Invitation to form the government is Governor’s prerogative, and those who really have the numbers on their side have no reason to worry.
On 15 May 2018, the Kannadigas returned a fractured mandate with no single political party or pre-poll alliance crossing the magical figure of 113 in a 224 seat Vidhana Soudha. However, it would not be incorrect to note that the Bharatiya Janata Party (BJP) was the biggest gainer in this election, jumping from a tally of 40 seats in 2013 to 104 seats in 2018. Just to spoil the occasion for the BJP (which normally happens in politics), the Indian National Congress (INC) after gauging its inability to form the government, announced its support to the Janata Dal (Secular) [JD(S)]. There wasn’t any pre-poll alliance between the two parties, and therefore, such announcement after the poll results, was bound to raise eyebrows, questioning the announcement on the yardstick of political opportunism and ethics. It may be put forth that there is no illegality per se in having such post-poll alliance.
However, such instances are not unfamiliar to Indian politics. One can debate endlessly, whether the fallout events of situations, such as the present one, are lethal to our democracy or not, but the fact remains that these testing times have made the institutions more stable and stronger over a period of time. Addressing the Conference of Governors in June 2005, the then prime minister Dr Manmohan Singh, referring to the governors said that "you are the representatives of the Centre in states and hence, you bring a national perspective to state-level actions and activities."
Leaving the politics of the moment aside, some sections of the media and people are questioning the legality of the decision taken by the Governor, inviting BJP to form the government. Wearing a lawyer’s hat, I believe that invitation to form the government is Governor’s prerogative and it stems from the interpretation to Article 164 of the Constitution of India. The Supreme Court has time and again emphasised that the constitutional purity has to be maintained and, if required, Constitution has to prevail over the ‘will of the people’.
One may be reminded of Bihar election results on 27 February 2005 wherein none of the parties or alliances could cross the mid-way mark, however, the state assembly was placed under suspended animation with the intention of providing time and space to the political parties to explore the possibility of providing a stable government in the state. No sooner the process of realignment was complete ensuring that the National Democratic Alliance (NDA) had the support of 135 Members of Legislative Assembly (MLAs), a report was sent by the Governor requesting the imposition of President’s rule. The midnight meeting of the Union Cabinet was called and the government formation in Bihar was prevented. These events led to the landmark case of Rameshwar Prasad and Ors. Vs Union of India and Anr., wherein the Supreme Court inter-alia dealt in great detail with, the role of Governor in cases where the electorate returned a fractured mandate. Affirming the huge discretion vested with the Governor in appointing the chief minister, the court referred to the judgement in B R Kapur Vs State of Tamil Nadu and Anr. as follows:
In B.R. Kapur v. State of Tamil Nadu and Anr. (AIR 2001 SC 3435) this Court considered the role of the Governor in appointing the Chief Minister. It was held that the Governor can exercise his discretion and can decline to make the appointment when the person chosen by the majority party is not qualified to be member of Legislature. It was observed that in such a case the Constitution prevails over the will of the people. It was further observed that accepting submissions as were made in that case that the Governor exercising powers under Article 164(1) read with (4) was obliged to appoint as Chief Minister whosoever the majority party in the Legislature nominated, regardless of whether or not the person nominated was qualified to be a member of the legislature under Article 173 or was disqualified in that behalf under Article 191, and the only manner in which a Chief Minister who was not qualified or who was disqualified could be removed was by a vote of no-confidence in the legislature or by the electorate at the next elections and that the Governor was so obliged even when the person recommended was, to the Governor’s knowledge, a non-citizen, under age, a lunatic or an undischarged insolvent, and the only way in which a non- citizen, or under age or lunatic or insolvent Chief Minister could be removed was by a vote of no-confidence in the legislature or at the next election, is to invite disaster.
The situation cannot be different when the Chief Minister nominated was to head a Ministry which had its foundation on taint and the majority is cobbled by unethical means or corrupt means. As was observed in B.R. Kapur’s case (supra) in such an event the constitutional purity has to be maintained and the Constitution has to prevail over the will of the people.
