Solutions for a hung legislature

EVERY time a political row erupts raising constitutional issues, our politician “jurists”, and even judges, go forth on a mission to devise a solution anew as if it had arisen for the first time. One would think that the simplest course is to consult the text of the Constitution, the intention of its framers and appropriate precedents.

At the very outset, the Constituent Assembly set up a Union Constitution Committee, headed by Jawaharlal Nehru, and a Provincial Constitution Committee headed by Vallabhbhai Patel. Submitting the committees’ report to the Constituent Assembly on July 15, 1947, Patel said both committees had come to “the conclusion that it would suit the conditions of this country better to adopt the parliamentary system of the Constitution, the British type of Constitution with which we are familiar.”

The Assembly adopted the report. In October 1947, Sir B.N. Rau prepared a Draft Constitution embodying the Assembly’s decisions. The Draft was then considered and thoroughly revised by the Drafting Committee, which submitted a Draft Constitution to the President of the Assembly on February 21, 1948. The Draft was published to elicit public reactions. (For the texts of the two drafts, see Shiva Rao; Select Documents , Vol. III, pages 1 and 509, respectively.)

B.R. Ambedkar.

Introducing the Draft Constitution in the Constituent Assembly on November 4, 1948. the Chairman of the Drafting Committee, Dr. B.R. Ambedkar, said: “Under the Draft Constitution the President occupies the same position as the King under the English Constitution.... [He] will be generally bound by the advice of his Ministers. He can do nothing contrary to their advice nor can he do anything without their advice” ( Constituent Assembly Debates ; Vol. 7; page 32).

On December 30, 1948, he told the Assembly: “Under a parliamentary system of government, there are only two prerogatives which the King or the Head of the State may exercise. One is the appointment of the Prime Minister, and the other is the dissolution of Parliament. With regard to the Prime Minister, it is not possible to avoid vesting the discretion in the President. The only other way by which we could provide for the appointment of the Prime Minister without vesting the authority or the discretion in the President is to require that it is the House which shall in the first instance choose its leader, and then on the choice being made by a motion or a resolution, the President should proceed to appoint the Prime Minister.”

Mohammed Tahir asked: “On a point of order, how will it explain the position of the Governors and the Ministers of the State where discretionary powers have been allowed to be used by the Governors?”

Ambedkar replied: “ The position of the Governor is exactly the same as the position of the President ” [emphasis added throughout] ( Constituent Assembly Debates ; Vol. VII, page 1158).

Little do those who devise fanciful “guidelines” for Governors realise that they would apply to the President as well. To guide them, even Instruments of Instructions were drafted and approved by the Drafting Committee.

None has referred to these crucial deliberations of great relevance as did Justice M.M. Ismail, Chief Justice of the Madras High Court and an erudite Sanskrit scholar, in his excellent book The President and the Governors in the Indian Constitution (Orient Longman, 1972).

The Drafting Committee observed: “The Drafting Committee considered that it would be desirable to append ‘to the Constitution an Instrument of Instructions for the President just as there is one for the Governors’. The new Schedule III-A for the President was much wider than the original Schedule meant as an Instrument of Instructions for the Governors (Schedule IV), which also was enlarged.

“The first Instrument said:

“2. In making appointment to his Council of Ministers, the President shall use his best endeavours to select his Ministers in the following manner, that is to say—to appoint a person who has been found by him to be most likely to command a stable majority in Parliament as the Prime Minister, and then to appoint on the advice of the Prime Minister those persons (including so far as practicable members of important minority communities) who will best be in a position collectively to command the confidence of Parliament.

“3. In all matters within the scope of the executive power of the Union, the President shall in the exercise of the powers conferred upon him be guided by the advice of his Ministers.”

Unfortunately both the Instruments, for the President and the Governors, were dropped at the very last minute before the Draft Constitution was adopted on November 26, 1949.

On October 11, 1949, T.T. Krishnamachari, said on behalf of the Drafting Committee, that he was not moving Schedule III-A for adoption, and at the same time he was moving for deletion of Schedule IV, which constituted the Instrument of Instructions to the Governors. When this motion for deletion of Schedule IV was made, some members of the Constituent Assembly objected.

