More than 25 years after the Bommai judgment, in which a nine-judge bench of the Supreme Court laid down the principles to establish whether a chief minister has the majority support in the assembly or not, there is still no clarity on the issue. The door remains wide open for horse-trading and for strong-arm tactics and constitutionally impermissible actions by those tasked to uphold the Constitution in an attempt to form a government – like Maharashtra and Karnataka have recently shown.
The Supreme Court would do well to deliver Bommai 2.0.
Unless the court delivers a new set of guidelines on how the president and the governor should conduct themselves in case of a hung verdict, and the speaker in case the chief minister is said to have lost the majority, it will continue to be besieged with cases like Maharashtra.
In Karnataka’s case, the Supreme Court had in May 2018 overturned the governor’s stance giving the Bharatiya Janata Party (BJP) 15 days to prove the majority, and ordered the floor test to be conducted the following day. But while it rightfully ensured there was no unnecessary delay, it left out the crucial question of who and how the governor should invite to take the first shot at government formation in the event of a hung legislature. That case is still pending in the Supreme Court.
Since our political class is showing a clear and increasing disdain on the matter of following constitutional morality, here are some issues that a Constitution bench of the Supreme Court should try and settle.
Also read: Devendra Fadnavis wanted to do a Yediyurappa & quit on the floor of House, but BJP said no
When no party gets a majority
The Supreme Court would do India great service if it settles, without any scope for ambiguity, the issue of how the governor should conduct himself or herself when no party (or alliance) has secured a majority in the election. Since successive governments have chosen not to give statutory backing to the recommendations of the Justice R.S. Sarkaria Commission on how the governor should choose the chief minister, it may be a good idea for the Supreme Court to grant them the legal backing they deserve.
The Sarkaria Commission had outlined a path for the governor to follow while inviting someone to take oath as the chief minister. The first shot at power should be accorded to the “party or combination of parties which commands the widest support in the Legislative Assembly”.
If this failed, the Commission suggested that an order of precedence be followed: leader of any pre-poll alliance of parties “formed prior to the elections”; leader of the “largest single party staking a claim to form the government with the support of others, including Independents”; the leader of a “post-electoral coalition of parties, with all the partners in the coalition joining the government”; and, lastly, the leader of a post-electoral alliance of parties, with some of the parties in the alliance being part of the government while the rest giving outside support.
Also read: Behind Ajit Pawar’s call to resign — a nudge from ‘Pratibha tai’, Sharad Pawar’s wife
Fixed time for floor test
In its order in the Maharashtra case, the Supreme Court observed: “In a situation wherein, if the floor test is delayed, there is a possibility of horse-trading.” Truer words have seldom been put so aptly.
Now, if only the Supreme Court could go further and also pass guidelines to ensure transparency in the conduct of the floor test.
The governor, irrespective of the party or alliance invited to form the government, should give the same amount of time to the leader of each party or alliance that has staked claim to prove majority on the floor of the House. Providing a level-playing field should be the responsibility of the governor. But since governors have shown a growing tendency to be partial to the political parties that they owe allegiance to, it is incumbent on the Supreme Court to fix the time limit too.
There must also be a strict time-table for the governor to explore the possibility of inviting another party/alliance to form the government if the incumbent chief minister loses the majority. What if, for example, once a chief minister fails to prove majority, the governor drags his or her feet and chooses not to invite the other claimant to power?
Powers of the pro-tem speaker
While it is true that the pro-tem (temporary) speaker is just a stop-gap arrangement, with no powers that a duly-elected speaker enjoys. What could stop a pro-tem speaker from going rogue? What if he or she decides to disqualify some MLAs to help a particular party or alliance? The issue will be back in the Supreme Court if such a thing happens. The court would do well to deal with this as well.
Also read: Full text of Supreme Court order on Maharashtra floor test
How trust vote should be conducted
The Supreme Court could also lay down the guidelines on how the speaker would conduct the vote of confidence or no confidence. Ideally, it should be done through open ballot and video-recorded. Also, the Supreme Court should clarify how the speaker would decide pending issues like disqualification pleas, defection by members, etc, in a time-bound manner.
How should, for example, the speaker deal with an instance of some MLAs, who don’t constitute the two-thirds majority, going against the party whip? What will be the status of the government in case some ruling party MLAs decide to resign before the trust vote, leaving the ruling party or alliance in a minority? Can the speaker sit on their resignations indefinitely to allow the government to continue?
Powers of courts to intervene
The time has also come for the Supreme Court to issue guidelines on how to deal with situations like the one Ajit Pawar created in Maharashtra. The duly elected leader of the Nationalist Congress Party (NCP) led a faction comprising ‘rebel’ MLAs and joined hands with the rival BJP, allegedly in violation of his party’s decision.
Like there have been in the past, there will be several instances when matters of government formation, trust vote, defections, etc, will land at the doors of the constitutional courts in the future too. The judiciary would do well to ensure it does not attract the charge of intruding into the legislature’s domain.
Very convincing.Entire problem is because we did not develop institutes like JNU and University of Hyderabad all around the country at least one per state.There should be built in provision for hike in fees scholarships etc once in a year or two.Instead if we want to increase lump sum once in 5 or 10 years there would be resistance.U canot increase fees hostel charges everything in same year.Instead of scholarships 100percent Govt can give 50percent in form of interest free loan and enable students to repay in 5-10 years.All this requires imaginative thinking not just from Government but from parents and society.Sunitas parents need not think about this but Sunita should start thinking at the end of her JNUnstay asto how more of her cousins get higher education and how she can and should also pay for it.
Any further guidelines the apex court can frame would be welcome. However, it may not be possible to completely preclude unconstitutional behaviour by constitutional authorities. 2. A friend gave me a tutorial this morning. He said, There are 160 MLAs and 40 ministerial slots. Add some important corporations. That still leaves a large contingent of disappointed folk. Now someone drops by with half a billion apiece for a score of them. Something similar happened in Karnataka. People at the apex must set higher standards for others to emulate.
I agree. Even for the Apex Court with all its wisdom, it is not possible to tame and discipline the politicians. Remember, a governor is also a semi-retired politician having loyalty to the appointing authority – not the President who is just the signing authority but the Prime Minister and the ruling party.