With 48 hours to go before the deadline strikes at midnight Saturday for the dissolution of the Maharashtra state assembly, governor Bhagat Singh Koshyari holds the key to how and when the next government is formed in the state amid a standoff in efforts at government formation.
On Saturday, chief minister Devendra Fadnavis and the council of ministers will have to resign because the term of the government will end by then. By that time, the governor is expected to invite the Bharatiya Janata Party (BJP), as the single largest party in the state assembly, to form the next government.
BJP and its ally Shiv Sena have failed to reach an agreement on government formation after the October 21 assembly elections threw up a hung House. The Sena has insisted on sharing the chief minister’s post on a rotational basis, a demand the BJP has not been willing to concede. The BJP won 105 seats in the 288-member assembly, the Sena 56, Nationalist Congress Party 54 and the Congress 44.
Constitutional experts said the state’s political entities can still receive additional time to get their act together and only after exploring all options at government formation can President’s rule be implemented in the state.
“The governor has to call the single largest party to form government before the last day of the state assembly. BJP, in this case, can be given time as per his discretion to form the government. It, of course, has to be a reasonable time period. If the BJP fails to form the government or fails the floor test, the next political bloc will be asked to do the same,’’ said Shreehari Aney, former advocate general of Maharashtra.
Aney added that the governor can also ask the incumbent administration to continue as a caretaker until the next government is formed. This is a likely option to avoid a governance vacuum.
Another constitutional expert, Ulhas Bapat, pointed out that while the governor can offer time to BJP to prove a majority in the assembly, it cannot be given additional leeway or time for staking a claim.
“BJP will have to tell the governor that it plans to stake a claim and then swear in its council of ministers. It can then seek reasonable time before proving a majority in the assembly. The appointment of a caretaker CM or government is also a gray area, ‘’ said Bapat.
“If both alliances or parties fail to form government, governor will have to recommend President’s rule. In this case, the executive powers of the government are taken over by the President and the legislative powers by the Parliament. Any time during President’s rule, parties can stake claim to form government again and if they succeed, the rule gets withdrawn,’’ he added.
The governor summoned advocate general Ashutosh Kumbhakoni on Thursday evening to consult him on the legal options ahead in the case of constitutional logjam. Earlier, a BJP delegation met the governor to apprise him of the ongoing political scenario and discuss legal options before it.
“We had a detailed meeting with him (Governor) to brief him about the ongoing political situation. We also discussed the various legal options in front of us due to the delay in forming the government,” said BJP state chief Chandrakant Patil.
The formation of the new assembly too can take some more time even after its five year term lapses on November 9.
“There are many instances when the new assembly was constituted days after the term ended. Like in 2004, the term of the new assembly began on November 4, two weeks after the five-year term of the previous house ended on October 19. The swearing-in of the newly elected members generally take place after the formation of the government. But the governor can appoint the seniormost MLA as a pro-tem speaker to administer oath to the MLAs, if the government formation is taking place,” said an official from the law and judiciary department who didn’t want to be named.
Some experts said the governor had already taken too long in asking the single-largest party to form government.
“In this case the time taken is more than reasonable, but according to the SR Bommai case verdict, the single-largest party will now be asked to form the government and prove the majority. Before that the newly appointed MLAs will have to be sworn in,” said PB Sawant, a retired Supreme Court justice .