Opinion | Procedure and Politics: Nitish Kumar Gets One Right, Answerable For The Other
The court dismissed the petitions, saying no judicial intervention is required after the floor test in the Bihar assembly.
Nitish Kumar joined hands with the BJP and took oath as Bihar Chief Minister.
The Patna high court has dismissed two PILs filed by the RJD and SP against the Bihar governor not inviting the RJD as the Single Largest Party (SLP) to form the government in Bihar following Nitish Kumar’s resignation as the Mahagathbandhan chief minister. The court dismissed the petitions, saying no judicial intervention is required after the floor test in the Bihar assembly.
What does that mean?
There are two aspects that need to be clarified. One, the famous Bommai judgment was discussed in the context of Bihar. That judgment had more to do with Article 356 and the autonomy of states and the powers of governors and the President. But one aspect of the judgment that applies in the case of Bihar is about the floor test. Correctly, the Bihar governor, Kesri Nath Tripathi, asked Nitish Kumar to provide his majority on the floor of the assembly (and not, as in the past, with the help of a parade in the Raj Bhavan to help the governor decide which party to invite to form a government).
The second aspect, the more important one, is whom should the governor invite. By convention the SLP is invited to form the government. That is also the contention of the two PILS in the Patna high court.
This issue needs to be seen in perspective. It is about how a convention evolved during the tenures of three Presidents of India. In 1989, the Bofors-stricken Congress emerged the SLP in the general elections with 197 seats. Janata Dal of VP Singh came second with 143. The then President, R. Venkataraman, faced a dilemma. The mandate was against the Congress. But it was the Congress which was the SLP. Should he invite Rajiv Gandhi and go against the spirit of the mandate? He had another option: to go by the arithmetic and decide which party or formation should be call instead of the SLP. The old-timer did not want to get into that.
In the event, Venkataraman followed the convention and called Rajiv Gandhi. There was much off-the-record chatter about how Gandhi would decline the offer and thus would not place the President in an embarrassing position. Gandhi indeed declined politely. Only then was VP Singh called to form the government.
In 1991, Venkataraman invited PV Narasimha Rao as leader of the SLP. By following the convention. The Congress secured 244 seats. Rao was able to prove his majority because the BJP and Left parties abstained. The 1991 invite was a chancy decision.
Come 1996 and it was Shankar Dayal Sharma at the helm. The President did not hesitate to follow the convention and called Atal Behari Vajpayee to form the government. Unlike Gandhi, Vajpayee took up the offer. He lasted 13 days because he could not mobilise adequate support, in fact not even one single MP.
That was Sharma’s last act as President. KR Narayanan succeeded him in July, 1997. He witnessed a flurry of short-lived governments. So, when the 1998 presented a hung Parliament, he became proactive. He did not want to repeat the farce of 1996 when Sharma had not bothered to read the writing on the wall that the BJP stood isolated and would not get a single extra vote of support. Narayanan was concerned more about the formation of a stable government than one borne out of mere convention. Whether the party to be invited was the SLP or a coalition was of lesser importance. Narayanan was of the view that he would invite a party which was not only willing but also able to form a government. He used discretion at a crucial time and set up a new convention.
Accordingly, he set a precedent by insisting that the invited party should produce letters of support from its allies. In 1998, Vajpayee’s BJP was the SLP with 182 seats. The BJP and its allies had a combined strength of 252. But Narayanan insisted that Vajpayee produce letters of support that would confirm that a stable government would be formed. In 1999, too, Narayanan ensured that Vajpayee could prove his majority and only then invited him. The convention was followed in 2004 and 2009.
Even in the states, there are several instances where the SLP was not called to form the government because the respective governors followed the central convention. In 1999, in the Maharashtra assembly elections, the Shiv Sena-BJP combine ended up with 125 seats. The Congress with 75 legislators and the NCP with 58 legislators came together (even though they fought each other in the polls ) as the largest alliance with 133 seats. In 2002, the PDP and Congress which had 15 and 21 legislators, respectively, was called in as an alliance to form a government in Jammu and Kashmir. The National Conference on that occasion was the SLP with 28 seats. In 2005 in Jharkhand, the JMM with 17 MLAs was asked to form the government even though the BJP had 30 MLAs. In 2013, the Aam Aadmi Party with 28 legislators was invited to form the government with support from the Congress even though the BJP had 31 seats. There are several other examples of this nature.
In 2017 alone, what happened in Bihar – the governor inviting an alliance rather than the SLP was a repeat of the Manipur and Goa assemblies. In Manipur, the Congress won 28 seats in the 60-member assembly and the BJP got 21 seats. Out-going Congress chief minister Ibobi Singh was again elected the leader of the Congress Legislature Party. But the BJP managed support of other legislators to take its tally to 32 seats and was asked to form the government. The assembly elections in Goa gave Congress 17 seats and the BJP bagged 13. But the governor invited the BJP to form the government after it claimed the support of three MLAs each of Maharashtrawadi Gomantak Party and Goa Forward Party, and two Independent MLAs.
Going by conventions, the Bihar governor cannot be faulted for calling Nitish a second time to form a government. The 2015 Bihar mandate went against the BJP. Accordingly, Nitish Kumar as leader of the Mahagathbandhan with sufficient numbers to form a stable government was invited. When the government fell, and Nitish did not recommend dissolution of the House for fresh polls, the task of the governor was to allow the formation of another stable government as soon as possible. The JDU and BJP together had a strength of 124 legislators, two more than the minimum majority vote required. In the ensuing floor test, they got 131 votes.
The issue, therefore, is not really one about conventions and procedures of invitations to form governments, but about political morality for which the answer lies not in the Raj Bhavan or the High Court but with the JDU.
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