“The Fourth Schedule was necessary because certain provisions were put in the Constitution in order to describe the relations of the President and Governors vis-a-vis the Ministers. It has now been felt that the matter should be left entirely to convention rather than be put into the body of the Constitution as a schedule, in the shape of Instrument of Instructions, and there is a fairly large volume of opinion which favours that idea. Therefore, we have decided to drop Schedule III-B (sic) which we proposed as an amendment and also Schedule IV which finds a place in the Draft Constitution, because it is felt to be entirely unnecessary and superfluous to give such directions in the Constitution which really should arise out of conventions that grow up from time to time , and the President and the Governors in their respective spheres will be guided by those conventions. As these Schedules were felt to be superfluous I had moved that the second [ sic. ] Schedule should be deleted.”

Clearly the Drafting Committee had approved of the Instruments, and so had members of the Assembly. They were not dropped only because the Drafting Committee later disapproved of them. They were dropped because it was “felt that the matter should be left entirely to convention”.

However, the rule was set out in explicit terms: appoint a person who is “most likely to command a stable majority ” in the House. Governor Vajubhai Vala could not possibly have said that honestly of B.S. Yeddyurappa with his 104 MLAs when he invited him to form a government on May 16, 2018. Note the use of the word “likely”. This rules out parades as well as letters of support. The Governor makes an honest assessment. The Assembly’s decision is final. The Supreme Court has held more than once that in construing the Constitution British Conventions must be kept in mind.

THE VICE OF DEFECTIONS

The issue came to the fore in 1967 when the Congress lost the elections in several States and opposition conglomerates won power. That was also the time when the vice of defections began to afflict India’s politics. The question was raised in the Lok Sabha on April 5, 1967, a propos the Rajasthan Ministry. Union Home Minister Y.B. Chavan promised to seek legal opinion. In a letter dated May 17, 1967, to three former Chief Justices of India, Justices M.C. Mahajan, A.K. Sarkar and P.B. Gajendragadkar, former Attorney General M.C. Setalvad, and the then Advocate General of Maharashtra, H.M. Seervai, he posed these queries:

M.C. Setalvad, former Attorney General.

“Three distinct views have been expressed on this matter. One view has been that the leader of the largest party in the legislature should be invited to form the government irrespective of the consideration whether or not such a party commands a stable majority. Supporters of this view have also suggested that the Governor should use his influence to secure advice to summon the newly elected legislature as early as may be possible so that the extent of the support to the Ministry may be tested in an open constitutional forum.

“The second view has been that if the party in power had failed to secure an absolute majority in the newly elected legislature, the leader of that party should not be invited to form the government even if it were the largest single party in the legislature and that, instead, the leader of the opposition or the leader of the next largest party should be invited to form the government. The reasoning behind this view is that the electoral verdict should be regarded as, in effect, disqualifying the party in power for holding office for a further term.

“The third view is that the Governor should make the endeavour to appoint a person who has been found by him, as a result of his soundings, to be most likely to command a stable majority in the legislature.”

Only Setalvad and Seervai cited authorities. The others gave ipse dixit of little value. Setalvad, Seervai, and Mahajan plumped for the second course. There was no endorsement of the first course and complete agreement on the third. On June 18, 1967, Mahajan gave the opinion that “the powers of the Governor... in the appointment of the Chief Minister are the same as the President has in the appointment of the Prime Minister”.

H.M. Seervai, eminent jurist.

The Governor is “not bound to invite the leader of the largest party or the leader of the opposition”. Also, “if a political party in power has failed to obtain an absolute majority, the Governor should respect the mandate of the people and call upon the Leader of the opposition to form the government, provided the opposition or a coalition of the opposition parties are in such numbers as to be able to form a stable government”.

Sarkar, then busy in the Committee of Inquiry on steel “transactions”, gave a scrappy opinion against both the first and the second courses mentioned by Chavan and ended with the counsel of the third. P.B. Gajendragadkar said that the third view was correct, rejecting the first two.

By far the best opinion was penned by Setalvad on June 15, 1967 (obviously, the stay at St. Patricks in Ooty, where the opinion was written, helped). It quoted copiously from recognised authorities. One in particular, from Ivor Jennings, is very relevant.

