President's Rule in Maharashtra: How Constitutional were Governor Koshyari's Actions?

Constitutional experts weigh in on whether Koshyari had indeed exhausted all options of giving Maharashtra a democratically elected government before recommending President's rule.

New Delhi: The fortnight-long political uncertainty in Maharashtra ended on Tuesday with governor Bhagat Singh Koshiyari recommending to the Centre that the President’s rule be imposed in the state. 

The move was sudden and came as a surprise as the governor himself had allowed the Sharad Pawar-led Nationalist Congress Party time till 8.30 pm this evening to stake its claim to form the government. Within hours of his recommendations, both the Union cabinet and President of India Ram Nath Kovind gave their respective nods to the governor’s decision.

Constitutional guidelines empower the governor to use his discretionary powers to recommend President’s rule in the state in case of a hung assembly. However, to do that, the governor must exhaust all possibilities to form a democratically-elected government. 

Did Koshiyari exhaust all his options to get such a government formed in Maharashtra? The Congress has alleged that he violated the Constitutional guidelines by not giving it a chance to stake a claim. The NCP too was left surprised as its leaders were in the process of meeting the governor on Tuesday evening. 

What do legal experts say on the matter?

“This is something that the Supreme Court has to consider. The governor should have discussed the possibilities with the NCP before recommending President’s rule in the state. The governor is a constitutional authority. He is supposed to exercise his discretionary powers in a fair manner. It is not a private exercise. He should exhaust all possibilities of government formations before recommending Centre’s rule in a state,” constitutional expert P.D.T Achary told The Wire.

Also read: Maharashtra Slips into President’s Rule Even with Hours Left of NCP’s ‘Deadline’

Achary said that in this case, it appears that the governor recommended Article 356 (President’s rule) “without exploring all possibilities”.

“This is something that may be challenged in the courts. If there are extraneous considerations (behind the governor’s move), the courts can go into those aspects. The basic test will be whether the material available with the President is enough for an ordinary person to conclude that imposition of Article 356 was inevitable,” he said.

In agreement with Achary, retired Supreme Court judge, Justice P.B. Sawant has termed the governor’s step “highly objectionable” and the example of behaviour fit to be challenged in the court of law. “When the governor calls the leaders of the party, they have to be from the assembly. Although the legislature was constituted through a notification, not even the first meeting of the assembly had taken place. The MLAs have not been administered the oath and the opportunity was not given to everyone equally to form the government,” Justice Sawant said.

He further added, “When the governor invites the political parties to form the government, they can always say that we will prove our majority on the floor of the assembly. This could not happen in this case since the assembly was not even constituted. No procedure could take place in such a situation since the assembly isn’t constituted and the speaker is yet to be appointed.”

What the governor did was completely outside the premise of the assembly, Sawant observed. “The governor the leaders of different political parties outside the assembly and asked them to form the government. He also directly sent his recommendation surpassing the assembly. He failed to give equal opportunity to the parties to form the government,” Sawant added.

Notification of President’s Rule in Maharashtra by The Wire on Scribd

According to Sawant, this is a strange incident and very different than what has happened in the past. “The only option left with the political parties is to move court. This is objectionable behaviour and it needs to be challenged in the court of law,” the retired judge said.

However, Subhash C. Kashyap, noted constitutional and parliamentary affairs expert, held a differing point of view.

“One can argue that when the NCP asked for more time than what was given to it to stake its claim, the governor deemed it fit to conclude that the party was in no position to form the government. When the NCP asked for more time, it also accepted that at present it does not have the strength to prove its majority in the assembly,” he said.

“Asking for time can also be interpreted to mean that a party if asking for time for horse trading and other malafide practices.The governor’s role is to find whether anybody is in a position to form the government at that point,” Kashyap added.

NCP leaders, including its prominent face Ajit Pawar, since Tuesday morning, have been telling the media that the party may seek more time from the governor to form the government. However, since the governor is not supposed to rely on media reports, Kashyap’s point may be contested on the ground that the NCP did not send any formal request to the governor to extend its time limit in writing.

NCP leaders, who did not want to be named, told The Wire that the governor did not inform the party before recommending President’s rule. 

However, Kashyap said that a government can still be formed without the state having to face another election.

“The assembly is anyway in suspended animation. It has not been dissolved, which means President’s rule can be revoked any day in a situation where a stable government can be formed. If any combination comes forward to claim it can form the government, then President’s rule can be revoked anytime,” he told The Wire. 

Also read: Why Demanding a Confidence Vote is Not the Way to Solve Maharashtra’s Political Crisis

The Constitution gives certain guarantees to the governor even in a case when his decision is debatable. The Article 163 and 164 of the Constitution gives him the power to “act in his discretion” and the decision he makes shall be final, and the validity of it must not be questioned. 

Kashyap, while speaking to Financial Express during the Karnataka political imbroglio last year, had said, “Constitution clearly says that the governor shall appoint the chief minister and appoint other ministers on his advise. It is entirely up to the governor to decide in his discretion who in his opinion is likely to command a majority in the house. The governor’s discretion can’t be questioned even in the court of law.” 

What do commissions say?

Even the R.K. Sarkaria Commission, which was formed in 1983 to examine the balance of power between the states and the Centre, recommends that in case of a hung assembly, the governor should follow the following order. First, she or he should call either the single largest party or the biggest pre-poll alliance.

If that is exhausted, she should call a post-poll alliance that has the required numbers to prove its majority on the floor of the house. The third option is to ask a post-poll alliance in which partners are willing to extend outside support. 

The Congress-NCP and Shiv Sena would argue that the governor did not exhaust the last two options before him properly.

Despite both Sarkaria and the Justice M.M. Punchhi commission of 2007 recommending that a pre-poll alliance or the single largest party should be given the first chance to form the government, multiple governors have not followed it over the last few years. In Goa, Manipur and Mizoram, the single largest party Congress was not given preference to form the government.