the instant factual situation to fall within the ambit of ‘exigent and compelling circumstance’. If the Governor had not directed for a floor test, then by virtue of the procedure under the MP Assembly Rules, even if leave was granted for no-confidence motion (since the session was in anyway to begin on 16th March), a 10 day cap for the no-confidence motion would be too long a period for the Assembly to function during the COVID-19 pandemic. In the instant case, the Assembly was also adjourned on 16th May, preventing the possibility of granting a leave for no confidence motion. Though there is no such reasoning in the judgment that the ‘exigent circumstance’ in the instant case was the surge of the COVID-19 pandemic, one can merely presume that these were the factors that guided the court.


[Disclaimer: The author is an intern in the office of Dr. DY Chandrachud J. Views are personal, and she did not substantially assist in the case.]

The Supreme Court’s Madhya Pradesh Government Formation Judgment – III: A Response to Anmol Jain [Guest Post]

[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 third 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 Amlan Mishra.]


The judgement of the Supreme Court on the Madhya Pradesh political crisis, which occurred in March, has been discussed on this blog. This piece by Anmol Jain seeks to critique the judgement for bringing the question of ‘whether confidence is lost or not’ under the purview of the Governor’s discretion. He argues that Art. 174 and 175 r/w Art. 163 (sending messages/directions and summoning the Legislature using the Governor’s discretion) provide for exercise of discretion only in those situations explicitly provided by the Constitution. Anmol stresses 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’, independently directing a trust vote when no such motion exists is beyond his discretion. In this post, I seek to argue that Anmol’s strict reading is not well founded. For there could be scenarios (like in this case) where the government may adopt delay tactics in order to deter any political process (like a no-confidence motion) aimed at holding it accountable from taking place. Lastly, I would also assess how the court navigated the political thicket in this case.

On Discretion

It is well-recognised that the Governor’s role is to form a government which enjoys support in the legislature. It has been held in Rameshwar Prasad v. Union of India, that the mere individual opinion of the Governor cannot be a ground for imposing President’s rule (under A. 356), but an attempt should first be made to test the government on the floor of the house. This means that the Governor has the duty to determine support on the floor of the house, before recommending invocation of A. 356. Here, the court also held that in a ‘parliamentary democracy of a state’, there should be at all times, either a democratic ‘popular’ government or the state should be under President’s rule. It stressed that no legislative assembly can be ‘live’ in the absence of an executive government. Thus the Governor should have means to resolve a situation when the ‘majority’ of a government is in question so that he can either invoke Art 356 or explore other means of forming a democratic government. This is a discretionary power inherent in A. 356 and in the collective responsibility of the Council of Ministers (A. 75). This discretionary power has been recognised more explicitly in Nabam Rebia v. Deputy Speaker. That is, of course, not to say that the power to make such a determination should be exercised at his whims or fancy.

This begs the question: should a Governor ‘interfere’ to resolve the question of majority or should he let political processes inside the legislative assembly resolve itself? Notice, if the process inside the legislature is likely to present an answer (eg. a no-confidence motion has been accepted by the Speaker and is to be scheduled soon), he need not interfere in the legislature. But where the political processes, for whatever reason, are unlikely to present an answer, he may issue directions ordering a floor test. He must do so, because political processes may not present an answer (i.e., establishing a majority), making it impossible for him to secure the continuance of a ‘popular government’. The above test of: ‘Are the political processes likely to present an answer?’ should then serve well in determining the boundaries of Governor’s exercise of discretion in cases where majority is suspect.

In this light, let us appreciate this extract from Nabam Rebia, which Anmol cites to buttress the central role of a ‘no-confidence motion’ before the Governor can ‘interfere’ by exercising his discretion:

The Chief Minister and his Council of Ministers lose their right to aid and advise the Governor, to summon or prorogue or dissolve the House, when the issue of the Government’s support by a majority of the Members of the House, has been rendered debatable. … And in such a situation, if there is a non-confidence motion against the Chief Minister, who instead of facing the Assembly, advises the Governor to prorogue or dissolve the Assembly, the Governor need not accept such advice.

Anmol highlights ‘the non-confidence motion’ to draw attention to the fact that Governor’s discretion kicks in only when a non-confidence motion is pending in the house. This I argue is a simplistic reading of this paragraph. Of course, the situation envisioned in the paragraph is one scenario where the Governor may refuse to dissolve/prorogue the house. But a purposive reading also means that he may use his discretion in directing a floor test, if the government uses delay tactics to not let the no-confidence motion be introduced. In other words, if political processes inside are proving inadequate or are being circumvented, he may use discretion in directing a floor test. Notice this follows logically from the paragraph. Putting a strict reading on it misses the purpose of the paragraph, which is to stop delay tactics by the government (like prorogation, adjournment etc) to avoid a test of its confidence. What if instead of prorogation (explicitly mentioned in this extract), the government resorts to adjournment to avoid testing its confidence, such that processes inside the legislature cannot present an answer? I argue that this being the situation in this case, the Governor’s discretionary directions were rightly upheld by the court.

Adjournment as a Delay Tactic: The Case of MP

Here, I show that in the MP Scenario, the government used adjournment to avoid the test, thereby creating a situation where political process could not throw up any answer to the question of majority. This legitimised THE Governor’s interference to settle the question. Notice this paragraph, in J. Chandrachud’s judgement, where he traces how adjournment made determination of ‘majority’ difficult:

The Chief Minister, adverting to the turmoil in the state, addressed a communication to the Governor on 13 March 2020 stating that the convening of the floor test would be a sure basis for resolving the conundrum. This is a strong indication that the Chief Minister himself was of the opinion that the situation in the state had cast his government‘s majority in doubt. However, upon the convening of the Legislative Assembly, no floor test was conducted, and the House was adjourned till 26 March 2020. These facts form the basis on which the Governor advised that a floor test be conducted. Based on the resignation of six ministers of the incumbent government (accepted by the Speaker), the purported resignation of sixteen more Members belonging to the INC, and the refusal of the Chief Minister to conduct a floor test despite the House having been convened on 16 March 2020, the exercise of power by the Governor to convene a floor test cannot be regarded as constitutionally improper.

 

This means that had the government not adjourned the house, and kept open the prospect of a no-confidence motion on the floor, the exercise of Governor’s discretion in this case would have been unwarranted. Since that did not happen, and instead, delay tactics were used, the Governor’s ‘interference’ in the legislature to check the political accountability of the government was justified.

Now, one can still argue that the Governor had sent directions on March 14th even before the house could hold its first session (on 16th March), and before any political process inside the legislature could begin. Thus, the argument may conclude that the Governor’s directions were untimely, as no delay tactics had been employed till them. However, the Governor kept reiterating his directions even after the adjournment of the house (made on 16th March till 26th March). This lent legitimacy to his directions, once the government started adopting delay tactics.

Avoiding the Political Thicket

Now, I wish to analyse how the court navigated the political thicket in this case. Courts traditionally have been wary of taking decisions which sway the balance in favour of a particular political party, and rightly so. Likewise in this case, the Congress Party and the Speaker argued that ordering an immediate floor test would ‘short-circuit’ the power of the Speaker in deciding the question of resignations of MLAs. This is important because unless the Speaker makes a decision about resignation before the floor test, all decisions about the disqualification/ resignation of MLAs may become irrelevant. Once the Government falls (as it did), the Speaker has very little time (before he is replaced) to decide on disqualification and resignation of MLAs. This chain of events may allow rebel MLAs to vote against their party whip, and still survive their disqualification, once the government changes (and there is a favourable Speaker).

