Governors must be fair in inviting CMs
Governors often exercise discretion in deciding who to invite to form the government, especially in the case of close elections. They must be fair and judicious, and discharge their duty without fear or favour
You are about to start hearing the name of justice Ranjit Singh Sarkaria. He retired as a judge of the Supreme Court (SC) in 1981 after serving for seven years. His profile on the SC’s website records that early on in his career, he was part of a two-member committee to translate the Constitution into Punjabi. But in public debate, his name is remembered for his work after retiring from the SC. In 1983, then Prime Minister Indira Gandhi appointed him chairman of a three-member commission to review Centre-state relations. Popularly referred to as the Sarkaria Commission, its report suggested principles guiding a governor in selecting a chief minister (CM).
Article 164(1) of the Constitution empowers the governor to appoint a CM. Things are simple when one party wins a simple majority of seats in a state election. In such a case, the governor appoints the leader of the party as the CM. The Sarkaria Commission’s principles concern situations when no political party emerges as a clear winner. In such cases, the commission recommended that the governor invite a political party leader to form the government in the following sequence. First, the leader of the largest pre-poll alliance, then the single largest party with others in support, and finally, post-poll coalitions. The governor should select a leader who is most likely to command a majority in the assembly and then prove it on the floor of the legislature within 30 days.
Over the years, governors have exercised their judgment and discretion, and not stuck to the sequence laid down by the Sarkaria Commission. For example, in the 2005 Jharkhand election, the Bharatiya Janata Party (BJP) emerged as the single largest party. The governor invited the Jharkhand Mukti Morcha (JMM) leader Shibu Soren to form a coalition government with support from the Congress. In the last state election in Goa and Manipur in 2017, the Congress emerged as the single largest party in both states (17 seats in Goa and 28 in Manipur). But the governors of these two states invited BJP leaders Manohar Parrikar in Goa and N Biren Singh in Manipur, respectively, to form coalition governments.
But this is not a straightforward precedent. In some other cases, governors also gave the first opportunity to the leaders of the single largest party to form the government. For example, in the last Karnataka (2018) and Maharashtra (2019) elections, the respective governors invited first BJP leaders BS Yediyurappa and Devendra Fadnavis to form the government.
Political parties have used two mechanisms to satisfy governors about their ability to command a majority in the legislature. The first is parading legislators before the governor. The other is providing the governor with letters of support from lawmakers. In both cases, the conduct of governors and political parties has been found wanting.
In 1982, the governor of Haryana asked Devi Lal, the leader of the erstwhile Lok Dal, to present legislators loyal to him at Raj Bhawan. But a day before Devi Lal could demonstrate his coalition’s majority, the governor appointed Congress leader Bhajan Lal as the CM of Haryana.
In 2018, Yediyurappa gave a letter to the governor stating that he enjoyed the support of other members of Legislative Assembly (MLA), without providing any details, and requested the governor to invite him to form the government. The governor acquiesced.
The post-poll decisions of the governors have invariably been challenged before the courts. Aggrieved parties allege that the party ruling at the Centre puts pressure on governors to install governments run by the same party, or friendly coalitions. So far, the courts have not interfered with the judgment exercised by the governor. The only thing the SC has done is to reduce the time given by the governor to a political party to prove its majority in the legislature — as was seen in the case of Karnataka in 2018 and Goa in 2017. The idea behind doing so is to prevent the possible poaching of legislators.
But even with judicial overview, some decisions made by governors have set in motion a chain reaction damaging to the political fabric of the country. Political parties, on their part, start sequestering their legislators in hotels to prevent them from jumping ship. In hung legislatures, the office of the Speaker also comes under pressure to inordinately delay the expulsion of lawmakers who defy their party’s whip to support the government in power.
Over the years, many different recommendations have been given to bring more clarity and transparency to the judgment exercised by a governor in appointing the CM. A report of the Committee of Governors in 1971 suggested the setting up of a special wing in the President’s Secretariat, which would communicate with the governors and bring uniformity in the treatment of similar situations.
The Justice Madan Mohan Punchhi Commission on Centre-state relations recommended in its 2010 report, amendments to the Constitution. “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,” said the report.
The way to nudge governors to be fair and judicious in appointing CMs does not lie in amending the Constitution and making it more prescriptive. It can be done if governors discharge their constitutional duty without fear and favour, as the founding fathers of our nation intended them to.
Chakshu Roy is the head of legislative and civic engagement, PRS Legislative Research The views expressed are personal