Whom Should Karnataka Guv Invite to Form Govt, BJP or Cong+JD(S)?

Single-largest party or a post-election coalition? Here’s what the law, conventions and courts say.

Legal Correspondent Vakasha Sachdev breaks down the laws and conventions the governor will need to follow.

(Photo: The Quint)

Is there any law which should decide what happens now in Karnataka?

There is no hard and fast set of rules which says who should be invited to form a state government. The Constitution, the Representation of the People Act, 1951, all of these are silent on the exact process.

As a result, to see what should be done in Karnataka, where no single party has the requisite majority, we have to look at convention, and the decisions of the courts.

What do the conventions say if there is a hung Assembly? Should the single-largest party or a coalition be invited to form the government?

The relevant conventions were summarised in both Sarkaria Commission Report of 1988 and Punchhi Commission Report of 2010. When either a single party or a pre-poll alliance of parties has the required majority, they obviously get to form the government.

However, if no party has a clear majority, the governor is to select a chief minister as per the following order of preference:

1. The group with the largest pre-poll alliance commanding the largest number
2. The single-largest party with support of others
3. The post-electoral coalition with all parties joining the government
4. The post-electoral alliance with some parties joining the government and the remaining, including Independents, supporting from outside

So, does that mean the single-largest party, ie the BJP should be invited to form the government in Karnataka ahead of the JD(S) + Congress combine?

This is not entirely clear. The Punchhi Commission noted in its report that there was uncertainty over what would happen if there is a post-election alliance which gets a clear majority, as the order of preference applies when nobody has been able to get a majority.

In such cases, if the single-largest party cannot put together a majority, why should an alliance which does have a majority not be allowed to form the government? This was the question asked last year by the Supreme Court judges hearing the case in the aftermath of the Goa elections, when the BJP and its post-poll allies formed the government even though the Congress had won the highest number of seats.

Has the Supreme Court clarified who should be invited?

Unfortunately, even though such issues have often come up before the Supreme Court, it has not settled the question of whether the single-largest party or the post-poll alliance should get to form the government. In the aftermath of the Goa elections, the Congress had challenged the decision of the Goa governor to swear in Manohar Parrikar as chief minister, but despite AM Singhvi requesting the court to pass an order in favour of the largest party, the apex court refrained from doing so.

Instead, the bench, headed by then-CJI JS Khehar, resorted to the option they have taken in the past (see Jharkhand in 2005, for instance) – to order a floor test at the earliest to test the majority of the post-poll alliance. In the previous cases, and even cases where there was no legal challenge (such as Manipur in 2017, Meghalaya in 2018), the governor has always tended to support a post-poll alliance which has a majority over the largest party which does not.

If these precedents are followed, Governor Vajubhai Vala should be inviting the JD(S)-Congress alliance to form the government. However, the governor has not yet done so, and has also received a claim from the BJP, who want to conduct a floor test in two days. Whichever way he goes, the decision will surely be challenged in court, and we cannot be entirely sure as to what would be decided there.

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