It must be recognised (as has been argued in the blog here and here) that a remedy should have been fashioned which allowed the Speaker adequate time to decide these questions properly without ‘short-circuiting’ his decision. However, the court in this case failed to fashion such a remedy and merely noted that there is no explicit bar on the Speaker’s decision, and the floor test and these decision could run parallalely. Such a balance as Bhatia notes elsewhere is ‘not any balance at all’.

However, the court did try to equalise the setting by ordering a floor test the next day. The court noted that this would decrease the prospect of rebel MLAs sealing deals with the new government and thereby lessen the chances of them violating the Tenth Schedule (on defections). Readily ordered floor-tests are increasingly becoming a great, though unequal tool, to lessen subversion of democratic commitments and stop horse-trading. This also lessens unhelpful accusations of mala-fide in the functioning of the Governor (in sending directions to the Assembly) or the Speaker (in adjourning the assembly). Inherent in ordering an immediate floor test is the idea that despite bad faith by constitutional functionaries, the floor of the house if the place for determination of these questions and not the court-room.

Another attempt by the court was to allow interactions between the Speaker and the rebel MLAs through video-conferencing at a ‘neutral setting’ so that Speaker could take a decision on the resignations. This suggestion was declined by Sr. Adv. Singhvi because he did not have ‘instructions’ from his clients. However, this presents innovative ways of resolving political crisis, while allowing political processes to continue inside the legislature.

Overall, in my view, the Court did a decent job of delineating the discretionary powers of the Governor and tows a sensible line in navigating the political thicket.

The Supreme Court’s Madhya Pradesh Government Formation Judgment – II: On the Powers of the Governor [Guest Post]

[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 second in a three-part 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.]


Recently, the Supreme Court delivered a reasoned order affirming its directions dated March 19, 2020, where it had directed the convening of a session of the Madhya Pradesh Legislative Assembly for deliberation on a single agenda: ‘whether the government of the incumbent Chief Minister continues to enjoy the confidence of the House.

To summarize the backdrop of the judgment in a very brief manner: on March 14, 2020, the Governor addressed a letter to the Chief Minister, directing the holding of a trust vote on the floor of the assembly on March 16 immediately after his speech. When the assembly convened on the 16th, the trust vote did not take place and the assembly was adjourned till March 26 on account of COVID-19 outbreak. The Chief Minister justified this by stating that first, the directions issued by the Governor fell under the exclusive domain of the Speaker of the Legislative Assembly; and second, any message of the Governor to the Legislative Assembly must abide by Article 163 of the Constitution, which mandates the Governor to act under the aid and advice of the Council of Ministers. The Governor responded with no change in his stance and directed the Chief Minister to conduct a floor test on March 17.

In this light, the prime question before the Supreme Court was whether the Governor is empowered to issue a direction to the Chief Minister to hold a floor test and prove trust in his government. The Supreme Court responded in affirmative and found the discretionary powers under Article 163 of the Constitution to be the source. The Court also relied upon the decisions in S.R. Bommai and Nabam Rebia to reach its conclusions. In this post, I shall argue against the Supreme Court’s interpretation of Article 163, and show that its reliance on precedent was misplaced.

The Correct Reading of Article 163’s Discretionary Powers

To begin with, Article 163 reads as follows:

(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

After examining various speeches of the Constituent Assembly Debates – and the final wording of the Article – the Court concluded that ‘[t]he Constituent Assembly thus decided to vest the office of the Governor with certain discretionary powers under the Constitution’, without highlighting the limits of such discretion. This allowed the Court to observe that the scope of the discretion included the power to direct the government to hold a floor test when the Governor was satisfied that the government did not enjoy the confidence of the House. The Court based this upon the collective responsibility of the Council of Ministers to the House, and the obligation to ensure that the House fulfils its function to observe oversight over the affairs of the State:

In envisioning the role of the Governor as a constitutional statesman, care must be taken in course of interpretation to ensure that the balance of power which was envisaged by the Constitution between the executive and the legislature is maintained by the gubernatorial office.

While I shall comment later on the whether the Office of the Governor is apt for participating in the oversight function of the Government by directing a trust vote, the focus here is whether the Court was correct in its reading of the discretionary powers of the Governor. I suggest that it was not.

When the discussion on Article 143 (now 163) of the Draft Constitution was in place, Mr. H.V. Kamath moved an amendment to discard the clause conferring discretionary powers upon the Governor. He justified this amendment on two grounds: first, that the similarly envisaged Office of the President did not have such discretionary powers; and second, that after it was decided that the Office of the Governor would be a nominated post and not an elected one, then ‘it would be wrong in principle and contrary to the tenets and principles of Constitutional Government’ to have such discretionary powers. Mr. Kamath, as well as other members like Rohini Kumar Chaudhury, were here fearful of the past incidents where the Governors had utilized their powers to unsettle democratically elected governments.

The Court relied upon the fact that Mr. Kamath’s amendment was not accepted in an up-down vote to hold that there was no specific limitation of the Governor’s discretion that flowed from the text of Article 163. However, in the Constituent Assembly itself, T.T. Krishnamachari immediately clarified the true scope and meaning of the clause and his statement must be quoted in full for the necessary understanding of Article 163:

Sir, it is no doubt true, that certain words from this Article may be removed, namely, those which refer to the exercise by the Governor of his functions where he has to use his discretion irrespective of the advice tendered by his Ministers. Actually, I think this is more by way of a safeguard, because there are specific provisions in this Draft Constitution which occur subsequently where the Governor is empowered to act in his discretion irrespective of the advice tendered by his Council of Ministers. There are two ways of formulating the idea underlying it. One is to make a mention of this exception in this Article 143 and enumerating the specific power of the Governor where he can exercise his discretion in the Articles that occur subsequently, or to leave out any mention of this power here and only state it in the appropriate Article. The former method has been followed. Here the general proposition is stated that the Governor has normally to act on the advice of his Ministers except in so far as the exercise of his discretions covered by those Articles in the Constitution in which he is specifically empowered to act in his discretion. So long as there are Articles occurring subsequently in the Constitution where he is asked to act in his discretion, which completely cover all cases of departure from the normal practice to which I see my honourable Friend Mr. Kamath has no objection, I may refer to Article 188, I see no harm in the provision in this Article being as it is. It happens that this House decides that in all the subsequent Articles, the discretionary power should not be there, as it may conceivably do, this particular provision will be of no use and will fall into desuetude.

This was not the view of a single member of the Assembly, but was supported by various other members such as B.M. Gupta, Alladi Krishnaswami Ayyar and Shibban Lal Saxena. Therefore, the mention of discretionary powers was merely to indicate those provisions of the Constitution wherein the Governor was explicitly vested with discretionary powers to act and Article 163 (or 143 of the Draft Constitution) could never be utilized by the Governor to justify any other action performed without the aid and advice of the government, including the direction to call for a trust vote on the floor of the assembly. The statement by Dr B.R. Ambedkar shall support this claim beyond any doubt:

“Except in so far as he is by or under this Constitution,” those are the words. If the words were “except whenever he thinks that he should exercise this power of discretion against the wishes or against the advice of the ministers”, then I think the criticism made by my honourable Friend Pandit Kunzru would have been valid. The clause is a very limited clause; it says: “except in so far as he is by or under this Constitution”. Therefore, Article 143 will have to be read in conjunction with such other Articles which specifically reserve the power to the Governor. It is not a general clause giving the Governor power to disregard the advice of his ministers in any matter in which he finds he ought to disregard. There, I think, lies the fallacy of the argument of my honourable Friend, Pandit Kunzru.

