It Is Solely The Governor’s Discretion, Period

It Is Solely The Governor’s Discretion, Period

by Ananth Krishna - Thursday, May 17, 2018 06:36 PM IST
It Is Solely The Governor’s Discretion, PeriodRaj Bhavan, Bengaluru
  • As debates about what the governor should or should not do in the case of a hung assembly goes on, we visit the facts and fundamentals to cut through the noise.

B S Yeddyurappa of the Bharatiya Janata Party (BJP) is now the Chief Minister of Karnataka. His swearing-in ceremony was preceded by arguments and counter-arguments in the Supreme Court in New Delhi from the sides of the Congress and the Union of India. At the end of the midnight hearing, the Supreme Court rejected the Congress’ plea of staying the swearing-in of Yeddyurappa while scheduling the next hearing of the case for Friday, 18 May.

Even as, and before, the arguments were being made in the Supreme Court, there were numerous articles and social media posts on why it would be right or wrong for the BJP to be invited to form the government in Karnataka. Many landmark judgements were quoted in the process, including the Bommai judgement, the Rameshwar Prasad judgement, and others.

However, the truth in this case is far simpler. Whichever side of the debate you may be on, and whatever be your arguments, in this case, there is only one truth that counts – the decision on who to invite to form the government is the governor’s discretion, and that cannot be questioned. And here’s why I say that.

The first thing to be noted is that the Constitution does not explicitly mention the procedure that is to be adopted by the governor when inviting a political party to form the government in a state. The governor has to rather rely on precedents and conventions to make their decision.

Second, the judgement of the Supreme Court in S R Bommai v Union of India has no direct relevance to the situation in Karnataka. Bommai dealt with the power of the Union government to dismiss state governments and impose President’s rule in the case of a breakdown of Constitutional machinery as per Article 356.

As stated in paragraph 396 of the judgement: “We make it clear that what we have said above is confined to a situation where the incumbent Chief Minister is alleged to have lost the majority support or the confidence of the House. It is not relevant to a situation arising after a general election where the Governor has to invite the leader of the party commanding majority in the House or the single largest party/group to form the Government. We need express no opinion regarding such a situation.”

Third, the Judgement of the Supreme Court in Rameshwar Prasad v Union of India has no relevance either. That case dealt substantially with a scenario where the legislative assembly was dissolved using Article 356. However, a mention has been made of the Sarkaria Commission report, which we shall come to next.

Fourth, many have been quoting Chapter IV of the Sarkaria Commission report. What should be recalled at this point is that the report does not have any enforceability.

Others have mentioned the order of the Supreme Court in Chandrakant Kavelkar v Union of India, relating to the invitation extended by the governor of Goa to the BJP to form a government over the Indian National Congress, the single-largest party after the Goa election in 2017. It should be noted that there, the Supreme Court made no observation of the discretion that should be used by the governor, but rather only mentioned that the majority be proven on the floor of the house. This is what the Supreme Court has decided today (17 May) about the invitation of the Karnataka Governor to the BJP to form a government.

In conclusion, it is entirely the governor’s discretion as to who should be invited to form the government when two opposing coalitions/parties claim to have majority on the floor of the house. The majority should be proven on the floor of the house, and the Governor of Karnataka has directed Yeddyurappa to do that in 15 days’ time.

Ananth Krishna is a lawyer and observer of Kerala's politics.
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