“It is expected that when a government is defeated either in Parliament or at the polls, the Queen should send for the leader of the opposition. There may be two or more parties of opposition. But the practice of the present century has created an ‘official’ opposition whose leader is ‘the official opposition’.... The largest party in opposition is the ‘official’ opposition. The rule is that on the defeat and resignation of the government, the Queen should first send for the leader of the opposition. This rule is the result of long practice, though it has hardened into a rule comparatively recently. Its basis is the assumption of the impartiality of the crown. Democratic government involves competing policies and thus the rivalry of parties....

“The Queen’s task is only to secure a government, not to try to form a government which is likely to forward the policy of which she approves . To do so would be to engage in party politics. It is, moreover, essential to the belief in the monarch’s impartiality not only that she should act impartially, but she should appear to act impartially . The only method by which this can be demonstrated normally is to send at once for the leader of the Opposition” ...

Jennings proceeded to add that “this rule has for its corollary the rule that before sending for the leader of the opposition the monarch should consult no one. If he takes advice first, it can only be for the purpose of keeping out the opposition or its recognised leader.”

Setalvad endorsed the rule completely as one “based on the principle that the wishes of the electorate must be respected”. The rule should be followed “even when the largest party in the newly elected House is still the party which was the governing party before the election though it has failed to obtain an absolute majority”.

There is an obvious proviso to the rule. If the former opposition party is simply not in a position to form a government, the head of state must turn to the erstwhile party in power. Setalvad said a coalition of parties may be formed after or even before the elections.

Seervai also accepted Jennings’ view. If independents hold the balance, they must be consulted individually. He was unrealistic in dismissing the advantage that accrues to the party which is first called upon to form a government. Setalvad’s opinion was by far more erudite and weighty than that of any of the others.

SARKARIA COMMISSION'S RULES

The Sarkaria Commission’s report ignored the jurists’ opinions and propounded its own rules. The Governor should sound the parties “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-electoral coalition of parties, with all the partners in the coalition joining the government; 4. 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 subject was also discussed in the Report of the Committee of Governors (1971) appointed by the President “to study and formulate norms and conventions governing the role of Governors”. It decisively rejected the rigid arithmetical test of the leader of the largest single party. “He has, however, no absolute right as leader of the largest single party or group to claim that he should be entrusted with the task of forming a government to the exclusion of all others... a numerically smaller party may command the support of a majority in the legislature.”

The Sarkaria Report has been cited by many, including this writer. However, I began questioning it in 1996. It was a Commission on Centre-State Relations . For four good reasons, its report deserves to be studiously ignored on this subject. It went beyond its terms of reference; cited no authority but stated its ipse dixit ; its members had neither the intellectual equipment nor the background to lend weight to their words; and it was appointed without consultation with opposition parties.

A Commission on Centre-State Relations was appointed on June 9, 1983, when opposition-ruled States were restive over the Centre’s encroachments—Jyoti Basu in West Bengal, Ramakrishna Hegde in Karnataka, N.T. Rama Rao in Andhra Pradesh, Farooq Abdullah in Kashmir and E.K. Nayanar in Kerala. None of them was consulted either on its terms of reference or its composition. Justice R.S. Sarkaria of the Supreme Court, who had delivered a desired report on Tamil Nadu’s Chief Minister M. Karunanidhi after his ouster during the Emergency was a safe pair of hands. On retirement, he was accommodated as Chairman of the Press Council. In 1990 at a seminar on the Right to Information in New Delhi, he loftily reminded the participants that it took the United States two centuries to produce such a law. He was speechless when he was asked whether he wanted India also to wait for the same term. The movement began after the Second World War and swept the U.S. and Europe.

The outlook of another member, S.R. Sen was as illiberal and ignorant. A witness who said that the Constitution was lopsided in favour of the Centre since it was drafted in the wake of Partition and violent unrest was loudly told, “We are now in the same situation”. A person with such an outlook could hardly be fair to the States. The other member was B. Sivaraman.

