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Explained: What next in Maharashtra?

Term of current government ends tomorrow, with no clarity on who will form the next. With BJP and Shiv Sena divided over power-sharing, a look at the constitutional provisions for government formation.

Written by Sandeep A Ashar | Mumbai | Updated: November 8, 2019 10:58:48 am
What next in Maharashtra? Maharashtra CM Devendra Fadnavis with Shiva Sena Chief Uddhav Thackeray. No party has staked claim yet to form a government. (File)

The clock is ticking for the outgoing Maharashtra government, which needs to step down by Saturday, November 9, when the term of this Assembly ends.

It has been two weeks since the results of the Assembly election were announced, but no party has staked claim yet to form a government. While the BJP-Shiv Sena alliance has a clear majority, they have been wrangling over power-sharing and the Chief Minister’s post, held by BJP’s Devendra Fadnavis in the outgoing government.

Usually the moment an election is won or lost, the Chief Minister resigns and is then asked by the Governor to continue as ‘caretaker’ until a new government is in place. The spotlight is therefore on Governor Bhagat Singh Koshyari.

Maharashtra govt formation: How do things stand at the moment?

On Thursday, Advocate General Ashutosh Kumbhakoni met the Governor to “advise the Governor on the legal and the constitutional options besides precedents available before him to explore all the possibilities regarding the next government’s formation:.

While the existing Legislative Assembly will cease to exist post November 9, legal experts noted that there is no binding that the government should be in place by that day. The Election Commission of India published a notification on October 25, convening the newly elected Assembly.

What is the Governor’s role in such circumstances?

According to sources, Governor Koshyari has already begun holding consultations with representatives of major political parties regarding government formation. On Thursday, a BJP ministers’ delegation held discussions with him.

Sources said the Governor would be expected to go as per an order of preference set out in the Sarkaria Commission recommendations, which have also been ratified by the Supreme Court. By the order of preference, the Governor can invite 1) a pre-poll alliance of parties; 2) invite the single largest party which stakes a claim to form government; 3) invite a post-poll alliance of parties, with all the partner in the coalition joining the government or 4) invite a post-poll alliances of parties, with some becoming part of the government and some supporting from outside.

The Opposition and even Shiv Sena leaders have been demanding that the Governor invite the BJP, the single largest party, to form the government. So far the BJP’s strategists have been reluctant to stake claim without the Shiv Sena’s support. Incidentally the Governor can only summon the new House for the first sitting only after a new government is sworn in and the Cabinet has suggested a suitable date. The process of swearing-in of the newly elected members and appointment of the new Speaker can be held thereafter.

Have there been precedents?

Maharashtra’s current political stalemate is not unlike that in 2009, when the Congress-NCP alliance, despite winning an election, had delayed government formation for 13 days due to a power-sharing tussle. Then Governor S C Jamir even had to step in. Both parties eventually buried their differences to share power.

How do the present numbers stack up?

Out of 288 Assembly seats, the BJP has the highest number (105) but is nowhere near the halfway mark of 144. The Shiv Sena has 56 seats. The NCP and the Congress have 54 and 44 seats, respectively. While the BJP has been reaching out to independents and smaller parties, it still doesn’t have the numbers to form the government without the Sena’s support. And while the Sena has been eyeing the CM’s post, it is not in a position to form the government without the BJP either, unless both the Congress and the NCP prop up a government formed by the Sena.

What happens if any of these parties is invited to form the government?

Any government formation will have to involve the BJP or the Shiv Sena, or both. Once any formation is sworn in, it will need to pass the floor test, which will reveal whether the executive enjoys the confidence of the legislature as mandated by the Constitution. In the floor test, the person sworn in as the CM has to prove that s/he enjoys the confidence of the House. If the confidence motion fails, the Chief Minister has to resign. If more than one person stake claim to form the government and the majority is not clear, the Governor has the powers to call a special session to assess who has the majority. The date for the floor test is decided by the Governor in consultation with the new government.

In 2014, the BJP, which had 122 members, had passed the floor test on a voice vote amid din and controversy, becoming the only instance in the state’s history when a minority government was sworn in. The Shiv Sena, then the principal Opposition party, later joined the Fadnavis government.

If no government can be formed, is President’s rule likely?

Article 356 of the Constitution provides for the imposition of President’s Rule in a state in “case of failure of the constitutional machinery in the state”. As per the constitutional stipulation, it can be imposed in cases where the President, on receipt of report from the Governor of the state or otherwise, is satisfied that a situation has arisen in which the government of the state cannot be carried on in accordance with the provisions of the Constitution.

In Maharashtra’s current case, imposition of the President’s rule is still a remote possibility. According to legal experts, Governor Koshyari would first need to exhaust all options and possibilities of government formation before making any such recommendation. He will first have to hold consultations with all parties to examine if any one of them is in a position to cobble together the numbers required. Only after he is satisfied that no party or alliance can form a stable government would he recommend imposition of President’s rule.

In the event that the BJP is unable to form the government, both the Congress and the NCP camps in the state have dropped several hints that they would be willing to prop up a government formed by the Shiv Sena. In Maharashtra’s 59-year-long history, President’s rule has only been imposed twice — for 112 days between February and June 1980, and for 33 days between September and October 2014.

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