Indian Supreme Court engages in judicial overreach

By Sandeep Gopalan

Karnataka’s – home to India’s Silicon Valley – hung election result has thrown up a constitutional conundrum. The results declared last week witnessed no party gaining a simple majority – 112 seats. 

The largest party, PM Modi’s BJP, fell just short (104 seats), whereas the incumbent Congress was tossed out by the voters (winning 78, a loss of 43 from the last election), whilst a third party, the JD-S, won 38 seats. The question is who should form the government. 

The Governor – a Modi appointee – offered the opportunity to the BJP and appointed its leader as the Chief Minister. The new CM was given 15 days to prove his majority in the House. Promptly, the Congress pledged its support to the JD-S, which it had bitterly opposed during the election, in an effort to thwart its bigger national rival. Congress then approached the Supreme Court challenging the Governor’s decision.

The Supreme Court reversed the Governor and ordered Chief Minister Yeddyurappa to prove his majority at 4 p.m. last Saturday. Unable to make the numbers, Yeddyurappa resigned just before 4 p.m. 

The order marks another milestone in the Court’s activism. It is a clear violation of the principle of separation of powers. Under the constitution, the Court is a coequal branch of Government and does not have the authority to reverse the Governor’s decision.

The power to summon the House is specifically conferred on the Governor and not the Supreme Court under article 174: “The Governor shall from time to time summon the House or each House of the Legislature of the State to meet at such time and place as he thinks fit…”

The Punchhi Commission on Centre-State Relations issued a report in 2010 recommending that the Governor, in such circumstances, should “advise the Chief Minister to summon the Assembly as early as possible”. In the event that the CM does not act on the Governor’s advice, “the Governor may, summon the Assembly for the specific purpose of testing the majority of the Ministry.” 

The 2010 report also endorses the Sarkaria Commission’s view on the time-frame for convening the House: “The Assembly should be summoned to meet early within a reasonable time. What is ‘reasonable’ will depend on the circumstances of each case. Generally, a period of 30 days will be reasonable, unless there is very urgent business to be transacted…”

Clearly, these are powers vested in the Governor of a state. He alone can summon the Assembly and determine what time is reasonable for a CM to prove his majority. The two commissions on centre-state relations seemed to indicate a much longer time-frame than two days and they were not oblivious to the possibilities for horse-trading. They specifically recognised that determining when to convene the house entailed discretion reserved to the Governor.

To be sure, the Karnataka election has generated confusion and there are no good options. Both sets of political actors have well established records of extreme corruption and the SC is right to be concerned. However, that does not excuse a power grab. 

The Punchhi and Sarkaria Commissions have recommended avenues for the Governor to follow in cases where an election throws up a hung assembly. The 2010 report provides the roadmap to be followed by the Governor for the formation of a government in considerable detail, selecting in order:

(a) The party or combination of parties which commands the widest support in the Legislative Assembly should be called upon to form the Government.

(b) If there is a pre-poll alliance or coalition, it should be treated as one political party and if such coalition obtains a majority, the leader of such coalition shall be called by the Governor to form the Government.

(c) In case no party or pre-poll coalition has a clear majority, the Governor should select the Chief Minister in the order of preference indicated below: 

1. The group of parties which had pre-poll alliance commanding the largest number;

2. The largest single party staking a claim to form the government with the support of others;

3. A post-electoral coalition with all partners joining the government; and

4. A post-electoral alliance with some parties joining the government and the remaining including independents supporting the government from outside;

 Notably, the 2010 report does not envisage a role for the SC in government formation even in situations involving a hung assembly.

This is not surprising – it merely echoes the fact that the appointment of a chief minister is a political decision and hence reserved to the political branches of government. It is not an appropriate subject for the exercise of judicial power. For the SC to ignore the clearly demarcated zones of constitutional power and encroach on areas where it has been specifically excluded is an ultra vires act.

Many Indians support the court’s decision because it appears to prevent horse-trading. But this is a mistake. Horse-trading and corruption could have been addressed through existing laws. If the BJP bribed seven legislators to secure a majority, they could be prosecuted under conspiracy, bribery, and anti-corruption laws. By intervening in this form, the SC did not stop corruption. 

Instead of bribery of seven legislators by the BJP, we now have bribery of the 38 legislators from the JD-S party by the Congress party. Clearly, this is a worse outcome, and does not accord with the mandate demonstrated in the election. The voters rejected the Congress and JD-S, but the SC overreached and imposed them in power anyway.

The Court should exercise restraint and confine its decisions to areas where it has authority. It is a court of law and is authorised to act only under the authority of law. In other words, taking over powers reserved to the Governor, despite the justifications offered, is disrespectful of the other branches of Government and violates the Constitution.

(Dr. Sandeep Gopalan is the Pro Vice-Chancellor for Academic Innovation and a Professor of Law at Deakin University.)