To this hand-picked trio was assigned precise and severely limited terms of reference. “2. The Commission will examine and review the working of the existing arrangements between the Union and States in regard to powers, functions and responsibilities in all spheres and recommend such changes or other measures as may be appropriate. 3. In examining and reviewing the working of the existing arrangements between the Union and the States and making recommendations as to the changes and measures needed, the Commission will keep in view the social and economic developments that have taken place over the years and have due regard to the scheme and framework of the Constitution which the founding fathers have so sedulously designed to protect the independence and ensure the unity and integrity of the country which is of paramount importance for promoting the welfare of the people.”

Mark the words “arrangement”. Yet the Three Musketeers went on a frolic of their own authoritatively to lay down guidelines on the appointment of Chief Ministers and the like. They did worse. Read this: “A Chief Minister, unless he is the leader of a party which has absolute majority in the Assembly, should seek a vote of confidence in the Assembly within 30 days of taking over. This practice should be strictly adhered to with the sanctity of a rule of law.”

They added: “The question of majority can be easily tested on the floor of the House when the Assembly is in session. However, during the period the Assembly remains prorogued, a Governor may receive reliable evidence (e.g. one or more letters signed by or a no-confidence motion proposed by, a majority of members with their signatures authenticated by the Secretary of the Assembly) that the Ministry has lost its majority.” Letter boxes on the gates of Raj Bhavans would encourage defectors. But whoever asked them to propend such rules?

Contrast all this with the report of the Centre-State Relations Inquiry Committee (1971) appointed by the Government of Tamil Nadu. It stuck to its remit: “the relationship that should subsist between the Centre and the States in a federal set-up.”

Chapter VIII on The Governors dealt with them in that context. No attempt was made to provide them with guidelines on the working of the parliamentary system. But, then, its members were of a far superior breed. The Chairman was Dr P.V. Rajamannar, one of the finest Chief Justices of the Madras High Court; his colleagues were Dr A. Lakshmanaswamy Mudaliar and P. Chandra Reddy.

The Supreme Court’s own record has been an uneven one. S.R. Bommai vs Union of India (1993) (1994)3 SCC1 would test the ingenuity of a Brahmin priest, or a maulvi, or any other priest addicted to exegesis, to draw a firm and agreed conclusion on a host of issues from the judgments of the nine-member bench which decided the case. The main issue was the validity of the proclamations imposing President’s Rule in six States. The judges travelled beyond it to deliver obiter of varying weight and quality. The Sarkaria Report was also cited. Justice K. Ramaswamy opined: “A floor test may provide impetus for corruption and rank force and violence by musclemen or wrongful confinement or volitional captivity of legislators occurs till the date of the floor test in the House, to gain majority on the floor of the House” (para 224, page 192). (See also Justice B.P. Jeevan Reddy, para 263, page 219). The criticism is valid. It suggests curbs on the abuses. Rejection of the floor test implies rejection of democracy itself.

The judgments do yield a consensus on more than one important issue; but none on those germane to the subject of this essay which, with respect, fell beyond the scope of the issues the court really faced.

Rameshwar Prasad & Ors. vs Union of India & Ors. (2006)2 SCC1 also concerned the validity of the President’s Proclamation under Article 356 of the Constitution imposing President’s Rule in Bihar. (Will not “on Bihar” be more appropriate?) It was rightly struck down. In issue was the justiciability of the Governor’s Report and, relatedly, the President’s satisfaction in deciding whether the facts fell within the ambit of Article 356. Also in issue were the scope of Schedule X on defections and dissolution of the State Assembly. The Sarkaria Report was of course quoted profusely.

Y.K. Sabharwal, former Chief Justice of India.

Chief Justice Y.K. Sabharwal said in the majority judgment to which B.N. Agrawal and Ashok Bhan were party: “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 [together] 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” (para 165, page 129).

It would, therefore, be safe to conclude that there is no ruling of the Supreme Court laying down the law on the main issue in the recent Karnataka case that could be said to be binding under Article 141. It says that “the law declared by the Supreme Court shall be binding on all courts within the territory of India.” Ad hoc orders are made by the court to resolve an immediate crisis. They do not “declare” the law.

THE COMPOSITE TEST IN U.P.

