Karnataka hung Assembly: Governor’s discretion supreme, here’s what Constitution says

On Tuesday, the Karnataka Assembly was delivered a fractured mandate with no party getting a clear-cut majority to stake claim to form the government. The BJP with 104 seats is presently the single largest party.

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Vidhan Soudha Express archive Photo. 11.02.2014.

The action in the nail-biting Karnataka endgame has shifted from party offices and leaders’ residences to the Raj Bhavan. The fate of leaders spanning across party lines now rests in the hands of the Governor, who’s discretion will decide the fate of the Karnataka Assembly for the next five years. As the Governor now assumes spotlight, the legal fraternity has weighed in on the decision that Governor Vajubhai Vala takes and who gets the invitation to prove majority.

While many experts are of the view that in such a situation, the leader of the single largest party be given the first chance to prove that he commands majority on the floor of the House, many others say that the precedents of allowing the post-poll coalition to form the government set in the recent past should be followed.

On Tuesday, the Karnataka Assembly was delivered a fractured mandate with no party getting a clear-cut majority to stake claim to form the government. The BJP with 104 seats is presently the single largest party and is close to the magic figure of 113 in 224-chair House. On the other hand, the last-minute post-poll coalition between the Congress and JD(S) on Tuesday and met the Governor to claim that coalition enjoys majority and thus be given a chance to form the government. The Congress (78) and JD(S)+ (38) together have 116 MLAs and are in a situation to form a government, as far as the numbers are concerned.

It’s over to the Governor and his discretion now. Parties and observers are eagerly waiting to see what step Vajubhai Vala takes. As the debate over government formation continues, here’s what the Constitution says and brings to you some context:

Article 163 and 164

The Articles 163 and 164 of the Constitution deals with the Council of Ministers in the states. Article 163 states that there shall be a Council of Ministers headed by the Chief Minister that should aid and advice the Governor in exercise of his functions, except in so far as he is by or under the Constitution required to exercise his functions or any of them in his discretion.

It also states that if any situation arises whereby the Governor is by or under Constitution required to act in his discretion, the decision taken by him shall be final and that the validity of anything done by the Governor must not be called in question.

Experts speak

According to noted constitutional expert Subhash Kashyap, in such a situation, the Governor has the discretion to invite anyone to form the government and his decision can’t be questioned in any court. He said that, in his opinion, the Governor should allow the single largest to prove majority.

“Constitution clearly says that the Governor shall appoint the Chief Minister and appoint other Ministers on his advise. It is entirely up to to the Governor to decide in his discretion that who in his opinion is likely to command majority in the House. The Governor’s discretion can’t be questioned even in the court of a law,” Kashyap said.

Former Attorney General Mukul Rohtagi said that the Governor must call the single largest party. “Governer is obliged to call the largest party, which is BJP. He should call BJP leader asking him if he can form the government. If he says he cannot, then the Governor will call the 2nd party and if he says he can form government, then Governor should give him time to prove majority,” he said.

Soli Sorabjee also said that he was in favour of Governor inviting the BJP first. “The single largest party should be invited first and asked to prove the majority on the floor of the House within a short period of a time (7-10 days). If it fails to do so, the next largest party or a coalition should be invited to prove the majority. If that too fails, President’s Rule should be impose,” Sorabjee said.

Sarkaria Commission recommendations

In 1983, the government had appointed Justice RK Sarkaria Commission to examine the balance of power between the states and the Centre. According to the principles laid down by the commission, the Governor while choosing the Chief Minister should consider following:

a) The party or the alliance of parties that commands the majority shall be invited to form the government.

b) The Governor’s task is to see that a government is formed in the state and not try to form a government follows policies set or approve by him.

c) In case no party gets majority, the Governor should follow an order of preference: a) a pre-poll alliance; b) the single largest party; c) a post-poll alliance that commands the required numbers to run the government smoothly; and d) a post-poll alliance in which partners are willing to extend an outside support.

The Sarkaria Commission also said that the Chief Minister must seek vote of confidence within the 30 days from the day he assumes the charge. Also, the Governor should not risk determining the issue of majority outside the Assembly. It said that floor of the House is the place where the majority has to be proved.

Punchhi Commission

The commission was set up in April 2007, headed by former CJI MM Punchhi. It was tasked to take a fresh look at roles of the governments at various level. In its recommendations, the commission stated that a pre-poll alliance be treated as a single party.

a) It said that the largest pre-poll alliance commanding the largest number be given the change;

b) Single largest party with others support;

c) Post-poll alliance with all parties becoming the part of the government; and

d) post-poll alliance with some parties joining the government and other extending support from the outside.

Past precendent

1989 Lok Sabha Polls

In 1989 Lok Sabha polls, faced with the hung verdict, then President R Venkataraman had followed the thumb rule by inviting parties according to their strength to the form the government. The Congress under the leadership of Rajiv Gandhi was the single largest party with 193 seats, but it had refused to form the government citing mandate was against it. The second largest party was Janata Dal. Venkataraman invited Vishwanath Pratap Singh, the leader of the Janata Party which had the support of the BJP and Left.

1991 Lok Sabha Polls

Again in 1991, following the fractured mandate, Venkataraman invited then single largest party, Congress. The Congress formed the under with PV Narasimha Rao and cleared the floor test smoothly.

1996 Lok Sabha Polls

In 1996, then President Shankar Dayal Sharma followed the same principle to invite BJP’s Atal Bihari Vajpayee to form the government. The BJP was single largest party with 194 MPs. The party formed the government but failed to survive.

1998 Lok Sabha Polls

The 1998 Lok Sabha polls also threw a fractured mandate. Then President KR Narayanan verified the letters of support of the political parties extended to the BJP before inviting it to form the government.

2004 Lok Sabha Polls

Again in 2004 general elections, then President APJ Abdul Kalam invited the Congress-led UPA to form the government with 216 MPs. The Left with 61 seats had extended support to the UPA after the polls. At that time, the BJP-led NDA had won 187 seats.

Goa, Manipur and Mizoram

But since last one year, new trends were set when in Goa, Manipur and Mizoram, the single largest party Congress was not given preference to form the government. In Goa, the Congress had won 17 seats in 40-member Assembly but the BJP with the help of regional parties formed the government. In Manipur and Mizoram too, the Congress had emerged as the single largest party but the BJP was invited to form the government.

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