THE CONUNDRUM OF FRACTURED MANDATES: JUDICIAL REVIEW OF GOVERNOR’S DISCRETIONARY POWER

This article has been authored by Devarsh Shah and Mohanish Parikh, third year law students at Gujarat National Law University.

Introduction

The Governor, being the constitutional head of a state is envisaged with the power to appoint the Chief Minister, enjoying majority, after assembly elections in a state. In situations where no party gets a clear majority, the Governor’s role becomes quite subjective. In an atmosphere of uncertainty which is highly conducive to horse trading and political turncoats, the focal point of the situation shifts on the Governor’s actions. It becomes highly subjective as to which party or post poll alliance may actually hold the majority. The Governor while exercising his power to invite political parties or alliances to form the Government, has to exercise extreme caution and circumspection to not enter into a “political thicket”.

In Shiv Sena v. Union of India, the Governor’s actions for government formation were called into question. However, the Apex Court ordered for a floor test and left the questions of extent of judicial review and subjective satisfaction of governor open for further adjudication. Hence, it is important to understand the factors affecting the validity of subjective satisfaction of the Governor and its judicial review with regard to the appointment of the Chief Minister.

Discretionary Powers of the Governor in Appointment of Chief Minister

The Governor while exercising his powers has to act according to the aid and advice of the Council of Ministers unless in certain exceptional circumstances where the constitutional provisions require that the Governor acts in his own discretion as per Article 163(1) of the Constitution. It has been settled by the Supreme Court in Nabam Rebia v. Dy Speaker that the Governor has been empowered to exercise his discretion in the matters where -

1. there is an express constitutional provision,

2. where the implied interpretation of any provision of Constitution permits so and

3. situations where the Supreme Court has permitted such exercise of discretion.

In Shamsher Singh v. State of Punjab, the Supreme Court has considered the appointment of the Chief Minister to be in exercise of discretion of the Governor but has restricted his choice on basis of the paramount consideration of party holding majority of the House/Assembly. In Rameshwar Prasad v. Union of India, the Supreme Court held that Governor in the exercise of his discretion cannot do anything which is prohibited by the Constitution and the Governor cannot refuse any political party from staking claim to form and government and such an act would be wholly unconstitutional.

In case of a fractured mandate, the exercise of discretion as to whether the single largest party would be capable of forming government with outside support usually tends to be based on the Governor’s subjective satisfaction. There are no fixed set of parameters which governor must consider for his personal satisfaction. The basis of governor’s satisfaction is tested only when the matter goes to the courts. In S. Dharmalingam case, the Madras High Court held that the Governor has to satisfy himself that the person who commands a majority strength in the Assembly can only be the Chief Minister. However, the constitution does not indicate the basis of governor’s satisfaction.

Judicial Review of Discretionary Power of Governor

Perhaps, the most controversial aspect of the present discussion is the judicial review of the Governor’s power of appointment of Chief Minister. Article 164(1) of Indian Constitution stipulates that the Ministers of the State including the Chief Minister shall be appointed by the Governor and they shall hold office at the pleasure of Governor. The decision of the Governor for appointment of the Chief Minister is based on his subjective satisfaction that the person sought to be appointed enjoys majority on the floor of the house. It leaves scope for arbitrariness and mala fide motives in Governor’s action. Hence, having a check by way of judicial review is imperative in general interest. Unfortunately, the extent of permissibility of judicial review of such discretionary power of the Governor is a disputed question in Indian jurisprudence.

The Supreme Court has avoided clarifying the position on judicial review of Governor’s discretionary power with regards to the appointment of Chief Minister. In the recent past two matters reached the Supreme Court wherein the matter may have been set to rest. The first being, the 2019 Maharashtra government formation case where the governor’s actions were called into question and the other being the 2018 Karnataka elections case. In both the cases, the Supreme Court left the question open for further adjudication and ordered for an immediate floor test as relief.