The law report on Jagdambika Pal vs Union of India & Ors. (1999)3 SCC 95 is rightly described as (Records of Proceedings). Only two short orders by a three-member bench are set out. The first, made on February 24, 1998, reads: “The order which commends to us is as follows: (i) A special session of the Uttar Pradesh Assembly be summoned/convened for 26.2.1998, the session commencing forenoon. (ii) The only agenda in the Assembly would be to have a composite floor test between the contending parties in order to see which out of the two contesting claimants of chief ministership has a majority in the House. (iii) It is pertinently emphasised that the proceedings in the Assembly shall be totally peaceful and disturbance, if any, caused therein would be viewed seriously. (iv) The result of the composite floor test would be announced by the Speaker faithfully and truthfully.”

The order of February 27 says: “We stand [ sic. ] informed through the statements made at the Bar as also through the fax communication from the Speaker, U.P. Assembly, that the composite floor test, in strict compliance of our order dated 24.2.1998 did take place orderly and peacefully and as a result thereof 225 votes were secured by Shri Kalyan Singh and 196 votes by Shri Jagdambika Pal, claimants in rivalry to the chief ministership of the State. This position concededly has emerged as of late. ...

“The impugned interim order of the High Court in putting Shri Kalyan Singh in position as Chief Minister should be and is, hereby, made absolute subject of course to the democratic process. Shri Kalyan Singh had at a point of time offered to the Governor facing floor test, which was declined. On his dismissal, his rival on being sworn in as the Chief Minister was required to undergo the floor test in a time frame. We have facilitated both in one go.”

There was absolutely no warrant for this innovation of a hybrid—a composite test. It was devoid of precedent. The law was not discussed. Pragmatism of a sort prevailed. The proper course was to direct vote on a motion of no-confidence against the sitting Chief Minister.

GOA CASE

The oft-quoted order in the Goa case does not help, either. Chandrakant Kavlekar vs Union of India & Anr. (2017)3 SCC 758 .

“The result of the electoral process in the State of Goa was declared on 11.3.2017. The said Assembly comprises of 40 elected members. The party having support of at least 21 elected members would obviously have majority. Annexure B reveals that besides the 13 elected members from the BJP Legislature Party, three members from the Maharashtrawadi Gomantak Party, Goa, and another three members from the Goa Forward Party have expressed their support to the BJP Legislature Party. Besides the above, two elected independent members have also been mentioned in the letter of the Governor—Annexure B, as having expressed their allegiance to the BJP Legislature Party. It is therefore that the BJP Legislature Party is shown to have the support of 21 MLAs. ...

“We were satisfied that the instant sensitive and contentious issue raised on behalf of the petitioner can be resolved by a simple direction, requiring the holding of a floor test at the earliest. The holding of the floor test would remove all possible ambiguities, and would result in giving the democratic process, the required credibility.

Goa Governor Mridula Sinha in March 2017 with newly sworn in Chief Minister Manohar Parrikar, BJP president Amit Shah, Union Minister Nitin Gadkari, and Venkaiah Naidu, then a Union Minister.

“We, therefore, hereby direct that all prerequisite formalities for holding a floor test, including the formalities required to be completed by the Election Commission, be completely by 15.3.2017. We request the Governor of the State of Goa to ensure that a floor test is held on 16.3.2017, and the only agenda for the day would be the holding of a floor test to determine whether the Chief Minister administered the oath of office has support of the majority. The floor test shall be held on 16.3.2017, as early as possible, but surely during the course of the day.” The composite test was buried, unceremoniously.

KARNATAKA, A UNIQUE CASE

The net result? 1. There is no binding ruling by the Supreme Court on the issue raised in the Karnataka case. 2. The Sarkaria Report is irrelevant and is, in any case, unsupported by authority. 3. Y.B. Chavan’s “jurists” were of little help, except for Setalvad and Seervai. 4. The rule set out in the Instrument of Instructions stands validated by authorities on constitutional law like Ivor Jennings’ Cabinet government (page 32). The head of state must send for the leader of the opposition if the government loses the election. But his march to power can be interrupted if the defeated party forges a coalition which commands a majority in the House. As S.A. de Smith held, the test is “a reasonable prospect of maintaining itself in office” (Constitutional and Administrative Law, 1985, page 176).

