The appointment of BJP’s B.S. Yeddyurappa as chief minister of Karnataka has brought into focus once again the powers of the governor in choosing a chief minister who does not have a majority in a hung assembly.
The letter written by Karnataka governor Vajubhai Vala to Yeddyurappa simply says that since he has been elected leader of the legislative party of the BJP, he is being appointed chief minister. This letter does not mention the reason for Yeddyurappa’s appointment CM when he does not have a majority in the newly-constituted assembly.
Expert opinion is divided as to whom the governor should call to form the government in a hung house. Conventions are being cited to show that the leader of this single largest party should be asked to form the government. The Sarkaria Commission and the Punchhi Commission reports are being invoked to justify the invite to the leader of the largest party. An impression is sought to be created that these commissions have suggested that a governor should appoint a chief minister without his having a majority in the assembly. It is also being argued that the governor has the discretion to allow such a chief minister sufficient time within which to prove his majority.
Let me say at once that these assumptions are all wrong. The first false assumption is that the governor has discretion to appoint a chief minister even when he has no majority in the assembly. Article 164(1) says that a chief minister is appointed by the governor and other ministers are appointed by him under advice of chief minister. Clause (2) of this Article says that the council of ministers shall be collectively responsible to the assembly. The single meaning of the term ‘collective responsibility’ is that the council of ministers shall have majority in the assembly. When these two clauses are read together, the constitutional scheme becomes clear, which is that the governor can appoint the chief minister only when he has a majority in the house. An appointment without a majority has no constitutional legitimacy and therefore, is a nullity.
The practice of appointing a chief minister without a majority and asking him to prove his majority has no sanction under the constitution. The constitution recognises only a council of ministers which has a majority in the house all the time. The condition precedent for the appointment is therefore a majority in the house. Neither the constitution nor the rules of the house contain any provision for ‘proving a majority’.
This is so because the governor has to satisfy himself that the chief minister that he appoints has majority support of the House. This is an appointment done by the governor under Article 164 of the constitution and it should be in conformity with clause (2) of this Article. The house rule permits a no confidence motion against the council of ministers and not a confidence motion. The confidence of the House, meaning the majority, is ascertained by the governor when he makes the appointment. Therefore, an appointment of the chief minister by the governor without satisfying himself about the majority support that the chief minister has is, in fact, not an appointment under Article 164 of the constitution.
The Sarkaria Commission and Punchhi Commission did not suggest that the government can appoint a chief minister without ascertaining whether he has the majority. They swiftly said that in a hung assembly, where no party has a majority, the governor may ascertain whether any of the parties can secure a majority, say by aligning itself with another party or merging with another party etc, before an appointment is made. If a chief minister could be appointed without a majority, then there was no need for these commissions to suggest that the governor should consult a number of parties in a certain order. He could just pick up anyone and appoint him as chief minister – and ask him to prove his majority later.
A number of judicial decisions have settled the law as to the exercise of discretion by constitutional authorities. Discretion does mean absolute freedom to act in any manner that one likes. Such power is anathema to the constitution of India. Discretion needs to be exercised in accordance with constitutional principles. It is illogical and irrational to suggest that when there is a majority, the governor is bound to call the leader of the majority only to form the government and when no one has majority, he is absolutely free to choose any one.
Majority is the main consideration. When there is majority, the governor does not have to look elsewhere. When no one has majority, the governor can try to find out whether some party or combination has the majority. When he is satisfied that they have the requisite majority, he can proceed to call them to form the government. So under the constitution, the governor does not have the discretion to appoint a council of ministers which does not have a majority at the time of appointment. Moreover, we have seen the unseemly sight of legislators being bought to create a majority when the governor first appoints the council of ministers and then asks them to prove the majority. The constitution does not permit a constitutional authority to be part of such unholy activities.
The political parties are all talking about conventions. Conventions were laid down only to be broken whenever it is convenient. Rumours are that legislators from the opposition are being persuaded to resign to bring down the total number so as to create a majority for the government in office now. If these rumours are true, another innovative convention is in the process of being laid down. The political class in India is imbued with the skill to create ever new conventions and precedents to get around the constitution and law. In such situations, only the judiciary can call a halt to it and restore constitutional order. The citizens of India have a right to expect decisive action from the apex court.
P.D.T. Achary is a former secretary general of the Lok Sabha.