Revision as of 10:58, 17 May 2018

‘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.

2016 Uttarakhand

’Floor test’ to determine majority: 2016

The Times of India, May 07 2016

Dhananjay Mahapatra

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?

The debate in 2018, the precedents

Who should get first call to form govt? Jury’s out, May 16, 2018: The Times of India

1996-2018- Instances when the single largest party was invited to form the government; and instances when it was not
From: Who should get first call to form govt? Jury’s out, May 16, 2018: The Times of India

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.”