A glance at the Constituent Assembly debates suggests that the framers of the Constitution also wanted to give a free-hand to the Governors. Dr B R Ambedkar is stated to have maintained that vesting the Governor with certain discretionary powers was not contrary to responsible government. The Constituent Assembly, pursuant to the Report of the Provincial Constitution Committee, had decided to insert an Instrument of Instructions to the Governors in the form of a Schedule to the Constitution. The suggested list of instructions considered by the Constituent Assembly included value-based standards that are expected of a Governor in discharging his duties, which included appointment of the Chief Minister after ascertaining a "stable majority"; appointments of Council of Ministers and who "will best be in a position collectively to command the confidence of the State Legislature". However, the instructions were not appended to the Final Constitution.
The Sarkaria Commission Report on Centre-state relations had pointed out that considering the multi-faceted role of the Governor and the nature of his functions and duties, we are of the view that it would be neither feasible nor desirable to formulate a comprehensive set of guidelines for the exercise by him of his discretionary powers. No two situations which may require a Governor to use his discretion, are likely to be identical.
In relation to appointment of the Chief Minister, it is clear that the leader of the party which has an absolute majority in the Legislative Assembly should invariably be called upon by the Governor to form a Government. However, if there is a fractured mandate, then the Sarkaria Commission Report recommended an elaborate step-by-step approach and had further emphasised that the Governor, while going through the process of selection as described, should select a leader who, in his (Governor's) judgement, is most likely to command a majority in the assembly. The Governor's subjective judgement would play an important role. Upon being faced by several contesting claims, the Sarkaria Commission Report suggested that the most prudent measure on part of the Governor would be to constitute a government and then test the claims on the floor of the House.
Sarkaria Commission Report specifically deals with the situation where no single party obtains absolute majority and provides the order of preference the Governor should follow in selecting a Chief Minister. The order of preference suggested is:
- An alliance of parties that was formed prior to the elections.
- The largest single party staking a claim to form the government with the support of others, including "independents".
- A post-electoral coalition of parties, with all the partners in the coalition joining the government.
- 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. The Sarkaria Commission has noticed that in a number of situations of political instability in states, the governors recommended President's Rule under Article 356 without exhausting all possible steps under the Constitution to induct or maintain a stable government. The governors concerned neither gave a fair chance to contending parties to form a ministry, nor allowed a fresh appeal to the electorate after dissolving the legislative assembly. Almost all these cases have been criticised on the ground that the governors, while making their recommendations to the President behaved in a partisan manner. The report further states that there has been no uniformity of approach in such situations and that these aspects have been dealt with in Chapter VI 'Emergency Provisions'.
The Punchhi Commission Report on Centre-state relations in March 2010 observed that in light of the increased dependence on party alliances, clarity with regard to the role of the governor in his invitation to form a government assumes great significance. If specific guidelines are not laid down with regard to determining the claims of a post-poll alliance, it would result in ambiguity and the governor would follow the established convention of inviting the single largest party to form the government. In cases of narrow majorities, there are no uniformly accepted conventions and this can be remedied by adopting constitutional amendments, which lay down specific guidelines and approaches which ought to be followed by the governor. This would result in greater clarity and certainty.
A nine-judge bench of the Supreme Court in S R Bommai Vs Union of India, in a different context and background observed as follows:
395. The High Court, in our opinion, erred in holding that the floor test is not obligatory. If only one keeps in mind the democratic principle underlying the Constitution and the fact that it is the Legislative Assembly that represents the will of the people and not the Governor the position would be clear beyond any doubt.
But the Supreme Court further added:
396. 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.
Therefore, in conclusion it is abundantly clear that there is no such thing as the ‘first mover’s advantage’ in formation of the government. The test is to prove the majority on the floor of the house, therefore inviting any party to form the government does not do away the floor test, and those who really have the numbers on their side, ought to have no reason to worry.