New Delhi: Eminent legal experts are unanimous that in the event of a hung Assembly in Uttar Pradesh, it will be incumbent on the Governor to convene the Assembly and administer oath of office to the newly-elected members, irrespective of whether formation of a new ministry is possible or not.

It is to be noted that unless the newly elected representatives take oath as members of the Assembly they will not be entitled to vote in the Presidential poll in July.

Convening the Assembly to enable members to take oath assumes importance in the context of the Supreme Court strongly indicting the then Bihar Governor, Buta Singh, for not allowing members to take oath and preventing Janata Dal (United) leader Nitish Kumar from forming the Government.

What court says

The court had said: "No power had been vested with the Governor to refuse formation of a government and override the majority claim because of his subjective assessment that the majority was cobbled up by illegal and unethical means. Such a power would be against the democratic principles of majority rule. Governor is not an autocratic political ombudsman. If such a power is vested in the Governor and/or the President, the consequences can be horrendous."

According to the former Chief Election Commissioner, T.S. Krishnamurthy, the role of the Election Commission comes to an end the moment the list of newly elected representatives is notified.

It is up to the Governor to convene the Assembly so that the members can take oath. Going by what the Supreme Court has said the Governor cannot delay convening the Assembly citing that there is no possibility of formation of a government by any political party or group.

The former Attorney-General and senior advocate, Soli Sorabjee, is of the view that genuine attempts will have to be made by the Governor to explore the possibility of forming a government by the single largest political party or by coming together of one or more parties.

If the Governor feels that no government formation is possible, as an interim measure, he can convene the Assembly to enable the newly elected persons to take oath as Members of the House. The Governor cannot delay convening the House on the ground that no one is able to form the government.

According to senior advocate Rajeev Dhavan, the Governor cannot postpone administering the oath to the new members indefinitely. He has to explore the possibility of government formation by inviting the leader of the single largest political party and allow him or her to prove the majority on the floor of the House.

He cited the instance when Atal Bihari Vajpayee was invited to form the Government though the BJP did not enjoy a majority in the Lok Sabha.

Another way

Another possible way out for the Governor is to prorogue the Assembly for a while after convening it and the members are administered the oath. By proroguing the House, imposition of the President's rule can be avoided.

Senior advocate C.S. Vaidyanathan says once members are elected, ordinarily they will have to be administered the oath at the earliest. He echoed the view of Mr. Sorabjee that the Governor cannot put off convening the Assembly.

Members having been elected cannot be denied their right to vote in the Presidential poll on the only ground that they are unable to take oath as members. According to him, formation of the Ministry and taking oath by Members are not dependent on each other.

Senior advocate K.T.S. Tulsi feels that administering oath to the new members cannot be delayed once the Election Commission issues the notification about the list of elected representatives. Convening the Assembly is a constitutional requirement irrespective of the possibility of government formation, he says.

If after the members take oath, the Governor concludes that there is no one to form the government he can recommend President's rule and keep the Assembly in suspended animation till such time ministry formation is possible.

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