The upheaval caused by the firm political foothold gained by the BJP in India has thrown the Constitutional courts and Constitutional and legal framework governing our institutions into limelight like never before.

The upsurge of BJP had first caught other political parties off-guard. However, with the other political parties regrouping and fighting back, elections to various State Legislative Assemblies some of which were hitherto unknown to leaders and masses in India’s power centres, is now becoming national news.

Elections to these State Assemblies have also thrown up another interesting feature of our democracy – of coalition politics. And this in turn has raised a serious question regarding the role of the Governor in government formation and the manner in which it should be exercised.

None of the parties were able to secure a majority in many recent State elections. Hence, while Indian National Congress emerged as the single largest party in Goa, Manipur and Meghalaya, the BJP formed the government in these States in a coalition.

The factual matrix got reversed in Karnataka. The BJP emerged as the single largest party but fell short of a majority. The Indian National Congress- JD (Secular) reached a post-electoral alliance taking them past the magic mark. This put the spotlight on the Governor on whom he should invite to prove majority on the floor of the house – BJP or INC-JD(S)?

The leaders of respective parties reversed their earlier stance. While BJP claimed that the single largest party should be called by the Governor, the INC claimed that the post-electoral alliance with the clear majority should be given preference.

The Governor a former BJP legislator, however, invited BS Yeddyurappa, the leader of the single largest party, BJP to form the government. This led to a mid-night hearing in the Supreme Court. The Governor also gave Yeddyurappa 15 days to prove his majority on the floor. The same was scrapped by Supreme Court which asked him to prove his majority on the floor in a day. The rest is history.

However, the arguments before the Supreme Court and the questions raised by the Court seemed to rightly capture the essence of the dispute. During the hearing in the Congress-JD(S) petition on May 18, Justice Sikri rightly identified the problem and asked,

“They have given a letter with signatures of 117 MLAs and on the other hand you have given a letter which is claiming stake to form the government. In such a case, what will the Governor do?”

While Mukul Rohatgi replied stating that “The only role of the Governor is to see who will form a stable government”, Kapi Sibal took a different stance,

“The discretion of the Governor is circumscribed by Constitution and law.”

His argument was that if the Governor has to choose between a Single Largest Party with sāy 100 seats and a coalition with 120 seats, the Governor has to choose which side can get majority in the house.

“The letter says that he is the single largest party and he has the support. If he claims so then he has to show whose support. Therein comes the discretion of the Governor. The Governor, in this case, knew that the only way for Yeddyurappa to get the majority is either through Congress or JDS MLAs. There is no other way”, asked Sibal questioning the logic behind Karnataka Governor in inviting BJP to form government.

This brings us to the question – What is the law in this regard?

Commissions Reports

Sarkaria Commission Report (1983) (Click here to read the full report)

The Sarkaria Commission formed in 1983 came out with a detailed report which discusses the Role of Governor.

As per the Sarkaria Commission report, if there is a single party having an absolute majority in the Assembly, the leader of the party should automatically be asked to become the Chief Minister.

However, if there is no such party, 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-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.

Punchhi Commission Report (2010) (Click here to read the full report)

Another report in this regard is the Punchhi commission report of 2010. Headed by former Chief Justice of India MM Punchhi and also comprising eminent academics like NR Madhava Menon, this committee had submitted its report in 2010.

This report extensively refers to Sarkaria Commission Report. After doing so, Punchhi commission report states that there have been judicial opinions and recommendations of expert commissions in the past on the question of Governor’s role in the appointment of Chief Minister in the case of a hung assembly. But it then states that it is necessary to lay down certain clear guidelines to be followed as Constitutional conventions in this regard.

“On the question of Governor’s role in appointment of Chief Minister in the case of a hung assembly there have been judicial opinions and recommendations of expert commissions in the past. Having examined those materials and having taken cognizance of the changing political scenario in the country, the Commission is of the view that it is necessary to lay down certain clear guidelines to be followed as Constitutional conventions in this regard.”

The fact that the Punchhi commission states that it needs to lay down clear guidelines despite there being judicial opinions definitely points to a lack of clarity when it comes to the procedure to be followed by the Governor in case of a Hung Assembly

Hence, the Punchhi commission proceeds to recommend guidelines. However, these guidelines are not clear either. The guidelines in case of Hung Assembly, as recommended by Punchhi Commission are as follows:

(a) The party or combination of parties which commands the widest support in the Legislative Assembly should be called upon to form the Government.

(b) If there is a pre-poll alliance or coalition, it should be treated as one political party and if such coalition obtains a majority, the leader of such coalition shall be called by the Governor to form the Government.

(c) In case no party or pre-poll coalition has a clear majority, the Governor should select the Chief Minister in the order of preference indicated below:

1. the group of parties which had pre-poll alliance commanding the largest number;
2. the largest single party staking a claim to form the government with the support of others;
3. a post-electoral coalition with all partners joining the government; and
4. a post-electoral alliance with some parties joining the government and the remaining including independents supporting the government from outside;

However, these guidelines only add to the ambiguity because guideline (a) and the order of invitation suggested in guideline (c) do not reconcile.

Guideline (a) states that when there is a hung assembly the Governor shall call party or combination of parties which commands the widest support in the Legislative Assembly.

The “combination of parties” referred to in guideline (a) does not specify whether it is a post-poll alliance of pre-poll alliance. Hence, it can be assumed that either of such alliances are covered by the said guideline. So, if a post-poll alliance “commands the widest support: in the Legislative Assembly, then it shall be called upon by the government to form government.

However, guideline (c) lays down order of preference for Governor to invite for government formation. As per that, post-poll alliance falls after pre-poll alliance and single largest party.

However, the Commission ends this discussion by stating that 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 (which is what is happening in Karnataka).

