Supreme Court's role

A Court in need

Print edition : June 08, 2018

Governor Vajubhai Vala administering the oath to B.S. Yeddyurappa at the Raj Bhavan in Bengaluru on May 17. Photo: V. Sreenivasa Murthy

Dipak Misra , the Chief Justice of India. Photo: Manvender Vashist/PTI

K.K. Venugopal , Attorney General of India. Photo: Ravi Choudhary/PTI

The Supreme Court’s prompt hearing and interim orders save the day in Karnataka. But on the nature and scope of the Governor’s discretion following a fractured verdict, the court should hear the case and settle it once and for all by laying down guidelines for Governors.

THE appointment of a Chief Minister is the most important discretionary power exercised by a Governor under the Indian Constitution. In keeping with convention, one who commands a clear majority in the Assembly constituted after a general election is appointed as Chief Minister by a Governor. A Governor is not likely to exercise his or her discretion in such cases. Fractured electoral mandates, however, present a Governor with an opportunity to exercise his or her discretion in a real sense. Discretion in such cases involves assessment of whether a claimant may successfully command a majority in the Assembly in due course.

In theory, a Governor’s discretionary powers under the Constitution are comparable with the President’s powers in appointing a Prime Minister in the context of a fractured mandate.

However, the President enjoys electoral legitimacy, because he or she is elected indirectly through an electoral college consisting of peoples’ representatives in Parliament and the State legislatures. The Governor, being appointed by the President, has no such legitimacy. The question is: is the discretion enjoyed by the Governor under the Constitution potentially wider than the President’s? While jurists and scholars have expressed concerns over such wide, unaccountable discretionary powers enjoyed by Governors, the Supreme Court, from time to time, has tried to limit such discretion in individual cases, with only limited success.

An extraordinary hearing

One such opportunity unfolded itself before the Supreme Court when, on May 16, the Governor of Karnataka, Vajubhai Vala, ignoring constitutional conventions and propriety, invited the leader of the Bharatiya Janata Party (BJP), B.S. Yeddyurappa, who does not enjoy the majority support in the newly constituted Assembly, to form the government. Although concerned, the Supreme Court pleaded helplessness in staying the swearing-in of Yeddyurappa by the Governor on May 17 because of the constitutional immunity enjoyed by Vala under Article 361 of the Constitution. But the apex court assured the aggrieved parties that they were not without remedies and the situation could be reversed in case it found the Governor’s action in inviting Yeddyurappa to form the government was mala fide. Besides, the court signalled that it was not powerless in moulding relief if the Governor’s use of his discretion threatened the democratic fabric itself.

In a sense, the situation in Karnataka presented Vala an opportunity to use his discretion objectively. The BJP secured 104 seats in the 224-member Assembly, emerging as the single largest party. The Congress and the Janata Dal (S), which together secured 116 seats, formed a post-election alliance under H.D. Kumaraswamy, the leader of the JD (S), and duly informed the Governor about their decision.

However, the Governor, refusing to recognise the post-election alliance, invited Yeddyurappa to form the government and decided to swear him in as Chief Minister on the morning of May 17 and gave him 15 days to prove his majority on the floor of the House.

The disproportionate time granted to Yeddyurappa to prove his majority in the House created valid concerns about the Governor’s bona fides. It was apprehended that the time granted offered a huge window of opportunity to break the non-BJP parties and ensure their support to Yeddyurappa through illegitimate means during the voting on the confidence motion to be moved by him.

The Governor’s action led to a huge outrage, with the Congress and the JD(S) seeking the Supreme Court’s intervention on the night of May 16 to stay the swearing-in. The Chief Justice of India, Dipak Misra, in an extraordinary gesture, constituted a three-judge bench to hear the challenge to the Governor’s action during the intervening night of May 16 and 17. (In the recent history of the court, there was one such precedent; a midnight hearing was scheduled to render a decision, in the wee hours of July 30, 2015, when the death row convict in the 1993 Mumbai blasts case, Yakub Memon, knocked on the doors of the Supreme Court to delay his hanging. Justice Dipak Misra, who was then a judge, presided over the bench that heard his last-minute appeal during midnight, but gave him no relief.)

Although the Governor enjoys immunity under the Constitution in the exercise and performance of his powers and duties of his office, the Supreme Court did not want to reject the plea of the petitioners at the threshold and granted them an opportunity to be heard even at midnight.

The hearing by the bench comprising Justices A.K. Sikri, S.A. Bobde and Ashok Bhushan for three hours from 2 a.m. to 5 a.m. on May 17 did not give any immediate relief to the petitioners as the bench wanted to look at the letters submitted by Yeddyurappa to the Governor claiming majority support before deciding the issue. The bench, therefore, sought production of these letters on the morning of May 18 and refrained from staying the oath-taking ceremony of Yeddyurappa. “In case he is given oath in the meantime, that shall be subject to further orders of this court and final outcome of the writ petition,” the bench said in its order, which was released in the wee hours of May 17.

