Shifting sands of discretion - Essay, UPSC MAINS | Course for UPPSC Preparation - UPPSC (UP) PDF Download

Shifting sands of discretion 

STRUCTURE

(1) Opening    —    S. R. Bommai case.

(2) Body    —    The Sordid drama of Jharkhand governor.

    —    What rule should guide the governor in making the choice?

    —    The guidance of the Constitution.

    —    British precedents.

    —    R. Vankataraman’s view.

    —    The Single largest party be called for.

    —    S.D. Sharma.

    —    The Sarkaria Commission.

    —    The Constitution review Commission.

    —    The situation of Bihar and Jharkhand.

    —    The Constituent Assembly.

(3) Closing    —    Public opinion could be a salutary check.

It was in August, 1988 that S.R.  Bommai assumed charge as Chief Minister of Karnataka, the Janata Party alliance that he led along with Ramakrishna Hedge and Deve Gowda having come to power three years earlier on a platform of value-based politics. Hardly eight months into office, his government was dismissed and the Assembly dissolved on the basis of unverified withdrawal of support by some legislator without allowing him to prove his majority support in the Legislative Assembly. As it turn out, a dismissed Bommai proved to be a more formidable force for the strengthening of constitutional values than he could have been in office. For it was as the culmination of his long drawn legal battle that the Supreme court delivered its landmark judgement in 1994 that called a halt to the half a century old habit of the party in power at the Centre dismissing State Governments and imposing President’s Rule virtually at will. 

The sordid drama of the Jharkhand Governor, Syed Sibtey Razi, choosing the Jharkhand Mukti Morcha leader, Shibu Soren, as the Chief Minister, bypassing the claims of the National Democratic Alliance which claimed the demonstrable support of the majority of the MLAs, holds a potential similar to the Bommai dismissal of transforming constitutional practice in the area of government formation. Recently in Karnataka Yadurappa sworn in as CM and after 48 hours had to resign. While in most case the majority party or coalition will be so far ahead that the choice would be obvious, for the difficult cases of a hung Assembly, or in an Assembly where two groups are evenly matched and, with smaller parties and independents holding the balance, both claim majority support, what rules should guide the Governor in making the choice? The Chief Minister ultimately has no doubt to demonstrate that he has the numbers in the Assembly. Yet, such are the advantages of office that the party that gains power can through pressure and inducements win over legislators who are up for the bidding, thus turning the Governor’s choice into a self-justifying act. 

The initial choice in such situations has to be seen as manifestly fair to all the contending parties, but beyond saying that the Council of Ministers should command the majority support in -or be collectively responsible to -the State Assembly, the Constitution provides no guidance. Under the Government of India Act, 1935, Instruments of Instructions were provided to Provincial Governors and the Constituent Assembly had originally wanted to include similar instruction for Governors in a schedule of the Constitution, but finally preferred to leave them to be guided by conventions. Even if the schedule had been included, though, it would have merely required that the Governor “appoint in consultation with the person who in his judgement is most likely to command a stable majority in the Legislature those persons (including so far as practicable members of important minority communities) who will best be in a position collectively to command the confidence of the Legislature.”

British precedents lean towards inviting the leader of the single largest party to form the government in a situation of unclear majority. One approach suggested by Ivor Jennings is to look at the change brought about by an election and if the ruling party is defeated, to invite the Opposition. But as the former President, R. Venkataraman, points out in his book, My Presidential Years, this has not been the practice followed in Britain in the modern period and invariably the single largest party, even if it be the ruling party that has lost its majority, has been invited to form the government. 

During his term in office, Mr. Venkataraman used the single largest party test as an invariant rule, for in his view any other course that would call for the use of discretion by the President, who is most often elected to office with the support of the ruling party, could be partisan or at least seen as partisan. This was the procedure he followed when he sounded out the largest single party, the Congress, before he appointed V.P. Singh as Prime Minister in 1989. A year later when the V.P. Singh Government fell, he went down the list of parties in the order of their strength and sounded out the Congress, the BJP and the Left Front before he called Chandra Shekhar to form the government.

Yet, the single largest party may not necessarily be able to secure the majority, and if the rule worked smoothly during Mr. Venkataraman’s term it was only because the larger parties lacking majority support declined to form the government. Shankar Dayal Sharma’s application of the same rule led to an anomalous situation in 1996 when the BJP as the single largest party chose to form the government and could last just 13 years. Subsequent practice has moved away from a mechanical application of the single largest party test to assessing the majority support by sounding out the major parties and getting them to declare their stands in writing. This procedure too is not without its pitfalls, for as it happened in “Goa and also in Jharkhand in the current round, the head of a party might give a letter of support to one side (in this case, the United Progressive Alliance) while the legislator may chose the other even at the risk of being disqualified under the anti-defection law. 

The Sarkaria Commission on Centre-State relations recommended that in case where no single party gets a majority, the Governor should sound out the parties in the following order: first, a pre-poll alliance claiming majority support, then the largest single party staking a claim, third a post-election coalition with all parties in government and fourth a post-election alliance with some parties in government and others providing outside support. After going through this process, he “should select a leader who in his judgement is most likely to command a majority in the Assembly”.

The Constitution Review commission headed by the former Chief Justice of India, M.N. Venkatachaliah, would not allow any scope for the Governor’s discretion or judgement. In cases where no single party or pre-poll alliance got a clear majority, it recommended “the Rules of Procedure in the Lok Sabha may provide for the election of the Leader of the House along with the election of the Speaker and in the like manner. The Leader may then be appointed as the Prime Minister. The same procedure may be followed for the office of the Chief Minister in the States concerned.” The Supreme Court’s 1998 order on a composite floor test in the Uttar Pradesh Assembly to determine 

by open ballot if Kalyan Singh or Jagadambika Pal had the majority support approximated to the procedure suggested by the Commission. A procedure for election, however, may not quite accord with the spirit of the Constitution which calls for appointment by the Governor. 

Clearly, the Constituent Assembly’s confidence that sound conventions would grow in course of time has turned out to have been misplaced, and the process of government formation based on the shifting sands of discretion of partisan Governors has become more contentious, bitter and lacking in legitimacy. This is an area where the judiciary, even if it were so inclined, will not be in a position to find a solution. The political process needs to address the issue through the Inter-State Council or through the less formal conference of Governors or Speakers and come out with clear and widely acceptable rules.

Vesting some measure of discretion in the Governor will still be inescapable, as he or she will have to judge who would command the majority support of the Assembly. The process of ascertaining the support, however, needs to be made more formal, with all the parties required to spell out their stands in writing. Most important, the process has to be transparent and the Governor’s choice has to be a speaking decision, making it clear why a particular party was chosen rather than another so that the reasoning can be debated publicly. Even in times when deviancy of political conduct is being defined down, to use Daniel Patrick Moynihan’s phrase, public opinion could be a salutary check for it was the sense of national outrage that could retrieved the situation.