David Butler’s Governing Without A Majority: Dilemmas for Hung Parliaments in Britain (Macmillan, 1983) mentions two stages in government formation. In one the prospective Prime Minister or Chief Minister is simply asked to explore possibilities of forming a government. N. Sanjiva Reddy gave this mandate to Y.B. Chavan on the fall of the Morarji Desai government in 1979. He declined. The second stage is reached when the candidate says he can form the government and is sworn in.

Both Brazier and Butler are agreed that the head of state must ask the coalition leader to produce: (a) an agreed programme; (b) accord on the leader; and (c) accord on distribution of portfolios. The Governor of Karnataka was sorely remiss in not demanding such a pact. Also of assistance is a Sharthclyde Analysis Paper (1941) entitled The Back of the Envelope: Hung Parliament,the Queen and the Constitution .

To sum up: 1. An incumbent Prime Minister should not be invited to form a government once his party loses its majority in an election even if it emerges as the single largest party. 2. The President should, in such a case, invite the next single largest party to form a government. 3. Both rules are, however, subject to the overriding proviso that any coalition that commands a majority in the house is entitled to be invited to form a government. 4. The President ought to insist on a clear agreement on the coalition’s leader, besides a common minimum programme plus an accord to work in coalition, both of which should be in writing and made public. There must be a written undertaking not to seek dissolution for a specified, reasonable period of time in order to avert the kind of situation that the Rajiv Gandhi-R. Venkataraman deal created in 1991. 5. No party is entitled to demand any assurances from the President that he grant a dissolution in the event of its government’s collapse. Such a demand would be improper. The established rules as to grant of dissolution should prevail in all cases. In extreme cases the President can ask the parties to hold discussions among themselves under his auspices but without his participation. 7. At all times a government must be in place to tender advice to the President, if need be, as a caretaker government. The government must go on. Indian democracy brooks no interruption.

SRI LANKAN CASE

All this does invest significant discretion in the head of state, but its exercise is very much open to judicial review. It is time we consulted the rulings of the Supreme Court of Sri Lanka. A landmark judgment of the Supreme Court of Sri Lanka, delivered on August 16, 1993, is particularly relevant. Elections to the Provincial Council were held on May 17, 1993. The court quashed the orders of appointment of Chief Ministers by the Governors of the North-Western and Southern councils. Three recognised political parties were in the fray: the United National Party (UNP), the Democratic United National Front (DUNF), and its ally, People’s Alliance (P.A.) led by Sirimavo Bandaranaike’s Sri Lanka Freedom Party (SLFP). None of the parties gained an absolute majority. In the North-Western Provincial Council, the UNP won 25 seats, the P.A. 18 and the DUNF nine. In the Southern Provincial Council, the UNP won 27, the P.A. 22 and the DUNF six. Though the P.A.-DUNF alliance was in a majority in both provinces, in both the UNP was asked to form the government. The UNP, then in power at the Centre, followed the Indian example and got its own party installed in power no matter how improperly.

Article 140 F(4) of the Constitution of Sri Lanka reads: “The Governor shall appoint as Chief Minister the member of the Provincial Council constituted for that province, who, in his opinion, is best able to command the support of majority of the members of that Council. Provided that where more than one half of the members elected to a Provincial Council are members of one political party, the Governors shall appoint the leader of that political party in the council as Chief Minister.” Since none of the three political parties had won more than half of the seats, the proviso was inapplicable.

G.M. Premachandra (DUNF) and Amarasiri Dodangoda (P.A.) filed petitions in the Court of Appeal on May 24 against the Governor of North-Western Province, Montague Jayawickrema, and the Governor of Southern Province, M.A. Bakeer Markar, challenging the appointment of the Chief Ministers. The Court of Appeal referred the issue of the law to the Supreme Court for its rulings.

The facts were clear. In both provinces, secretaries of the allied parties had submitted to the Governors, on May 19, declarations of agreement to work together backed by affidavits by all their councillors. As against this, both the UNP appointees submitted letters claiming majority support but did not explain how that was achieved. Nor did they identify the councillors whose additional support gave them a majority. The Supreme Court heard and decided the two cases together.

