Governors choice

The recommendation of Presidents Rule in Karnataka has put the federal spirit under test.

in New DelhiKarnataka Governor Rameshwar

WITH the Indian electorate repeatedly delivering fractured mandates in a number of States, and in Parliament, the phenomenon of hung legislatures, with the resultant dilemma of who should be invited to form the government, has long demanded constitutional solutions that are in sync with representative democracy. At the Centre, such a dilemma has been addressed differently as there is no constitutional provision for imposing Presidents Rule or for keeping Parliament in suspended animation. If a Central government is reduced to a minority it continues in power until an alternative government, which commands the confidence of the Lok Sabha, is formed. Alternatively, the outgoing Ministry remains in office as a caretaker Ministry until fresh elections are held, following the dissolution of the Lok Sabha by the President.

Indian democracy has failed to build similar conventions in the States. If a ruling party or a combination of parties in power loses its majority in the Assembly, it is always interpreted as an indication that a situation has arisen in which the government cannot function in accordance with the provisions of the Constitution, thereby enabling the President to assume the functions of the State government through a Proclamation under Article 356.

On October 9, the Centre decided to impose Presidents Rule in Karnataka and keep the State Assembly in suspended animation following the resignation of Janata Dal (S) Chief Minister H.D. Kumaraswamy, whose government had lost its majority following the withdrawal of support by its coalition partner, the Bharatiya Janata Party (BJP). With all the three major political parties in the State demanding Presidents Rule and the holding of fresh elections, Governor Rameshwar Thakur probably believed he had no option but to recommend Presidents Rule. If a similar situation at the Centre is to be taken as a model of analogy, the Governor ought not to have recommended Presidents Rule but advised Kumaraswamy to continue until alternative arrangements were made, whether it was an invitation to another chief ministerial aspirant who could reasonably convince him that he could command the confidence of the House or fresh elections.

Clearly, the denial of the courtesy usually extended to an outgoing Prime Minister of being asked to continue in power to an outgoing Chief Minister is an affront to the federal spirit. Whereas an outgoing Prime Minister is not suspected of misusing the office if allowed to continue in power, such suspicion is allowed to be entertained with regard to an outgoing Chief Minister. Presidents Rule is considered a remedy to such hypothetical abuse of power, rather than to any real failure of the constitutional machinery, as required under the Constitution. However, none of the stakeholders has any qualms about this abuse of Article 356.

Having chosen to follow a wrong precedent, repeatedly set by several Governors in different States, Rameshwar Thakur found himself in a dilemma when the Janata Dal (S) decided on October 26 to support the BJP to form the next government and gave him the requisite letter of support to facilitate the formation of the government. The BJP staked its claim on October 27 and paraded the supporting Members of the Legisalative Assembly, numbering 126 (13 more than the half-way mark in the 225-member Assembly) before the Governor on October 29.

As the Frontline issue goes to press, the Centre is reportedly examining two options. One is rescinding Presidents Rule to pave the way for the formation of a government in the State. The other is to accept the Governors report to the President, which, according to media reports, is in favour of continuance of Presidents Rule. The Governor is believed to hold the view that giving another chance to the BJP-Janata Dal (S) will lead to political instability. Whatever the outcome, the issues involved in this controversy need to be examined in the light of the apex courts judgments.

The Supreme Courts judgments in S.R. Bommai v Union of India (1994) and Rameshwar Prasad v Union of India (2006) have dealt with such situations. In both the cases, the Court laid down detailed guidelines to be followed by the Governor and the Centre.

In the S.R. Bommai case, the Supreme Court dealt with the case of dismissal of six State governments in Karnataka, Meghalaya, Nagaland, Madhya Pradesh, Himachal Pradesh and Rajasthan. The cases of Karnataka, Meghalaya and Nagaland were similar in that in all these States the incumbent governments were dismissed and Presidents Rule was imposed on the basis of the Governors satisfaction that the governments had lost the majority support in the respective Assemblies, without giving them an opportunity for a floor test. The Court held the proclamation of Presidents Rule in these States unconstitutional because in each of these States, the Governor hastily recommended exercise of power under Article 356. Ironically, S.R. Bommai, who passed away on October 9, was the main petitioner in the case, having been dismissed from the office of Chief Minister in 1989. (In a strange coincidence, Sarkaria also passed away on October 9.)

Although the Court could not revive the dissolved Assemblies and the dismissed governments as Assembly elections had taken place subsequently, all parties to the case requested the Court to express itself on all the issues arising from these cases so that the principles enunciated by the Court could serve as guidelines for the future.

The BJP-led governments of Madhya Pradesh, Himachal Pradesh and Rajasthan were dismissed and Presidents Rule was imposed on the States following the demolition of the Babri Masjid on December 6, 1992. The Supreme Court justified the proclamation of Presidents Rule in these States on the grounds that any profession and action which went counter to secularism were prima facie proof of conduct in defiance of the provisions of the Constitution. Therefore, it could not be argued that there was no material before him [the President] to come to the conclusion that the governments in the three States could not be carried on in accordance with the provisions of the Constitution, it held.

