With Manohar Parrikar's death, Goa governor faces task of choosing between claims of BJP, Congress for govt formation

Article 163 of the Indian Constitution states that there “shall be a council of ministers with the chief minister at the head to aid and advice the governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion.” This provision assumes importance, as it will guide all political and constitutional developments in the aftermath of the death of Goa’s chief minister Manohar Parrikar. With the death of Parrikar , the council of ministers ceases to exist. Given the fact that there cannot be a vacuum, the governor will have to appoint a new chief minister as soon as possible. In doing so, the governor has to use her discretion that shall be guided by precedents, apex court rulings and recommendations of important commissions. This leads to an important question as to whom the governor should invite to take oath as the new chief minister. The Congress party on Saturday staked claim to form a government. The Congress on 16 March claimed the status of “single largest party” with 14 MLAs, and asked Governor Mridula Sinha for an invitation to form the new government. [caption id=“attachment_4021483” align=“alignleft” width=“380”]  File image of Manohar Parrikar, who passed away on Sunday. Reuters[/caption] In a letter to the governor, Congress MLA Chandrakant Kavlekar said, “Also, we anticipate that the numbers of the BJP may dwindle, thus not allowing such a single party in the minority to continue even for a moment. It is, therefore, incumbent upon you to dismiss the government led by the BJP to ensure that the Congress, which is the single largest party in the House and is presently enjoying the majority be called to form a government”. Goa has a 40-member Assembly. However, the strength of the Assembly came down to 37 members, as two Congress MLAs gave up their memberships after joining the BJP and BJP MLA Francis D’Souza died last month. With Parrikar’s death, the strength of the Goa Assembly has come down to 36. So, the majority required for forming the government is 18+1. In the current scenario, the BJP has 12 MLAs and also has the support of 6 MLAs (3 each of the Goa Forward Party and MGP). Additionally, an Independent member and an NCP MLA also are supporting the BJP. This makes for a total of 20, which is a comfortable majority for the BJP. The Sarkaria Commission on Centre-state relations, which had submitted a detailed report on the discretionary powers of the governor, noted that if there is a single party having an absolute majority in the Assembly, the leader of the party should be invited by the governor to form the government. However, it stated that if there is no such party, the governor should select a chief minister from either — -An alliance of parties that was formed prior to the elections or, -The largest single party staking a claim to form the government with the support of others, including “Independents” or, -A post-electoral coalition of parties, with all the partners in the coalition joining the government or, -A post-electoral alliance of parties, with some of the parties in the alliance forming a government and the remaining parties, including “Independents” supporting the government from outside. Later, the Punchhi commission also laid down similar guidelines. In SR Bommai vs Union of India also, the court had held that the governor has to invite the leader of the party commanding a majority in the House or the single largest party/group to form the government in case of a hung Assembly. On the governor’s discretion, the BJP was invited to form the government in March 2017, in spite of the Congress being the single largest party. It is likely that the governor might do the same this time too. Supreme Court advocate and legal expert Ashok Dhamija says, “Basically, there are two views on what should be done when there is no party with a clear-cut majority in the Assembly. The first view is that the single largest party should be invited and should be given a chance to form a government and prove its majority. The second view is that if there is an alliance of parties that, in the opinion of the governor, can command a majority, then such an alliance can be given a preference first”. He adds, “It is believed that the second option is better. If the governor feels that an alliance will be in a better position to prove its majority and form the government, it is better to invite such an alliance." As pointed out by a legal expert, in May 2018, when the Karnataka Assembly result was declared, the governor invited the BJP, and not the Congress-JD(S) coalition to form the government. While the former did not have a majority, the latter did. The decision proved to be wrong, as the BJP government could not prove its majority and had to resign. Ultimately, the Congress-JD(S) coalition was invited to form the government.