Even as BS Yeddyurappa was sworn-in as the 23rd Chief Minister of Karnataka just hours after the Karnataka Governor Vajubhai Vala invited him to form the government, the Congress-JD(S) combine have challenged his appointment at the Supreme Court.
On Wednesday, Vajubhai Vala gave the BJP the go-ahead to form the government and asked them to prove their majority on the floor of the House within 15 days.
Even as the Congress-JD(S) combine argues that they should have been invited to form the government as they had more than the required number, there are no clear guidelines on what the Governor must do in the event of a fractured verdict.
Addressing a press conference on Thursday night, Union Law Minister Ravi Shankar Prasad quoted from the Sarkaria Commission, the MM Puncchi Commission and a 2016 Supreme Court order stating, “In every case, it is clear that in case there is any issue, the largest pre-poll alliance is to be invited, after which consideration is to be given to the single largest party that stakes a claim to form the government and finally, to a post poll alliance.”
But is it clear? As Alok Prasanna Kumar writes for Bloomberg Quint, “No article in the Constitution clearly and unequivocally guides his (Governor’s) choice in such a situation.”
What are the options outlined so far?
Set up in 1983, the Sarkaria Commission came out with its report in 1988 where it reviewed Centre-State relations and suggested changes within the framework of the Constitution. The Commission is the only one to give recommendations on what the Governor should do in case of a fractured verdict.
In its report, the Commission lays out four options on what can be done:
However, these are recommendations and are subject to the Governor's discretion and the person’s decision is final. It is important to note, however, that he does not have complete discretion. It can be challenged if the Chief Minister isn’t qualified or if the appointment is contrary to constitutional provisions.
MM Punchhi Commission
In 2007, the three-member MM Punchhi Commission was set up to look at the roles and responsibilities of various levels of government and review Centre-State relations. It submitted its report in 2010.
The Commission references the Sarkaria Commission report and also lays down guidelines on what can be done in the event of a hung assembly —
(a) The party or combination of parties which commands the widest support in the Legislative Assembly should be called upon to form the Government.
(b) If there is a pre-poll alliance or coalition, it should be treated as one political party and if such coalition obtains a majority, the leader of such coalition shall be called by the Governor to form the Government.
(c) In case no party or pre-poll coalition has a clear majority, the Governor should select the Chief Minister in the order of preference indicated below:
1. The group of parties which had pre-poll alliance commanding the largest number
2. The largest single party staking a claim to form the government with the support of others
3. A post-electoral coalition with all partners joining the government
4. A post-electoral alliance with some parties joining the government and the remaining including independents supporting the government from outside.
Although the report does go on to state that if specific guidelines regarding post-poll alliances are not laid out, it would result in ambiguity and the Governor would invite the single largest party to form the government.
Given the lack of clear guidelines in the event of a narrow majority, the Punchhi Commission recommends constitutional amendments. “There are no uniformly accepted conventions and this can be remedied by adopting constitutional amendments, which lay down specific guidelines and approaches which ought to be followed by the Governor,” states its report.
SR Bommai v. Union of India
This widely quoted judgement also offers no clear guidelines on what needs to be done in the event of a fractured mandate. The Bommai case says that the floor of the assembly is the best place to test majority, but it makes it clear that its orders were passed in the context of an incumbent CM losing majority during their term.
Paragraph 396 of the judgement states:
“We make it clear that what we have said above is confined to a situation where the incumbent Chief Minister is alleged to have lost the majority support or the confidence of the House. It is not relevant to a situation arising after a general election where the Governor has to invite the leader of the party commanding majority in the House or the single largest party/group to form the Government. We need express no opinion regarding such a situation.”
Rameshwar Prasad & Ors v. Union of India
In this 2006 judgement, the Supreme Court specifies what must be done in the case of a hung assembly and asks the Governor to follow the recommendations of the Sarkaria Commission.
“However, if there is a fractured mandate, then the Commission recommends an elaborate step-by-step approach and has further emphasized that ‘the Governor, while going through the process of selection as described, should select a leader who, in his (Governor's) judgement, is most likely to command a majority in the Assembly. The Governor's subjective judgement will play an important role.’ Upon being faced by several contesting claims, the Commission suggests that the most prudent measure on part of the Governor would be to test the claims on the floor of the House.”
However, what the Congress-JD(S) combine is attempting to do isn’t new to the BJP. The BJP has followed the exact same pattern in Assembly elections in other states.
In Goa last year, the Congress was the single largest party, but the BJP was invited to form the government. Goa Congress Legislature Party leader Chandrakant Kavlekar moved the apex court and challenged the same. The Congress had fallen short of the majority by just one seat, and the BJP formed an alliance post-polls with two other parties and two independent candidates.
At the time, Congress leader and senior advocate Abhishek Manu Singhvi told the court that since the Congress was the party with the most number of seats and should have been asked to form the government. The court ruled that the Governor had discretionary powers, and ordered a floor test, which the BJP sailed through.
Manipur also threw up a hung assembly last year, with the Congress as the single largest party. Here too, the BJP formed a post-poll alliance with regional parties and claimed support and was invited to form the government.