The Karnataka assembly polls resulted in a fractured mandate with no single party able to secure a majority in the house of 224 seats. While the BJP which emerged as the single largest party fell short of the majority figure by 8 seats; in a rather dramatic turn of events the incumbent Congress offered unconditional support to the Kumaraswamy-led JDS taking the combined tally to 116- a notch above the half-way mark. While both the fractions claimed a right to be sworn-in – The BJP for being the single largest party and the post-poll coalition of Congress-JDS for actually having the majority figure, the Governor invited the Yeddyurappa-led BJP to form the Government. The opposition challenged this decision of the Governor for being arbitrary, illegal and violative of constitutional conventions in the Supreme Court and while the doors of the apex Court did open in the night to hear the challenge, it did not issue a stay on the swearing-in of the BJP Government. The constitutional conundrum of Karnataka has triggered a debate on the role of the Governor in situations of hung assembly witnessing constitutional experts divided across the aisle.

The Governor is the executive head of a state in the name of whom all the decisions in the state are taken.  However, Article 163 specifies that such a power has to be exercised with the aid and advice of the council of ministers, except when the Governor is ‘required to exercise his functions or any of them in his discretion.’ Clarifying this provision in the Constituent Assembly, Dr. Ambedkar specified that the ambit of such discretion was a very limited one. In a similar vein, the MM Punchhi Commission commenting on this Article suggested that the discretionary power of the Governor should be used only in circumstances of compelling necessity. It further clarified that even in this limited field the choice of action should be dictated with reason, activated by good faith and tempered by caution. Further, despite the general immunity enjoyed by the Governor for the exercise of powers of his office, the use of this discretionary power has been made subject to judicial scrutiny through a catena of cases by the apex court. It must be mentioned that a similar discretionary power is absent, mutatis mutandis, for the President.

Amongst the various domains in which the Governor can exercise its discretionary functions, the appointment of Chief Minister under Article 164 has become a rather controversial one. This is particularly because the order in which the Governor should invite political parties to form Government in cases of a hung assembly has been a vexed one to which no clear answers are applicable in all times. The problem gets exacerbated by the fact that both the Constitution and the Representation of People’ Act are silent on the use of Governor’s prerogatives in case of a hung assembly. Granville Austin in his book- Cornerstone of a Nation speculates that this absence might be because the Constitution drafters did not anticipate a situation in which no single party would secure a majority in the house. Nonetheless, the Governor’s use of discretionary power in the appointment of the Chief Minister has become an arena of political manipulation and the ambiguity attached with it has often enabled the Central Government to get into state politics through the Governor’s office.

It is normally the leader of the party with an absolute majority in the legislature who is called by the Governor to form the Government. However, the emergence of coalition politics along with the realities of post-poll alliances, deflections, party spits and mergers often makes it difficult for a Governor to precisely determine which party/group enjoys support of the majority legislatures- thereby opening avenues for the use of discretionary power. As previously mentioned, the exercise of this power is not personal or absolute and should adhere norms and convention which have emerged over the years. The overarching principle which has evolved, though not always followed, is a determination of whether the single largest party or coalition have a workable majority. In this context, the Governor should strive towards securing a stable government through the use of his discretionary power objectively without any extraneous influence or consideration.

In the early years of independence this power, though masqueraded by political consideration, was largely used by the Governor to invite the single largest party in a hung assembly. The first instance can be traced back to the 1952 Madras Legislative elections which ended in a fractured mandate. Though no fraction had a majority, Governor Sri Prakasa invited C Rajagopalachari- led Congress to form Government for being the single largest party with 152 seats while denying an opportunity to the T Prakasam led opposition with 166 seats on the apparent directions of the Central Government which wanted to keep the Communist outside of the political fray. Similarly, the ‘Sri Prakasa doctrine’ as it came to be known was used in the 1967 Rajasthan elections to enable the Congress party to form a Government despite the United Front emerging as the largest block. An interesting anecdote is also that of the 1982 Haryana elections which resulted in a hung assembly with pre-poll alliance of INLD and BJP winning one seat more than Congress. In a rather interesting turn of events, the Governor first invited Devi Lal who was the leader of coalition to form the Government and then in some time, offered the Congress leader to be sworn-in as the Chief Minister. 

