New Delhi: With the Congress acting swiftly and offering its “unconditional” support to the Janata Dal (Secular) toward the goal of forming a government in Karnataka, and the BJP left twiddling its thumbs as it waited to reach the half-way mark, legal experts are of the view that as the Congress has decided to support a JD(S) led government under H.D. Kumaraswamy, the state governor would be left with no option but to invite him to form the government.

However, they cautioned that all technicalities should be fulfilled and both the Congress and the JD(S) should submit their letters of support to the governor and also stake claim to form the government.

Reacting to a similar scenario after the BJP was asked by the governors of Manipur and Goa to form the governments in those two states despite not being the largest party, Arun Jaitley had said last year, “governor [is] constitutionally right to invite [the] largest coalition to form government”.

“In a hung assembly, if majority of the elected MLAs form a coalition, the governor would be constitutionally right in inviting the leader of the majority coalition to form the government and prove their majority within a short period,” he had tweeted.

A tweet put out by the BJP last year adds more ballast to the Congress’s claim that the Karnataka governor must allow the JD(S)-Congress coalition to form the government.

The quick turn of events, which saw the Congress taking the lead in reaching out to Kumaraswamy as soon as it realised that the BJP was not going to get a complete majority in the state, and the latter agreeing to accept the support and going to visit his father and former prime minister H.D. Deve Gowda to seek his final approval, appears to have been facilitated by a meeting between senior Congress leader Ghulam Nabi Azad and JD(S) general secretary Danish Ali.

Three days ago, the two had thrashed out the plan of action for this kind of a scenario. And so, this afternoon as soon as the BJP’s numbers began waning, with the party polling about 1.5 percentage points less than the Congress though winning a significantly higher number of seats, Azad, accompanied by senior party leaders Ashok Gehlot and Mallikarjun Kharge and outgoing chief minister Siddaramaiah quickly rushed to Kumaraswamy to work out a power-sharing arrangement.

Kumaraswamy is due to meet Governor Vajubhai Vala at 6 pm this evening. Though Vala is a known confidante of Prime Minister Narendra Modi as he had once vacated his seat for Modi and later served as a finance minister in his Gujarat cabinet, he may find it difficult to accommodate the BJP this time.

There are valid reasons for this.

Senior advocate and head of Congress’ legal cell K.C. Mittal said if two parties join together and stake their claim before the governor, then being in the majority, they are bound to be called. “If they give letters to the governor supporting each other, elect their leader and stake a claim to form the government, then the governor is duty-bound to invite them.”

Staking a claim is mandatory

Mittal said it is important to note that a claim to form the government has also to be made. “That was the blunder we made in Goa, we did not make the claim to form the government. In Manipur, we made the claim but were not invited and were tricked,” he pointed out.

Only if a claim like this is not made, he said, can the Governor invite the single-largest party, which does not have a complete majority.

Letters of support have to come from party presidents

The support letters, he said, have to come from both the parties. “Suppose the Congress and the JD(S) have cross the 112 mark and want to form the government. Then they will have to give support letters to the Governor, elect their leader, and stake a claim to form the government,” he spelt out.

He said “the letter would also have to state specifically that so and so has been elected the leader by our parties, he should be called and sworn in as the chief minister”.

In the beginning, Mittal said, the signatures of all the newly-elected MLAs are not required for the exercise and only letters of support issued by the parties with the signatures of the party presidents are required to be submitted. “It would be only in the second stage, that too if the governor so deems necessary, that they may be called for a parade. Otherwise, the majority will only have to be provided on the floor of the House.”

Goa and Manipur provide the backdrop

Senior Supreme Court advocate Kamini Jaiswal said if the governor sees that the single largest party does not have a complete majority, then he is bound to invite the parties which come together as post-poll coalition partners with a complete majority. “What happened in Goa and Manipur is precisely this. The single largest party was not invited there.”

The two parties in this case, the Congress and the Janata Dal (Secular), she said, will have to go to the governor with the letters stating that they have come together to form the government and have the requisite numbers. “In such a scenario, the governor is obliged to call them to form the government.”

Governor also duty-bound to prevent horse-trading

“Moreover, the governor is not supposed to encourage horse-trading. But by inviting the single largest party, which does not have a full majority, he would be encouraging them into horse-trading. Also a post-election alliance is permissible and there have been precedents to such coalition partners being invited ahead of the single largest party,” the senior advocate said.