The principle of Sir Ivor Jennings that the ruling party loosing majority in an election even if it emerges as single largest party should not be invited to form the government once it loses majority in the House is worth considering.
After the Goa polls, both the BJP and the Congress party have claimed a majority. However if signals emanating from the ground level are read correctly it appears both the BJP and the Congress shall fall short of majority. Both the major players are not in any pre-poll alliance to claim the right to form the government based upon alliance figures.
There is a general perception that next Assembly could have around 5 MGP MLAs while the new party GF (Goa Forward) could end up with 2/3 MLAs. There is also a feeling that the House could have 4/5 independents.
It is in such a scenario that the role of the Governor in inviting the one who could command majority in the House to form the government would be crucial.
Even when the Constitution was being formulated, this issue was discussed and Dr. B. R. Ambedkar was aware of a possibility of no party getting a majority. On 31st December 1948, he told the Constituent Assembly: “it would be perfectly possible and natural that in an election Parliament may consist of various numbers of parties, none of which is a majority. How is this principal to be invoked and put into operation in a situation of this sought where there are three parties none of which has a majority”.
But the framers of the Constitution did not lay down strict rules for the President or the Governor, as the case may be, leaving the issue to their wisdom. We follow British conventions in matters concerning Parliament and Parliamentary democracy whenever the written Constitution does not provide all the answers.
The Goa Governor may not have much of discretion in case either of the two major contenders cross the 20 mark. The Governor’s invite is normally used to lure MLAs with positions of powers including ministries. MLAs veer towards the one who gets the Governor’s invite. For a long a time now Governors are under attack for manipulating majorities for particular persons or parties.
The MLAs tender to flock towards the one who gets the Governor’s invite. The Governor shall have to play the role of a neutral umpire and not permit his/her invite to cobble up a majority in the House.
There is a belief that the party which becomes the single largest automatically gets an invite to form the government. The then President Venkataraman invited the then Prime Minister Rajiv Gandhi to form the government after he lost 1989 elections. It must be placed on record that to his credit Rajiv Gandhi declined and the mantle to form the government fell upon V. P. Singh, who formed the government with the support of BJP and the left.
In 1996, on the same principle of single largest party, President S. D. Sharma invited A. B. Vajpayee to form the government. His government collapsed within 13 days.
With the single largest party test having given absurd results in 1989 and 1996, the Governors now seek letters of support in advance - a method started by President R. K. Narayanan and followed thereafter. The lawns of Raj Bhavan could become fertile grounds of manipulation and intrigue, particularly when independents and minor parties are involved.
Why should the Governor’s experiment with government formations which collapse in a few days or permit the Governor’s invite to be used as a means to cobble a majority in the House? An error by the Governor shall invite a charge of bias and partisanship, loosing respect as head of the state.
In 1967, when Congress lost power in several states, the question arose over the formation of a ministry for Rajasthan. Then home minister Y. B. Chavan who sought opinion from M. C. Mahajan, A. K. Sarkar and P. V. Gajendragadkar (three Ex Chief Justices of India) and the former Attorney General of India M. C. Setalvad (a legal luminary of that time).
Three views arose (i) the Governor should summon the House to secure advice; (ii) that the party in power having failed to secure an absolute majority, the leader of that party should not be invited to form the government even if it is the single largest party; (iii) the Governor should find a person who he believes shall command a majority in the House.
It is said that the second opinion of M C Setalvad was backed by views of eminent Constitutional jurist Sir Ivor Jennings, who had written: “it is expected that when a government is defeated either in Parliament or at the polls, the Queen should send for the leader of the opposition. There may be two or more parties in opposition. But the practice of the present century has created an ‘official’ opposition whose leader is the leader of the opposition… The largest party in opposition is the official opposition. The rule is that on the defeat and resignation of the government, the Queen should first send for the leader of the opposition. This rule is the result of long practice, though it has hardened into a rule comparatively recently. Its basis is the assumption of the impartiality of the Crown. Democratic government involves competition policies and thus the rivalry of parties…”
The obvious restriction could be when the principal opposition party pleads inability to form the government. This view was endorsed by none other than H. M. Seervai, our own Constitutional expert. M. C. Setalvad opined the rule should be followed even when the largest single party in the newly elected House is still the party, which was the governing party before the election though it has failed to obtain an absolute majority.
Somehow in our country we follow British conventions but ignore this great principle accepted by the jurists. There are no rules which circumscribe the discretion and power of the Governor in choosing the one who he believes shall provide a stable majority.
For over 65 years we have not arrived at firm rules over the formation of the government at the state level or at the central level. The principle of Sir Ivor Jennings that the ruling party loosing majority in an election even if it emerges as single largest party should not be invited to form the government once it loses majority in the House is worth considering. Such a view would be certainly a healthy view rather than permitting the Governors to invite to lure support. The ruling party loosing majority cannot be permitted to manipulate the mandate by luring independents and minor parties. In case of a hung Assembly, Goa case could be a laboratory for that principle enunciated by Sir Ivor Jennings.
Cleofato A Coutinho
Cleofato Almeida Coutinho is a senior lawyer and one of the constitutional expert in Goa. A member of Law Commission of Goa, he also teaches at Kare College of Law in Madgao.
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