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Coming out strongly against the Supreme Court order giving Manohar Parrikar an opportunity to win the Goa trust vote on Thursday, eminent jurist Fali S Nariman Tuesday said that the Constitution as well as judicial precedents laid down that the Governor was obligated to call the leader of the single largest party first to form the government.
“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 The Indian Express.
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In Goa, the Congress emerged as the single largest party, winning 17 of the 40 seats in the Assembly. The BJP, on the other hand, won only 13 seats but staked claim to form the government with the support of eight other legislators.
After Parrikar submitted a list of 21 MLAs in his support, Governor Mridula Sinha issued a press release last Saturday, appointing Parrikar as the new Chief Minister and asked him to prove his majority in 15 days.
Chandrakant Kavlekar, Leader of the Congress Legislature Party, complained that he was not called even once by the Governor to form the government or to be consulted on formation of a new government despite his being the single largest party in the state.
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On being asked what could be the fault with the Governor’s decision when the BJP staked claim before the Congress did, Nariman said the constitutional principle was not about who rushed first.
“The Governor, according to me, is under a constitutional duty to first invite the leader of the single largest party in the state, whether or not he or she is the first to stake claim.” Nariman also wondered why the Supreme Court order on Tuesday completely missed this point.
In his blog, Finance Minister Jaitley has said that “in a hung Assembly, there will be post-poll alliances”. He also said that “in the face of claim of 21 MLAs led by Manohar Parrikar, Goa Governor couldn’t have invited minority of 17 Congress MLAs to form government”.
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But Nariman disagreed. His bewilderment over the court order not recording anything about asking the leader of the single largest party can stem from a body of Constitution Bench judgments delivered by the Supreme Court over decades.
A five-judge Constitution Bench, in the Rameshwar Prasad Vs Union of India, 2006, explicitly endorsed the recommendations made by the R S Sarkaria Commission in its report on Centre-State relations, which had emphasised on impartiality of Governors and their role in upholding the constitutional mandate. The court, in its judgment, had rued that Raj Bhawans were becoming “extensions of party offices” and that political parties were not willing to accept reforms mooted by the Sarkaria Commission since “they want to take advantage of the situation at a particular time and cry foul when the situation does not seem favourable to them”.
Later, the M M Punchhi Commission also enumerated what it called “constitutional conventions” to be followed by the Governor in case of a hung Assembly. In case of a hung Assembly, the Punchhi Commission prescribed:
* The party or combination of parties which command the widest support in the Legislative Assembly should be called upon to form the government.
* If there is a pre-poll alliance or coalition, it should be treated as one political party and if such coalition obtains a majority, the leader of such coalition shall be called by the Governor to form the government.
* In case no party or pre-poll coalition has a clear majority, the Governor should select the Chief Minister in the order of preference indicated here — (a) the group of parties which had a pre-poll alliance commanding the largest number; (b) the largest single party staking claim to form the government with the support of others; (c) a post-electoral coalition with all partners joining the government; (d) a post-electoral alliance with some parties joining the government and the remaining including independents supporting the government from outside.
Another five-judge Bench, in the Nabam Rebia and Bamang Felix Vs Deputy Speaker, Arunachal Pradesh Legislative Assembly & Others, endorsed the views of the Sarkaria and Punchhi Commissions regarding giving the Governor an independent discretion to take a call on the floor test when the government has lost confidence of the legislature.
A nine-judge Bench in the S R Bommai case had underlined the significance of a floor test when there are rival claims by two political groups, while laying down that the floor test must be conducted by the Governor as soon as possible.
As regards the weight of “constitutional convention”, a seven-judge bench, in Supreme Court Advocates on Record Association Vs Union of India, 1993, had held that “there is no distinction between the ‘constitutional law’ and an established ‘constitutional convention’ and both are binding in the field of their operation. “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,” it had said.
This view was buttressed by another five-judge Bench judgment in Supreme Court Advocates on Record Association Vs Union of India, 2016 when the top court emphasised the legal sanctity of constitutional convention.
While moving for adoption of the Constitution of India, Dr Rajendra Prasad, in his speech as President of the Constituent Assembly, had 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 to divisions in lobbies strengthens that hope.”
Addressing the Conference of Governors in June 2005, then President of India Dr A P J Abdul Kalam had stressed the relevance of recommendations of the Sarkaria Commission and observed: “While there are many checks and balances provided by the Constitution, the office of the Governor has been bestowed with the independence to rise above day-to-day politics and override compulsions either emanating from the central system or the state system.”