President’s rule in Maharashtra

Recently, the president’s rule was declared in Maharashtra. The reason being sited is the inability of the elected parties to form government. BJP-Shiv Sena pre poll alliance won a whooping 105 and 56 seats respectively which were sufficient to form a government. However, a tussle for the seat of Chief Minister led to a break-up between the two and hence the NDA suffered a setback not only in the state but also at centre. While BJP wanted Devendra  Fadnavis to continue, Sena insisted a 2.5 year tenure to each of the party’s candidates as chief minister.

When the BJP couldn’t gather the required support in the allotted time (48 hours), the governor (Bhagat Singh Koshiyari) invited Shiv Sena to form a government given they could prove their numbers in 24 hours. While Shiv Sena was in the  process of mustering majority and negotiating with Congress and NCP to form a coalition, the allotted time expired and the NCP which has 54 seats was called by the governor. However, it has been alleged that they weren’t given even 24 hours to prove their support.

Shiv Sena has moved the Supreme Court alleging that governor didn’t give time. Hence there is a need to know the role of governor in case of a hung assembly, that is, when no party gets a majority.

The constitution in article 164 merely  says that “the Chief Minister shall be appointed by the governor”. The convention has been to invite the leader of the majority party to form the government. However, in cases such as the present one, recommendations of Sarkaria commission form a guideline which the governor should follow. The Governor is expected to go as per the following order of preference as is also ratified by the Supreme Court. By the order of preference, the Governor can invite:

1. A pre-poll alliance of parties.
2. Invite the single largest party which stakes a claim to form government.
3. Invite a post-poll alliance of parties, with all the partner in the coalition joining the government.
4. Invite a post-poll alliances of parties, with some becoming part of the government and some supporting from outside.

This has been evolved to avoid any disputes and also reduce governor’s discretion when no party gets a majority. Imposition of president’s rule without giving the chance to the elected legislatures to form new government has been called unconstitutional and mala fide in SR Bommai case.

Some constitutional and legal experts have said that in the case of Maharashtra, the governor should have discussed the possibilities with the NCP before recommending President’s rule. Being a constitutional authority, the governor is supposed to exercise his discretionary powers in a fair manner. He should exhaust all possibilities of government formations before recommending centre’s rule in the state. However, it is yet to see how the judiciary responds in case of Maharashtra. It will decide whether a re-election will be conducted or to allow another chance to willing parties to form government.