• Fix the Constitutional Paradox

    Mohan V Katakari

    November 29, 2019

    The last few days have witnessed what some have described as a “ betrayal “ of the Constitution by the Governor of Maharashtra. In this article, the author traces the historical origins of the paradox and explains why we need timelines to prove majority to prevent “horse-trading”

    The nation waited with bated breath for three days for supremacy of the Constitution. Devender Fadnavis was sworn as the Chief Minister by Bhagat Singh Koshyari, the Governor of Maharashtra, on Saturday morning in a manner which is described as “odd” by former Attorney General Mukul Rohatgi[i]. The appointment was challenged before the Supreme Court. A bench headed by Justice N V Ramana sat on Sunday and Monday and heard the matter. The bench on Tuesday, on November 26, 2019,  issued slew of directions as a request to the Governor of Maharashtra, inter alia, to ensure that a floor test is conducted on November 27, 2019 for testing whether his appointee Chief Minister Fadnavis commands simple majority support in the State Assembly or not. However, on the same day, Fadnavis took his own political decision after sensing eventual defeat in the Assembly and resigned ending the high drama.

    At the bottom of this high melodrama in Maharashtra lies a constitutional paradox which is misused and which requires to be fixed. On the one hand, the Council of Ministers headed by the Chief Minister under Art 164(2) of Constitution of India COI] are “collectively responsible” to the State Assembly and therefore, they must be acceptable to the majority in the Assembly. But, on the other hand, the head of the State namely Governor under Art 164(1) COI is made the appointing authority of the Chief Minister.  This conundrum is true in case of appointment of Prime Minister also because of similar provisions in  Arts 75(1) and 75(3) of the COI. The position is the same in the UK   from where the Parliamentary or Cabinet system of Government has been adopted in India by the constitution-makers, the duality exists.  The Crown appoints the Prime Minister, but at the same time, the Crown is required to have regard to the fact that the Prime Minister chosen by him is acceptable to the Parliament.  The Crown no longer has a choice in selecting the Prime Minister in normal circumstances. The convention is unequivocally stated as [ii] –

    The Party who commands the majority in the House of Commons are entitled to have their leader placed in office with the right to select his colleagues”

    This paradox that the Crown selects such person who is otherwise acceptable to the Parliament is borne out of reason during the long struggle between the Crown and Parliament in England. The Council of Ministers run the administration in Parliamentary or Cabinet system of Government. However, they derive all their powers from the grant made by the Parliament. They don’t have independent powers. Therefore, the Prime Minister to be appointed must command majority support in the Parliament for its functioning. One may ask, why not Chief Minister be elected by the State Assembly?  This sounds great. But, the Parliamentary or Cabinet system indirectly rejects the system of first past the post. The legislature cannot elect since the person with less than 51% of support may get elected in a multi-cornered contest. Such a person elected by the first past the post may not have majority support in the legislature. Hence, the Bills or proposals introduced by him may not muster support for being enacted into law. In such a situation, the Chief Minister or Prime Minister will become lame duck doing nothing virtually.

    The constitutional conundrum based on Parliamentary or Cabinet system of Government has been misused. Despite judicial interventions in specific cases [iii] including the case of Maharashtra, there is no guarantee that the Governors don’t misuse their powers in future. There could be genuine cases of misreading the support claimed by the aspirant Chief Minister. Therefore, a specific and inflexible norm may be required to mandating the Governors to direct the appointee Chief Minister to seek a trust vote within 48 hours.  We can only hope that in some appropriate case in future, SC will lay down an inflexible rule that the Governor would insist on every Chief Minister to move confidence motion or trust vote in the State Assembly within 48 hours of his appointment.

    In fact, in the pending Maharashtra matter itself before the Supreme Court, the following questions have been raised which may provide an opportunity for the Court to consider fixing timeline as suggested –

    1. Whether the Revocation of President Rule invoking Rule 12 of the Business Transaction Rules by the PM was valid (i.e. revocation without Cabinet Approval)?
    2. Whether the Governor was justified in swearing in a govt in hot haste without satisfying himself that the CM had the numbers?
    3. Whether the leader of a legislative party can unilaterally extend support to a govt without due authorisation/resolution from the legislative party itself?

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    [i] See the interview of Former Attorney General  Mukul Rohatgi with Karan Thapar.

    [ii] Hood Philips, Constitutional law, (1981), p. 114

    [iii] Anil Kumar Jha .vs. UOI, (2005) 3 SCC 150: Chandrakant Kavlekar .vs. UOI, (2017) 3 SCC 758: G. Paramevar .vs. UOI (2018) 16 SCC 46


    First published in The Leaflet.

    Disclaimer: The views expressed in this article are the writer's own, and do not necessarily represent the views of the Indian Writers' Forum.

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