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[This is a guest post by Ziauddin Sherkar (ziawain@yahoo.co.in)]


To avoid the large-scale political arrests of the time, the late Bal Thackeray supported the Emergency declared by Mrs. Indira Gandhi in 1975. He even refrained from fielding any candidates against Mrs. Gandhi in her bid to regain supremacy over the Janata Party in the General Elections of 1980. Little did he know then that the legislative travails of a well-respected Janata leader Somappa Rayappa Bommai would come to his party’s aid in their bid to assume power in Maharashtra after 39 years.

Somappa Rayappa Bommai (1924-2007) belonged to that rare crop of Janata politicians who were known for their idealist convictions in political life. He was instrumental in forming the first non-Congress government in Karnataka in 1983 with Ramakrishna Hegde as the Chief Minister. The second Hegde government that returned in 1985 was accused of tapping the phones of opposition leaders that eventually resulted in the landmark Supreme Court decision of Dr. Subramanian Swamy v. Ramakrishna Hegde [1990 AIR 113]. Ramkrishna Hegde resigned over the uproar that followed, paving the way for S.R. Bommai to assume the Chief Ministership of Karnataka on 13 August 1988. Owing to internal numerical turmoil à la every Janata government ever, the then Governor P. Venkatasubbaiah sent a report to the President on 20 April 1989 that Bommai had lost confidence of the majority in the house. He advised the President to exercise his powers under Article 356(1) and issue a proclamation to impose President’s rule in the state; a request President R. Venkataraman acceded to on that very day. The Parliament subsequently approved the President’s proclamation under Article 356(3) and Bommai’s government was dismissed. A 3-judge bench of the Karnataka High Court dismissed Bommai’s writ petition filed against his government’s dismissal. Along with similar cases from Meghalaya, Rajasthan Nagaland, Himachal Pradesh and Madhya Pradesh, Bommai’s case travelled right up to the Supreme Court in the winter of 1993 and on 11 March 1994, the Supreme Court laid down its chef d’oeuvre, the judgment of S.R. Bommai v. Union of India [(1994) 3 SCC 1] (“Bommai”).

There is no clear scheme in the Constitution that lays down the procedure a Governor may follow in the post-election process. This is where two judgments Jagdambika Pal v. Union of India [(1999) 9 SCC 95] (“Jagdambika Pal”) and Rameshwar Prasad (6) v. Union of India [(2006) 2 SCC 1] (“Rameshwar Prasad”) become important. In Jagdambika Pal’s case, where there were two rival claimant’s to the Chief Minister’s post, the court ordered the assembly to be convened for one day while expressly directing, “The only Agenda in the Assembly would be to have a composite floor-test between the contending parties in order to see which out of the two contesting claimants of Chief Ministership has a majority in the House.” As of 12 November 2019, there are 4 probable contenders vying to form the government in Maharashtra out of which 1 i.e. Shiv Sena has clearly stated in a petition filed before the SC that it has the in-principle support of 2 others, the Nationalist Congress Party (“NCP”) and the Indian National Congress (“INC”). Previously, Governor Bhagat Singh Koshyari gave the Bhartiya Janata Party (“BJP”) 48 hours beginning from 9 November 2019 to demonstrate its majority. If the SC could issue extraordinary directions to convene the house for a single day in order to give a chance to rival claimants to prove their majority, surely the Governor could have followed the same route. Additionally, Articles 163 and 164 read with Jagdambika Pal’s case would have provided the Governor necessary legal cover to convene the assembly.

A case more on point is Rameshwar Prasad’s where the President had dissolved the Bihar State Assembly on the Governor’s recommendation even before the first session of the Assembly could have been convened. Although the Ministry of Home Affairs Notification dated 12 November, 2019 doesn’t dissolve the Assembly itself, the Governor of Maharashtra has clearly refused to allow any claimant prove their majority on the floor of the house. In Rameshwar Prasad’s case, the court struck down the notification dissolving the state assembly. However, Y.K. Sabharwal J. in the majority judgment held against the petitioner that the assembly can indeed be dissolved before it is convened for the first time. The Governor Koshiyari seems to have found common ground with this observation. Owing to the BJP’s electoral superiority in both the houses of Parliament, confirmation of the President’s proclamation under Article 356(3) is a mere formality; a formality compulsory for the subsequent dissolution of the state assembly.

