Determining the political majority: India
This is a collection of articles archived for the excellence of their content.
‘Floor tests’ and political stability
‘Floor tests’ to determine the majority
The Times of India, May 11 2016
1998 UP: Kalyan Singh vs Jagadambika Pal: Then UP governor Romesh Bhandari dismissed the Kalyan Singh govt, swore in Jagadambika Pal as CM, who was asked to prove majority by Feb 24. Singh moved HC, got order of reinstatement. Pal challenged HC decision in SC, which on Feb 24 ordered a floor test on Feb 27. Singh secured 225 votes against Pal's 195. SC said HC was right in reinstating Singh as CM.
2005 Jharkhand: Arjun Munda vs Shibu Soren: NDA's Arjun Munda moved SC challenging governor Syed Sibtey Razi's decision to invite Cong's Shibu Soren to form govt, giving him a 20-day window to prove majority.
’Floor test’ to determine majority: 2016
The Times of India, May 07 2016
SC's 3rd experiment with floor test
During 1995-2015, with coalition politics and horse-trading gaining currency, the Supreme Court has had to deal with arbitrary decisions of governors in inviting persons who prima facie did not command majority in the assembly and order composite floor test to determine who had the trust of the House.
The top court had ordered composite floor test in UP in 1998 to determine who had majority -Kalyan Singh or Jagadambika Pal. It had opted for a similar floor test in Jharkhand in 2005 to determine whether Arjun Munda or Shibu Soren enjoyed majority .
The decision to order a floor test for dismissed Congress CM Harish Rawat in Uttarakhand is the apex court's third experiment with floor test but with a vital difference from the earlier occasions.
The bench of Justices Dipak Misra and S K Singh had no occasion to order a compo site floor test as there was no rival to Rawat claiming majority support in the House. Hence, Rawat faces a simple floor test.
On February 21, 1998, then UP governor Romesh Bhandari in a surprise decision dismissed the Kalyan Singh government and within hours swore in Jagadambika Pal as CM. He was asked to prove his majority by February 24. But Singh moved the high court and got an order of reinstatement. Pal challenged the HC decision in the SC.
The SC on February 24 ordered a “composite fl
Which party should be invited to form the govt?
See graphic :
i) 1988- 2017: Votes of trust in state legislature assemblies, and their outcomes;
ii) 2005-2017: Time limit given for ‘floor tests’ to be held to determine the political majority. In Karnataka in May 2018 the Governor had given 15 days to the BJP to prove its majority; the Supreme Court reduced it to one day.
The debate in 2018, the precedents
Whom should the Karnataka governor invite first to form the new government: BJP, which is the single-largest party with a tally of 104 — eight short of the majority mark of 112 — or the Congress-JD(S) post-poll alliance, with 116 seats between them?
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 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.
‘Discretion lies with governor’
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.”
1989, Bommai, 1992 and other precedents
Referring to a slew of constitutional norms and Supreme Court orders, BJP justified Karnataka governor Vajubhai Vala’s decision to invite B S Yeddyurappa to take oath as CM and countered Congress’s accusations of illegality.
Law minister Ravi Shankar Prasad reminded Congress leaders about Rajiv Gandhi’s decision in 1989 of not staking claim to form the government despite heading the single-largest party. “Rahul Gandhi and Soniaji keep talking about family legacy. Let me remind that even Rajiv Gandhi had refused to stake claim in 1989 despite being the single largest party and said the mandate was for V P Singh. Congress should at least take lessons from its own leaders,” Prasad said. He read out relevant parts of the Sarkaria and Punchi commission reports to justify BJP’s claim to government formation as he said the two commissions had suggested that a pre-poll alliance, single largest party or post-poll alliance, in that order, should be invited to form government.
He said the SC judgment in Bommai case was irrelevant in Karnataka as the order was about a government losing the vote of confidence and then having to prove majority. He cited a recent SC judgment in Arunachal Pradesh matter in which the court had said it had no different view from Sarkaria and Punchi commissions over discretion of the governor to invite a party for government formation.
Prasad questioned Congress’s moral claims as he reminded how the Congress at the Centre had dismissed four BJP governments in 1992 after Babri Masjid demolition even as the other three states — Rajasthan, MP and Delhi — had nothing to do with it.
Bihar President’s rule 2006; Bommai 1994
But Soli Sorabjee Says BJP Should Get The First Chance
The BJP-led NDA’s courtroom victory in the Bihar President’s rule case in 2006 may come back to haunt it in Karnataka as a constitution bench of the Supreme Court had ruled that the governor has no option but to invite any party or alliance, either prepoll or post-poll, to form the government once he was satisfied that it commanded majority support in the assembly.
The SC had castigated governor Buta Singh for recommending dissolution of the Bihar assembly because he feared that the pre-poll alliance of JD(U) and BJP under the banner of NDA, which had secured 92 seats in the 243-member House, was attempting to break RJD (75 MLAs) and LJP (29 MLAs) to cobble together a majority. Singh’s decision was challenged in the SC by Rameshwar Prasad.
The foundation for limiting the governor’s discretionary power was laid down by a seven-judge constitution bench of the SC in the landmark S R Bommai case in March1994. It was finetuned by the SC in the Rameshwar Prasad case in January 2006, when a five-judge bench by three to two majority had said, “There is nothing wrong in post-poll adjustments and when ideological similarity weighs with any political party to support another political party though there was no pre-poll alliance, there is nothing wrong in it.
“If a political party, with the support of other political party or other MLAs, stakes claim to form a government and satisfies the governor about its majority to form a stable government, the governor cannot refuse formation of government and override the majority claim because of his subjective assessment that the majority was cobbled by illegal and unethical means. No such power has been vested with the governor. Such a power would be against the democratic principles of majority rule. Governor is not an autocratic political ombudsman. If such a power is vested in the governor and/or the President, the consequences can be horrendous.”
Trashing arguments that it was better to hold general elections afresh than allow horsetrading of MLAs for cobbling a majority, then CJI Y K Sabharwal, authoring the majority verdict, had said, “Acceptance of such a proposition as a relevant consideration to invoke exceptional power under Article 356 may open a floodgate of dissolutions and has far-reaching, alarming and dangerous consequences. It may also be a handle to reject post-election alignments and realignments on the ground of same being unethical, plunging the country or the state to another election.”
However, former attorney general Soli J Sorabjee said the governor was bound to first invite the single-largest party after a general election to form a government and give it a definite period of time to prove its majority in the House. “If it fails, the governor can give other parties a chance to form a government. If none could form the government, then the governor could recommend imposition of President’s rule in the state and keep the House in suspended animation,” he said. Sorabjee’s view draws sustenance from the Sarkaria Commission report of 1988 on Centre-state relations. The report had specifically dealt with the situation where no single party obtains absolute majority and provides the order of preference the governor should follow.