By Ajay Kumar
In India, the governor of a state is its constitutional head. All acts of the state government are carried out in the name of the governor. In terms of the constitution, the legislature of a state consists of a governor and the Houses of Legislature. This is in accordance with the Westminster convention known as the “Queen in Parliament”. The constitutional head forms a part of the legislature, and has the power to convene and dissolve the House, on the advise of the cabinet.
But when no party has a clear majority, who does the governor call to form a government? One good example on how this power is exercised is the Madras legislative assembly election of 1952. The governor in that particular case, called upon C. Rajagopalchari to form a government, despite him not having been elected.
In that election, the opposition managed to form a majority against the Congress party, under the banner of the United Democratic Front. The coalition was Communist Party of India (CPI) and CPI-backed independents (70 seats), Kisan Mazdoor Praja Party (36), Tamil Nadu Toilers Party (19), Commonwealth Party (6), Forward Bloc (Marxist Group) (3 seats), Scheduled Castes Federation (1), Justice Party (1) and Independents (30). This ensured that the opposition had 166 seats out of a total of 375, and their leader T. Praksam staked claim to form a government, as they were the single largest coalition.
But the governor of Madras took a different view. Fearing a Communist take over of the state, he invited Rajaji to form a government and nominated him to the Legislative Council. At the time, Rajaji was not even a member of either house of the legislature. The Congress party, which had won a total of 152 seats, had to reach the magic number of 189 to win the vote. They were 37 seats short, but, after engineering a series of defections and co-opting independents, Rajaji was able to win the confidence vote 200 to 151.
This is perhaps the best parallel to what is happening in Karnataka right now. The Congress and the Janata Dal (Secular) can form a government as they have a majority. But, the governor is free to take into account many considerations, before calling on a leader to take oath as the chief minister.
The consideration usually involves mulling over the issue of which leader can form the most stable government. This is why Article 164 of the Constitution doesn’t even require the chief minister to be a member of a house at the time of taking the oath of office. The chief minister has to be elected within six months of being sworn in, if not a member.
The governor ultimately decides who to call to form a government. However, this decision is not one that is barred from the interference of courts, under the doctrine of parliamentary privilege. This is why the Congress and JD(S) is currently challenging in the Supreme Court Karnataka Governor Vajubhai Vala’s decision to invite the BJP’s B.S. Yeddyurappa to form the government. The court will hear arguments on this matter tomorrow, and it is hoped that the verdict will provide some clarity on how the governor is actually supposed to act in such situations.
Ajay Kumar is an advocate at the Bombay High Court.