The Punchhi commission, therefore, ends by suggesting that necessary Constitutional amendments should be made and specific guidelines should be laid down on the approach/procedure to be adopted by the Governor.

“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.”

Supreme Court decisions

Four decisions assume significance in this regard.

SR Bommai v. Union of India

This judgment was delivered in 1994 by a Constitution Bench of 7- judges. This case was dealing with the imposition of President’s Rule under Article 356 and the exercise of powers of the Governor in relation to that.

The Sarkaria Commission report was cited extensively in that judgment. Many of the recommendations of Sarkaria Commission are also endorsed in that judgment, but with respect to Article 356.

With regard to a situation arising after the election, the Court however held that 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 exact words in the judgment are as follows:

“We make it clear that what we have said above is confined to a situation where the incumbent Chief Minister is alleged to have lost the majority support or the confidence of the House. It is not relevant to a situation arising after a general election where 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. We need express no opinion regarding such a situation.”

The words “largest party/group” is again ambiguous. Does “group” also include a post-poll alliance? The judgment does not specify.

Either ways, the court, in that case, was not dealing with the process to be followed by the Governor in case of a Hung Assembly. Hence, this observation is only an obiter and need not bind the Court in a fact situation similar to the Karnataka or Goa.

Chandrakant Kavlekar v. Union of India

The fact situation, in this case, was very similar to the current happenings in Karnataka but with a role reversal. This case pertained to elections held in the State of Goa last year.

The Indian National Congress emerged as the single largest party in the elections. However, BJP had approached the Governor with the support of other parties and independent MLAs and formed government.

The Congress had approached the Supreme Court against this disputing the facts set out by BJP. The issue of the preference which the Governor has to adhere to was also raised.

But the Supreme Court did not go into any of that; instead by a 3-page order it ordered that a floor test be held to see if the BJP can prove majority.

Thus, the Court actually missed an opportunity to lay down the law with respect to the Governor’s powers in case of a Hung Assembly.

This order was the one relied upon by HD Kumaraswamy and Dr. G Parameshwara in their petition since the fact situation is similar and the Governor did not invited the single largest party to form government.

However, the fact of the matter is that the order does not make any ruling on any aspect and has simply disposed of the matter by directing that a floor test be held.

Hence, it is not a binding precedent. Besides, in this matter, the Congress party did not stake claim to form a government as the BJP did in Karnataka, a point which distinguishes Karnataka case from Goa. This was also pointed out by Mukul Rohatgi in his submissions before the Supreme Court in the Congress-JD(S) petition.

Rameshwar Prasad v. Union of India

This is another case in which Sarkaria Commission report was referred to extensively. This case was again in the context of imposition of President’s rule in the State based on the report sent by the Governor that no party has majority in the house.

However, the judgment also refers in detail to the chapter in Sarkaria Commission report relating to role of Governors, particularly in dealing with the situation where no single party obtains absolute majority and the order of preference the Governor should follow in selecting a Chief Minister.

“Para 4.11.04 of Sarkaria Commission Report specifically deals with the situation where no single party obtains absolute majority and provides the order of preference the Governor should follow in selecting a Chief Minister. The order of preference suggested is:

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.”

However, once again the Court has not endorsed this in a fact situation similar to the current one.

Nabam Rebia v. Deputy Speaker

This is the latest of the decisions in which Sarkaria and Punchhi Commission reports are cited extensively.

Once again, the factual matrix of this case was different from the case at hand.

The Court, in this case, discusses at length on the aspect of when a Governor can exercise his discretion, independent of the Council of Ministers.

One of the instances, as stated in Sarkaria Commission and cited by the Supreme Court in this judgment, is when the advice of his Council of Ministers is not available, e.g. in the appointment of a Chief Minister soon after an election.

However, since the case was not on this aspect, the Court did not go further into the aspect though it did endorse the recommendations made by Sarkaria Commission in this regard.

Importantly, the order of preference set out by Sarkaria has not been adverted to in Nabam Rebia judgment as it had been in Rameshwar Prasad and Bommai.

Hence, the question still remains.

Has the order of preference set out by Sarkaria in case of Hung assembly been endorsed and settled by Supreme Court in the absence of any law to that effect?

Submissions of AM Singhvi on Sarkaria – perplexing?

What intrigued me was the argument made by Senior Advocate AM Singhvi on the very first hearing of the petition filed by Congress-JD(S) leaders when the matter was heard by the Supreme Court at night.

Singhvi chose to cite the Sarkaria Commission report and the order of preference set out therein. This order of preference puts Single Largest Party above a post-electoral coalition of parties. It was baffling that he chose to cite something which was against his own case.

Even judges were a bit baffled by the same. Justice AK Sikri chose to query,

“You (Congress) are saying that you are at 3 (in the order of preference) but your case is that they (BJP) are not at 2”.

Singhvi’s answer to the same was unclear.

Interestingly, Singhvi had relied on Sarkaria commission report in the Goa case in 2017 when the Congress was the single largest party with BJP forming post-poll alliance.

According to Live Law, when Singhvi had relied upon Sarkaria report, the Bench in Goa case had asked Singhvi whether the report has been endorsed. Singhvi had answered in the affirmative stating that the Supreme Court had endorsed the report in Bommai, Rameshwar Prasad and Nabam Rebia.

While such a submission was to his advantage in Goa, it was indeed perplexing to find him rely on Sarkaria in Karnataka case.

Nevertheless, the Supreme Court has now correctly identified the issue and will hear the matter and give a verdict on the issue. This decision could have significant impact on the political future of the country given that the opposition parties are uniting in a bid to keep the BJP in check.

Till then, a hung assembly will hang on to the ambiguous discretion of the Governor.