The decision of Goa Governor Mridula Sinha to invite — and swear in — a government led by the BJP despite the party having won four fewer seats than the Congress in the Assembly elections, has reopened the debate on the need for a more structured and transparent system to deal with scenarios arising out of fractured verdicts.
Dealing with the issue of discretionary powers of the Governor, the Justice R S Sarkaria Commission, in its voluminous report in January 1988, said the Governor was expected to use his/her discretion in choosing the Chief Minister; in testing majority of the government in office; in the matter of dismissal of a Chief Minister; in dissolving the Legislative Assembly; in recommending President’s Rule and, finally, in reserving Bills for the President’s consideration.
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In choosing the Chief Minister, the Sarkaria Commission said, the Governor should be guided by certain principles. The first criteria, the Commission recommended, was that the “party or combination of parties which commands the widest support in the Legislative Assembly should be called upon to form the government”.
The Governor, it said, was expected to remember that his/her “task is to see that a government is formed and not to try to form a government which pursues policies which he approves”.
The Commission recommended that the first shot at government formation should be allowed to the leader of the single party having an absolute majority in the Assembly. In case no party had majority, it suggested an order of preference that could guide the Governor in making a fair decision.
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This order of precedence, it recommended, should be: leader of any pre-poll alliance of parties “formed prior to the elections”, followed by the leader of the “largest single party staking a claim to form the government with the support of others, including ‘independents’”.
Thereafter, the Governor could invite the leader of a “post-electoral coalition of parties, with all the partners in the coalition joining the government” and, finally, the leader of 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.
The Governor’s endeavour in all this, the Commission said, should be to “select a leader who in his (Governor’s) judgment is most likely to command a majority in the Assembly”.
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The Justice Madan Mohan Punchhi Commission on Centre-State relations, which submitted its report in April 2007, made similar recommendations. While the debate continues over whether Governor Mridula Sinha did the constitutionally right thing by ignoring the claim of the leader of the Congress Legislature Party to be invited first to form the government and prove his majority, the blame for the lack of clarity on the use of “discretionary powers” by Governors lies mainly with the Congress.
Congress governments, including the one headed by Manmohan Singh, failed to take the recommendations of the two important Commissions on Centre-State relations seriously and give them legislative shape, perhaps through amendments to the Constitution.
Earlier, Indira Gandhi’s government had decided against implementing the recommendation of the First Administrative Reforms Commission (ARC) to formulate guidelines governing the use of discretionary powers by Governors.
The First ARC, which was set up in 1960 to review Centre-State relations, had pointed out that the Governor’s main aim should be to uphold his “oath of his office to preserve, protect and defend the Constitution and the law of the land”. It had also said the Governor should be impartial, should have a sense of fairplay, and should command the respect of all parties in the state.
The Supreme Court’s Bommai judgment, while laying down the dictum that the floor test was the best test for whether a Chief Minister enjoys majority support, did not make it clear as to who should be given the first shot at government formation.
Incidentally, the issue of the Governor’s discretionary powers — where he/she can act without the aid and advice of the Council of Ministers is an old one, and had figured in the lengthy debates of the Constituent Assembly as well.