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In matters of government formation, the party or coalition that is invited first has a clear upper hand – both in terms of rallying its own troops and enticing legislators from across the aisle to support it, or abstain, or even resign.
Opinion appears to be divided among constitutional experts. Congress had vehemently argued that the single-largest party should be invited first after the Goa and Manipur elections, where it got the most seats but the BJP formed government in coalition with regional parties. It is the turn of the BJP to make the same argument now that it is the single-largest party.
Well-known jurist and former attorney general Soli Sorabjee insists that the single-largest party should be invited first and asked to prove its majority on the floor of the House within a short period of time (about 7-10 days). If it fails to do so, then the next largest party, or a coalition, should be invited. If that too fails, then President’s Rule should be imposed.
But in 2006, the Supreme Court had ruled that the governor has no option but to invite any party or alliance, either pre-poll or postpoll, to form government once he is satisfied that it commands majority support in the assembly.
There is a third view, that the discretion lies with the governor. “It is entirely up to the governor to appoint anyone he thinks proper. The governor is, however, expected to be guided by his assessment of who is likely to command majority support in the House,” Subhash C Kashyap, former secretary-general of the Lok Sabha, told TOI on Tuesday.
He said the governor may go wrong in his assessment but that doesn’t take his right away from him. “It is, however, clearly spelt out that the majority can be proved only at the floor of the House”, he said.
Asked about the Karnataka situation, Kashyap said, “We have had all kinds of precedents. There are precedents of single largest party leader being appointed chief minister and also precedents of leader of post-poll alliance being appointed as chief minister. The governor can take a call in this case as per his assessment.”
The Constitution empowers a governor to appoint a chief minister but remains silent on the issue of his/her role in case of a fractured mandate. As a result, it’s entirely the governor’s discretion whom to call for government formation when there is no clear majority to a single political party or a coalition of the pre-poll alliance partners.
Though the Justice R S Sarkaria Commission has dealt with the issue and clearly spelt out options and order of preference before the governor, it recognised the importance of the latter’s “subjective judgement”.
So, the governor may or may not adhere to what the Commission suggested on giving the leader of single largest party precedence over the leader of the postpoll coalition partners.
The Sarkaria Commission, which reviewed the working of arrangements between the Union and the states, in its recommendations on the role of governor clearly says that if there is no single party having an absolute majority in the Assembly, the governor should select a chief minister from among the following parties or group of parties by sounding them, in turn, in the order of preference indicated below:
-An alliance of parties that was formed prior to the elections;
-The largest single party staking a claim to form government with the support of others, including “independents”;
-A post-electoral coalition of parties, with all the partners in the coalition joining the government;
-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.
It, however, says, “The governor, while going through the process of selection described above, should select a leader who, in his judgement, is most likely to command a majority in the Assembly. The governor’s subjective judgement will play an important role.”