Discretionary powers of the governor- The Karnataka example

Table of Contents

Discretionary powers of the governor- The Karnataka example

Author– Harsh Chauhan
3rd year,
 School of law, christ (deemed to be university).

Introduction

As the 2019 General Elections approach the 2018 Karnataka Legislative Elections were widely being considered a campaign launch pad by both the INC and the BJP. However, the elections descended into chaos and at the forefront of all of this drama were the constitutional provisions regarding the discretionary powers of the Governor.
As Governor Vajubhai Vala invited the BJP to form the Government instead of the post poll coalition of the INC-JD(S) coalition which had the majority in the assembly the latter moved to the Supreme Court challenging the said decision as ‘Arbitrary exercise of the discretionary powers vested in him by the Constitution of India’.

Discretionary Power of the Governor

Unlike the President, the Governor has been granted certain discretionary powers under Art. 163[1]. These powers arise from any express provisions of the constitution or by necessary implication[2]. While the normal rule is that the Governor acts on the ‘aid and advice’ of the council of ministers 163(1) provides that he shall be bound by such aid and advise only in matters that lie outside his or her jurisdiction.
The Appointment of the Chief Minister of the state under Art. 164(1) is one such discretionary power vested in the Governors office. The Calcutta High Court is Mahabir Prasad Sharma v Prafulla Chandra Ghosh[3]has clearly established that in appointing the Chief Minister the Governor acts in his sole discretion and such an act cannot be called into question by the court[4]
The only condition that the Chief Minister appointed by the Governor needs to fulfil in addition to his qualifications is that he should enjoy majority in the house. If the ministry is unable to command a majority in the house the Government will fall and chaos will reign. Thus, the Governor is under a responsibility to use his discretion with a view of providing a stable Government.[5]
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Fractured Mandate: The real platform for exercise of discretion

The job of appointing the chief minister in case a party wins a clear majority is more or less mechanical. The Governor has to merely invite the leader of the largest party to come and form the Government. However, this process becomes a lot more complicated when there is a fractured mandate.
A fractured mandate implies a situation in which neither party is able to stake a majority in the house. While the occurrence of this was a rarity in the earliest years of Indian democracy, the emergence of a multi party system and coalition Governments have made this job a lot tougher[6].
A similar situation was encountered earlier this year in Karnataka. None of the 3 major players in the polls were able to secure an absolute majority and thus there was a situation resembling a hung assembly.
After the results were declared the INC and JD(S) decided to form a coalition ( thus getting past the halfway mark )  and stake a claim to forming the Government. However, despite not having the majority the BS Yeddurappa led BJP was invited to form the Government as they were the single largest party and was given 15 days to prove their majority on the floor[7].
The Governors decision came under fire from all opposition parties who declared it to be arbitrary and accused the Governor of bowing down to pressure from the Central Government.
So was the Governor right in inviting the Single largest party? Or should the post poll coalition, which prima facie had the majority numbers, of INC and JDS been invited? An argument can be made for both sides. 

Sarkaria Commission Report of 1983

The Sarkaria Commission had been established with a view of analysing centre state relations and suggesting alterations to the same. Chapter 4 of the report which deals with the role of the governor also has made observations as to the discretionary powers of the associated with the Governors office[8].
According to this report, the party or combination of parties which commands the widest support in the Legislative Assembly should be called upon to form the Government. However, in case of a hung assembly i.e. a situation in which no single party can command absolute majority in the house, the Governor should invite parties in the following order of preference:
     1.     A pre-poll alliance
    2.     The Single largest party staking a claim to form the Government with the support of others and independents
     3.     A post-poll alliance with all constituents becoming a part of the Government
   4.     A post poll alliance with some constituents becoming a part of the Government and some supporting from outside.
The report also states that the Governor should invite the party who in the Governors subjective judgement are most likely to command a majority in the house. Thus, the Sarkaria Commission report leaves room for discretion in this regard as well.