Thus, it becomes clear that the Governor cannot invoke his authority under Article 163 to direct the Chief Minister to prove the trust of the legislative assembly in his Government. But in view of the interpretation provided by the Supreme Court, it seems that Mr. H.N. Kunzru was prophetic when he argued in support of Mr. Kamath’s amendment by stating that retention of the clause granting discretionary powers may give rise to misapprehensions regarding the true scope of Governor’s powers.

The Misplaced Reliance on Bommai and Nabam Rebia

The Court placed huge reliance on two precedents while coming to its conclusions, both of which, I argue, are wrongly read. The court first referred to the decision in Bommai, where the Governor the State of Karnataka, after being satisfied that the incumbent state government had lost its majority in the House, sent a report to the President recommending for the imposition of President’s rule. At the time, the Supreme Court had held the action of the Governor as unconstitutional by recognizing that even minority governments can hold the trust of the House. It stated that it is not within the Governor’s powers to decide whether the government holds the trust of the House, as that ‘is an objective fact capable of being established on the floor of the House’. The Court opined as follow:

Where the Governor is satisfied by whatever process or means, that the Ministry no longer enjoys majority support, he should ask the Chief Minister to face the Assembly and prove his majority within the shortest time possible.

This was quoted with approval by the Court in the Madhya Pradesh Assembly case to buttress its view that the Governor can order for the floor test in the Assembly. I argue that the Court wrongly construed the opinion in Bommai. First, In Bommai, there were no arguments as to whether it is within the powers of the Governor to direct the Chief Minister to prove hold a trust vote and thus, these observations cannot be deemed as binding ratio. Second, these observations merely tells us that whenever the Governor believes that the government has lost the confidence of the House, he must validate this fact through a trust vote in the assembly and not through his own assessment. It leaves open the question as to the process through which such trust vote must take place.

The reading of the Constituent Assembly debates proves that the Governor cannot direct the trust vote to take place unless he acts with the aid and advice of the Council of Ministers while issuing such directions. The other mechanism, as also argued by counsel representing the incumbents of the MP Assembly, is the moving of a no-confidence motion in the House. Unless such motion is moved – which was indeed not moved, as recorded by the Court – the government must be under no obligation to face the trust vote.

One might here argue that allowing the trust vote to take place only after a no-confidence motion is moved would lead to certain constitutionally unwarranted consequences, such as stay of the government for a long time in Office even when it has lost the confidence of the House (for instance, when the House is not in session, effectively disallowing the opposition to move a no-confidence motion). In such scenarios, the observation of the Supreme Court in Nabam Rebia becomes relevant, where it had stated that:

The Chief Minister and his Council of Ministers lose their right to aid and advise the Governor, to summon or prorogue or dissolve the House, when the issue of the Government’s support by a majority of the Members of the House, has been rendered debatable. … And in such a situation, if there is a non-confidence motion against the Chief Minister, who instead of facing the Assembly, advises the Governor to prorogue or dissolve the Assembly, the Governor need not accept such advice.

 

Therefore, when the Assembly is in session, then the process of holding a trust vote must begin with a no-confidence motion, and when the assembly is not in session, then still, the no-confidence motion remains significant for initiating the process, and based on this motion, the Governor is empowered to act even against the aid and advice of the Council of Ministers.

However, the Court underplayed the significance of no-confidence motion and relied on another excerpt from Nabam Rebia, where it was stated that ‘[i]n a situation where the Governor has reasons to believe that the Chief Minister and his Council of Ministers have lost the confidence of the House, it is open to the Governor, to require the Chief Minister and his Council of Ministers to prove their majority in the House, by a floor test.’ This allowed the Court to conclude that whenever the Governor has reasons to believe that the government has lost confidence of the House, ‘constitutional propriety requires that the issue be resolved by calling for a floor test.’ This, I argue, is an unjustifiable position.

Governor as a check on the Council of Ministers?

The role of the Governor is envisaged as a de jure head of the executive government, which functions on the aid and advice of the de facto head of the executive government, the Chief Minister, and his Council of Ministers. It is merely a titular position, with very limited authority to act independently. Therefore, the argument of the Court that this gubernatorial office helps in ensuring that necessary checks and balances remain in place is, though to some extent is correct – but not in the manner in which it was interpreted by the Court. The Court noted, at para 44, that ‘the Constitution recognises that the Governor does possess a power inhering in the office to monitor that the elected government continues to possess the confidence of the Legislative Assembly.’ I believe that the it is proper for the legislature to exercise the checks and balances functions, with the scope of the Governor’s powers to be merely facilitating the legislature. Given the fact that the position of the Governor is nominated, enhancing the powers of the Governor then necessarily leads to increased political disruptions in the working of democratically elected governments. Thus, I believe that the Court’s attempt to first find the source of Governor’s power in Article 163 and then justify it though the checks and balances argument was contrary to the structure of democracy envisaged in the Constitution.

Constitutional Functionaries, Constitutional Standards, and the Role of Courts: Lessons from the Miller

(This is a Guest Post by Nivedhitha K.)


On 24th September 2019, the UK Supreme Court delivered the judgment in R (Miller) v. The Prime Minister, declaring the prorogation of the UK Parliament unlawful. Apart from the judgment being lauded as a landmark one for its timely and precise intervention, it also involves some important questions of law. In this post, I will attempt to analyse the decision of Miller, and distinguish it with the Indian jurisprudence on the question of “aid and advice.” I will then explain the inadequacy of the Indian jurisprudence on this issue, and propose for its reformation on the lines of Miller.

Facts of Miller’s Case 

A referendum was held in the UK on 23rd June 2016, where the majority voted for leaving the European Union (hereinafter referred to as “EU”). The government has since then been involved with the task of implementing the decision of the majority. Under Article 50 of the EU treaty, for a Member State to withdraw from the Union, it must notify the EU of its intention, and arrive at an agreement on the future relationship between the member state and the EU. In this context, under the EU (Withdrawal) Act 2018 – passed by the UK Parliament – the withdrawal agreement must be approved by the House of Commons, and a legislation incorporating the provisions of the withdrawal agreement must be passed. However, following an extension to the mandatory two-year period that sets into play after an Article 50 Notification, 31st October was decided to be the cut-off date for the UK to exit the EU. Therefore, irrespective of whether or not the UK Parliament was able to approve of a withdrawal agreement, the UK would have to leave the EU on 31st October.

However, an order was passed by the Queen that the UK Parliament would be prorogued from 12th September 2019 to 14th October 2019. In the UK- akin to India- the Queen (the Head of State) acts on the aid and advice of the Prime Minister. The prorogation was challenged in the High Court of England and Wales, and was dismissed on the ground that the issue was non-justiciable. On appeal, the Supreme Court (a bench of eleven) held that the issue was justiciable, and declared the prorogation unlawful.

The issues that were framed by the Court were fourfold: (paragraph 27)

(1) Is the question of whether the Prime Minister’s advice to the Queen was lawful, justiciable in a court of law?

(2) If it is, by what standard is its lawfulness to be judged?

(3) By that standard, was it lawful?

(4) If it was not, what remedy should the court grant?

