Gov erred by ignoring norms, SC must step in

The political crisis in Karnataka has thrown up two questions which can only be clearly and undisputedly answered if we pay attention to the Constitution, historical precedents and Supreme Court pronouncements. The questions are: “Do governors have discretion in appointing a chief minister?” and “Is that discretion untrammelled or limited by other considerations?”

Article 164(1) simply says that “the chief minister shall be appointed by the governor” which, prima facie, gives the governor the right to choose as he deems fit. This clearly confers a fair measure of discretion, but is it untrammelled? Can the governor appoint whoever he wants? This is where you need to understand the Constitution, historical precedents and Supreme Court judgments.

The Constitution requires a stable government and that means the governor must appoint a chief minister who has majority support in the Assembly. In turn, this means that the governor’s discretion is limited to determining who that individual might be. Therefore he cannot appoint someone who patently does not have majority support or a credible potential to gain it.

In the event that there is a party with a majority its leader obviously has to be the person the governor chooses. But in a hung Assembly, if a combination of smaller parties can together command a majority their leader has prior claim.

India has several precedents where this is precisely what happened. In 2003, 2005 and 2013 governors in Karnataka, Jharkhand and Delhi bypassed the single largest party to call on an alliance of smaller parties because they constituted a majority. The same constitutional logic applied in 2017 in Goa and Manipur and earlier this year in Meghalaya, when leaders of the second largest party could prove they had majority support.

Now the view that the Sarkaria Commission gives priority to the claim of the leader of the single largest party over that of a post-electoral alliance is disputable. Admittedly section 4.11.04 supports this interpretation but the preceding section 4.11.03 says something significantly different: “In choosing a chief minister, the governor should be guided by the following principles — (the first of which is) the party or combination of parties which commands the widest support in the Legislative Assembly should be called upon to form the government.” This clearly stipulates that the governor should choose the person who can command majority support and not simply the leader of the single largest party.

However, it’s not just historical precedents that have reinforced the constitutional requirement to appoint a stable government on the basis of choosing a chief minister who commands majority support. The Supreme Court has also clearly laid this down.

In the 2006 Rameshwar Prasad case, the court ruled: “If a political party, with the support of other political parties 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... (the) governor is not an autocratic political ombudsman.”

Similarly last year, in the Goa case, the Supreme Court ruled: “When no political party is in majority, then it is the bounden duty of the governor to see who can form the government. If nothing happens, then the governor is duty bound to call the leader of the single largest party, but if someone goes to the governor with a list of supporters, then it is a different issue altogether.” Once again, the message is clear. The governor must choose the person who has or is most likely to have majority support rather than the leader of the single largest party unless, of course, the two are the same.

Now, let’s come to the R. Venkataraman principle, established in 1989 when India got its first hung Parliament. President Venkataraman sought to create a government by calling upon leaders of parties according to the size of their Lok Sabha representation. But this formula was his own concoction. It has no basis in our Constitution and differs with the practice of the

House of Commons which, till then, India had followed. Indeed, political parties are not even mentioned in the original The truth is rather than exercise his judgment to determine which leader had majority support in the hung Lok Sabha, a process which he feared could be messy, Venkataraman devised this formula to avoid possible controversy. It worked in 1989, but when President Shankar Dayal Sharma applied it in 1996 it led to the farcical 13-day minority BJP government headed by Atal Behari Vajpayee, although any credible assessment of the Lok Sabha would have established the existence of a coalition of parties with a clear majority which, therefore, had prior claim.

This is why in 1998 President K.R. Narayanan reverted to the correct constitutional position. Narayanan’s order of March 12 is crystal clear and explicit: “When no party or pre-election alliance of parties is in a clear majority, the head of state... (must give) the first opportunity to the leader of the party or combination of parties that has won the largest number of seats, subject to the Prime Minister so appointed obtaining majority support on the floor of the House within a stipulated time.”

So, to sum up, the requirement of our Constitution, numerous historical precedents and several Supreme Court judgments stipulate that while the governor has discretion in appointing a chief minister, it is only to the extent of identifying the individual who can command or best hope to command a majority in the Assembly. It, therefore, follows that the leader of a coalition of parties who have majority support has a prior claim to chief ministership over the leader of the single largest party without a majority of its own.

Alas, the Karnataka governor ignored this when he administered the oath to B.S. Yeddyurappa. It was also, most unfortunately, overlooked by the Supreme Court in the early hours of Thursday morning. But, perhaps, the court might rectify that at the hearing on Friday.