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Maharashtra Deadlock: What Are The Options Now?

If it is still unclear as to who forms the government by tomorrow, what options does the Maharashtra governor have?

Sharad Pawar. (Source: PTI)
Sharad Pawar. (Source: PTI)

Maharashtra is without a government even 18 days after the results of the assembly election were announced. The Bharatiya Janata Party, the single largest party, has refused to stake claim to form the government saying it does not have the numbers.

The Shiv Sena, the second-largest party, was eager to form the government but ran out of time. Governor Bhagat Singh Koshyari has now called on the Nationalist Congress Party to prove its majority, setting a deadline of 8:30 pm on Tuesday. If it is still unclear as to who forms the government by then, what options does the governor have?

The governor has to invite the leader of the party he believes can command a majority in the assembly as per law, Sanjay Hegde, senior Supreme Court lawyer and constitutional expert, told BloombergQuint.

When the BJP couldn’t prove a majority, he went to the Shiv Sena. If he is still not confident, he can recommend President’s rule.
Sanjay Hegde, Senior Advocate, Supreme Court

Hegde said that there are no set timelines defined in the constitution to guide the governor’s actions. “Claims of majority are not decided on the floor of the Raj Bhavan but on the floor of the legislature.”

Do Tenures Of The Government And The Assembly Have To Be Aligned?

The government and the assembly may not necessarily be co-terminus, said Subhash Kashyap, constitutional expert and former secretary-general of the Lok Sabha. Devendra Fadnavis is the caretaker Chief Minister of Maharashtra in the absence of a new government, he said.

Is President’s Rule The Only Option For The Governor?

According to Sanjay Hegde, the governor may have refrained from convening the assembly immediately as he is looking for every possible option to form a stable government but he should refrain from getting too involved in the process.

The governor as far as possible should not get into active politics or while being a referee play the game himself. 
Sanjay Hegde, Senior Advocate, Supreme Court

Kashyap said in the cases where the assembly is already in session, the governor could send a message to the assembly, asking it to elect its leader and by that route elect a Chief Minister.

Watch Sanjay Hegde and Subhash Kashyap break down the constitutional options before the governor:

What happens now, what are the immediate next steps and who takes them?

Sanjay: The Governor has to invite the leader of the party which he believes can command a majority in the assembly. When the single largest party decided not to take the claim, he went to the second largest party. The second largest party has now told him that it is willing to form the government. The governor wants to be satisfied that they do indeed have the number. If the governor fails to arrive at that satisfaction, he may also come to the determination that government of the state cannot be carried out according to the constitution and he may recommend president rule but that’s getting ahead of the game. Right now, he has asked the second largest party whether it’s willing to form a government. The party has said that it is willing to form the government. If governor asks for further proof, he is entitled to do so but on the other hand the governor may very well say okay, you want to form the government, form the government and show me proof on the floor of the assembly.One precedent I was remember from the time when president Neelam Sanjiva Reddy after the fall of the Morarji Desai government asked the congress party led by YB Chavan to form the government. The party could not do so, could not satisfy the number and then thereafter president did not go back to the Janata Party to ask it to form the government again. So, there have been precedents where the single largest party is in no position to form a government, the second party has been gone to.

The fact that the life of the previous assembly is over, normally you have government formation that happens run up to that and the assembly meets. I want to understand two things here. The convening of the legislature and the forming coming together of an executive. Are those two independent processes? Will the coming together of the new assembly happens as per plan? Does simultaneously government need to be in place at the same time without which the governor will have to act in a way that he might have to look for the options to the president’s rule?

Subhash: Strictly speaking the government and the assembly may not be exactly co-terminus because there may be a situation and usually in this situation where the existing chief minister is asked to continue as a caretaker till regular ministry is formed, new government is formed. So, it need not be and usually not co-terminus.

