The story so far: Not for the first time in recent years, there was a prolonged stalemate in Maharashtra over the formation of a government as no single party had a majority of its own after the Assembly election in October. It was not a wholly fractured verdict. A pre-poll alliance of the Bharatiya Janata Party (105 seats) and the Shiv Sena (56) had a clear majority (161 in the 288-seat Assembly, with 145 being the majority mark), but the Sena broke the alliance over unresolved issues related to sharing of power. Even as a post-poll combination was being worked out, Maharashtra Governor Bhagat Singh Koshyari’s controversial decision to administer the oath to Devendra Fadnavis of the Bharatiya Janata Party (BJP) as Chief Minister and Ajit Pawar of the Nationalist Congress Party (NCP) as Deputy Chief Minister was taken to court by the Shiv Sena, the NCP and the Congress. After the Supreme Court of India ordered an early floor test, Ajit Pawar resigned. Mr. Fadnavis followed suit, admitting that he did not have the required majority. A new post-poll combination, between the Sena, NCP and the Congress and some independents, has now formed the government. The developments have brought under focus the role of the Governor in such circumstances. 

What should the Governor do if there is a hung Assembly?

The Constitution envisages that the Governor act on the aid and advice of the Council of Ministers, except in those situations in which he is, by or under the Constitution, required to act in his discretion (Article 163). It is clear that in identifying a candidate who, in his opinion, is in a position to command a majority, the Governor has to make his own decision, subject, of course, to democratic norms. This is why one often sees the Governor of a State inviting leaders for discussions as part of efforts to explore the possibility of forming a government. When the Governor appoints the Chief Minister in this way, it is accompanied by a stipulation that the appointee prove his or her majority within a specified time on the floor of the House.

Is there a preferred order for this process?

The Governor may invite the leader of the largest single party first. However, if it is clear that the largest single party has no potential ally or enough independent members to ensure a majority, he may also invite the leader of the largest pre-poll combination or alliance.

If there is no combination or alliance, he may invite leaders one by one in the order of their size in the new Assembly. During this process, a post-poll combination may emerge, if any one of them agrees to form a government. The Governor may insist on letters of support from those outside the leader’s party who are willing to join or extend support to him.

Is there any guidance to the Governor on this?

The Sarkaria Commission on inter-State relations has dealt with this question. The Commission’s report suggests the following orders for Governors to follow: 1. An alliance formed prior to the election; 2. The largest single party staking claim with the support of others, including independents; 3. A post-electoral coalition, with all partners joining the government; 4. A post-poll coalition, with some joining the government, and others extending support from outside.

As general principles, the Sarkaria Commission says the Governor should look for a party or combination that commands the widest support in the Assembly, and that “his task is to see that a government is formed, and not to try to form a government which will pursue policies which he approves”.

How does the Governor ascertain majority?

Decades ago, there were instances of party leaders parading legislators supposedly supporting them in Raj Bhavan, and Governors doing a headcount or verifying signatures. This approach has been deprecated by courts, and there is consensus now that the floor of the Assembly is the only place where the majority is to be decided. The Sarkaria Commission recommends that a person, who has been appointed Chief Minister without a clear majority, should seek a vote of confidence in the Assembly within 30 days. “This practice should be strictly adhered to with the sanctity of a rule of law,” it says.

Similarly, when the majority of the Chief Minister is contested by a significant number of legislators, the Governor should not risk a determination of his own outside the House, and it would be prudent “to cause the rival claims to be tested on the floor of the House”. In this, the Governor may advise the Chief Minister to summon the Assembly, if it is not in session, to demonstrate his support. Normally, under Article 174, the Governor summons the House only on the advice of the Council of Ministers, but will be within his constitutional rights to cause the House to be convened if there is reason to believe that there is a doubt about the incumbent’s majority.

What are the principles evolved by the Supreme Court?

Some seminal judgments of the Supreme Court have dealt with these issues. The key principle that ought to guide the Governor is set out in the S.R. Bommai vs. Union of India case (1994). The proper course, the court said, for testing the strength of a ministry is a floor test. “That alone is the constitutionally ordained forum ...,” it observed. Even though this verdict was in the context of the imposition of President’s rule in different States, the principle holds good for any situation in which Governors have to decide on the appointment of a Chief Minister or continuance of a regime based on its numerical strength in the House.

In Rameshwar Prasad (2005), the court ruled that there was nothing wrong in installing a post-poll combination, and that the Governor could not decline the formation of a government on the ground that it was being done through unethical means.

In February 1998, in an unusual and trend-setting order ( Jagdambika Pal vs. Union of India and Ors ), the Supreme Court ordered a ‘composite floor test’ involving two rival claimants — Kalyan Singh and Jagdambika Pal. The Governor had dismissed the former and installed Ms. Pal in office. Kalyan Singh won the floor test that day. A significant aspect of the court’s order was that it was made clear that the floor test would be the only item on the agenda of the House. 

A similar order was passed in March 2005 in the Jharkhand Assembly. More recently, in 2016, Harish Rawat won a floor test ordered by the Supreme Court in Uttarakhand. In 2017, a similar order was passed in respect of the Goa Assembly.

Karnataka (2018) and Maharashtra (2019) are instances of the court ordering a floor test in a situation in which the Assembly had not yet been convened after the general election. Therefore, the legislators were yet to take their oaths. The court directed the appointment of a pro tem Speaker, to be followed by the administration of oath to the new members and, thereafter, a floor test.

In a case examining the validity of the Governor advancing a session of the Arunachal Pradesh Assembly on his own, a Constitution Bench cautioned Governors against acting on internal party developments or “entering the political thicket”.

What are the questions left for adjudication?

The court has so far justified its intervention by way of ordering floor tests, reasoning that such orders were necessary to preserve constitutional and democratic values. In its recent order in the Maharashtra case, the court observed: “In a situation wherein, if the floor test is delayed, there is a possibility of horse-trading, it becomes incumbent upon the court to act to protect democratic values.”

Such cases raise the issue of “boundaries between the court’s jurisdiction and parliamentary independence”, as the court itself noted. This may have to be dealt with in a suitable case some day. Also, the acts of Governors in seeking letters of support, requiring Chief Ministers to prove their majority, and entertaining letters of withdrawal of support have so far been based on convention. Whether such acts are justifiable may require adjudication. In the latest case too, the question whether the Maharashtra Governor’s decision to invite one claimant, rather than another, based on an unsubstantiated letter of support is correct, is open to adjudication. A set of written instructions or guidelines for Governors to act in such situations has been mooted in the past.