MM Puncchi Committee Report

In 2007, the UPA led Government at the centre setup another committee under the stewardship of Retired Chief Justice MM Puncchi to analyse Centre State Relations. The MM Munshi Report also lays down certain guidelines to guide the discretion of the Governor in case of fractured mandate. The order of preference given under this report is as follows: 
     1.     The largest pre-poll alliance
     2.     The Single largest party with the support of others
     3.     A post poll-alliance
It is a well-accepted principle that in a parliamentary form of democracy such as ours the powers of the Governor must not be enlarged at the expense of the real executive i.e. the council of ministers. Therefore, there is a need to construe the discretionary powers of the Governor in the strictest sense. Article 163 does not give the Governor a general discretionary power to act against or without the advice of his Council of Ministers. The area for the exercise of his discretion is limited. Even this limited area, his choice of action should not be arbitrary or fanciful. It must be a choice dictated by reason, actuated by good faith and tempered by caution[9].
Any exercise of the said discretion in an arbitrary manner shall fall foul at the thereshold of Article 14 which acts as a guard against the arbitrary and unfair executive action[10][11].
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Convention: Binding or Not?

Over the years the Supreme Court has often examine the position of inviting the formation of the Government. In Rameshwar Prasad v Un
ion of India[12]the SC has held that when a political party with the support of other political party or other MLAs stakes claim to form a Government and satisfies the Governor about its majority to form a stable Government, the Governor cannot refuse formation of the Government and override the majority claim because of his subjective assessment that the majority was cobbled by illegal and unethical means. No such power has been vested with the Governor and such an act would be against the democratic principles of majority rule.
Furthermore, over the years it has also been a matter of convention to invite the post-coalition which prima facie has the capacity to prove majority on the floor of the house.
Year
Single Largest Party
Halfway Mark
Single Largest Party seat strength
Government formed by
2018
Meghalya
30
INC (21)
BJP and others
2017
Manipur
30
INC (28)
BJP and Others
2017
Goa
20
INC (18)
BJP and Others
2013
Delhi
35
BJP (31)
AAP & INC
2005
Jharkhand
41
BJP (30)
JMM & INC
2002
J&K
45
NC (28)
PDP & INC
It is a matter of settled law that constitutional convention is as binding as constitutional law[13]. The definition of “conventions” may thus be amplified by saying that their purpose is to define the use of constitutional discretion. To put this in slightly different words, it may be said that conventions are non-legal rules regulating the way in which legal rules shall be applied[14]. In Manoj Narula v Union of India[15]the court reiterated this position and conferred binding power over conventions.
Rajendra Prasad in h
is speech in the constituent assembly recognised the importance of such conventions and expressed his hope that such conventions can be developed in various capacities by various institutions of the country[16].

Analysis of the Situation in Karnataka: Constitutionality of the Governors Actions

On day zero the results of the elections stood as such:
PARTY
SEATS
Bahujan Samaj Party
1
Bhartiya Janta Party
104
Indian National Congress
78
Janata Dal ( Secular )
37
Karnataka Pragnyavantha Janatha Party

1
Independent
1
Total
222 (HM:112)
As, the results came out the INC alongside JD(S) staked a claim to form the next Government in Karnataka. The JD(S) and the BSP has a pre poll coalition and with the Congress their strength comfortably cleared the halfway mark. The BJP on the other hand emerged as the single largest party.
In Rameshwar Prasad v Union of India the court had held that when a political party with the support of other political party or other MLAs stakes claim to form a Government and satisfies the Governor about its majority to form a stable Government, the Governor cannot refuse formation of the Government and override the majority claim because of his subjective assessment that the majority was cobbled by illegal and unethical means. No such power has been vested with the Governor and such an act would be against the democratic principles of majority rule.
The test adopted in the case of Rameshwar Prasad v Union of India is that of a prima facie test. In the present instance the BJP, which was initially invited to form the Government did not satisfy this test. As the assembly then stood, the BJP could in a best case scenario could reach a total of 106 seats, leaving it 6 seats from the required number. The INC-JD(S)-BSP coalition on the other hand with a total of 116 seats cleared the required majority mark.
Therefore, prima facie the coalition should have had been invited to form the Government. This would have also been in consonance with the recent trend in which the post poll coalition had been invited to form the Government rather than the single largest party.
However, the MM Puncchi and Sarkaria Commission reports differ from the above stance. Both these reports follow a similar preference order i.e.
     1.     Pre-poll Coalition
     2.     Single Largest Party with the Support of others
     3.     Post-poll coalition
However, the Sarkaria Commission report also states that while following the abovementioned process the Governor should invite the party he feels is most likely to command the majority of the house. This discretion whilst subjective must be reasoned.
In the present instance, the absence of a formidable pre-poll coalition the Governor invited the
Single Largest party and gave them 15 days to prove the majority on the floor. In the case of Chandrakant Kavelkar v Union of India, the Supreme Court had held that in cases where there is a dispute as to who should have been invited first. The Governor should order for an immediate floor test. However, the governor did not follow this ruling by allowing for 15 days to the Government to prove majority. Consequently, this was overruled by the Supreme Court and immediate floor tests were ordered.
Thus, the actions of the Governor can said to be arbitrary and unconstitutional as they have ignored well defined constitutional norms, conventions and provisions by inviting a party which does not fulfil the prima facie test as laid down by the Supreme Court in Rameshwar Prasad. Further, the Governor has also not followed the directives given by the Supreme Court  in the case of Chandrakant Kavelkar v Union of India[17]by affording 15 days for the floor test instead of ordering one at the earliest. Therefore, it can be said that the governor has exercised the discretionary powers vested in him unreasonably and arbitrarily.
It is now a settled matter of law that the discretionary power of the Governor is subject to judicial review[18]and since the action falls foul at the threshold of Art 14 it shall be deemed invalid and violative of the constitution.
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Conclusion: Need for Directives

