All Options Open Before Governor On Maharashtra Government Formation, Legal Experts Say
BJP’s Devendra Fadnavis hands over his resignation as Maharashtra Chief Minister to Maharashtra Governor Bhagat Singh Koshyari, in Mumbai, Friday, Nov. 8, 2019. (Photo: PTI)

All Options Open Before Governor On Maharashtra Government Formation, Legal Experts Say

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Amid the impasse over Maharashtra government formation, Governor Bhagat Singh Koshyari has the discretion to consider all equations and combinations and call each party one by one to stake claim, say legal experts.

If the governor, after giving reasonable time to the parties, comes to the conclusion that none of them shall be able to form a viable and stable government, then the president's rule will be the last option, they said.

Allahabad High Court's former judge Abhay Thipsay, who later joined the Congress, said the governor's objective will be to see that the government is "viable and stable". There is no specific rule prescribed in the Constitution of India on the process to be followed by the governor in such situations, he said.

"Usually, the governor calls the leader of the single largest party to form government. If that party expresses inability to form government, then the governor may the call the next largest party," he said. It is up to the governor to decide how much time is to be given to the parties, he said, adding it has to be reasonable.

The governor is also free to call leaders of those parties which had an alliance before elections to form government as "one party", Thipsay said. "If the Shiv Sena also fails to prove majority, then the governor can call the next party (NCP, Congress) to stake claim to form government. Or, he could also call back the BJP and Sena as an alliance to form government," he said.

"All options are open to the governor. If he tries all equations and then comes to the conclusion that no party can form, then President's rule shall be imposed," he said. Senior counsel VA Thorat, who appeared for the Maharashtra government in several important matters including the Maratha quota issue, said this process of the governor inviting parties to stake claim shall go on for some time.

"This process will go on for sometime. Now that the BJP has refused to stake claim, the governor has asked the Shiv Sena to form government. If the Sena also fails to do so, then the next bunch of parties will be invited by the governor," Thorat said.

"The governor is bound to ask these parties to go for a floor test. If they fail in the floor test, then President's rule will be imposed," he said, adding that ideally the BJP should have gone for a floor test. Thorat said people will have to now wait and watch the different combinations that may come to the fore.

"None of the party can, however, form a coalition with the BJP since the saffron party has already refused to form government," he claimed. Senior counsel Amit Desai, who has argued several important cases in the Bombay High Court and the Supreme Court, said since the BJP and Shiv Sena have technically still not broken their alliance, the question of them forming the government jointly cannot be ruled out.

He reiterated that the governor will go down the path of inviting each party to stake claim to form government. "If none of the parties are able to form government, then the last option is the President's rule," Desai said. "Legally they (BJP and Sena) can claim majority and form government, but politically what will happen needs to be seen," he added.

Hours after the BJP declined to form government in Maharashtra on Sunday, Koshyari asked the Shiv Sena to "indicate its willingness and ability" to stake claim. The Sena, which is the second-largest party in the 288-member House after the BJP, has time till 7.30 pm on Monday to stake claim to form government.

The Sena and BJP have been locked in a bitter tussle over the issue of sharing the chief minister's post. In the last month's state polls, the results of which were announced on Oct. 24, the BJP won 105 seats, Shiv Sena-56, NCP-54 and Congress-44.

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