The test laid down in Miller on the justiciability of aid and advice

The bench observed that the advice rendered by the Prime Minister was justiciable. The test that was applied to test the lawfulness of the advice was, “a decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive. In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course.” (paragraph 50)

Though facially it seems to test the validity of the prorogation, in actuality it is a test on the extent of justiciability of the advice rendered by the Prime Minister.  The two-prong test formulated to test the extent of justiciability of the advice rendered by the Prime Minister is: 1) whether the advice in effect violates a constitutional principle (violation test)? 2) Whether the violation is reasonably justified (justification test)?

To identify the sub-facets of the test, it is necessary to look at how the test was applied to the given factual circumstance. The bench rejected the improper motive standard. Therefore, the court did not look into whether the Prime Minister was motivated to violate the Constitutional principles, but rather looked into whether the act effected at the violation of Constitutional principles. In this context, the bench observed that when the house was prorogued for a longer duration- unlike a short prorogation- the constitutional principles of parliamentary sovereignty and parliamentary accountability are violated.

On the question of justification, the bench referred to the documents that had formed the basis of the advice, and held that the violation of the constitutional principles was not ‘reasonably justified’. While the violation test was guided by the ‘effects standard’, the justification test was guided by the ‘proportionality standard’ Though the court did not explicitly refer to the proportionality standard, it can be inferred by the arguments put forth below.

Establishing the proportionality standard

Firstly, not mere justification but reasonable justification was the test evolved. Therefore, the court did not regard all justifications to be reasonable justifications. What is then the standard of reasonableness? The following observations guide us on the court’s standard of reasonableness. In paragraph 60, the bench observed that “the proposal was careful to ensure that there would be some Parliamentary time both before and after the European Council meeting on 17th – 18th October. But it does not explain why it was necessary to curtail what time there would otherwise have been for Brexit related business.” The bench was not convinced by the reasoning that there would be some time; it asked: “why not the otherwise available time?” Therefore, the first test that was used by the court under the proportionality standard was whether the materials had shown relevant reason to authorise the act that had the effect of violating Constitutional principles- in this case, parliamentary sovereignty and accountability by denying the parliamentarians the otherwise available time for discussion on the withdrawal agreement.

Another observation by the bench provides further clarity. The court observed that “the Prime Minister’s wish to end one session of the Parliament and to begin another will normally be enough in itself to justify the short period of prorogation which has been normal in modern practice. It could only be in unusual circumstances that any further justification might be necessary” (paragraph 51). The bench here observed that usually- i.e when a short term prorogation was declared- the wish of the Prime Minister was a justifiable reason. However, when a long term prorogation under an extraordinary situation was declared, it would not be justifiable on the wish of the Prime Minister alone; rather, reasoning proportional to the effect would have to be provided. Therefore, the second test was whether the relevant reasoning was proportional to the effect. The court observed that the effects of a long term prorogation in the given extraordinary situation were graver in comparison to the effects of a short term prorogation, and the court required more convincing reasoning for graver effects.

Lastly, the court in paragraph 60 observed that the reasoning did not differentiate between the process of recess and prorogation. Thus, the third test that was formulated was whether the least restrictive means to achieve the objective was used. On perusal of the documents that had formed the basis of the advice, the objective of the prorogation seemed to be the need to introduce new bills. This objective could have been fulfilled by imposing a short term prorogation (a lesser restrictive means) which would not violate Constitutional principles.   It is clear, therefore, that the court looked into the materials to find a reasonable justification, for which it used the proportionality standard.

Summing up, the test for justiciability of aid and advice evolved in Miller is as follows:

  1. Whether the act (which was guided by the advice) violates a constitutional principle- in effect?
  2. Whether the violation can be reasonably justified through the application of the proportionality standard?

The proportionality standard applied requires the following tests to be fulfilled:

(a) Whether the reasoning has relevance to the effect of the use of prerogative power.

(b) Whether the relevant reasoning is proportional to the effect.

(c) Whether the least restrictive, but equally effective means is used to achieve the objective.

I will now juxtapose Miller’s test with the Indian jurisprudence on aid and advice. Before I make a comparison, two primary differences between the legal systems of India and UK will have to be addressed. First, the UK- unlike India- does not have a written Constitution. Therefore, Indian legal jurisprudence is comparatively more ‘formalist’ in nature. Secondly, Article 74(2) of the Indian Constitution restricts the justiciability of the aid and advice of the Council of Ministers (hereinafter referred to as ‘CoM’). Despite these two differences, the Indian courts will not face any obstacle in applying the UK jurisprudence- laid down in Miller- on the subject matter.

The Indian test on aid and advice

In India, the test on the extent of justiciability of the aid and advice of the CoM/ satisfaction of the President was laid down in the case of S.R Bommai. It was observed that the bar in Article 74(2) – on the justiciability of aid and advice rendered – only excludes the questioning of whether there was advice given, and what advice was given. Further, the court engaged in harmonious construction of Articles 74(2) and 142 and held the materials relied upon by the President for the use of his prerogative power shall be placed before it.

The extent of judicial review of the materials relied upon was held to be as follows: ‘…the truth or correctness of the material cannot be questioned by the court nor will it go into the adequacy of the material. It will also not substitute its opinion for that of the President. Even if some of the material on which the action is taken is found to be irrelevant, the court would still not interfere so long as there is some relevant material sustaining the action. The ground of mala fides takes in inter alia situations where the proclamation is found to be clear case of abuse of power, or what is sometimes called fraud on power- cases where this power is invoked for achieving oblique ends”. Therefore, unlike the UK jurisprudence, in India, it is sufficient if the material- and not reasoning in the material- is relevant to the prerogative act. However, the Court further observed that the ‘legitimacy of the inference drawn from such material’ can be questioned.

The subsidiary question is how the court could question the legitimacy of the inference drawn from such material, without questioning the subjective satisfaction of the President/Governor. The Supreme Court in the case of BP Singhal held that to test the legitimacy drawn from the material, the “reasonable prudent man’s” test will have to be applied. Therefore, the test in India is as follows:

  1. Is there any relevant material to sustainthe action (‘relevancy test’)?
  2. Will a ‘reasonable prudent man’- given the material before him- be able to arrive at the same conclusion on the use of prerogative power as the President/Governor (‘legitimacy test’)?

There are two issues in the Indian jurisprudence on aid and advice. First, the Indian courts- unlike the UK- focus on the form of the prerogative act instead of its effect. Second, the relevance of the material is deemed sufficient, with no standard for the reasonable prudent man to decide on the legitimacy of the inference.

Form and effect of the prerogative act 

Let me argue that the reliance of the Indian courts on the form instead of the effect, in practicality permits the court to analyse the ‘subjective satisfaction’ of the President/ Governor- something that it says it would not do. Let me explain this through a factual situation. In November 2019, due to the inability of the party with the maximum members in the legislative assembly but with no simple majority to form the government in Maharashtra, the governor sent a report to the President that the Government cannot be formed in accordance with the provisions of the Constitution. Therefore, following the report of the Governor and the recommendation by the CoM, Presidential rule was imposed, with the legislative assembly of the State in suspended animation. Immediately, the Shiv Sena filed a petition in the Supreme Court challenging the imposition of President’s Rule in the State. Let us hypothetically assume that the petition by Shiv Sena challenges the aid and advice of the cabinet that led to the imposition of the President’s rule, keeping aside its argument on unequal and insufficient time given to it for the formation of the government.

Let us presume that the relevancy test has been fulfilled as the court regarded the materials placed before the President to be relevant to the declaration of Presidential rule (i.e the form). Let me will now frame the legitimacy test from the perspective of the form and effect of the prerogative act.