Any other Governor or Chief Minister-in-waiting would have understood the meaning of this order and refrained from taking precipitate action, which could suggest disrespect to the institutional reputation of the Supreme Court. But neither Vala nor Yeddyurappa demonstrated any such concern for democratic niceties. Even their eminent counsel who represented them in the Supreme Court during that midnight hearing, and who could have advised them to postpone the swearing-in ceremony in view of the Supreme Court’s order, saw no inconsistency in their duties as the counsel and responsibility as officers of the court.

As counsel for their political clients, they might have rightly argued before the court not to stay the swearing-in ceremony or make the Governor a party to the case in view of his constitutional immunity. However, as responsible officers of the court, they failed to perform their duties to persuade their clients not to go ahead with the swearing-in ceremony in order to protect the court’s dignity.

Attorney General K.K. Venugopal, Senior Advocate and former Attorney General Mukul Rohatgi and Additional Solicitor General Tushar Mehta were the counsel for Vala and Yeddyurappa in the Supreme Court. Senior counsel Abhishek Manu Singhvi and Kapil Sibal argued for the petitioners.

On May 18, the bench found that Yeddyurappa had made a specific claim to the Governor in his letter dated May 16 that his party was the single largest party and also had the support of “others and requisite majority”. On that basis, the request was made to the Governor to invite him to form the government. The Governor went by Yeddyurappa’s letter and held the swearing-in on the basis of his empty claim without insisting on any substantiation of the latter’s claim.

Petitioners’ contentions

There were two petitioners before the Supreme Court. The first was Dr. G. Parameshwara, the president of the Karnataka Pradesh Congress Committee and an elected MLA in the just-concluded Assembly elections. He was represented by senior counsel Abhishek Manu Singhvi. The second petitioner was H.D. Kumaraswamy, the leader of the Janata Dal (S) Legislature Party, who had staked his claim to form the government before the Governor on May 15 on the basis of support extended by 116 legislators belonging to the Congress, the JD(S) and the Bahujan Samaj Party (BSP) in the Assembly.

The petitioners moved the Supreme Court under Article 32 of the Constitution against what they called the blatant arbitrary action of the Governor in inviting Yeddyurappa to form the government despite having the support of only 104 members against the required number of 112. The Governor’s failure to invite the post-election alliance of the Congress-JD(S)-BSP was ex facie unconstitutional, illegal and arbitrary, the petition said.

The petitioners claimed that they were approaching the Supreme Court as the sentinel on the qui vive to uphold the rule of law and the basic rule of parliamentary democracy, that is, the rule by majority. They further pointed out that the Governor was constitutionally obliged to invite the party/alliance of parties that had exfacie demonstrated to the Governor that they enjoyed the support of the majority of the legislators.

The petitioners relied on paragraph 165 of the Supreme Court’s judgment in Rameshwar Prasad vs Union of India (2006), which categorically held that:

“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 rule. The Governor is not an autocratic political ombudsman. If such a power is vested in the Governor and/or the President, the consequences can be horrendous….”

The petitioners also cited the Supreme Court’s ruling in Chandrakant Kavlekar vs Union of India in the context of a hung verdict after the Goa Assembly elections last year. In that case, the Supreme Court upheld the Governor’s action in inviting the post-election alliance consisting of 21 members, comprising the BJP (13), the Maharashtrawadi Gomantak Party (3), the Goa Forward Party (3) and two Independents. The Congress, which secured 18 seats and was the single largest party, had questioned the Governor’s action in inviting the post-election alliance rather than the single largest party. The Supreme Court upheld the Governor’s decision by directing an expedited floor test.

The petitioners pointed out that the prerequisite to the formation of a government is the prima facie satisfaction of the Governor on the basis of objective material that the leader staking his claim as Chief Minister has to enjoy the support of the majority of the members of the Assembly, which is the sine qua non of parliamentary democracy, that is, the political executive being responsible to the legislature and can continue only so long as it enjoys the confidence of the majority in the legislature.

Further, in Rameshwar Prasad (paragraph 149), the Supreme Court categorically held that at the stage of formation of government, the test to be adopted by the Governor is the “prima facie test”.

If the political party or the alliance is prima facie able to show to the Governor that it has the support of the majority, then the Governor has no choice but to call the said party/alliance which has demonstrated with prima facie material that it has the majority to form the government.

The petitioners further explained that the BJP could not get the support of the majority through legal and constitutional means in the face of the provisions of the Constitution’s Tenth Schedule dealing with disqualification on the ground of defection.

