The urgent need for the Apex Court to circumscribe the discretionary powers of the Governor and clarify the Constitutional ambiguity about his role in the case of a hung assembly has once again been highlighted by the political chaos that currently prevails in Maharashtra. Despite the guidelines set by the Punchhi and Sarkaria Commissions on government-formation in the case of a hung assembly, the accepted reality now is that political compulsions and crude partisanship rather than Constitutional or procedural propriety guides the conduct of the Governor, a post routinely handed over to select retired politicians belonging to the ruling party at the Centre. The latest instance is the contrast between Karnataka Governor Vajubhai Vala granting 15 days time to B. S. Yeddiyurappa to prove his majority after assembly elections in May, 2018 threw up a hung assembly and the haste with which Maharashtra Governor Bhagat Singh Koshiyari has recommended President’s rule without allotting even three days to Shiv Sena, Congress and NCP to hammer out an alternative alliance.

In both cases, the governors favoured the BJP which emerged as the single largest party in the hung House. When the BJP declined to form the government in Maharashtra in the face of the Sena’s intransigence, the Governor almost straightaway recommended imposition of the President’s rule. However, there have been numerous instances in the past years where governors have not favoured the single largest party and allowed an alternative formation to come up. For instance, in Manipur in 2017 assembly elections, the Congress won 28 seats out of the total 60 and the BJP 21 but the BJP formed the government. In Goa similarly, the BJP won 13 seats and the Congress 17 but it was the BJP that formed the government.

The guidelines for the Governor’s action in case of a hung House laid out by the Sarkaria and Punchhi judicial commissions basically set the order of precedence as invitation first to an alliance of parties that was formed prior to the elections, second to the single largest party seeking a claim to form the government with the support of others, including independents. Third invitation has to go to a post-electoral coalition of parties with all the partners in the coalition joining the government and the fourth to a post-electoral alliance of parties with some of the parties in the alliance forming a government and the remaining parties, including independents supporting the government from outside.

But as seen in a number of instances, this precedence is almost always overlooked depending on the Governor’s political preferences. The courts, on their part, have not given a very clear remedy or interpreted the law so as to remove all ambiguity that allows the Governor to act in a crudely partisan manner with impunity. Indeed, even though the Supreme Court in the S. R. Bommai case asserts the significance of a floor test as being the only relevant determinant of the strength of an alliance and the Governor has to invite the leader of the party commanding majority in the House or the single largest party/group, it does not clearly specify whether the single largest party/group is a pre or post-poll alliance.

There are other judicial precedents in Chandrakant Kavlekar-versus-Union of India, similar to what is happening in Maharashtra where the Congress in Goa approached the Supreme Court disputing the facts set out by the BJP with regard to order of the preference followed by the BJP. Even in Karnataka where the Supreme Court slashed the 15-day window given by the Governor to Yeddiyurappa to prove his majority, the judges did not set out to clear the ambiguity with regard to the code of conduct that the Governor has to follow in case of a hung House. Given the brazenness with which political appointees downgrade the high office of the Governor and the complete disregard shown by political parties towards institutional processes, it is time that the courts fetter the Governor’s discretionary powers. Maharashtra has added to the multitude of violations that have piled up over the years.