According to the Sarkaria Commission’s recommendations, a Governor must follow the following order of precedence in invitations to break a logjam in government formation:

  1. An alliance of parties that was formed prior to the Elections.
  2. The largest single party staking a claim to form the government with the support of others, including “independents.”
  3. A post-electoral coalition of parties, with all the partners in the coalition joining the Government.
  4. 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.

Of the 4 press releases issued by the Governor since 9 November 2019, none specify if the pre-poll alliance of BJP and Shiv Sena were jointly invited in order to satisfy the First stage. The individual invitations to the BJP, Shiv Sena and the NCP would constitute adequate fulfilment of the Second stage, albeit that yielded no result. Since there is no definite existence of any formal ‘post-electoral coalition’, the Third stage is automatically ruled out. The Fourth stage is where the smokescreen thickens. It seems that Governor Koshiyari has chosen to not resort to the last option available to him and has requested the President to declare that “…a situation has arisen in which the Government of that State cannot be carried on in accordance with the provisions of the Constitution of India.” The Sarkaria Commission report has a clear view on this. It states that a political crisis may arise when:

“… after a General Election no party or coalition of parties or groups is able to secure an absolute majority in the Legislative Assembly, and, despite exploration of all possible alternatives by the Governor, a situation emerges in which there is complete demonstrated inability to form a government commanding confidence of the Legislative Assembly.”

‘Complete, demonstrated inability’, being the key-phrase does not pass muster when tested against the widely available reports of not just the INC and NCP, but also certain Independent MLAs extending support to the current claimant. The ‘inability’, if at all has not fully been ‘demonstrated’ and is certainly not ‘complete’. The majority in Rameshwar Prasad’s case did not rule against the Governor because of his taking into account media reports and private intelligence inputs on horse-trading. It ruled against the Governor despite his taking into account such inputs. It was irrelevant what the inputs indicated if a dispensation was willing to demonstrate majority. Even if the Governor of Maharashtra seems intent on heading in the direction of Arijit Pasayat J.’s dissenting opinion that such inputs could very well dictate his decisions under Article 356, in the present case the available inputs themselves point towards a highly probable ‘post-electoral coalition’.

Apart from reiterating the paramount importance of the Sarkaria Commission report Bommai’s case is unequivocally clear on certain propositions. These propositions have found favourable ground in all subsequent, related cases.

“…the proper course for testing the strength of the Ministry is holding the test on the floor of the House. That alone is the constitutionally ordained forum for seeking openly and objectively the claims and counterclaims in that behalf. The assessment of the strength of the Ministry is not a matter of private opinion of any individual, be he the Governor or the President. It is capable of being demonstrated and ascertained publicly in the House. Hence when such demonstration is possible, it is not open to bypass it and instead depend upon the subjective satisfaction of the Governor or the President. Such private assessment is an anathema to the democratic principle, apart from being open to serious objections of personal mala fides.”

 

Unfortunately, the physical manifestation of Shiv Sena’s claim was never allowed to materialize on the floor of the house.

The most obvious critique of the above criticisms of the Governor is that he is under no obligation to provide the exact time as requested by a claimant. The Shiv Sena requested for three more days i.e. 72 hours on 11 November 2019 in order to prove majority. This request was declined by the Governor. Time-bound and time-tested constitutional conventions are the hallmark of any Westminster-style democracy. Are they followed in our country in a manner that the actors involved consider such conventions to be binding on themselves? This question is simply answered by the fact that the entire elaborate procedure followed by the Governor in inviting a political party to form a government is not supported by the set letter of the law but by time-honoured conventions. If such constitutional conventions were held to be non-existent, formation of most coalition-era state and national governments after the 1980s would be questionable. Even the SC in S.P. Gupta v. President of India [AIR 1982 SC 149] spoke extensively about such conventions. A single precedent with a good reason may be enough to establish a convention. In the present case, the Governor himself set the precedent by giving the BJP 48 hours to prove majority. If not 72 hours as demanded, the Governor could have extended the same magnanimity towards the current claimants as he did towards the BJP. Nonetheless, if time-limits of 24 hours for proving majority become precedent, the era of post-poll alliance making in India would come to a thankful end.