The recent political controversy in Karnataka has thrown up the legal question of whether or not it was constitutional for Governor H.R. Bharadwaj to have recommended President’s rule in the state in accordance with Article 356(1) of the Constitution of India. It also raises a fundamental question of whether or not a loss in majority is tantamount to a situation where the government cannot be carried out in accordance with the provisions of the Constitution. As the following examination will reveal, both questions must be answered in the negative. It is thus not surprising that the Centre has rejected the Governor’s report.
The authority on most issues relating to Article 356 is the nine-judge verdict delivered in S.R. Bommai v. Union of India (AIR 1994 SC 1918).
This decision (with six different opinions) is a comprehensive exposition of the law surrounding the imposition of President’s rule under Article 356. The bench was constituted to review the proclamations issued under Article 356(1) in six different states. While reading the part concerning Karnataka, one is imbued with a strange sense of déjà vu. The problem in this case arose when 19 of the Janata Dal MLAs gave in signed letters to the Governor stating that they no longer supported S.R. Bommai’s government in Karnataka.. Things got complicated when seven of these MLAs then backtracked and said that they had chosen to continue extending support to the Bommai government. Bommai offered to prove his majority on the floor of the House. The Governor, however, sent a report to the President saying that he was concerned that the change in stance was a result of horse-trading, and that the Legislative Assembly had lost its confidence in the government. President’s rule was imposed.
The majority in Bommai held the said declaration was unconstitutional, and condemned it in the strongest terms: “We are of the view that this is a case where all cannons of propriety were thrown to wind and the undue haste made by the Governor in inviting the President to issue the Proclamation under Article 356(1) clearly smacked of mala fides. The Proclamation issued by the President on the basis of the said report of the Governor and in the circumstances so obtaining, therefore, equally suffered from mala fides.”
All the judges were in agreement that this power under Article 356 is to be exercised with great caution and has to be balanced with the principle of federalism that pervades the Indian Constitution. Sawant and Nayar, J.J., went to the extent of stating that “It is not every situation arising in the State but a situation which shows that the constitutional Government has become an impossibility, which alone will entitle the President to issue the Proclamation.” Five of the nine judges (Justices Pandian, Jeevan Reddy, Agrawal, Sawant and Nayar) opined that it is mandatory for the Governor to conduct a floor test before recommending the imposition of President’s rule based on loss in confidence.
On the question of proving majority the Bench said, “The principle of democracy underlying our Constitution necessarily means that any such question should be decided on the floor of the House. The House is the place where the democracy is in action. It is not for the Governor to determine the said question on his own or on his own verification. This is not a matter within his subjective satisfaction. It is an objective fact capable of being established on the floor of the House.” This would also help to determine if there is any other candidate who commands the confidence of the House.
The Report on the Justice Sarkaria Commisison on Centre-State Relations was quoted and relied upon extensively in the Bommai case. It is to be noted that while talking about illustrations of the improper invocation of an Article 356(1) Proclamation, in paragraph 6.5.01, the Bench mentions a situation where the Governor recommends the same on account of losing its majority support without ordering a floor test first. The converse then must also be true, i.e., if a floor test is ordered and a motion seeking confidence is not carried, a Proclamation under 356(1) is valid, that is, if the Chief Minister who lost the confidence of the House, does not quit on his own.
This is the context in which the situation in Karnataka is to be viewed.
At the very outset, it must be remembered that the refusal to conduct a floor test would have vitiated the Governor’s report had it been based on the Yeddyurappa government not enjoying the confidence of the Legislative Assembly. This is because without a floor test, it is impossible to conclude whether or not Yeddyurappa still enjoyed the confidence of the House. This has been made the only constitutional means of testing the confidence in a Ministry post the Bommai case. It simply cannot be assumed that the disqualified MLAs would have voted against him if they had been allowed to participate in the floor test conducted in October, 2010, because the Bommai decision bars any such assumptions from being made. Even if this assumption was made, a floor test was still called for because the BJP MLAs who were disqualified were quite adamant until recently that their loss in faith extended not to the BJP, but only to the leadership of B.S. Yeddyurappa, making it safe to assume that another leader from the BJP could have ended up commanding the confidence of the House (Jarkiholi & Ors v. Yeddyurappa & Ors., CIVIL APPEAL NOs.4444-4476 OF 2011).
