Congress is wrong, governor’s discretion in formation of govt in a hung state is absolute

Is the Congress party crying wolf over the way the Bharatiya Janata Party (BJP) "managed" to form governments in Goa and Manipur? Are they right to charge BJP with allegations of 'stealing democracy', after winning the states despite trailing in fractured mandates?

The answer to these questions – if one follows a dispassionate analysis – will be 'yes' . In the absence of any established convention or a specific law on the subject, that is, how to form a government in the wake of a "hung" verdict, it would appear that BJP's actions were "legal" albeit "immoral.”

The point that Congress and some experts have been trying to make is that in the event of a fractured mandate, that leads to a hung legislature, the governor (or for that matter the President in the case of General Elections) "must" invite the party with the largest number of newly elected legislators to form the government, which, in turn, shall be given some time to prove the majority in the legislature.

Since the Congress had more MLAs than BJP in both Goa and Manipur, it "must" have been called by the concerned governors to form the government. According to Congress leader Digvijaya Singh, who was the party’s election in-charge in Goa, state governor Mridula Sinha "broke the Constitution" by inviting the BJP first, despite the Congress getting "the mandate by the public."

Congress and BJP flags. Reuters

Congress and BJP flags. Reuters

However, nowhere in the Indian Constitution, either the president at the Centre or the governor in a state is bound to call the leader of the single largest party to form the government in the case of a hung House. In fact, that is the reason why the Supreme Court dismissed the Congress' plea of restraining the Goa governor from swearing-in Manohar Parrikar as the new chief minister.

It went with the previous judicial pronouncements that strength of a government must be tested in the floor of legislature and accordingly determined the time by which Parrikar must prove his majority in the Assembly. And Parrikar did just that.

And perhaps because of this judicial setback for Congress in Goa, there was no problem for a BJP-government being installed in Manipur – even though the Congress, with 28 MLAs, had seven more than BJP’s 21 MLAs.

In fact, the way BJP cobbled up new allies to get legislative majority was so smooth and obvious that unlike in Goa, the party’s new chief minister, N Biren Singh, has not been even asked by the governor to prove his majority in the new Assembly. So much so that his predecessor, Congress’ Okram Ibobi Singh, did not even hesitate before attending his swearing-in ceremony.

The point, thus, is clear, that the Indian Constitution allows the president, or for that matter the governor of state, to use his or her "discretion" to decide whom to invite to become the prime minister or the chief minister in the event of a fractured mandate.

And, in exercising such "discretion", he or she is not bound to invite the leader of the single largest party. What he or she has to consider is whether the chief minister-designate will be able to secure the majority support in the House in a given period of time.

It may also be noted here that emerging as the single largest party does not mean that the party, as Digvijaya will like us to believe, has got the popular mandate. After all, the fact remains that in the recently concluded elections, BJP got 33 percent of votes as against 28 percent of the Congress in Goa. And in Manipur, the Congress got 32 percent of votes whereas the BJP’s corresponding figure was 34.6 percent.

The only limitation to the "discretionary power" that has been imposed on a governor by the Supreme Court so far is that he or she will not deny a leader claiming to form a government the chance to do so and seek the subsequent approval from the Assembly and instead recommend the President’s rule (this does not apply in case of the President as he or she shall have a prime minister all the time to aid and advise). In other words, the discretionary power is to be used towards the formation of a government, not to prevent it if there is a claim.

It may be noted in this context that the Supreme Court had indicted former Bihar governor, Buta Singh, who in February 2005 Assembly elections had denied the claims of NDA leader Nitish Kumar to form a government, when the single largest party of Lalu Yadav (RJD) could not muster, along with the Congress and others, the required 122 mark (in a House of 243).

Singh’s plea was that in a fractured House, the NDA, if allowed to form a government, would have resorted to defections and other unethical means; therefore, he recommended for the imposition of Central rule. The Court opined that the governor had acted in 'undue haste' in sending his report to the central government and that "his full motive was to prevent Janata Dal-United from staking claim to form a government after a fractured verdict". It said that the governor was not entitled to anticipate and act on the possible defections as defection-related incidents were under the jurisdiction of the "speaker", not the "governor".

Now the question is how a governor uses his or her "discretion" in inviting someone to take oath as chief minister in a hung House. Undoubtedly, he or she can do things on his or her own. He or she can seek legal advice discreetly. Or, and this is the best course, he or should go by "conventions", which, though not outlined in any document, have developed over time and grown out of practice. In this regard, the most talked about ones are the recommendations of the Sarkaria Commission:

- The first preference is to be given to a pre-poll alliance commanding a majority in the House.

- The second preference is to be given to the single largest party without a majority of its own.

- The third preference is to be given to a post-election alliance with all partners joining the government.

- The fourth, and last, preference is to be given to an alliance wherein some may join the government and others' provide 'outside support'.

However, the above recommendations have not been transformed to be conventions as yet. In any case, Sarkaria Commission’s recommendations need to be seen in totality, not in isolation. The recommendations were on the reforms in the federal relations as a whole, including the application of Article 356 (imposition of central role) and appointments of the governors. Unfortunately, nothing much has been done to implement these recommendations.

Be that as it may, there are two limitations of conventions on the formations of governments because of hung Houses. One, they are not legally enforceable, evident from a Supreme Court judgment in 1996. In the case of  SP Anand vs HD Deve Gowda (1996) 6 SCC 734, the Supreme Court held that the convention that the prime minister should be a member of the Lower House (Lok Sabha) "is not in our constitutional scheme."

Secondly, there has been no uniformity as far as the convention of inviting the single largest party to form the government in a hung House is concerned. Once in Goa,  after defecting to the Congress from the BJP, Digamber Kamat was made the chief minister even though the BJP-led Alliance, including the then Speaker and United Goans party, had more numbers of MLAs than the one led by the Congress.

In 2005, even though BJP won 30 out of 81 seats in Jharkhand, the JMM leader Shibu Soren with 17 MLAs was invited to form the government. Similarly, in Jammu and Kashmir in 2002, although the National Conference had 28 MLAs, the post poll alliance of the PDP (with 15 MLAs) and Congress was allowed to form the government under the late PDP leader Mufti Mohammad Syed.

Similarly, the 28-member Aam Aadmi Party, led by Arvind Kejriwal, became the chief minister of Delhi with the Congress support in 2013, even though the BJP had won 32 seats. One can cite many more such instances.

The point, therefore, is that conventions cannot be the sole basis for the government-formation in a hung House as long as these are not applied uniformly under all circumstances. And, as long as their applications are uncertain and debatable, the governors’ "discretions" have to be respected.

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Updated Date: Mar 18, 2017 19:07:07 IST

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