Its judgment sets a precedent of high persuasive value in our courts since the constitutional scheme is almost identical. The court said: “We have no doubt whatsoever as to the purpose for which Article 154 F(4) gave the Governor a discretion. By the exercise of the franchise the people of each province elect their representatives for the purpose of administering their affairs. The Governor is given a discretion in order to enable him to select as Chief Minister the representative best able to command the confidence of the council, and thereby to give effect to the wishes of the people of the province. The discretion is not given for any other purpose, personal or political.”

The court ruled that this was not a “political question”. The Governor’s decision cannot be based on policy but on an objective verifiable criterion for “assessment of support in the council”. It quoted extensively from the rulings of our Supreme Court. Its observation that “the Indian Article 163 [ sic. ] does not specify any guidelines” is true only in the literal sense. It presumably had in mind Article 164, which simply empowers the Governor to appoint ministers. This is, however, based on and regulated by conventions of parliamentary democracy, debates in the Constituent Assembly and Supreme Court rulings. The Supreme Court of Sri Lanka rightly applied the principles of administrative law to the Governor’s exercise of his discretion.

The court further ruled: “The exercise of the powers vested in the Governor of a province under Article 154 F(4), excluding the proviso, is not solely a matter for his subjective assessment and judgment. It is subject to judicial review by the Court of Appeal. In applications for quo warranto, certiorari and mandamus , the Court of Appeal has power to review the appointment, inter alia, for unreasonableness, or if made in bad faith, or in disregard of the relevant evidence, or on irrelevant considerations, or without evidence.... The Governor’s decision involves a constitutional power and duty of the Governor, and a constitutional right of the Petitioners (in common with the other councillors) to the proper exercise of such power and duty; judicial review is not excluded.”

The petitions were remitted back to the Court of Appeal for trial in the light of the Supreme Court’s rulings. Its judgment on October 8, 1993, underlines the implications of the apex court’s judgment.

“It is thus plain to see that where the petitioners have adduced the best possible evidence in support of their claims the persons appointed as Chief Ministers have adduced no credible information of their claim of support by a majority of the members. The bald statements of support referred in the documents of the respondents cannot stand scrutiny in the light of solemn declarations made by the members of the two parties who constitute a majority that they support the respective petitioners for appointment as Chief Ministers. Any person would be acting grossly unreasonably if he decided to base his decision without taking into consideration the uncontradicted evidence adduced by the petitioners and upon the hearsay and unverifiable claims made by the persons appointed as Chief Ministers.”

The scope of judicial review was to test the “reasonableness” of the Governor’s decisions. “The Governors have not considered the best evidence in regard to the matters which they are bound to consider. It also shows that Governors have chosen to act on hearsay claims that are unverifiable. It has to be borne in mind that the power of appointing a Chief Minister is vested in the Governor by the Constitution being the supreme law of the land. [The] Constitution lays down the criteria on which such an appointment should be made. The discharge of its power is a matter of grave public concern. It cannot be shrouded in a veil of secrecy. We have to observe that the claim of each Governor that he made the appointment on the basis of undisclosed confidential inquiries, tends to cast the basis of the respective decisions into secrecy.”

The Governors’ orders were quashed as being “unreasonable and illegal”. Writs of mandamus were issued to them “to appoint a Chief Minister of the province according to law”. The result is a caution to all concerned. First, the power of appointment of the chief executive, whether at the Centre or in the provinces, is strictly regulated by conventions established over the years. Secondly, those conventions, ascertainable from recognised authorities, have the force of law. Lastly, the power of appointment is not exempt from judicial review. The Supreme Court of Sri Lanka ruled, as has our Supreme Court, that conventions are judicially enforceable ( S.C. Advocates on Record Association vs Union of India (1993) 4 SCC 441 at page 656).

Horse-trading is a poor description of the games our politicians play and cite constitutional dicta in support. Harold Wilson described the game more accurately. It is “the practised performance of latter-day politicians in the game of musical daggers; never be left behind holding the dagger when the music stops”.