On the other hand, Kumaraswamy claimed that he had clearly demonstrated a majority before the Governor on May 16 with signed letters of support of 116 legislators belonging to the Congress, the JD(S) and the BSP. In these circumstances, the Governor’s inaction was entirely wanton, arbitrary, illegal, unconstitutional and tainted with mala fides, the petition alleged. The petition apprehended that the BJP might attempt to reach the halfway mark in the Assembly by undemocratic means and poach the MLAs of the Congress-JD(S)-BSP alliance with “naked allurement of money and muscle power”.


The petition also cited several precedents to buttress its claim that a post-election coalition, commanding a majority, was given the opportunity to form the government. In 2002, out of 87 seats in the Jammu and Kashmir Assembly, the Jammu and Kashmir National Conference emerged as the single largest party, with 28 seats. But the alliance of the Peoples Democratic Party and the Congress, which was formed after the election with 45 seats, was invited to form the government. In 2005, the BJP emerged as the single largest party with 30 seats in the 81-member Jharkhand Assembly. Yet, the Jharkhand Mukti Morcha, with the support of the Congress and other parties, claimed the backing of 41 members and formed the government.

In 2013, the BJP was the single largest party with 31 seats in the 70-member Delhi Assembly. Yet the Aam Aadmi Party, with the support of the Congress, managed to form the government with the backing of 35 MLAs.

In 2017, the Congress was the single largest party with 28 out of 60 seats in the Manipur Assembly. Yet, the BJP, aligning with the Naga People’s Front and others formed the government, claiming the support of 31 MLAs. In Meghalaya this year, the Congress emerged as the single largest party with 21 seats in the 60-member Assembly. Yet, the National People’s Party-BJP combine claimed majority and formed the government.

The petitioners submitted that the discretionary powers exercised by the Governor were not beyond the pale of judicial review and any illegal and arbitrary decision taken against the constitutional provisions and conventions was liable to be interfered with and struck down by the Supreme Court in exercise of its jurisdiction as a sentinel on the qui vive with regard to the Constitution. “The discretionary powers conferred on the Governor are not the ipse dixit of the Governor, but have to be exercised within the constitutional norms and conventions guiding the exercise of such discretion,” the petition contended.

On May 18, the Supreme Court bench observed that in a matter like this, detailed hearing was required in order to decide as to whether the action of the Governor in inviting Yeddyurappa to form the government was valid in law or not. “Since it may consume substantial time and the final decision cannot be given immediately, we deem it proper that floor test to ascertain the majority of one or the other group is conducted immediately and without any delay,” the bench said.

Finding the period of 15 days given by the Governor to Yeddyurappa excessive, the bench advanced the date of the floor test to May 19 and laid down the procedure to be followed in the House. The bench, therefore, directed the immediate appointment of a pro tem Speaker, followed by the oath-taking ceremony of the members, and the floor test. The bench made it clear that the floor test should not be by secret ballot and the proceedings should be conducted in accordance with law.

The bench noted that Yeddyurappa would not take any policy decision until the floor test was conducted. The bench also took note of the submission of the counsel for Karnataka, Additional Solicitor General Tushar Mehta that, pending the floor test, there was no move to nominate any member of the Anglo-Indian community under Article 333 of the Constitution.

On May 19, when the petitioners again sought the Supreme Court’s intervention to set aside the appointment of K.G. Bopaiah as the pro tem Speaker in view of his indictment by the Supreme Court in an anti-defection case in 2012, the bench refused to do so without hearing him, which would inevitably result in the postponement of the trust vote. As a compromise, the petitioners agreed to Bopaiah’s role as the pro tem speaker for the swearing-in of the members and conduct the floor test but secured the agreement of the State government to televise live the proceedings in the House on May 19. The bench accepted the plea of the petitioners that the proceedings of the House must be confined to oath-taking and the floor test, and directed accordingly.

The Supreme Court’s close monitoring of the trust vote and the advancing of the date of the vote by the court left Yeddyurappa with no option but to quit in order to avoid the ignominy of losing the trust vote.

Need for guidelines

With his resignation, the question before the Supreme Court on the nature and scope of the Governor’s discretion following a fractured electoral verdict may appear to have become academic and infructuous. But the court should still hear the case and settle it once and for all to lay down guidelines for the future.

The options before the President or the Governor in the event of a hung electoral verdict have been examined by the Sarkaria Commission on Centre-State relations in 1988 and later by the Punchhi Commission in 2010. In case no party has a clear majority, the Sarkaria Commission recommended that 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-election coalition of parties, with all the partners in the coalition joining the government; 4. A post-election 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.

While endorsing these recommendations, the Punchhi Commission observed:

“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.”

In the absence of any attempt by Parliament to introduce necessary amendments, the Supreme Court must utilise the opportunity to lay down such guidelines by hearing all the stakeholders using the Karnataka case as an example so that the propriety of Vala’s action in inviting Yeddyurappa could be adjudicated at least in retrospect so as to prevent similar aberrations in Indian democracy.

Related Articles

This article is closed for comments.
Please Email the Editor