New Delhi, July 28: Governor Keshari Nath Tripathi's decision to invite Nitish Kumar to form the government is constitutionally permissible, legal experts have told The Telegraph, with some adding the rider that themove was not healthy for a democracy.
According to the experts, there is no constitutional provision mandating that the leader of the single-largest party should be invited to form the government; the governor being satisfied that the person staking claim has the numbers holds more weight.
"Constitutionally I would not call it impermissible, provided the satisfaction (of the governor) is genuine that generally he (the person staking claim) commands the support of a larger number of people," said senior advocate and Congress leader Abhishek Manu Singhvi. "However, since it was a pre-declared (pre-election) alliance, propriety on Mr Nitish Kumar's part demanded that he called for elections and remained a caretaker chief minister.
"If he has morality, he cannot resign as chief minister and become chief minister again within 24 hours," Singhvi added. "He will be in difficulty in explaining his volte-face to the public, considering the very serious allegations he made against the Narendra Modi government."
K.V. Viswanathan, senior advocate who was additional solicitor general in the UPA II regime, said that even in the historic 1994 Constitution bench judgment in the S.R. Bommai case, the Supreme Court had ruled that the governor can invite either the single-largest party or group - depending upon his subjective satisfaction.
"Under the circumstances, when it was clear as daylight that the JDU-BJP combine constituted the single-largest group and when no serious effort was made by the RJD-Congress combine to even demonstrate a majority, and when it was the admitted case that the number (RJD-Cong strength) did not exceed 110, the governor cannot be faulted," Viswanathan said. "Floor test cannot be made a mere rigmarole when the writing is on the wall."
Dushyant Dave, senior advocate and a strong critic of the Narendra Modi government, said though there is no constitutional provision mandating that only the leader of the single-largest party should be invited, what happened in Bihar was not healthy for democracy.
"There is no constitutional provision but these are constitutional precedents and practices.... We have inherited these practices from British Parliament. Even under the Congress regime, many a times the governor didn't do it (invite the leader of the single-largest party), but these are not healthy things," Dave said. "When you invite the single-largest party it has a chance to prove majority by attracting other parties to itself; but you are giving a chance to the second-largest party so naturally if invited first, it has the advantage - it will easily prove the majority because it attracts those people to support it.
"It was absolutely necessary that the governor should have invited the RJD, but to defeat the constitutional mandate what they (JDU) did was they procured the letter ( of support) from the BJP and put it on the governor and the governor invited Nitish Kumar," Dave said. "These are unfortunate precedents, these are not correct precedents. These are not healthy for democracy."
P.P. Rao, one of the senior-most lawyers in the country, said that as long as the single-largest group commanded the numbers, the governor was right in calling Nitish to stake claim.
"What you have to see is the total number of seats in the Assembly, what is the strength of Nitish Kumar's JDU and what is the strength of the BJP. If BJP and JDU constitute majority then he is right in calling them," said Rao, who has represented several Congress bigwigs, including in the historic corruption case against then Maharashtra chief minister A.R. Antulay.
Another senior advocate, Basavarju Patil, said the governor is more concerned with the formation of a stable government. Since the BJP had extended the support to Nitish Kumar, "the governor cannot be faulted. The Constitution does not speak of the single-largest party being called to form the government," Patil said. "The Constitution speaks of a stable government.... That there is subjective satisfaction of the governor in the light of established numbers in terms of letters of support makes it an acceptable decision."
According to advocate Balaji Srinivasan, in terms of the Bommai judgment formation the governor has to apply his mind and take a call as to who can provide a stable government. "There is no rule prescribed that it is mandatory on the part of the governor to invite the single-largest party to form the government," Srinivasan said. "That option is available only when there are no claims. Ultimately, the floor test would decide the justification of the governor's decision."
