Thread by @legaljournalist

Hung Assembly: Whom should Governor call first?

The answer to this question could have significant impact on the political future of the country and will now be decided by the Supreme Court of India. #Thread on my piece. barandbench.com/hung-assembly-…

Elections to various State Legislative Assemblies some of which were hitherto unknown to leaders and masses in India’s power centres, is now becoming national news, thanks to the upsurge of BJP and the resistance to the same by coalition politics of regional parties.

This in turn has raised a serious question regarding the role of the Governor in government formation and the manner in which such power should be exercised by the Governor.

None of the parties were able to secure a majority in many recent State elections. Hence, while Indian National Congress emerged as the single largest party in Goa, Manipur and Meghalaya, the BJP formed the government in these States in a coalition.

The factual matrix got reversed in Karnataka. The BJP emerged as the single largest party but fell short of majority.

The Indian National Congress- JD (Secular) reached a post-electoral alliance taking them past the magic mark. This put the spotlight on the Governor on whom he should invite to prove majority on the floor of the house – BJP or INC-JD(S)?

The leaders of respective parties reversed their earlier stance. While BJP claimed that the single largest party should be called by the Governor, the INC claimed that the post-electoral alliance with the clear majority should be given preference.

The Governor a former BJP legislator, however, invited BS Yeddyurappa, the leader of the single largest party, BJP to form the government. This led to a mid-night hearing in the Supreme Court. We all the know the rest of the story.

However, the arguments before the Supreme Court and the questions raised by the Court seemed to rightly capture the essence of the dispute.

During the hearing in the Congress-JD(S) petition, Justice Sikri rightly identified the problem,

“They have given a letter with signatures of 117 MLAs; on the other hand you have given a letter claiming stake to form the government. In such a case, what will the Governor do?”

While Mukul Rohatgi, appearing for @BJP4India MLAs replied stating that “The only role of the Governor is to see who will form a stable government”, @KapilSibal , appearing for @INCIndia took a different stance.

“The discretion of the Governor is circumscribed by Constitution and law”, said @KapilSibal
His argument was if Governor has to choose between a Single Largest Party with sāy 100 seats and a coalition with 120 seats, Governor has to choose which side can get majority.

The Constitution largely being silent on this aspect, brings us to the questions - What is the law in this regard?

I have analysed two reports, Sarkaria and Punchhi, and four Supreme Court decisions, SR Bommai, Chandrakant Kavlekar, Rameshwar Prasad and Nabam Rebia. Read the full piece here. barandbench.com/hung-assembly-…

However, what intrigued me was the argument made by Senior Advocate @DrAMSinghvi on the very first hearing of the petition filed by Congress-JD(S) leaders when the matter was heard by the Supreme Court at night.

Singhvi chose to cite the Sarkaria Commission report and the order of preference set out therein. This order of preference puts Single Largest Party above a post-electoral coalition of parties. It was baffling that he chose to cite something which was against his own case.

Even judges were a bit baffled by the same. Justice AK Sikri chose to query,

“You (Congress) are saying that you are at 3 (in the order of preference) but your case is that they (BJP) are not at 2”.

Singhvi's response to the same was not clear to me.

Interestingly, Singhvi had relied on Sarkaria commission report in the Goa case in 2017 when the Congress was the single largest party with BJP forming post-poll alliance.

According to @LiveLawIndia , when Singhvi had relied upon Sarkaria report, the Bench in Goa case had asked him whether the report has been endorsed. Singhvi had answered in the affirmative stating Supreme Crt had endorsed the report in Bommai, Rameshwar Prasad and Nabam Rebia

While such a submission was to his advantage in Goa, it was indeed perplexing to find him rely on Sarkaria in Karnataka case.

Nevertheless, the Supreme Court has now correctly identified the issue and will hear the matter and give a verdict on the issue.

This decision could have significant impact on the political future of the country given that the opposition parties are uniting in a bid to keep the BJP in check.

Till then, a hung assembly will hang on to the ambiguous discretion of the Governor.