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Karnataka: Who has first claim to form govt?

The Karnataka election result has left the Governor with a piquant situation, but it''s not by any means one where the Constitution is vague or even speaks in two voices nor a situation where there are no clear precedents.

Karnataka: Who has first claim to form govt?

Though the BJP emerged as the largest party, the one with majority support will form govt. PTI



Karan Thapar
Senior journalist and TV commentator

The Karnataka election result has left the Governor with a piquant situation, but it's not by any means one where the Constitution is vague or even speaks in two voices nor a situation where there are no clear precedents. Therefore, both constitutionally and in terms of what has happened before, the course of action the Karnataka Governor should adopt is clear and indisputable.

Let's start with the constitutional position and the fact that some people believe India has a tradition of calling the single largest party to first form a government in the case of a hung Assembly. Not only is this precedent at odds with the constitutional position but it's also been overturned.

It was the 1989 Lok Sabha election that produced the first hung Parliament in India. At the time, President Venkataraman sought to create a government by calling upon leaders of parties according to the size of their Lok Sabha representation. If the leader of the biggest party couldn't form one, he approached the next and so on.

However, this principle was President Venkataraman's concoction. It has little basis in our Constitution and differs with the practice of the House of Commons which, till then, we followed. Indeed, political parties are not even mentioned in the original unamended Constitution.

The correct constitutional position is simple, but because it requires an act of subjective judgment, it can, on occasion, be messy. The person most likely to command a majority in the House is the person who should be called to form a government. When a political party has a majority, its leader is presumed to be that person. In such circumstances, the choice is simple. 

However, when that is not the case and the leader of the second or even third largest party can command a majority, he is the person who should be called to form a government. But this could require a subjective act of judgment which may become messy.

Because President Venkataraman did not want to make an assessment of which party had a majority, for fear of getting it wrong, he devised the seemingly objective principle of calling upon them in accordance with their size. But when this practice was followed by President Sharma in 1996, it led to the farcical 13-day minority BJP government, although any credible assessment of the Lok Sabha would have established the existence of an alignment of parties with a clear majority.

In 2002, 2005 and 2013, the Governors in Kashmir, Jharkhand and Delhi acted differently. They bypassed the single largest party to call on an alliance of smaller parties because it constituted a majority. They overturned the Venkataraman principle, thus questioning its continuing validity.

This is also what happened last year in Goa and Manipur and this year in Meghalaya. In all three states, the leader of the second largest party could prove to the Governor that he had majority support. Letters to that effect were handed over. This clinched the matter. The Congress, though larger than the BJP, had less support and, therefore, a weaker claim to be given the first opportunity to form a government. 

So, in terms of what the Constitution requires and also in terms of the precedents that have been on numerous occasions established, it's clear what the Governor in Karnataka should do. If the Congress and JD(S) together have a majority and are willing to form a joint government, then it's his duty to call upon the leader of this alliance to be the next Chief Minister.

Now let's come to the BJP's claim that it has a mandate. The truth is, it does not. It's the single largest party, but it lacks a majority. If there is a mandate thrown up by the Karnataka voters, it's for a hung Assembly. In that situation whoever has majority support — in this instance, Kumaraswamy — has the right to form a government.

A second argument made by the BJP is that because Congress numbers in Karnataka have collapsed from 122 to around 77, the mandate is for a non-Congress government. But if that logic didn't apply in Goa last year, why should it apply in Karnataka this year? And, anyway, it's not how many seats a party has lost that matters but how many it has won.

Finally, they claim the Bommai judgment shows what must be done. It does not. It determines how a government's strength should be proven after it's formed and if its numbers have become disputable. That's not the situation facing the Karnataka Governor. He has to decide who to call first to form a government. The Constitution and precedents are clear in this regard.

After the way alliance governments were formed in Goa, Manipur and Meghalaya, trumping the claim of the single largest party, it would be inexplicable, if not also unfair, if this logic is reversed in Karnataka. This is, thus, a test of the Governor's constitutional understanding and his appreciation of historical precedents as also of his fair-mindedness. Choosing the JD(S)-Congress government might seem odd to some, but it's not.

On the other hand, if he calls the BJP first, knowing it doesn't have a majority, he is, effectively, giving it an opportunity to split other parties to cobble together a majority. Because that would be improper, it is another reason for saying it would also be unconstitutional.

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