GOVERNORS POWER IN

APPOINTING THE CHIEF

MINISTER

BLESSAN
16IP63016
 POWERS OF THE GOVERNOR IN APPOINTING A CHIEF MINISTER

Introduction

With the current season of state elections coming to an end, most states
gave a thumping majority to a single party thereby making the appointment of
chief minister an easy affair. However, few other places gave a fractured verdict
whereby no party gained outright majority resulting in the scenario of merry go
around for the prized possession of chief minister's throne. Governor of a state
nominates the chief minister under the article 164(1) which provides that

"the Chief Minister shall be appointed by the Governor and the other Ministers
shall be appointed on the advice of the Chief Minister".

In addition to it, the Constitution of India also prescribes the following

conditions through

Article 164(2) provides that the Council of Ministers shall be collectively

responsible to the Legislative Assembly of the State.

Article 164(4) provides that a Minister who for any period of six consecutive
months is not a member of the legislature of the State shall at the expiration of
that period cease to be a Minister.

Article 163(1) of the Constitution which provides that there shall be a Council
of Ministers with the Chief Minister at the head to aid and advise the Governor
in the exercise of his functions, except in so far as he is by or under the
Constitution required to exercise his functions or any of them in his discretion.

Article 163(2) states that if any question arises as respects which the Governor
is by or under the Constitution required to act in his discretion, such decision of
the Governor shall be final, and the validity of anything done by the Governor
shall not be called in question on the ground that he ought or ought not to have
acted in his discretion.
 POWERS OF THE GOVERNOR IN APPOINTING A CHIEF MINISTER

Can a Non-Member be Nominated?

In the case of Har Sharan Verma v Tribhuvan Narain Singh, The

Supreme Court has settled the question whether a non-member of the legislature
of a State, can be appointed as Chief Minister. The Constitution Bench of the
Supreme Court held that the appointment of Tribhuvan Narain Singh as Chief
Minister of Uttar Pradesh was constitutional though he was not a member of
either House of the U.P. Legislature at the time of his appointment.

Referring to Articles 163 and 164, the Supreme Court held that Clause (1) of
Article 164 does not provide "any qualification for the person to be selected by
the Governor as the Chief Minister or Minister and clause (2) makes it essential
that the Council of Ministers shall be collectively responsible to the Legislative
Assembly of the State and that this is the only condition that the Constitution
prescribes in this behalf.''

Thus, the Supreme Court has held that the only condition to be satisfied for a
person to be appointed as Chief Minister is that he should have the support of
both the Houses. The Court referred to Article 177(1) for arriving at the
conclusion that a non-member can be appointed as Chief Minister for six
months.

Similarly, in the case of S.R Chaudri v State of Punjab, the Supreme Court
made it clear that the appointment of a non-member must be a one-time
exception. The article 164(4) cannot be abused by appointing a member
repeatedly with the gap of six months, without electing to the legislature.
 POWERS OF THE GOVERNOR IN APPOINTING A CHIEF MINISTER

Appointment of Deve Gowda

In November 1997, a question arose whether the appointment of Mr H.

D. Deve Gowda, as Prime Minister was valid when he was not a member of
Parliament. The Supreme Court referred to its earlier decision in Harsharan
Verma case and held that the appointment of Mr Deve Gowda as Prime
Minister was legal and constitutional under Article 75(5) which corresponds to
Article 164(4). The court expressed the view that the person who is appointed
the Prime Minister is chosen by the elected representatives of the people and
can occupy the position only if he enjoys the confidence of the majority of the
elected representatives in the Lok Sabha and that the scheme of the Constitution
permits such appointment. The Supreme Court further observed as follows:

``Therefore, even though a Prime Minister is not a member of either House of

Parliament, once he is appointed he becomes answerable to the House and so
also his Ministers and the principle of collective responsibility governs the
democratic process. Even if a person is not a member of the House, if he has the
support and confidence of the House, he can be chosen to head the Council of
Ministers without violating the norms of democracy and the requirement of
being accountable to the House would ensure the smooth functioning of the
democratic process. We, therefore, find it difficult to subscribe to the
petitioner's contention that if a person who is not a member of the House is
chosen as Prime Minister, national interest would be jeopardised or that he
would be running a great risk.''
 POWERS OF THE GOVERNOR IN APPOINTING A CHIEF MINISTER

Appointment of Jayalalithaa

In the landmark case of B R Kapoor v state of Tamil Nadu, the Supreme Court
held that a person convicted of a criminal offence and sentenced to more than
two years of imprisonment cannot be appointed as chief minister. The party
which got the majority in the elections elected Smt.Jayalalitha who was
disqualified from contesting the election. The governor appointed her as chief
minister. The court held that her appointment as chief minister was violative of
the article 164(4) and therefore, unconstitutional. A non-member who does not
possess the qualifications prescribed by art 173 or has been disqualified under
article 191 of the constitution cannot be appointed as chief minister.

Procedure followed before appointment

Although, the Constitution has not set any prescribed method to be followed
while selecting the chief minister. The following conventions are adopted by the
governors

He calls the leader of the majority party or any person who he feels has the
confidence of the House and appoints him as chief minister. After, this he may
ask the person to prove the majority by floor test within a specified period.

This type of procedure is subject to abuse because usually the floor test is
conducted by a speaker. The chief minister invariably selects the person may
favour him during the floor test. Speaker while doing the floor test may subvert
democratic principles and abuse his power.

Or conversely, the governor could also go for the floor test first and then
appoint the person who proved the majority rather than naming the person and
going for the floor test. Many constitutional experts believe this to be a better
alternative than the method of appointing first and then taking a test.
 POWERS OF THE GOVERNOR IN APPOINTING A CHIEF MINISTER

Governor window period

Article 163 (2) gives Governor broad powers of discretion when he feels that
there is such need for discretion. Moreover, the Constitution does not provide
the time limit within which a person had to be appointed as chief minister, once
the election commission announces the results. Recently in Tamil nadu when
Sasikala took claim for as leader of a majority party the governor waited for the
verdict from pending a case in which she was an accused as the judgment can
lead to her removal as chief minister in case she was appointed. Many
constitutional experts do believe the governor does have this window of
discretion.

In comparison with the president, the governor at times have more discretionary
power than the president. The president is always bound by the aid and advice
of the council of ministers. However, the constitution gives governor
extraordinary discretion power under Article 163(2) and this power cannot be
questioned by the court.

When can governor use his discretionary power

Administration of tribal areas in Assam
When Governor is appointed as the administrator of Union territory
According to art 200, governor can reserve a bill for consideration by
president

Conclusion

In conclusion, the power of the governor to appoint chief minister is wholly a

discretionary affair of the governor. He has the freedom to nominate any person
to the post if he is not debarred or disqualified. The only necessary condition is
that he must enjoy the majority support of the House.
POWERS OF THE GOVERNOR IN APPOINTING A CHIEF MINISTER