Why in news?
Karnataka assembly elections brought focus for a clearer definition regarding the role of a governor after the polls.
• With the Karnataka Assembly polls resulting in a hung verdict, the second largest party –Congress and Janata Dal-Secular decided to come together to stake claim to form the government in the state.
• With the power being in the hands of Governor Vajubhai Vala, BJP-the single largest party in the state was called to form the government and the party’s state leader BS Yeddyurappa was sworn in as the Chief Minister of the state.
• However, in the sudden floor test ordered by the Supreme Court, the BJP failed to gather the required numbers and Yeddyurappa announced his resignation from the post just before the trust vote.
• Following this, Congress- JD(s) coalition led by Kumaraswamy was invited to form the government in the state. Kumaraswamy was sworn in as the new Chief Minister of the state on May 23, 2018.
• While the Congress has 78 legislators, JDS has 37. The alliance also claimed the support of an independent and one BSP MLA.
Hung Assembly/Parliament :
A hung parliament is a term used in legislatures under the Westminster system to describe a situation in which no particular political party or pre-existing coalition (also known as an alliance or bloc) has an absolute majority of legislators (commonly known as members or seats) in a parliament or other legislature. This situation is also known, albeit less commonly, as a balanced parliament, or as a legislature under no overall control ,and can result in a minority government. The term is not relevant in multi-party systems where it is rare for a single party to hold a majority.
What is a floor test?
Floor test is a Constitutional mechanism to know whether the executive enjoys the confidence of the legislature, which is mandated by the Indian Constitution. In a floor test, the person who is appointed as the Chief Minister needs to pass it. As per the Constitutional requirement, the Chief Minister of a state is appointed by the Governor.
When a single party gets the majority of seats in the house, the Governor appoints that person as the Chief Minister. However, when no party is in a position to form the government and the Governor appoints the leader of the single largest party or the alliance, the majority is questioned and to prove the majority/confidence the CM is asked to move a vote of confidence and win it to remain the leader of the house.
The Governor orders the floor test and the Chief Minister appointed has to prove that he/she enjoys the confidence of the house. It is tested among the members present and voting. If confidence motion fails to pass, the Chief Minister has to resign.
Governor’s Role and Constitutional Provisions :
The Governor is the executive head of a state in the name of whom all the decisions in the state are taken.
However, Article 163 specifies that such a power has to be exercised with the aid and advice of the council of ministers, except when the Governor is ‘required to exercise his functions or any of them in his discretion.’
Article 164(1) provides for the appointment of chief minister by governor. Supreme court clarified that there is not qualification mentioned in article 164(1) and reading it with collective responsibility in 164(2), the only condition chief ministerial candidate need to satisfy is that he/she should be commanding majority in the house.
As for the appointment of Chief Minister,
the Sarkaria Commission has recommended:
The party or combination of parties with widest support in the Legislative Assembly should be called upon to form the Government.
In case no party or pre-poll coalition has a clear majority, the Governor should select the CM in the order of preference indicated below:
a) The group of parties which had pre-poll alliance commanding the largest number.
b) The largest single party staking a claim to form the government with the support of others.
c) A post-electoral coalition with all partners joining the government.
d) A post-electoral alliance with some parties joining the government and the remaining supporting from outside.
What are Sarkaria Commission recommendations?
The Constitution of India does not mandate any procedure to be followed by the Governor, in case of hung assembly.
The convention of inviting the single largest party in such a case has been outlined by the Sarkaria Commission, which studied Centre-state relations in the 1980s.
It 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 CM in such a situation –
An alliance of parties that was formed prior to the elections.
The single largest party staking a claim to form the government with the support of others, including independents.
A post-electoral coalition of parties, with all the partners in the coalition joining the government.
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.
They were affirmed by a Constitution Bench of the SC in Rameshwar Prasad v Union of India in 2005.
What are Punchhi Commission recommendations?
The Justice M.M. Punchhi Commission on Centre-State Relations in 2010 laid down some guidelines to be followed in the appointment of a chief minister by a governor.
It also said the governor should invite the leader of “a pre-poll alliance commanding the largest number” or the “largest single party” to form the government in case no party or pre-poll coalition has a clear majority.
According to Bommai judgment, such a CM must prove the majority on the floor of the assembly.
What is the significance of this judgment?
The case became one of the most cited whenever hung Assemblies were returned and parties scrambled to form a government.
The case put an end to the arbitrary dismissal of State governments by a hostile Central government.
The verdict ruled that the floor of the Assembly is the only forum that should test the majority of the government of the day, and not the subjective opinion of the Governor.
SC issues ordered which stated that, if the Presidential proclamation is not approved by the Parliament then,
Both Houses of Parliament disapprove or do not approve the Proclamation, the Proclamation lapses at the end of the two-month period. In such a case, the government which was dismissed revives.
The Legislative Assembly, which may have been kept in suspended animation gets reactivated.
Also the Court made it amply clear that a Presidential Proclamation under Article 356 is subject to judicial review
History of such cases
• There are many such incidences in history where the political parties with fewer seats were invited to form the government by the governor.
• In Manipur, the BJP won 21 constituencies and the Congress won 28 constituencies out of 60 Constituencies. But BJP managed to form an alliance.
• In Goa, the BJP won 13 seats and the Congress won 17 seats out of 40 constituencies. Here also, BJP managed to form an alliance.
• In Jharkhand, the BJP had won 30 out of 81 seats in 2005. The Jharkhand Mukti Morcha who won only 17 seats was invited to form the government.
• In Jammu and Kashmir 2002, the National Conference won 28 constituencies but the governor invited the Congress and PDP who won 21 and 15 constituencies.
• The BJP won 31 seats in Delhi in 2013, but the AAP who won 27 seats was invited to form the Government.
• There are other such incidences which took place in 1952 (Madras), 1967 (Rajasthan) and 1982 (Haryana).