The governor’s decision
Sanjay Hegde, Senior Advocate, Supreme Court
The single largest party is the normal rule. But there are always exceptions to the rule. Is there a necessity at all times to go through this? Invite the single largest party, wait for it to fall and thereafter invite somebody else if required? To my mind the answer is, not always.
Here you have a case where there is a single largest party at 104, and an alliance which is clearly in the majority at 116. In these circumstances, to say that the single largest party at 104 would necessarily command the majority or the confidence of the house, to my mind is a bit of a stretch.
Of course, there is nothing to stop the governor from doing it. But I don’t think constitutional scholars or historians will look at that very kindly. But governors don't necessarily look to the judgements of history or constitutional scholars. They also go by their own feel of the situation.
The Constitutional Precedent
Aryama Sundaram, Senior Advocate, Supreme Court
The constitutional intention, clear intent, and the mandate is that the leader of the house will be one who commands a majority of the house. Secondly, essential to any democracy is that there is a government in place as soon as possible. These are the two basic constitutional mandates that are any governor’s duty to ensure.
The Supreme Court’s Rameshwar Prasad versus Union Of India judgement in 2006, says that if there is an area of uncertainty, and if you are not satisfied that anybody has the majority, and you're not sure who has the majority, then follow a checklist.
Go first to a pre-election alliance, see whether they can command the majority. If that fails, then go to the single largest party and say look here, can you get people with you to support you, and you form the majority. If that fails, then you go to the next step which says alright, as a group if you are able to get together and form the government and form a stable government, then all of you can together govern.
Now that’s a series which is given as guidelines, that is not written in stone.
This instance is a great pointer as to how sometimes we lose the wood for the trees. You have three parties, not one of them has the majority on its own. Two of them come together and say, we are now together, we have the majority. If the governor is satisfied with the two that are together, and the numbers of the two together is the majority, I see nothing wrong, and in fact I feel that will really be serving the basic constitutional mandate, for the governor to then call upon both of them to form the government.
Relevance Bommai Judgement
The Bommai judgement basically says that everything has to be decided on the floor of the assembly. The judgement also says that you should make a reasonable, objective assessment as to who is likely to command the majority in the assembly. The Bommai judgement is not a carte-blanche for the governor to invite somebody and then say, now cobble up a majority.
What the Bommai judgement has said is, whenever there is uncertainty, it is best to test it on the floor of the house. The operative word is uncertainty. In this particular case, as of today, there is no uncertainty between the JD(S) and the Congress a) having the numbers, and b) saying we are going to go together. If they fall out later, that will be seen at some stage. That does not mean that the governor needs the numbers to be first proved in the house, before allowing the government to take charge. If he wants, he can say ‘I will allow you people to form a government, but I want you to have a vote of confidence in the next 13 days. And that is not so that you can go and cobble up enough support to get people onto your side, but basically to see that both of you are really together and you’re going to stay together and form the government.