  1. Through the relevant materials placed before a ‘reasonable prudent man’, would he regard the reasons justifiableto declare Presidential rule (i.e the form)?
  2. Through the relevant material placed before a ‘reasonable prudent man’, would he regard the reasons proportional to the suspension of parliamentary democracy (i.e the effect)?

 

There are two issues in the manner in which question A is framed. First, the form, instead of the effect (as in question B) is regarded as the end. Second, it does not prescribe a standard for the ‘reasonable prudent man’ to decide on the legitimacy. As a rough analogy one may imagine A being given the task of choosing the better of two dolls. In the first circumstance, A is asked to choose the better doll between the two, but the dolls are not completely made- they still are in clay form. In the second instance, A is asked to decide the better doll between two dolls- the dolls are completed and painted. The decision of A will be better guided in the second instance because while he looks at the final effect of the dolls, he has something concrete to base his decisions upon. Therefore, the subjective analysis of the judges would ease if the judicial attention is on the effect instead of the form.

It will not be logically sound for the courts to follow the nexus/relevance test while the effects standard is put to use. The ‘nexus’ or the ‘relevance’ standard can only be used when the end is an object or a purpose. When the effects standard is used, it would not matter if the reasoning only has some nexus with the effect. Rather, the question is whether the effect is justified – for which the proportionality standard will have to be put to use.

Summing up, the effects test and proportionality test have been inferred from the decision in Miller. The Indian jurisprudence on aid and advice, specifically on the determination of legitimacy from the material placed is explained to be inadequate. The primacy of form of the prerogative act in the Indian jurisprudence, in comparison to the effect test in the UK has been criticised with the help of an analogy. Finally, the insufficiency of relying on the relevance of the reason for the effects standard was explained. The above reasons led to the suggestion of usage of the proportionality standard (along with the three subsets) to decide the ‘reasonable prudent mans’ legitimacy test.

Proportionality standard and the Presidential rule

Before deciding on the constitutionality of the Presidential rule in Maharashtra by   applying the proportionality, it is necessary to answer a preliminary question that arises – whether on the imposition of the Presidents rule due to ‘breakdown of the Constitutional machinery’ in a State, there is no Constitution in existence for the constitutional principle of parliamentary democracy to be suspended?

The argument is that the declaration of the Presidents’ rule in the State does not necessarily mean that Constitutional principles are abrogated. The jurisprudence of basic structure evolved primarily because of the existence of certain Constitutional principles are beyond the clutches of majoritarian forces. During the Presidents’ rule, there might be suspension of the operation of the Constitutional text, but not the underlying Constitutional principles. However, provisions in the Constitution allow for the suspension of certain fundamental rights during emergency. The question that then arises is: when fundamental rights cannot be enforced, how can certain constitutional principles be enforced? For example, reasonableness that guides the golden triangle (i.e Articles 14, 19 and 21) has been held to be a basic feature of the Constitution (which is also a constitutional principle). However, the crucial point is that the operation of Article 356 differentiates between the imposition of Presidential rule for the reason of secessionist insurgency (eg: Punjab 1980’s) and inability of political party to form the government (eg: Maharashtra on November 2019). When the Presidents’ rule is declared on the reason of insurgency, suspension of enforcement of fundamental rights may be made by an executive order. In such cases, the Constitutional principles guiding the fundamental rights chapter may be suspended but other Constitutional principles would remain enforceable. While Presidents’ rule is imposed due to the inability to form the government, all Constitutional principles are enforceable.

Now, let us apply the proportionality standard that was formulated in Miller to the challenge on the Presidential rule imposed in Maharashtra. Prior to the application of the standard, one would first be required to identify the objective of the use of prerogative power, the means used to achieve the objective, and its effect on Constitutional principles. The objective of the imposition of the Presidential rule was to remedy the breakdown of Constitutional machinery, given that Mr. Devendra Fadnavis –the acting Chief Minister- had resigned on November 8. The means that was employed to meet the objective, was the imposition of Presidential rule in the state. The effect of the means used was that parliamentary democracy was frustrated by limiting the time provided to willing political parties to form the government.

On the application of the proportionality standard to the factual situation of Presidential rules’ in Maharashtra, the court would have to answer the following sub-tests of the proportionality standard: first, whether the material relied on has relevant reasoning on denial of time to political parties for forming the government. The reasoning in the material should not have merely focused on the reasons for the declaration of Presidential rule, but must have provided specific reasoning on the denial of time sought by Shiv Sena since it was willing to form the government.

Secondly, whether the relevant reasoning is proportional to the effect. Under this prong, the court should not settle for the same reasoning for acts that lead to different effects. For example, the reasons for the declaration of a Presidential rule when political parties express the ability to form the government, must be different from the reasons when political parties are unable to form the government.

And thirdly, whether the least restrictive, but equally effective means to achieve the objective was used. The court should test if there are other restrictive but equally effective means to achieve the objective of remedying the breakdown of Constitutional machinery. While deciding on this test, the court shall keep in mind the available Constitutional remedies, the resignation of the acting Chief Minister, and the need to prevent horse-trading.

Indian Jurisprudence on aid and advice, and the proportionality Standard

The closest the Indian courts have come to the UK jurisprudence is when the courts held that repromulgation of ordinances amounted to malafide use of power, where the power is used to achieve oblique ends. In Krishna Kumar II, it was observed ‘repromulgation violates parliamentary sovereignty’. In both D. C Wadhwa and Krishna Kumar II, the court found repromulgation to be manifestly arbitrary that they did not look into the aid and advice theory jurisprudence. Though there had been references to the effect on Constitutional principles, the court held repromulgation to be unconstitutional primarily on the ground of the form– the necessity of placing the ordinances before the house.  

However, the Indian courts are not completely unmindful of the proportionality analysis in the realm of Presidential satisfaction. In B.P Singhal, when the doctrine of pleasure of the President was under question, it was observed, “where a prima facie case of arbitrariness or malafides is made out, the Court can require the Union Government to produce records/materials to satisfy itself that the withdrawal of pleasure was for good and compelling reasons. What will constitute good and compelling reasons would depend upon the facts of the case.” This is a very similar analysis to that which was taken in Miller’s decision, provided the court looks at the effect while deciding whether it is a case of malafide use of power. The ‘good and compelling reason’ test is to be determined by the proportionality standard.

Therefore, the Indian jurisprudence on aid and advice would have to be modified on the lines of Miller, to prevent inadvertent prejudicial and subjective satisfaction of the judges while deciding on the satisfaction of the President.

Guest Post: Engineering a Constitutional Crisis in Maharashtra

[This is a guest post by Ziauddin Sherkar (ziawain@yahoo.co.in)]


To avoid the large-scale political arrests of the time, the late Bal Thackeray supported the Emergency declared by Mrs. Indira Gandhi in 1975. He even refrained from fielding any candidates against Mrs. Gandhi in her bid to regain supremacy over the Janata Party in the General Elections of 1980. Little did he know then that the legislative travails of a well-respected Janata leader Somappa Rayappa Bommai would come to his party’s aid in their bid to assume power in Maharashtra after 39 years.