Since then various committees and commissions have offered recommendation about the formation of Ministries in situation of hung assembly. In the early phases of the coalition politics, the Governor’s Committee of 1971 suggested that the leader of the single largest party had an absolute right of Chief Ministership irrespective of the fact whether such party commanded a stable majority or not. It was only the Sarkaria Commission in 1988 which recommended an order of preference which should be followed by the Governor in situations of fractured mandates. This order of preference has later been reiterated in the MM Punchhi Commission and mentioned in the Rameshwar Prasad case.

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. 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.

However, the knot tightens when the Commission introduced an additional subjective criterion to this order of preference. The report stated that while going through this process of selection described above, the Governor should select a leader who in his/her judgment is most likely to command a majority in the Assembly. This inevitably means that the Governor can call the party/group which he believes holds the majority to demonstrate confidence in the floor of the house.  The issue gets further muddled with the MM Punchhi Commission which after laying down the order of preference went on to state that in case of narrow majorities ‘there are no uniformly accepted convention and such a situation can only be remedied through a constitutional amendment.’ The question hence, in most cases than not boils down to the subjective judgment of the Governor on which party/group is most likely to command a majority in the Assembly. 

It is also true as alleged by the Congress, that the Governors in the last few cases of hung assembly have been inviting the post-poll alliances to stake a claim in the Government as demonstrated by from Goa, Meghalaya and Manipur last year and Delhi in 2013. In fact, in the case of Goa when the tables were turned and the BJP was successful in cobbling-up a majority post-poll alliance, Congress had argued in the court that extending invitation to the single largest party in the absence of a pre-poll coalition was a part of the Constitutional convention. This was disputed by the court in the oral arguments when it suggested that the convention would be applicable only if the single largest party had the requisite numbers to form the Government. The court also suggested during the arguments that it would be unreasonable to invite Congress in the presence of a post-poll coalition claiming requisite majority in the Assembly. Although this opinion of the court has now been repeatedly cited by the Congress now in Karnataka- however in the actual written judgment the Supreme Court never answered the question of ‘preference of order’ to be followed by the Governor! The Court instead of deciding whether the Governor should have invited the single largest party merely skirted the main issue by granting the petitioner some relief by advancing the date of the floor-test in the Assembly. The sole guiding principle the court seems to recognize is whether a stable majority can be maintained as reflected by the Rameshwar Prasad judgment and which became the basis of the floor test in Goa.

Similarly, Congress has strongly relied on paragraph 165 of the Rameshwar Prasad judgment to endorse their claim. It would be worthwhile to reproduce the text of the judgment as it appears in their petition-

“If 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. Such a power would be against the democratic principles of majority rules”

Reading the quoted text in entirety reveals that the purpose of this paragraph was only to make a limited point that mere allegation and suspicions of deceitful and unscrupulous acts cannot invalidate an otherwise provable majority. In fact, due to this paragraph allegations that the BJP would indulge in horse-trading to poach Congress and JDS MLAs is unlikely to heavily influence the Court, leave alone the Governor.

Last thing before I close, political punidts, politicians and news anchors have been constantly citing the SR Bommai judgment to be somehow applicable in Karnataka. The entire case related to the dismissal of an existing Government and not installation of a new Government. In very clear terms, Reddy J. stated the requirement of a floor-test as propounded by the court was limited to situations in which the incumbent Government had lost majority due to rebellion or withdrawal and not in the case of a fresh election.

The Supreme Court will again have an opportune moment on Friday to finally lay to rest the question on the convention and order to be followed by the Governor in situations of fractured mandate. It remains to be seen whether the Court would substantially decide on the question or skirts from the main issue- much like our dear politicians.

Edit: As an immediate measure, the Court has ordered to conduct a floor test on Saturday- 19 May. It will adjudicate on the legality of the Governor’s decision to invite BJP to form Government in 10 weeks time.

Lovish Garg is a student at the NALSAR University of Law and student editor of Law and other Things.