As it happens, these discussions must remain academic because the Governor has denied that his report recommended invocation of Article 356(1) based on loss in majority. His move was undertaken since, “the sanctity of the floor test has been deliberately subverted thereby resulting in the breakdown of the constitutional mechanism.” He is careful to point out that a loss in majority is not the only way of determining the breakdown of constitutional machinery. (“Karnataka Crisis: Governor H.R. Bhardwaj Justifies Recommending President’s Rule”,).
Prima facie, this sounds like a sound argument. However, the Bommai case must be reverted to. There too, the Governor was concerned about how “horse-trading was going on and the atmosphere was vitiated” since he believed the backtracking of the 7 MLAs to be a result of unconstitutional means, and not something they had done of their own free will. The court held that these assumptions of the Governor were unsustainable in law. Even if he suspected coercion on the part of the Chief Minister, the proper remedy was to conduct a floor test. The report of the Governor is contingent upon his subjective opinion, but this must be backed by objective circumstances and not assumptions of horse-trading or vitiated consent. The objective proof of a floor test (and the passing of a confidence motion) is regarded as sufficient in these circumstances.
In Karnataka also, the press communiqué released by the governor states that the problem is “tampering with the composition of the Legislative Assembly in unconstitutional manner.” This in itself in not a sustainable basis for a proclamation under Article 356(1). This has to be necessarily backed by a floor test. The law, as posited in the Bommai case, is unambiguous and clear. The Karnataka CM offered to participate in a floor test repeatedly to prove his majority but was not allowed to do so. Thus, the Centre was justified in disregarding this report and refraining from invoking Article 356 in Karnataka.
This brings us to why proving majority on the floor of the House is important at all. Failure to command majority in the Legislature has never been the sole criterion for an invocation of President’s rule under Article 356. For instance, in July 1959 in Kerala, the President invoked Article 356 even though the Communist government enjoyed majority support because he felt the government had lost the support of the people and was no more in accordance with the democratic values of the Constitution. Moroever, we are all aware of Narasimha Rao’s minority government in the 1990s, though there is no provision for imposition of President’s rule at the Centre.
But the underlying principle here is that the minority character of the Government, by itself, is not a factor which should lead to an inference of illegitimacy just as the majority character of the Government is not an insurance against imposition of President’s rule, if the other factors necessitating the Proclamation under Article 356(1) exist. In other words, the minority Government, even if it is widely perceived to be so, must lose the confidence of the House, in order to invite the Proclamation.
While the Constitution does not mention majority (or minority or coalition) governments, Article 164(2) does lay down the principle of collective responsibility to the Legislative Assembly. This means that even if a minority government is in power, it must enjoy the confidence of the Legislative Assembly. This was aptly summed up by Jeevan Reddy, J., in the Bommai case-“The Constitution does not create an obligation that the political party forming the ministry should necessarily have a majority in the Legislature. Minority governments are not unknown. What is necessary is that government should enjoy the confidence of the House.”
This is the reason that a floor test is essential before a Governor decides to recommend a Proclamation under Article 356. Even if letters are otherwise written by MLAs of the ruling party withdrawing their support, the government need not be dismissed if the CM can still prove that his government enjoys the confidence of the Legislative Assembly. It does not matter that withdrawal of support leads to a loss in majority, if the minority government is able to prove that it still enjoys the confidence of the House.
[This post was written by Arushi Garg, third year law student from NALSAR University of Law, Hyderabad and me.]