The Assembly Elections in Karnataka produced an inconclusive verdict as no single party getting a simple majority to form the government. However, the BJP won 104 of the 222 constituencies and emerged as a single largest party. The Congress and Janata Dal (Secular) won 78 and 37 seats respectively.With the results of the Karnataka assembly election throwing up a hung house, the role of the Governor has come into focus, in regard to whether the single largest party or the leader claiming majority with post-poll alliance should be invited to form the new government.It triggered a debate about the role of the Governor in government formation when there is a hung assembly.As a matter of convention, the Governor has to first invite the single largest party to form the government. But the decision has to be an “informed one” and “on sound basis,” with a view to provide a stable government.
In 2006, President of India (then) Dr A P J Abdul Kalam while addressing the governors had emphasized the relevance of recommendations of the Sarkaria Commission and said “While there are many checks and balances provided by the Constitution, the office of the Governor has been bestowed with the independence to rise above day-to-day politics and override compulsions either emanating from the central system or the state system.” In the Rameshwar Prasad Vs Union of India, 2006, case, a five-judge Constitution Bench, clearly recommended the suggestions made by the R S Sarkaria Commission in its report on Centre-State relations, which had emphasized on the impartiality of Governors and their role in upholding the constitutional mandate. Later, the M M Punchhi Commission also elaborated that the governor should follow “constitutional conventions” in a case of a hung Assembly. Further, in a case of a Hung Assembly, the Punchhi Commission prescribed:
- The party or alliances which get the widest support in the Legislative Assembly should be called upon to form the government.
- If there is a pre-poll coalition or alliance, it should be treated as one political party. And in case, such coalition gets a majority, the leader of such alliances shall be called by the Governor to form the government.
- In case no pre-poll coalition or party has a clear majority, the governor should select the Chief Minister in the order of priorities indicated here:
(i) The group of parties which had a pre-poll alliance of the largest number.
(ii) The largest single party which claims to form the government with the support of others;
(iii) A post-electoral alliance with all partners joining the government;
(iv) A post-electoral alliance where parties are joining the government and the remaining including independents are supporting the government from outside.
In the Nabam Rebia and Bamang Felix Vs Deputy Speaker case a five-judge Bench, recommended the views of the Punchhi and Sarkaria Commissions regarding giving the Governor an independent discretion to take a call on the floor test when the government has lost the confidence of the legislature. In the S.R. Bommai case, a nine-judge Bench had underlined the significance of a floor test when there are claims by two political groups while laying down that the floor test must be conducted by the Governor as soon as possible.
There are many such incidences in history where the political parties with fewer seats were invited to form the government by the governor.
In Manipur, the BJP won 21 constituencies and the Congress won 28 constituencies out of 60 Constituencies. But BJP managed to form an alliance.In Goa, the BJP won 13 seats and the Congress won 17 seats out of 40 constituencies. Here also, BJP managed to form an alliance.In Jharkhand, the BJP had won 30 out of 81 seats in 2005. The Jharkhand Mukti Morcha who won only 17 seats was invited to form the government.In Jammu and Kashmir 2002, the National Conference won 28 constituencies but the governor invited the Congress and PDP who won 21 and 15 constituencies.The BJP won 31 seats in Delhi in 2013, but the AAP who won 27 seats was invited to form the Government.There are other such incidences which took place in 1952 (Madras), 1967 (Rajasthan) and 1982 (Haryana).
In 1993, advocates on Record Association Vs Union of India, case which was a case in regards to weight of “constitutional convention”, a seven-judge bench, in Supreme Court, had held that “there is no distinction between the ‘constitutional law’ and an established ‘constitutional convention’ and both are binding in the field of their operation.
The Supreme court also observed that “Once it is established to the satisfaction of the court that a particular convention exists and is operating then the convention becomes a part of the ‘constitutional law’ of the land and can be enforced in the like manner,”.
Article 164 of the Constitution says: “The Chief Minister shall be appointed by the Governor and the other ministers shall be appointed by the Governor on the advice of the Chief Minister, and the ministers shall hold office during the pleasure of the Governor.” However, the Congress on Wednesday moved the Supreme Court against Karnataka Governor Vajubhai Vala’s decision to invite BJP leader BS Yeddyurappa to form the government in the state and sought an immediate hearing.
The Supreme Court on Friday ordered that floor test in the Karnataka assembly be held at 4 pm on Saturday. A bench of justices A K Sikri, S A Bobde and Ashok Bhushan was listening to a writ petition filed by the Congress-JD(S) regarding Governor Vajubhai Vala’s invitation to the BJP to form governmentin Karnataka.”It is better to hold floor test on Saturday and not give any time to anyone rather than go into legality of Governor’s decision to invite B S Yeddyurappa,” the bench said during proceedings.
The apex court questioned the rationale behind governor’s Vajubhai Vala’s decision to invite the BJP to form the government when the Congress-JD(S) had the majority strength.”On what basis the governor decides who can provide stable government on the face of a claim of majority support by single largest party and on the other a written support of majority to Congress-JD(S)? No doubt it is ultimately a number game and governor is to see which party commands majority support,” said the bench. SC also barred the governor from nominating any Anglo-Indian community member as MLA till the floor test is over.
Governor Vajubhai Vala has once again launched an encounter on the Constitution by appointing KG Bopaiah as pro tem Speaker instead of the senior most MLA. This is the same man (Bopaiah) whose partisan conduct was even criticised by the honourable Supreme Court,” Supreme Court had remarked that “unless there was the intent that the trust vote does not go against the chief minister” there was no logical explanation of the Speaker’s conduct. All traditions of the constitution have been violated in selecting pro-tem speaker. “In the current situation, RV Deshpande who is the senior most MLA in the Assembly, should have been appointed the pro tem speaker without any doubt. He may have been elected on a Congress ticket but at least his unbiasedness and his respect is intact, unlike Mr Bopaiah,”.
I personally felt that Karnataka Governor is behaving like an agent of BJP.His office is consitutional and hence he must had been neutral to political parties. In a democracy, the proper representation of public interest is of supreme importance. And the governments are chosen by the people. And, our constitution has clearly directed the ways how the government should be formed in the case of Hung Assembly. And it has given this prerogative to the Governors. So the governor should analyze which political party or alliance is forming the majority on the basis of constitutional provisions. And his decision should be followed by the political parties.
Author is Social Activist and Postgraduate in Political Science and Cyber Law from the University of Kashmir and can be reached at [email protected]