Somappa Rayappa Bommai (1924-2007) belonged to that rare crop of Janata politicians who were known for their idealist convictions in political life. He was instrumental in forming the first non-Congress government in Karnataka in 1983 with Ramakrishna Hegde as the Chief Minister. The second Hegde government that returned in 1985 was accused of tapping the phones of opposition leaders that eventually resulted in the landmark Supreme Court decision of Dr. Subramanian Swamy v. Ramakrishna Hegde [1990 AIR 113]. Ramkrishna Hegde resigned over the uproar that followed, paving the way for S.R. Bommai to assume the Chief Ministership of Karnataka on 13 August 1988. Owing to internal numerical turmoil à la every Janata government ever, the then Governor P. Venkatasubbaiah sent a report to the President on 20 April 1989 that Bommai had lost confidence of the majority in the house. He advised the President to exercise his powers under Article 356(1) and issue a proclamation to impose President’s rule in the state; a request President R. Venkataraman acceded to on that very day. The Parliament subsequently approved the President’s proclamation under Article 356(3) and Bommai’s government was dismissed. A 3-judge bench of the Karnataka High Court dismissed Bommai’s writ petition filed against his government’s dismissal. Along with similar cases from Meghalaya, Rajasthan Nagaland, Himachal Pradesh and Madhya Pradesh, Bommai’s case travelled right up to the Supreme Court in the winter of 1993 and on 11 March 1994, the Supreme Court laid down its chef d’oeuvre, the judgment of S.R. Bommai v. Union of India [(1994) 3 SCC 1] (“Bommai”).

There is no clear scheme in the Constitution that lays down the procedure a Governor may follow in the post-election process. This is where two judgments Jagdambika Pal v. Union of India [(1999) 9 SCC 95] (“Jagdambika Pal”) and Rameshwar Prasad (6) v. Union of India [(2006) 2 SCC 1] (“Rameshwar Prasad”) become important. In Jagdambika Pal’s case, where there were two rival claimant’s to the Chief Minister’s post, the court ordered the assembly to be convened for one day while expressly directing, “The only Agenda in the Assembly would be to have a composite floor-test between the contending parties in order to see which out of the two contesting claimants of Chief Ministership has a majority in the House.” As of 12 November 2019, there are 4 probable contenders vying to form the government in Maharashtra out of which 1 i.e. Shiv Sena has clearly stated in a petition filed before the SC that it has the in-principle support of 2 others, the Nationalist Congress Party (“NCP”) and the Indian National Congress (“INC”). Previously, Governor Bhagat Singh Koshyari gave the Bhartiya Janata Party (“BJP”) 48 hours beginning from 9 November 2019 to demonstrate its majority. If the SC could issue extraordinary directions to convene the house for a single day in order to give a chance to rival claimants to prove their majority, surely the Governor could have followed the same route. Additionally, Articles 163 and 164 read with Jagdambika Pal’s case would have provided the Governor necessary legal cover to convene the assembly.

A case more on point is Rameshwar Prasad’s where the President had dissolved the Bihar State Assembly on the Governor’s recommendation even before the first session of the Assembly could have been convened. Although the Ministry of Home Affairs Notification dated 12 November, 2019 doesn’t dissolve the Assembly itself, the Governor of Maharashtra has clearly refused to allow any claimant prove their majority on the floor of the house. In Rameshwar Prasad’s case, the court struck down the notification dissolving the state assembly. However, Y.K. Sabharwal J. in the majority judgment held against the petitioner that the assembly can indeed be dissolved before it is convened for the first time. The Governor Koshiyari seems to have found common ground with this observation. Owing to the BJP’s electoral superiority in both the houses of Parliament, confirmation of the President’s proclamation under Article 356(3) is a mere formality; a formality compulsory for the subsequent dissolution of the state assembly.

According to the Sarkaria Commission’s recommendations, a Governor must follow the following order of precedence in invitations to break a logjam in government formation:

  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.

Of the 4 press releases issued by the Governor since 9 November 2019, none specify if the pre-poll alliance of BJP and Shiv Sena were jointly invited in order to satisfy the First stage. The individual invitations to the BJP, Shiv Sena and the NCP would constitute adequate fulfilment of the Second stage, albeit that yielded no result. Since there is no definite existence of any formal ‘post-electoral coalition’, the Third stage is automatically ruled out. The Fourth stage is where the smokescreen thickens. It seems that Governor Koshiyari has chosen to not resort to the last option available to him and has requested the President to declare that “…a situation has arisen in which the Government of that State cannot be carried on in accordance with the provisions of the Constitution of India.” The Sarkaria Commission report has a clear view on this. It states that a political crisis may arise when:

“… after a General Election no party or coalition of parties or groups is able to secure an absolute majority in the Legislative Assembly, and, despite exploration of all possible alternatives by the Governor, a situation emerges in which there is complete demonstrated inability to form a government commanding confidence of the Legislative Assembly.”

‘Complete, demonstrated inability’, being the key-phrase does not pass muster when tested against the widely available reports of not just the INC and NCP, but also certain Independent MLAs extending support to the current claimant. The ‘inability’, if at all has not fully been ‘demonstrated’ and is certainly not ‘complete’. The majority in Rameshwar Prasad’s case did not rule against the Governor because of his taking into account media reports and private intelligence inputs on horse-trading. It ruled against the Governor despite his taking into account such inputs. It was irrelevant what the inputs indicated if a dispensation was willing to demonstrate majority. Even if the Governor of Maharashtra seems intent on heading in the direction of Arijit Pasayat J.’s dissenting opinion that such inputs could very well dictate his decisions under Article 356, in the present case the available inputs themselves point towards a highly probable ‘post-electoral coalition’.

Apart from reiterating the paramount importance of the Sarkaria Commission report Bommai’s case is unequivocally clear on certain propositions. These propositions have found favourable ground in all subsequent, related cases.

“…the proper course for testing the strength of the Ministry is holding the test on the floor of the House. That alone is the constitutionally ordained forum for seeking openly and objectively the claims and counterclaims in that behalf. The assessment of the strength of the Ministry is not a matter of private opinion of any individual, be he the Governor or the President. It is capable of being demonstrated and ascertained publicly in the House. Hence when such demonstration is possible, it is not open to bypass it and instead depend upon the subjective satisfaction of the Governor or the President. Such private assessment is an anathema to the democratic principle, apart from being open to serious objections of personal mala fides.”

 

Unfortunately, the physical manifestation of Shiv Sena’s claim was never allowed to materialize on the floor of the house.

The most obvious critique of the above criticisms of the Governor is that he is under no obligation to provide the exact time as requested by a claimant. The Shiv Sena requested for three more days i.e. 72 hours on 11 November 2019 in order to prove majority. This request was declined by the Governor. Time-bound and time-tested constitutional conventions are the hallmark of any Westminster-style democracy. Are they followed in our country in a manner that the actors involved consider such conventions to be binding on themselves? This question is simply answered by the fact that the entire elaborate procedure followed by the Governor in inviting a political party to form a government is not supported by the set letter of the law but by time-honoured conventions. If such constitutional conventions were held to be non-existent, formation of most coalition-era state and national governments after the 1980s would be questionable. Even the SC in S.P. Gupta v. President of India [AIR 1982 SC 149] spoke extensively about such conventions. A single precedent with a good reason may be enough to establish a convention. In the present case, the Governor himself set the precedent by giving the BJP 48 hours to prove majority. If not 72 hours as demanded, the Governor could have extended the same magnanimity towards the current claimants as he did towards the BJP. Nonetheless, if time-limits of 24 hours for proving majority become precedent, the era of post-poll alliance making in India would come to a thankful end.

