Constitutional debates

The Bharatiya Janata Party on Thursday sealed the deal in Goa after it won the trust vote in the state Assembly. With the support of 22 MLAs, including 13 BJP legislators, Manohar Parrikar was sworn-in as the new Chief Minister of Goa. Reports indicate that the BJP stitched an alliance, bringing in elected legislators from former ally, the Maharashtrawadi Gomantak Party, the Goa Forward Party (even though it had specifically fought on an anti-BJP plank), and two more independents on the condition that Parrikar would be the Chief Minister. For the Congress, this trust vote comes as a massive blow, considering that it had won 17 seats—four more than the BJP. The grand old party failed to cobble together an alliance and secure a majority of 21 MLAs in a 40-member strong Assembly. It had moved the Supreme Court on Monday, challenging Parrikar's appointment as Goa Chief Minister. The party had contended that it should have been invited first to form the government in the state since it was the single largest party. The court had ordered the floor test but allowed Parrikar to be sworn in. In the famous SR Bommai case, the Apex Court had explicitly ruled that the question of a majority can only be established on the floor of the house. With the floor test wrapped up, it should be game over for the Congress. Nonetheless, questions over whether the Governor is bound to first invite the party with the largest number of seats have sparked an interesting constitutional debate among eminent jurists and members of the political class.

In Goa, especially, the people delivered a clear verdict against the BJP. The party won just 13 seats in the 40-strong Assembly, while the previous incumbent Chief Minister Laxmikant Parsekar and five other ministers in his Cabinet lost in their respective constituencies. Isn't it evident that the electoral mandate went against the BJP? In a recent blog post, Union Finance Minister Arun Jaitley contests this point. "The Assembly Elections in Goa produced an inconclusive verdict," Jaitley said. "There was a Hung Assembly. Obviously, in a Hung Assembly post-poll alliances will be formed." The Finance Minister goes on to cite several precedents to back his claim. In 2002, he argues, the Assembly elections in Jammu Kashmir had produced an inconclusive verdict. Even though the National Conference had won 28 MLAs, the Governor invited the Peoples Democratic Party and Congress (both parties entered into a post-poll alliance) to form the government with 15 and 21 MLAs respectively. He goes on to cite other examples too.

Eminent jurist Fali S Nariman, however, disagrees. "My understanding of the law and the precedents (benches of nine and five judges respectively) is that the Governor of a state is under Constitutional duty to first invite the leader of the single largest party to form the government," Nariman told a leading Indian daily publication on Tuesday. We have had coalitional governments led by parties which are not the largest party in Parliament and legislatures. However, the President or Governor is bound by Constitutional convention to call upon the biggest party to form a government. The governor's refusal to invite the single largest party to have the first shot at government formation is as the Congress argues a "complete departure from the Sarkaria Commission as well as MM Punchhi Commission recommendations". In passing judgement on a whole host of cases dealing with such matters of Constitutional law, the Apex Court has endorsed these recommendations. In what is popularly referred to as the Second Judges Case, the Apex Court said: "Once it is established to the satisfaction of the Court that a particular convention exists and is operating then the convention becomes a part of the 'Constitutional law' of the land and can be enforced in the like manner." Former Supreme Court judge Markandey Katju takes a position contrary to one that Nariman articulates. "There is no provision in the Constitution requiring the Governor to invite the leader of the largest party in a hung Assembly to form the government," Katju says in response to a query on social media. "What Article 164(2) says is that the Council of Ministers must be collectively responsible to the Assembly."

Dr Rajendra Prasad, however, would have disagreed with that position. In his speech as President of the Constituent Assembly, he said: "We have prepared a democratic Constitution. But successful working of democratic institutions requires in those who have to work them willingness to respect the viewpoints of others, capacity for compromise and accommodation. Many things which cannot be written in a Constitution are done by conventions. Let me hope that we shall show those capacities and develop those conventions. The way in which we have been able to draw this Constitution without taking recourse to voting and divisions in lobbies strengthens that hope." For the Congress, this is little consolation, considering that failed to garner the requisite support, despite a clear head start. Reports indicate that the Congress legislators were left annoyed, more at their own party's high command than with BJP. Forget negotiations with potential allies, the party took too long to decide on its legislative leader. This is a clearly a failure of the party high command and no amount of legalese changes this fact. Latest reports state that the Congress is now down to 16, after one of their legislators resigned and quit the party in disgust.