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Mainstream, VOL LVIII No 6, New Delhi, January 25, 2020 - Republic Day Special

Formation of State Government

Monday 27 January 2020

by P.B. Sawant

Under our Constitution, we have accepted parliamentary democracy as our political system. It means and implies that the executive/ministry consists of members of the legislature, that is, the Assembly in the case of the State, and they are responsible to the Assembly. Per force, it means that the Assembly, of which they are members, has to be duly constituted as per the Constitution, by swearing in the elected members, and the elected members electing the Speaker to conduct its business. It is the elected Speaker who ascertains the majority support for the party called upon to form the government, when it is in dispute.

It is only when the Assembly is so constituted, that the Governor calls upon the leaders of the political parties in the Assembly to form the government. If there is a party which has undisputed majority, he appoints the leader of such a party as the Chief Minister. However, if there is no party with such a majority, then the party which has larger number of members and stakes its claim to form the government, is given the first opportunity to form the government. If however, at the very time when such party stakes its claim, the other parties coming together form a Front and show that the Front has larger number of members, the Governor will be justified in inviting such a Front to form the government, instead of the single party with majority.

In the recent case of the State of Maharashtra, for reasons best known to him, the Governor did not constitute the Assembly for more than a month, after the election results were duly notified on October 25, 2019, and did so on November 27, 2019, only after the direction of the Supreme Court. In the meanwhile, he allowed himself the privilege of appointing an “interim Chief Minister” after the dissolution of the earlier Assembly on the expiration of its tenure on the November 9, 2019.

Second, he waited for the BJP to collect enough newly elected members to become the majority party in the Assembly when it would be constituted by him. When the BJP informed him that it would not form the government (because they were unable to muster enough members), he invited the Shiv Sena which had second larger number of elected members and gave them only 24 hours to form the govern-ment, and when they asked for two more days to do so, he declined, and called the NCP, the third largest party of the elected members, to form the government. When they also asked for two days to do so, he declined, and sent a report to the President of India, requesting for President’s Rule under Article 356 of the Constitution, on the ground that the government of the State could not be carried on in accordance with the provisions of the Constitution. The obliging President did so readily, and imposed his Rule in the State w.e.f. November 13, 2019. The Opposition parties approached the Supreme Court, and while the matter was pending before the Court, a filmy farce was enacted during the night hours of November 22-23, evidently at the instance of the BJP. At 11:30 p.m. on November 22, the BJP leader approached the Governor, with a leader from the NCP and a list of 54 NCP elected members, to form the government. At 12:30 am on the November 23, 2019, the Governor sent his report to the President and requested him to lift the President’s Rule. The Central Government sent its recommendation to the President at 1:30 am, and at 5:47 am, the President signed the order lifting the Rule. At 7:45 am, the Governor administered the oath to the BJP and NCP leaders in the unconstituted Assembly as Chief and Deputy Chief Ministers respectively. Thereafter the Supreme Court, by its interim order dated November 26, directed the Governor to administer oath of office to the newly elected members of the Assembly and complete the process of formation of the government by November 27, by holding a floor-test, if necessary. The Court also empowered the protem Speaker to hold the floor-test, if any, even in the absence of the Speaker elected by the Assembly, to prevent further loss of time and horse-trading. The Governor-appointed “Chief” and “Deputy Chief” Ministers resigned on November 26. The Assembly, was constituted by administering the oath to the elected members on November 27, and since only the three party-Front staked claim to form the government, the government of the Front was installed on November 28. The floor test was held on November 30.

The above developments in Maharashtra, raise some legal and ethical questions. 1) Does the swearing-in of the elected members of the Assembly depend upon the discretion of the Governor? 2) Can the Governor initiate the process of the formation of the government without constituting the Assembly? 3) Can the Governor request the President to impose his Rule even without constituting the Assembly and without calling the leaders of the party/parties “in the Assembly” to form the government? 4) Can the President accept the request of the Governor in such circumstances, to impose his Rule? 5) Can it be said that when the due procedure for forming the government is not followed, and the State Government is not formed, the government of the State cannot be carried on in accordance with the provisions of the Constitution, within the meaning of Article 356 of the Constitution? 6) Can the Governor appoint an interim Chief Minister? 7) Can it be said that in the present case, the Governor of the State and the President of India acquitted themselves creditably in discharging the duties of their offices?

The Governor is duty-bound to swear-in the elected members as the members of the Assembly, as soon as their election is notified under the Representation of People’s Act 1951. To leave it to his discretion is to subvert the Constitution. 2) The Governor could not initiate the process of the formation of the government without constituting the Assembly by swearing-in the newly elected members and without the election at least of the Speaker (if not the Deputy Speaker) from amongst themselves, as provided in Article 178 of the Constitution. While the administration of the oath to the elected members could be delegated by the Governor to the pro-tem Speaker, it is the duly-elected Speaker who has to conduct all further business of the Assembly, including holding the floor-test, if necessary.

It is thereafter, that the Governor has to invite the leader/leaders the party/parties in the Assembly to form the government. If the support of the majority to the leader so called is doubtful, he should direct the floor test which will be held by the elected Speaker. It is only when the leader proves his majority in the test, the Governor should appoint him as the Chief Minister.
3) Unless, after inviting the leaders of the parties in the Assembly, the Governor comes to the conclusion that it is not possible to form the government, he may invite the President’s Rule, and unless the Governor has gone through the said process, the President cannot accept the Governor’s request to impose his Rule. 4) Without constituting the Assembly, as stated above, the Governor could not have invited the leader of the newly elected members, since neither the members nor their leaders had become constitutionally the members of the Assembly. 5) The Governor cannot appoint any Chief Minister—interim or otherwise—without constituting the Assembly and before testing the support of the majority to him by the floor-test. The “concept of interim Chief Minister” is relevant only when the duly- constituted Assembly is in place. 6) The undue haste with which the Governor, during the dark hours of the night, requested the President to lift the President’s Rule and the haste with which the President lifted the Rule, and further the manner in which the Governor swore-in the so-called “Chief and Deputy Chief Minister” do no credit to the high offices held by both of them. The actions of both gave an impression to the people that they were willing parties to the unfortunate episode.

 The developments in Maharashtra in the formation of the government are not new or isolated. In Maharashtra itself in 2014, the majority support to the government was decided by voice vote, in defiance of the Supreme Court decision to hold the floor-test. Similar episodes, with variations have occurred in some other States as well.

It is apparent from these instances that when no single party has undisputed majority, the politicians have a field-day, and the people have to face yet another test which is entirely controlled by the politicians, to constitute the government. This is apart from the atmosphere of unwarranted uncertainty and the enormous waste of time, energy and resources of all the institutions including the judiciary. It is high time that appropriate guidelines are formulated for the formation of governments, in such circumstances, either by the Supreme Court or Parliament. The Supreme Court has an opportunity to do so in the case at present, pending before it.

The author is a former judge of the Supreme Court.

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