Who should guv appoint CM when no party has majority?

“Vesting the governor with certain discretionary powers is not contrary to responsible government,” B R Ambedkar is said to have commented in the Constituent Assembly on provisions relating to the powers of the governor. So, how far can a governor go in exercising his discretion, particularly when it comes to a situation as witnessed in the Karnataka assembly elections last month when no one political party got even a simple majority, let alone absolute majority?

In normal circumstances, the governor does not face any problem in deciding who is the person to be appointed as chief minister as it is the leader of the majority party in the legislative assembly. But situations arise sometimes when it is doubtful as to who that leader is. In such cases, the governor may have to exercise his personal judgement in selecting the chief minister.

The constitutional scheme envisaged that a person who enjoys the confidence of the legislature should alone be appointed chief minister. The Sarkaria Commission report said that the governor should select a leader who, in his judgement, is most likely to command a majority in the assembly. Dealing specifically with the situation where no single party obtains majority, the report provided the order of preference the governor should follow in selecting the chief minister. The first is an alliance of parties that was formed prior to the elections; the second is the largest single party staking claim to form the government with the support of others, including Independents; the third is a post-election coalition of parties, with all the partners in the coalition joining the government; the fourth is a post-election alliance of parties, with some of the parties in the alliance joining the government and the remaining parties, including Independents, supporting the government from outside.

The Sarkaria Commission found a number of situations of political instability in states, where the governors recommended President’s Rule under Article 356 without exploring or exhausting all possible steps under the Constitution to induct or maintain a stable government. All those cases have come under severe criticism on the ground that the governors, while making their recommendations to the President, behaved in a partisan manner. The report also noted that there has been no uniformity of approach in such situations.

Thus, it said, with regard to the 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 the government.

However, in case of a fractured mandate, then the commission recommended that “the governor, while going through the process of selection as described, should select a leader who, in his judgement, is most likely to command a majority in the assembly. The governor’s subjective judgement will play an important role.”

Upon being faced by several contesting claims, the commission suggested that the most prudent measure on part of the governor would be to test the claims on the floor of the House. The commission has dissuaded the governor from dismissing a ministry based on his “subjective satisfaction”.

“Undisputedly, a governor is charged with the duty to preserve, protect and defend the Constitution and the laws, has a concomitant duty and obligation to preserve democracy and not to permit the ‘canker’ of political defections to tear into the vitals of Indian democracy,” the Supreme Court said in Rameshwar Prasad & Ors vs Union Of India & Anr in January 2006.

Notably, the governor is not answerable to any court in view of immunity granted by Article 361(1) of the Constitution. But “it is also necessary to note that the immunity granted to the governor does not affect the power of the court to judicially scrutinise the attack made to the proclamation issued under Article 356(1) of the Constitution of India on the ground of mala fides or it being ultra vires. It would be for the government to satisfy the court and adequately meet such ground of challenge,” the Supreme Court said in the Rameshwar Prasad case.

The M M Punchhi Commission said there should be clear guidelines for the appointment of chief ministers so that there is a sort of regulation of the discretionary power of the governor. It followed the recommendations made by the Sarkaria Commission on the order of preference in the appointment of a chief minister.

The Supreme Court’s nine-judge bench in its landmark judgement in S R Bommai Vs Union of India (1994) has held that the majority of a Council of Ministers has to be tested on the floor of the House.

“In a situation arising after a general election, 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,” the apex court said. In 2016, in the case of proclamation of President’s Rule in Arunachal Pradesh, the Supreme Court’s five-judge bench said Article 164 of the Constitution, which provides for the appointment of the chief minister of the state, is to be “based on the postulate that he commands or is expected to command the support of a majority of the members of the legislative assembly.”

As the issue has not been finally settled, a petition jointly filed by Congress leader G Parmeshwara and JD(S) chief H D Kumaraswamy, now Karnataka chief minister, is expected to make the top court lay down the guidelines on the powers of the governor.