Governor’s role in cases where elections produce fractured verdicts.
Background of the issue:
- There was a prolonged stalemate in Maharashtra over the formation of a government as no single party had a majority of its own after the Assembly election in October.
- Maharashtra Governor Bhagat Singh Koshyari administered the oath to Devendra Fadnavis of the Bharatiya Janata Party (BJP) as Chief Minister
- The Controversial decision was taken to court by the Shiv Sena, the NCP and the Congress.
- After the Supreme Court of India ordered an early floor test, the incumbent resigned.
- The developments have brought under focus the role of the Governor in such circumstances.
Government’s discretion in case of hung assembly
- Article 163: The Constitution envisages that the Governor act on the aid and advice of the Council of Ministers, except in those situations in which he is, by or under the Constitution, required to act in his discretion.
- The Governor has to make his own decision, subject, of course, to democratic norms in identifying a candidate who, in his opinion, is in a position to command a majority.
- Hence, the Governor of a State inviting leaders for discussions as part of efforts to explore the possibility of forming a government.
- It stipulates that the appointee prove his or her majority within a specified time on the floor of the House when the Governor appoints the Chief Minister in this way.
Sarkaria commission recommendation to the governor to follow during hung assembly:
- As general principles, the Sarkaria Commission says the Governor should look for a party or combination that commands the widest support in the Assembly,
- The Governor's task is to see that a government is formed, and not to try to form a government which will pursue policies which he approves.
Various ways leaders to prove their majority by the leaders staking claim.
- Parading of legislators:
- Governors doing a headcount or verifying signatures.
- This approach has been deprecated by courts.
- The floor of the assembly is the only place where the majority is to be decided.
- As recommended by the Sarkaria Commission.
- The person appointed as Chief Minister without a clear majority,
- Should seek a vote of confidence in the assembly within 30 days.
- This practice should be strictly adhered to with the sanctity of a rule of law.
- In case of doubt over incumbent majority, governor can call for convening of house.
- Not always following article 174 for convening the
Judicial reviews in the past and Principles evolved by the Supreme Court.
- S.R. Bommai Case :
- Floor test became a “norm” and not the exception.
- Floor test is the only constitutionally ordained forum.
- The S.R Bommai precedent has helped Governors to decide on the appointment of a Chief Minister or continuance of a regime based on its numerical strength in the House.
- Jagdambika Pal vs. Union of India and Ors
- Composite floor test:In February 1998, trend-setting order the Supreme Court ordered a ‘composite floor test’ involving two rival claimants:CM –Kalyan Singh and rival : Mr Pal.
- The Governor had dismissed the incumbent Cm and installed the rival in office
- Rameshwar Prasad (2005)
- The court ruled that there was nothing wrong in installing a post-poll combination.
- The Governor could not decline the formation of a government on the ground that it was being done through unethical means.
- In a case of Arunachal pradesh, a Constitution Bench cautioned Governors against acting on internal party developments or “entering the political thicket”.
- Supreme court has ordered steps to be taken:
Reason for judicial review and Judicial intervention
- The court has so far justified its intervention by way of ordering floor tests, reasoning that such orders were necessary to preserve constitutional and democratic values.
- In the Maharashtra case, the court observed: “In a situation wherein, if the floor test is delayed, there is a possibility of horse-trading.
- It becomes incumbent upon the court to act to protect democratic values.
- Requires adjudication in matters such as :
- Boundaries between the court’s jurisdiction and parliamentary independence.
- Acts of Governors in seeking letters of support or letters of withdrawal, requiring Chief Ministers to prove their majority.
- Governor’s decision to invite one claimant, rather than another, based on an unsubstantiated letter of support is correct, is open to adjudication.
- A set of written instructions or guidelines for Governors to act in such situations should be mooted in the past.
When the discretion becomes synonymous with arbitrariness, when the office of Governor lacks checks and balances and the will of the people is brutally trampled the judicial intervention in the future help restore the constitutional values