The Governor, the Assembly, and the Court: The Supreme Court’s Arunachal Decision (Guest Post)

(In this guest post, Jahnavi Sindhu decodes the recent Constitution Bench judgment on Arunachal Pradesh.)

Last Tuesday, in a landmark verdict [“Nabam Rebia”], the Supreme Court reinstated Mr. Nabam Tuki as the Chief Minister of Arunachal Pradesh by invalidating the actions of the State Governor that had precipitated a no-confidence vote against Tuki. The core constitutional question before the Court was about the scope of the Governor’s discretionary powers in a system of responsible government. Its judgment is a significant addition to the jurisprudence dealing with the constitutional relationship between the Government, the state legislatures, and the courts.

Facts and Verdict

Briefly, the facts: on 03.11.15, the Governor, on the advice of the Council of Ministers, issued an order summoning the 6th session of the Legislative Assembly of Arunachal Pradesh on 14.01.16. In the interim, however, factional politics raised its ugly head. A notice of resolution for removal of the Speaker of the house was moved on 19.11.15, with a copy to the Governor (coming on the heels of several Congress party meetings regarding dissident factions in the party). These meetings culminated in a petition for disqualification (on 07.12.15), under the Tenth Schedule of the Constitution, of 14 defecting MLAs of the Congress (including the Deputy Speaker).

Subsequent to this, the Governor took two actions that formed the basis of the challenge before the Court. These were:

  1. An Order dated 09.12.15 issued under Article 174(1) of the Constitution, “pre-poning” the Assembly session from 14.01.16 to 16.12.15, and citing the Governor’s constitutional obligation to ensure that the resolution of removal of speaker be considered expeditiously.
  1. A message dated 09.12.15 issued to the Legislative Assembly under Article 175(2) directing that the resolution for removal of speaker be taken up as the first item on the agenda with the Deputy Speaker presiding over the session. Interestingly, the Governor also ordered that “until the session is prorogued, no Presiding Officer shall alter the party composition in the House.”

In response, the State Cabinet issued a resolution on 14.12.15, echoing the opinion of the Advocate-General that the unilateral actions of the Governor were unconstitutional. On the expiry of the notice period under Schedule X, the Speaker went ahead with disqualification proceedings and passed an ex-parte disqualification order on 15.12.15 against the MLAs including the Deputy Speaker, thus altering the party composition in the House. On the same day, the Deputy Speaker set aside this order of disqualification citing, inter alia, the impropriety of the Speaker’s action in taking up disqualification proceedings while the resolution for his removal was slated for the next day. The other faction of the assembly went ahead with the pre-poned session ordered by the Governor on 16.12.15. These proceedings resulted in the removal of the speaker, a no-confidence motion against Nabam Tuki’s Government and a confidence vote in favour of a government led by Kahiko Pul. Though the Petitioners, (the Speaker and some members of the Congress) challenged all the aforementioned orders and proceedings (except the order of the Speaker), they focussed their submission on knocking off the first domino i.e. the unilateral intervention of the Governor in matters of the House.

The Court was unanimous in its ruling in favour of the Petitioner to quash the summons order and message as unconstitutional. The majority opinion of Justice Kehar, Justice Ghose and Justice Ramana (“the majority”) restored status quo ante as on 15.12.15. Justice Lokur, while generally agreeing with the majority, recorded separate reasons for his conclusions. Justice Misra recorded separate reasons on the interaction between Article 179(c) and the Tenth Schedule of the Constitution. However, this post will only focus on the first issue of the constitutional validity of the actions of the Governor, specifically, the reasoning of the majority.

Contentions

In assailing the actions of the Governor, the Petitioners relied on the general scheme of responsible government envisaged in the Constitution that dictates governance be carried out by those who are responsible to the people, i.e. the Council of Ministers collectively responsible to the Legislature. The Governor is a nominated official who performs functions only on the aid and advice of the council of ministers. The Constitution has carefully delineated certain functions and powers which she can exercise in her discretion, but this power cannot be conflated with a general discretionary power to summon the Assembly under Article 174, and to direct the manner of proceedings in the house through messages under Article 175.

The respondents, on the other hand, relied on the broad ambit of Articles 163(1) and (2), which state that:

(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.

The Respondents argued that the Governor, unlike the President, is vested with discretionary powers under the constitution to avert perils to democracy of the kind that had arisen in this case. They also took strength from past instances where the Governor’s power to independently summon and dissolve the Assembly under Article 174 was considered valid. The mainstay of the Respondents’ argument was Article 163(2), which specifically vests the final determination of whether a matter falls within the discretion of the Governor with the Governor herself, and therefore bars judicial review of this aspect. The Court, therefore, was not entitled to look into the legality of the two impugned orders at all.

The Constitutional Background

Now, there can be no quarrel with the proposition that judicial review, a component of the basic structure of the Constitution, serves as a form of a check and balance on other organs of the Government and cannot be proscribed by any statute or amendment to the Constitution. However, Article 163 is distinctive for it is an original provision of the Constitution that appears to bar judicial review. The Court too, having recorded this contention of the Respondents, was conscious of the fact that the doctrine of basic structure would not apply to an original provision of the constitution to invalidate this bar on judicial review. Thus, the Court had two options: either to hold that the nature of powers exercised by the Governor in this case did not fall within Article 163(1), or to hold that Article 163(2) cannot be interpreted to mean a complete bar on judicial review. Unfortunately, it is not clear as to which of these lines the Majority tried to toe in their decision.

To answer this question satisfactorily, we need to begin at the beginning. The nature of the office of the Governor was fervently debated in the Constituent Assembly, and the relevant provisions underwent significant changes between 1947 and 1949. Initially, the Governor was intended to be an elected office. On May 31, 1949, the Assembly adopted an amendment changing the mode of selection of the Governor to a mere nomination by the President. Dr. Ambedkar justified this move explaining that, “according to the principles of the new Constitution he [the Governor] is required to follow the advice of his Ministry in all matters.”

The very next day, Article 163 (Article 143 as it then was) came up for discussion. It encountered great opposition on the ground that it gave the governor vast discretionary powers. Dr. Ambedkar once again cautioned, “The clause is a very limited clause; it says: “except in so far as he is by or under this Constitution.” Therefore, Article 143 will have to be read in conjunction with such other articles which specifically reserve the power to the Governor. It is not a general clause giving the Governor power to disregard the advice of his ministers in any matter in which he finds he ought to disregard.” Thus, it is evident that Article 163 was not intended to be a general source of discretionary power of the Governor but had to be read with those Articles in the Constitution that grant express discretion to the Governor in respect of a function or power – an enabling provision, akin to Article 355.

Now, at that time, Article 174 (i.e., the provision that grants the power to the Governor to summon the House, and was invoked by the Governor in this case) was one such provision that specifically used the phrase the phrase “Governor, in his discretion.” However, the provision was amended on June 2nd 1949 to delete “in his discretion”, on the ground that the provision to this extent was “inconsistent with the scheme of a constitutional governor.” Similarly, the phrase “in his discretion” was deleted from Article 164 and Article 200 of the Constitution, and later, on August 3rd 1949, from Article 188, which gave discretion to the Governor to temporarily take up the administration of the State in the event of a constitutional breakdown in the State. Thus it is clear, that eventually, the Constituent Assembly was of the opinion that the Governor was not supposed to have any discretionary powers as under Article 163(1) in respect of these provisions, specifically Article 174.

