The legal challenge of the Congress in the Supreme Court against the BJP’s claim to form the government in Goa brings to fore a vacuum in the Constitution. In the case of a hung legislature, is the Governor bound to follow the constitutional convention to call upon the single largest party to form the government and prove its majority in the House? Or, as the court endorsed on Wednesday, can a political rival cobble together a post-poll alliance to form a majority that overcomes the single largest party and form the government?
The Manohar Parrikar government came to power on a first-come-first-appointed basis despite the fact that the BJP came second in the Assembly elections. The Governor did not consult the single largest party, the Congress, before giving Mr. Parrikar the green signal.
The SC, in turn, said the Congress did wrong by not staking its claim to form the government. It had shown no proof to the Governor that it had the requisite numbers to prove a majority in the House. The debacle exposes the fact that there are no specific guidelines in the Constitution on who the Governor should invite to form a government in a State where rival parties with narrow majorities engage in a face-off.
The constitutional convention of inviting the single largest party in the case of a fractured mandate has been outlined by the Sarkaria Commission recommendations, which were affirmed by a Constitution Bench of the SC in Rameshwar Prasad v Union of India in 2005.
The Commission report specifically dealt with the situation where no single party obtained absolute majority. It provided the order of preference the Governor should follow in selecting a Chief Minister in such a fluid situation: (1) An alliance of parties that was formed prior to the elections. (2) The single largest party staking a claim to form the government with the support of others, including independents. (3) A post-electoral coalition of parties, with all the partners in the coalition joining the government. (4) 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.
It is clear that the leader of the party which has an absolute majority in the Assembly should be called upon by the Governor to form a government. However, if there is a fractured mandate, then the Commission recommends an elaborate step-by-step approach and has further emphasised that the Governor should select a leader who, in his/her judgement, is most likely to command a majority in the Assembly.