If it is not co-terminus and that the life of the assembly is done. Why then the governor indicated a limited point of time where he said till Sunday evening for the BJP, till Monday evening for the Shiv Sena. Is he bound by time by rule? In how much time he has to get this done once the assembly’s life is over?

Subhash: The governor has to find out whether the leader of the single largest party or pre-poll alliance is in the position to form the government and if he says he is not in a position to form the government then he can ask the second-largest party or second-largest alliance to try and form the government. If both of them say they are not in a position to form a government, then he is at liberty to feel that the constitution machinery has failed and make a recommendation to repress it.

Why some deadline were put in last 48 hours in fact finding that the governor does to get a sense of where things lie and who has how much support. Are his hands bound by a definite timeline as per the rule?

Sanjay: No, there is no timeline specified in the constitution. A lot of things come on the basis of conventions. There are recommendations from the Sarkar or commission, which have then found their way into the court judgment. Another precedent which occurred to me, which I hope doesn’t happen, was when the Bihar assemble was dissolved without even not convening. That was governor Buta Singh. The Supreme Court came down very heavily on that but because fresh elections had already been ordered, they did not restore the previous assembly. There have been all kinds of situations and permutations and combinations over the years, but the job of the governor is to see that there is a government in a place.Claims of minority and majority are not decide on the floor of the Raj Bhavan, they are decided on the floor of legislature. So, you may also recollect that President Shankar Dayal Sharma so where in Atal Bihari Vajpayee government which lasted for 13 days and was defeated on the floor of the parliament. It was then that the other combinations were asked, and the United Front government was made.

The governor’s not seemingly hard bound by any time scheduled right now that he is to act, he needs to find facts where he thinks the way forward is. So, president’s rule as the most direct option where he calls time on the state of the assembly right now, short of that what else he can do?

Subhash: I entirely agree that the question whether someone has majority support or not has to be decided on the floor of the house and there is an option available to the governor to ask the assembly to let him know who has its confidence and this can be done by the governor sending a message to the assembly and there is a specific provision in the constitution allowing the governor to send a message to the assembly in any matter and then the assembly can elect its leader and the governor can appoint that person as the chief minister. You might remember in UP, the ballot boxes were kept in the assembly hall and Kalyan Singh and Jagdambika Pal were the two candidates and voting was done under the Supreme Court’s order and the one who won was declared the legitimate chief minister.

Why are we not seeing a move to convene the assembly, get a speaker elected and put that process in the motion so as and when the governor decides that he wants to see the numbers and offers a timeline, that machinery can then move?

Sanjay: That is not exactly how it is done because the UP example which Mr. Kashyap quoted was by Supreme Court order in unusual circumstances where the governor had already sworn in Jagdambika Pal when Kalyan Singh had not lost majority. That may not exactly be a precedence. The governor, as far as possible, should not get into active politics or while by being a referee playing the game himself. If he went strictly by the book, he could have called the single-largest party and asked them to form a government. May be later they fell on the floor of the house but here the single-largest party says that it will not stake claim. The second-largest party says that it will stake claim. I think, in these circumstances the governor might well be advised to let the second-largest party to swear in and then give as short a time as possible to prove its majority on the floor of the house. The governor is sometime reluctant to do that because once somebody sworn in the dynamics of the game changes.

The precedence set by President Narayanan in 1997, is that the weighing of a pre-poll alliance and a post-poll alliance is supposed to be different and the pre-poll alliances were to be give the preference. The fact that the BJP and Shiv Sena couldn’t come and present themselves together to the governor has been evident in the last two weeks. In the absence of that, weren’t higher numbers of the Congress and NCP together as a pre-poll alliance why was the Shiv Sena seen as the second to go to and not the congress-NCP as one unit?

Sanjay: That is the question for the governor to answer but he seems to be saying that pre-poll alliance has crashed. He doesn’t want to check whether the other pre-poll alliance also continues to hold or doesn’t hold. The situation is fluid therefore he seems to have gone in terms of numerical strength of individual party.