Arvind P. Datar & Rahul Unnikrishnan

The recent Constitutional crisis in Karnataka may not be the last.  Our founding fathers perhaps never contemplated the Centre or the States to be ruled for several years by coalition governments. Indeed, the Constituent Assembly Debates on Articles 163 and 164 were completed in just one day.

It is indeed ironical that coalition politics turns the principle of majority rule upside down. In Karnataka, we now have a Chief Minister who has just 37 seats out of 222. Twelve of these MLAs became ministers despite the fact that the same party had lost its deposits in no less than 107 constituencies. But that is the consequence of coalition politics and has to be accepted as part of our Constitutional democracy.

The Karnataka episode has highlighted the need for clear principles as to what should be done in such circumstances. In the United Kingdom, there is a Cabinet Manual which sets out the statutory provisions and the conventions that will govern the formation of a Government, particularly when there is no absolute majority. It is perhaps time for India to have a Governor’s Manual and, indeed, a President’s Manual as well to deal with such situations.

The Sarkaria Commission had considered the steps that a Governor should take in dealing with a situation where an election does not result in one party getting an absolute majority. Paras 4.11.04 to 04.11.07 of that Report summarize his recommendations.   Significantly, the Constitution gives no clue as to what is to be done if no single party commands a majority and this is one of the silences of the Constitution which requires Constitutional convention to prevail.  A Governor’s Manual can codify such a convention.

Article 163 mandates that there shall be a Council of Ministers with the Chief Minister as the head to aid and advise the Governor in the exercise of his functions. Article 164 stipulates that the Chief Minister shall be appointed by the Governor and other ministers shall be appointed by the Governor on the advice of the Chief Minister. Consequently, the appointment of the Chief Minister cannot be on the advice of any particular person but must be done by the Governor exercising his discretion under the Constitution.

Article 164 does not state that the Chief Minister must be the leader of the party commanding a majority.  It is, however, implicit in Article 164 that the Chief Minister can also be a person from a party which does not command an absolute majority but may be able to prove its strength on the floor of the House with the help of MLAs or other smaller parties.

On a combined reading of Articles 163 and 164 and the recommendations of the Sarkaria Commission, it is suggested that the following principles should be the basis of a Governor’s Manual:

1. If a party commands an absolute majority, the Governor is bound to invite the leader of that party to become the Chief Minister. In this context, it is necessary for that party to pass a resolution specifying who is their leader;
2. If no party commands a majority, it must be ascertained whether there is a pre-poll alliance of two or more parties. In such a case, the pre-poll alliance must be taken as a single entity and they must jointly elect their representative who can be appointed as the Chief Minister;
3. If there is no pre-poll alliance, then the largest party must be given the opportunity to demonstrate the majority with the help of independent or other smaller parties;
4. If the largest party cannot demonstrate that it has a majority, the Governor should invite a post-poll alliance of parties who can elect a leader to be the Chief Minister. The post-poll alliance can also be a group of parties can give outside some of whom can form the government and the remaining parties can give outside support to the Government; and
5. It will be open to different political parties to immediately form a post-poll alliance and demonstrate their majority with clear letters of support. In such a case, it is not necessary for the Governor to give the largest single party an opportunity to establish its majority (A clear example is the recent Assembly election in Goa).

It is however submitted that the constitutional convention, as mentioned above, need to be followed sequentially.  If a particular party is not the largest single party, it must be given the opportunity only after the largest single party is first given a chance of forming a Government.   In all cases, the time is given to demonstrate the majority should not exceed three working days. This will prevent the pernicious practice of bribing MLAs, euphemistically called “horse-trading”.

In this context, reference can be made to Chandrakant Kavlekar v. Union of India (2017) 3 SCC 758.  The Goa assembly comprises of 40 elected members. Although the Congress was the single largest party (with 17 members), the BJP had 13 members, and also obtained support from six members of two regional parties and two elected independent members, thus having the support of 21 MLAs. The Supreme Court merely directed a floor test to be held within two days to show that the Chief Minister had the necessary support.

The Supreme Court was not called upon to decide whether the Governor ought to have first given the opportunity to the largest single party. It is submitted that it would be a healthy convention for the Governor/President to give an opportunity to the leader of the largest party unless, immediately after the election, a post-poll alliance is formed with a clear majority in the concerned legislature. In such a case, giving an opportunity to the largest single party will be an exercise in futility. The results were declared in Goa on 11^th November and on 12^th the BJP was able to demonstrate a clear majority in the assembly. Thus, no purpose would be served by giving the Congress a chance to prove its majority.

Further, the proving of majority, which can be achieved with the support of independent MLAs or smaller parties, must be accompanied by the letters of support from the individuals or from the leader of that particular party. In Karnataka, the fatal flaw was the swearing in of the Chief Minister in the absence of clear proof by way of letters of support or otherwise by having a clear majority in the House. The majority must be in praesenti and not in futuro. In this context, the importance of the Tenth Schedule should not be lost sight of and if any MLA switches sides, he should be instantly disqualified under para 2 thereof.

It is also suggested that if the MLAs are disqualified on the ground of defection, the majority must be determined by correspondingly reducing the total strength of the House. Therefore, the majority should be established on the basis of the remaining number of members of the House.  The disqualified MLAs will undoubtedly be subject to re-election and therefore, a by-election would then be necessary. These are further complications which have not been contemplated by the Tenth Schedule.

In fine, there is a need for the Government to codify and suggest, inter alia, the procedure to be followed when there is no clear majority in the Assembly/Parliament. It is, in fact, necessary so that there is no need for the Supreme Court to hear matters at 2 am in the morning.

The authors are practising advocates. They acknowledge the assistance of Vinoothna Vinjam, a student of law.