Fractured verdicts and the Governor’s role (State government formation and constitutional roles)

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 Fractured verdicts and the Governor’s role (State government formation and constitutional roles)

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• Maharashtra case, 2019: No party won a majority on its own, and the pre-poll alliance of BJP (105 seats won) and Shiv Sena (56 won) won a majority (161 of 288 seats).

1. Sena broke the alliance.
2. Governor BS Koshyari controversially got BJP's Fadnavis and NCP's Ajit Pawar sworn-in, in an early morning ceremony (a decision challenged in Court now)
3. Both resigned once floor test was ordered by S.C.
4. Three parties formed the government finally (SS, NCP and INC).

• A hung assembly: Normally, a State Governor must act on aid and advice of Council of Ministers (COM), except when his discretion is needed (Article 163). The Governor has to use his logic and skills in inviting someone to form the govt., and must be sure he wields majority support.
• The process: There is no order to be followed - the Governor may or may not call the leader of the largest party, depending on his support base. He can invite leaders one by one also, in order of their size in assembly. Governor can insist on letters of support too.
• Sarkaria Commission: Its report said that the ideal order to be followed by Governor, for calling leaders to form the govt., should be –

1. Alliance formed prior to election
2. Largest single party staking claim with support of others
3. Post-electoral combination (all partners joining the govt.)
4. Post-electoral combination (all partners not joining the govt., some supporting from outside)

• The Governor's job is to ensure that a government is formed, and it may not be of his personal choice.
• How to decide majority: Earlier, Governors did headcount of MLAs in Raj Bhavan. Courts have ensured that floor test in Assembly is the norm now.

1. Sarkaria Commission wants a majority test (vote of confidence) within 30 days for anyone appointed the CM of the state
2. If many oppose the CM's claim, the Governor should step aside and let floor test happen
3. Under Article 174, House is summoned by Governor only on advice of COM, but now, he can convene the House himself if there is doubt about the CM's majority support.

• SC's principles: The Supreme Court dealt with this extensively.

1. In the 1994 'S.R. Bommai versus Union of India' case, SC laid down all rules. The only constitutionally valid way is a floor test.
2. In the 2005 Rameshwar Prasad case, SC said there was nothing wrong in installing a post-poll combination, and no charge of being 'unethical' could be levied.
3. In the 1998 'Jagdambika Pal versus Union of India and Ors' case, the SC ordered a composite floor test for both claimants - Kalyan Singh and Jagdambika Pal. Governor had dismissed Kalyan Singh and appointed Ms Pal as CM. Kalyan Singh won.
4. Many more such floor tests - Jharkhand 2005, Uttarakhand 2016,Goa 2017.

• Special cases: In both Karnataka (2018) and Maharashtra (2019) cases, the legislators were yet to take oath, when the floor test was needed. Hene, a pro tem Speaker was appointed, oaths administerd, and then floor test done. SC had also warned Governors of entering into political collusion with anyone.
• Logic of SC: It abhors the possiblity of 'horse trading'. Naturally, all this falls in the delicate region between parliamentary independence and court jurisdiction. Many issues are still unaddressed, including acts like the November 2019 Maha Governor's decision to invite only one claimant to take oath (rather than another) based on some unsubstantiated letter of support.
• Summary : The Governor's role in a hung state assembly becomes crucial, and Courts have often stepped in to resolve the mess!

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