The Bommai judgment was delivered by a nine-Judge Bench. Paragraph 82 of the judgment quotes the Sarkaria Commission Report on Centre-State Relations (1988), which illustrates the situations that may not amount to failure of the constitutional machinery in a State inviting the presidential power under Article 356(1), and where the use of the said power would be improper. One such situation is where a Ministry resigns, or is dismissed on losing its majority support in the Assembly, and the Governor recommends Presidents Rule without exploring the possibility of installing an alternative government enjoying such support or ordering fresh elections. The report also states that the use of the power under Article 356 to sort out internal differences or intra-party problems of the ruling party would not be constitutionally correct. The Bench had no hesitation in concurring broadly with the above illustrative occasions where the exercise of power under Article 356(1) would be improper and uncalled for.

In paragraph 120 of the judgment, the Bench said: What is to be ascertained is whether the Governor had proceeded legally and explored all possibilities of ensuring a constitutional government in the State before reporting that the constitutional machinery had broken down. Even if this meant installing the government belonging to a minority party, the Governor was duty-bound to opt for it so long as the government could enjoy the confidence of the House.

Karnataka 2007 is different in the sense that the Governor recommended Presidents Rule as none of the parties was willing to form a government in the aftermath of the resignation of the Janata Dal (S) government.

Even here, the Sarkaria Commission Report which the Bench judging the Bommai case said merited serious consideration said in Paragraph 6.8.04 (a): In a situation of political breakdown, the Governor should explore all possibilities for having a government enjoying majority support in the Assembly. If it is not possible for such a government to be installed and if fresh elections can be held without avoidable delay, he should ask the outgoing Ministry, if there is one, to continue as a caretaker government, provided the Ministry was defeated solely on a major policy issue, unconnected with any allegations of maladministration or corruption, and is agreeable to continue. The Governor should then dissolve the Legislative Assembly, leaving the resolution of the constitutional crisis to the electorate. During the interim period, the caretaker government should be allowed to function. If the important ingredients described above are absent, it would not be proper for the Governor to dissolve the Assembly and install a caretaker government. The Governor should recommend proclamation of Presidents Rule without dissolving the Assembly.

In the Bommai judgment, the Court also endorsed the unanimous report of the Committee of Governors (1971), appointed by the President of India. This committee, comprising five Governors, recommended that only when a responsible government cannot be maintained without doing violence to correct constitutional practice should the Governor resort to Article 356 of the Constitution. It said: What is important to remember is that recourse to Article 356 should be the last resort for a Governor to seek the guiding principle being, as already stated, that the constitutional machinery in the State should, as far as possible, be maintained.

In the Rameshwar Prasad case, the Supreme Court was called upon to pronounce its verdict on the validity of the proclamation of Presidents Rule and the dissolution of the Assembly in Bihar in 2005.

The Bommai judgment could not be applied to a situation in which no political party could get a majority and more parties could not come together to form a government, as was obtained in Bihar in 2005.

Justice R.S. Sarkaria

The petitioners in this case alleged that the Governor of Bihar, Buta Singh, recommended dissolution of the Assembly on the basis of his subjective satisfaction without any material that some parties were trying to cobble up a majority in the Assembly through tainted means, and that it would not lead to a stable government.

The Supreme Courts majority view in this case was that if a political party with the support of other political parties or other MLAs staked claim to form a government and satisfied the Governor about its majority to form a stable government, the Governor could not override the majority claim because of his subjective assessment that the majority was cobbled up by illegal and unethical means. (Buta Singh had to quit following the Supreme Courts judgment holding the dissolution of the Assembly unconstitutional.) In the Rameshwar Prasad judgment, the majority of the Supreme Courts five-Judge Bench said: The minority governments are not unknown. It is also not unknown that the Governor, in a given circumstance, may not accept the claim to form the government, if satisfied that the party or the group staking claim would not be able to provide to the State a stable government. It is also not unknown that despite various differences of perception, the party, group or MLAs may still not opt to take a step which may lead to the fall of the government for various reasons, including their being not prepared to face the elections. These and many other imponderables can result in MLAs belonging to even different political parties to come together. It does not necessarily lead to assumption of allurement and horse-trading.

This pronouncement has great relevance in the context of the current political situation in Karnataka.

The Court further said: In absence of the relevant material much less due to verification, the report of the Governor has to be treated as the personal ipse dixit of the Governor. The drastic and extreme action under Article 356 cannot be justified on mere ipse dixit, suspicion, whims, and fancies of the Governor The Governor may be the main player, but the Council of Ministers should have verified [the] facts stated in the report of the Governor before hurriedly accepting it as a gospel truth as to what Governor stated. Clearly, the Governor has misled the Council of Ministers, which led to aid and advice being given by the Council of Ministers to the President leading to the issue of the impugned Proclamation.

In the ongoing crisis in Karnataka, the reports sent by the Governor to the President, therefore, acquire extraordinary significance, as the Centre has to rely on them before taking a decision on the use of Article 356 in the State.