Analysing the Judicial Approach

As mentioned above, the Apex Court has avoided going into the question of judicial review of Governor’s discretionary power for appointment of Chief Minister. Interestingly, the high courts have opined that the said power is out of the purview of judicial review.

The Calcutta High Court in Mahabir Prasad Sharma v. Prafulla Chandra Ghose held that the Governor in making the appointment of Chief Minister acts in his sole discretion and hence the same cannot be called in question in writ proceedings in the High Court. Further, in Pratapsingh Raojirao Rane v. Governor of Goa, the Bombay High Court held that in situations of the Chief Minister and the dismissal of the Chief Minister, the Governor is the best judge of the situation and his actions cannot be called into judicial scrutiny because he acts on the basis of relevant information and material which only he possess. The Court said that whenever the Governor acts on his sole discretion, he enjoys immunity under Article 361 of the Constitution. The proposition that the Governor’s discretionary powers are not subject to judicial review was further strengthened in Bijayananda Patnaik v. President of India, 1974 wherein the Orissa High Court stated that actions of governor under Article 163(2) and (3) are beyond judicial scrutiny.

However, the Supreme Court for the first time, in State of Rajasthan v Union of India, introduced limited judicial review of Governor’s power on ground of wholly irrelevant considerations. The celebrated S R Bommai case further widened the ambit of judicial review of Governor’s discretionary power. A significant turnaround came in Rameshwar Prasad v. Union of India where the Apex Court held that the Governor enjoyed complete immunity but it did not abridge the powers of the Court to examine the actions done by him including examining on the ground of his mala fides. Finally, in Nabam Rebia v. Deputy Speaker Arunachal Pradesh the Supreme Court explicitly asserted, overruling Mahabir Prasad and Pratapsingh, that discretionary power of the Governor is subject to judicial review. The above cases didn’t deal with discretionary power for appointment of chief minister in particular and therefore a direct reference to the extent of judicial review may not be drawn.

However, it can be deduced that judicial review of Governor’s discretionary power is permissible. The extent to which and the circumstances under which governor is answerable in matters of appointment of chief minister is still unclear.

Sarkaria Commission Recommendations – An alternative to Governor’s discretionary power?

Sarkaria Commission suggested that if no party commanded an absolute majority then following chronology should be followed -

1. Pre-poll alliance should be invited

2. The largest single party staking claim to form government should be invited and

3. If there is no such party which stakes claim then post poll alliances should be preferred.

The Allahabad High Court in H S Jain v. Union of India also gave the same preference order for appointment of Chief Minister in cases of fractured mandate. The Report also emphasized that Governor must be personally satisfied that the candidate to be appointed as Chief Minister enjoys majority on the floor of the house. The strict application of these recommendations will bind the governor’s course of action and any deviation from that shall make him answerable. Indeed, it eliminates the discretionary power of the Governor to appoint a Chief Minister. The Governor will be left with no choice but to strictly follow the preference order.

Conclusion

The exercise of discretionary power by the Governor in cases of hung assembly cannot be arbitrary and unbridled. There has to be proper consideration of facts and circumstances by the Governor and there should be detailed guidelines to be laid down on how the Governor should form his satisfaction to call upon a particular political party. A view has been taken in an article that the subjective satisfaction of the Governor should be based objective facts and materials which is supposed to be constitutional satisfaction rather than his personal satisfaction. The Governor should be mandated to follow the order of precedence of calling political parties to form government laid down by the Sarkaria Commission (para 4.11.04) as discussed above. Further, if the parties so invited in the order of preference cannot prove their majority to the Governor or there are multiple contenders for forming government, a mandatory floor test shall be ordered which must be conducted within 72 hours from the declaration of results for ascertaining the majority. Thus, a two-pronged approach, that is, one to limit the discretion of the Governor and other to validate it by mandatory floor test in cases of hung assemblies will help to solve conflict of formation of government.