Over time, however, the judiciary read in “discretionary powers” into these provisions to specify certain situations where the Governor would be obliged to disregard the advice of the Council of Ministers or act on his own if the advice is not available. This judicial determination took root in Samsher Singh where the majority ruled that the Governor must only act on advice of the council of ministers. However, in paras 54 and 55, the Court adverted to Articles 200 and Article 356 to hold that under these provisions the Governor would be entitled to disregard the advice of the council of ministers. The concurring opinion of Justice Krishna Iyer and Justice Bhagwati put forth a longer list that included dismissal of a government that lost its majority, and the dissolution of the house if a government has lost its majority under Article 174. Over time, this list of “exceptional powers” has been expanded by cases and advisory reports such as the Sarkaria Commission and Justice Punchii Commission to include situations where the advice of the Council of ministers is not available, or situations dictated by propriety and constitutional necessity. Specifically Article 174 has been included in this list to the extent that the Governor can summon the assembly for a floor test when the Chief Minister who seems to have lost majority refuses to do so, or dissolve the assembly when a Government loses majority.

Therefore, the key question that needs to be posed at this stage, which has not been definitively considered or answered by the Supreme Court in any case till date, is whether these implied powers (read into the Articles by the Supreme Court) of the Governor would be covered under Article 163(1) so as to be hit by the bar upon judicial review under Article 163(2)?

The Majority Opinion and its Discontents

Interestingly – and almost paradoxically – the Majority does seem to think so. In para 143, where the majority summarises its conclusions in six points, the first point states the “measure of discretionary power of the Governor, is limited to the scope postulated therefor, under Article 163(1).” Thereafter, apart from express provisions of the constitution that grant the Governor such discretion, in points three and four, the majority holds that the Governor “can additionally discharge functions in his own discretion, where such intent emerges from a legitimate interpretation of the concerned provision, and the same cannot be construed otherwise” and “in situations where this Court has declared, that the Governor should exercise the particular function at his own and without any aid or advice, because of the impermissibility of the other alternative, by reason of conflict of interest.” A reading of Article 163 would establish that once a Governor exercises discretion covered under Article 163(1), the bar to judicial review under Article 163(2) would be attracted. Therefore, the Majority holds that “the finality expressed in Article 163(2) would apply to functions exercised by the Governor in his own discretion, as are permissible within the framework of Article 163(1), and additionally, in situations where the clear intent underlying a constitutional provision, so requires i.e., where the exercise of such power on the aid and advice, would run contrary to the constitutional scheme, or would be contradictory in terms.”

Thus, irrespective of the contentions of the parties, once the Court concedes that a particular power is within the discretion of the Governor under Article 163(1) the bar of judicial review under Article 163(2) is attracted. By the Majority’s own admission in para 151, Article 174 is a provision that encompasses situations where the Governor would have to exercise discretion as discussed above, thus perhaps attracting the bar of judicial review under Article 163(2) if the Governor chooses to act in his discretion under the provision.

Perhaps, this can be countered by arguing that the majority meant that the Governor has implied discretion in respect of certain situations as opposed to provisions. For instance, the Governor will have the discretion to summon the House for a floor test and not a general discretion to summon (which is what happened in the present case), such that only the former falls within “discretion” under Article 163(1). This strained interpretation of Article 163 is difficult to accept. The rationale of Article 163 was to specify those provisions or powers which the Governor was to exercise in her discretion and to leave to her to decide the occasion and manner of the exercise of discretion. Thus, the Court having characterised the power to summon as a discretionary power under Article 163(1), could not provide a satisfactory reason for overcoming the bar of judicial review under Article 163(2). There is an attempt to further do so in point five of the majority’s conclusions where they hold, “any discretion exercised beyond the Governor’s jurisdictional authority, would certainly be subject to judicial review.” Unfortunately, this solitary line on why Article 163(2) does not serve as a bar on judicial review only provides cold comfort.

‘Discretion’ and the Concurring Opinion

It is clear that the problem is rooted in the characterisation of these implied powers as ‘discretion’, which attracts the terms Article 163(1). And this, in my view, is where the flaw lies in the opinion of the Majority, which draws it into its dilemma. Contra the Majority’s belief, discretion under Article 163 was intended to have a very specific connotation. As admitted in the Constituent Assembly, the provision was copied from Section 50 of the Government of India Act, 1935. The provisions are almost in pari materia, with the exception that Section 50 of the Government of India Act refers to both ‘discretion’ and ‘individual judgment’ of the Governor. From the debates on Section 50 it can be garnered that both terms were intended to have distinct meaings- ‘discretion’ connoted areas of governance where the governor was supposed to act without the advice of council of ministers, areas which were reserved for the Governor. On the other hand, the exercise of ‘individual judgment’ of the Governor would arise in situations wherein the Governor was normally supposed to act on the aid and advice of the Council of Ministers but circumstances existed compelling the Governor to disregard or dissent from the advice of the Council of Ministers. This distinction has been recognised by Justice Lokur in his separate opinion. In para 125, he holds that there are three exceptions to the rule that the Governor is bound by the advice of the Council of Ministers: first, discretion conferred by the Constitution (i.e. as per express provisions in the Constitution); second, discretion conferred under the Constitution (i.e. from rules made under the Constitution such as the Rules of Procedure under Article 208) and third, individual judgment in instances specified in the constitution. Justice Lokur explains that B.N. Rau was conscious of the distinction between discretion and individual judgment of the Governor while inserting Article 163 in the first draft. Further, that this distinction continues to be maintained under the Constitution under Article 371-A and Article 371-H and has found mention in the Sarkaria Commission Report. On this basis, in para 20, Justice Lokur holds that Article 163(2) cannot be all pervasive and will only apply in respect of discretion exercised in terms of Article 163(1) (that is, discretion specified by the Constitution).

Under Article 174, the power to summon is ordinarily supposed to be exercised as per the aid and advice of the council of ministers the Governor can disregard this advice only in limited circumstances. Therefore, it is submitted that the power of the Governor in this respect falls within his individual judgment and not his discretion. Therefore, it also falls outside the scope of Article 163(1), and is not hit by the bar under Article 163(2). Indeed, to hold that the implied power to summon the assembly in certain situations would amount to exercise of ‘discretion’ by the Governor would also go against the express intention of the Constituent Assembly which specifically removed the phrase ‘in his discretion’ from Article 174.

Their reasoning notwithstanding, the majority and concurring opinion appear to converge on the conclusion that these implied powers or functions when exercised by the Governor would be subject to judicial review of the same standard afforded to other constitutional functionaries as held in the cases of BP Singhal v. Union of India and Kihoto Hollohan v. Zachilhu. On facts, the majority notes that the decision of the Governor can be faulted on the ground of constitutional impropriety since the Governor has no formal role to play in the removal of the Speaker or disputes between the political parties. The Majority seems to limit the formal role of the government to if and when the situation escalates to a point where the Government has seemingly lost majority to summon a floor test. However, in this case it is evident that the Governor’s actions were pre-mature for he failed to pause to engage with the Council of Ministers to discuss any possibility of pre-poning that the Chief Minister could refuse in the first place. Justice Lokur’s opinion further supplements the findings on constitutional impropriety by noting that the Governor in fact ignored the resolution of the Cabinet denouncing the Governor’s actions. This demonstrates that the Court was conscious that it was entering a seemingly political arena only after all political negotiations between the constitutional functionaries had failed to yield an amicable result.

In all, the decision of the Supreme Court in Nabam Rebia is a welcome development in the jurisprudence of the Court in adjudicating scenarios that warrant a balance between exigencies of governance and the constitution.