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.

The Supreme Court’s Madhya Pradesh Government Formation Judgment – I: A Question of Jurisdiction [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 first 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 Rishav Ambastha.]


In this post, I analyse the question of jurisdiction that arose in Shivraj Singh Chauhan v. Speaker Madhya Pradesh Legislative Assembly (Shivraj Singh Chauhan case). This follows a series of cases involving the formation of governments with uncertain majorities in the legislative assembly, and consequent constitutional challenges to the direction of either the Speaker or the Governor (“majority formation disputes”). Invariably, the S. Ct. has leaned in favour of directing test of majority on the floor of the house.

Question of Jurisdiction & Article 32

Any claim under Article 32 must preliminarily address two questions of jurisdiction – subject matter jurisdiction (whether the dispute relates to enforcement of rights under Part III of the Constitution); and personal jurisdiction – whether such a right is conferred on the person/entity asserting it (petitioner) and whether such person/entity has the duty to enforce such a right (respondent). Typically, a right under Part III of the Constitution is conferred in favour of citizens/ persons / entities (depending on the nature of the right) against the State.

Pertinently, a “majority formation dispute” involves no question of fundamental rights, as there is no fundamental right to form a government or occupy a political office. Arguably, these are constitutional rights conferred by Part V and Part VI of the Constitution. Therefore, the S. Ct. lacks jurisdiction under Article 32 of the Constitution to entertain such a claim.

Short-Circuiting High Courts

In one of its first interventions in “majority formation disputes” in the 1990s, the S. Ct. in Jagdambika Pal v. Union of India (Jagdambika Pal case), directed holding a special session of the UP Legislative Assembly for a composite test of majority. This intervention arose out of a Special Leave Petition against an interim order of the Allahabad High Court exercising its writ jurisdiction.

Following the Jagdambika Pal case as precedent, S. Ct. has made at least five more interventions in cases of similar fashion. In Anil Kumar Jha v. Union of India, the S. Ct., following Jagdambika Pal, in a terse two-page order, lacking discussion and reasoning on jurisdiction, directed a test of majority on the floor of the house. This trend is evident in “majority formation dispute” cases following it – G Parameshwara v. Union of India, Chandrakumar Kavlekar v. Union of India, and Shiv Sena v. Union of India (Shiv Sena case) and Shivraj Singh Chauhan case (though here, the S. Ct. delivered a judgement). However, in a significant departure from the Jagdambika Pal case, the S. Ct. passed orders in these cases in its Original Writ Jurisdiction (a claim under Article 32), incorrectly short circuiting the jurisdiction of the High Court.

High Courts are the only constitutional courts with jurisdiction in the first instance to entertain claims of “majority formation disputes”. Under Article 226 of the Constitution, High Courts have jurisdiction to enforce rights against the state, not only limited to fundamental rights under Part III, but also other constitutional rights and rights arising under different legislative and executive instruments.

Resolution through Interim Orders

In these cases, the directions for floor tests have arisen out of interim orders and have been disposed of without a judgement (excepting the Shivraj Singh Chauhan case). As a trend, the interim orders include only bare assertions of directions to the relevant authorities for tests of majority on the floor of the house.

An order is the expression of any decision of the court, and the judgement states the ground of the decision. Interim orders are tentative arrangements before the final disposal of the matter. Therefore, without a judgement, there is a lack of clarity on the question of jurisdiction of S. Ct. in “majority formation disputes” under Article 32.

For example, Ramana J in the Shiv Sena case passed interims orders directing a majority test on the floor of the house while still keeping alive “…issues of maintainability, extent of judicial review and the validity of the satisfaction of the governor…” for adjudication “…at an appropriate time”. However, the important question of whether the Court is empowered to issue interim orders in a dispute where it does not exercise jurisdiction was left unanswered – particularly so when the interim orders effectively disposed of the matter, touching upon the disputes agitated. The direction of floor test ought to have come after conclusive determination on the question of jurisdiction.

Court’s Analysis of Jurisdictional problems

As noted above, Ramana J in Shiv Sena case for the first time identified the question of jurisdiction. This came to fore because one of the petitioners had argued that “the jurisdiction under Article 32 of the Constitution cannot be invoked in the present matter and the Governor’s independence should be respected.”.

Chandrachud J. in the Shivraj Singh Chauhan case comes close to elucidating on the question of jurisdiction. In this case, it was argued that that “the writ petition under Article 32 is founded on the need to maintain (i) constitutional morality (ii) constitutional ethos; and (iii) constitutional principles”. Chandrachud J. did not directly address the argument on jurisdiction. However, he rejected the argument that “this Court should be wary of entering the realm of politics‘ where no judicially manageable standards‘ can be maintained, and the outcome prescribed by the court is likely to tilt the political balance.” And in tacit acceptance of the argument of the petitioner, J. Chandrachud in para 31 stated that: “Since the adoption of the Constitution, this Court has on several occasions adjudicated upon whether the actions of the legislative and executive branches adhere to the democratic processes created by the Constitution. As the ultimate arbiter of the constitutional text, this Court is tasked with ensuring that each branch of government operates within the limits placed upon it by the Constitution, including in the realm of democratic politics.”

The analysis of the S. Ct. seems to be this: if the case involves questions of interpretation of the Constitution, especially disputes of democratic processes in relation to the legislature and the executive, the S. Ct. ought to assume jurisdiction. Arguably, the court attempts to trace its jurisdiction to its role as the ultimate arbiter of constitutional text. However, this assumption of jurisdiction violates the constitutional fetter on its power under Article 32 (limited to enforcement of rights under Part III of the Constitution), and expands it to include disputes involving all constitutional rights, effectively closing the jurisdictional gap between Article 226 and Article 32.

Conclusion

The S. Ct. in its role as “the ultimate arbiter of the constitutional text” nonetheless ends up bypassing the constitutional text – Article 32 – pivotal to its own jurisdiction. These interventions demonstrate the position S. Ct. envisages for itself in the constitutional scheme – which is a judicial body with co-equal writ jurisdiction of the High Court, a position not conferred in it by the Constitution. This over-broad assumption of jurisdiction is, arguably, part of a larger trend that divests the jurisdictional High Courts of many of their constitutional functions, vesting them instead in the Supreme Court as the Court of both first – and last – instance.

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.

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

(This is a guest post by Riddhi Joshi).

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

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

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

Understanding the Scope of Gubernatorial Discretion

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

  1. Council of Ministers to aid and advise Governor

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

(2) If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion;

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

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

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

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

On Judicial Review

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

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

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

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

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

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

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

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

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

 On Gubernatorial Discretion: Three Possibilities

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

Complete Discretion

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

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

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

Limited Discretion

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

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

In this regard, guidelines have already been stipulated by the Sarkaria Commission in 1988, the recommendations of which were echoed by the M.M. Punchhi Commission in 2010. In its report, it recognised that in choosing a Chief Minister, the Governor’s guiding consideration should be to call that party/alliance which commands the widest support in the Legislative Assembly to form the government. If there is no such party, the Governor should select a Chief Minister from among the following parties or group of parties by sounding them, in turn, in the order of preference indicated below:

  1. An alliance of parties that was formed prior to the Elections.
  2. The largest single party staking a claim to form the government with the support of others, including ‘independents’.
  3. A post-electoral coalition of parties, with all the partners in the coalition joining the Government.
  4. A post-electoral alliance of parties, with some of the parties in the alliance forming a Government and the remaining parties, including ‘independents’ supporting the Government from outside.

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

Negation 

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

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

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

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

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

Conclusion

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