Therefore, there is a pressing need for fresh and consonant directives on the matter of how to deal with a hung assembly. The Governor is duty bound to provide a stable Government which reflects the mandate of the electorate. While the Sarkaria Commission and Punchi Commission reports do lay down substantive guidelines to this effect there exist various alternate approaches as laid down by the Supreme Court in Rameshwar Prasad and followed in various elections. The discretion of the Governor has to be governed by reason and cannot be arbitrary.
With the recent judgement in Nabam Rebia, the discretionary powers of the Governor have been significantly brought in check and under control. With respect to the appointment of Chief Ministers, there needs to be a relook at the Sarkaria Commission guidelines. With an increasing Coalition Governments and instances of fractured mandates becoming more and more common at the Union as well as State level there is a need for more substantive directives on the matter. The decision in Chandrakant Kavelkar v Union of India whilst is landmark in many ways and does serve as a very effective solution it is only a last resort and should be used as a firefighting device rather than a first aid. Thus, the decision of the Supreme Court in G Parmeshwara v Union of India is of vital significance and has the capability to once again clarify and define the blueprint within which the discretion of the Governor is to operate 

Bibliography

MP Jain, Indian Constitutional Law
MP Singh, Constitution of India
Sarkaria Commission Report 1983
MM Punchhi Commission Report 2007
The Wire
The Hindu
The Governor: Constitutional Position and Political Reality by Rajni Goyal

[1] MP Jain, Indian Constitutional Law 356 (7th Ed. 2016)


[2] Samsher Singh v State of Punjab AIR 1974 SC 2192

[3][3] AIR 1969 Cal. 198

[4] S. Dharmalingam v His Excellency Governor of TN AIR 1989 Mad 48

[5] MP Jain, Indian Constitutional Law 359 (7th Ed. 2016)

[6] MP Jain, Indian Constitutional Law 354 (7th Ed. 2016)

[7] PTI, Karnataka political crisis: a chronology of events, The Hindu, (Sept. 28 0000hrs)

[8] Chapter IV, Role of the Governor, Sarkaria Commission Report, (can be accessed at http://interstatecouncil.nic.in/report-of-the-sarkaria-commission/)

[9] Para 4.2.15, MM Punchhi Committee Report, 2007

[10] AP Agarwal v Govt. of NCT of Delhi AIR 2000 SC 205

[11] Suresh Chandra Sharma v Chairman UP SEB AIR 2005 SC 2021

[12] (2006) 2 SCC 1

[13] Supreme Court Advocates-on-Record Association and another v Union of India (1993) 4 SCC 441

[14] KC Wheare, The Statute of Westminster and Dominion Status (4th ed.)

[15] (2014) 9 SCC 1

[16] CAD pg. 993

[17] (2017) 3 SCC 758

[18] Nabam Rebia & Bamang Felix v Dy Speaker Arunachal Pradesh Legislative Assembly (2016) 8 SCC 1, 159-160

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