Gubernatorial casuistry

The Governor of Bihar indulged in constitutional casuistry by ordering a floor test to resolve the political impasse. The manner in which he called for a floor test which is a right constitutional course in the current context gave enough room for political manipulation.

Governor Kesari Nath Tripathi has given Chief Minister Jitan Ram Manjhi an opportunity to prove his majority on the floor of the House. Immediately after Governor's address to the joint session of Bihar Legislature on the opening day of Budget session on February 20, Manjhi will have to prove majority in the Legislative Assembly.

The Governor took this decision in the wake of the Patna High Court on Wednesday declaring that Janata Dal (United) meeting in which Nitish Kumar was elected as the leader of the legislature party as illegal. In fact, High Court’s verdict surprised many. The Speaker of the Bihar Legislative Assembly has already recognised Nitish Kumar as JD (U) legislature party leader. The courts have no constitutional authority to involve in legislative process. Nitish Kumar’s election and the Speaker’s recognition to it are legislative process that is beyond the jurisdiction of judiciary unless and until it is ultra vires to the Constitution. The High Court‘s verdict is open to further legal scrutiny. However, the Governor chose to act immediately and ordered for a floor test. In fact, the floor test is the right constitutional course in such a political situation.

The Supreme Court in the famous S R Bommai case upholding the floor test observed, “… If only one keeps in mind the democratic principle underlying the Constitution and the fact that it is the Legislative Assembly that represents the will of the people and not the Governor… “ Even the Sarkaria Commission has also made a similar recommendation. The Commission observed, “The Governor should not risk determining the issue of majority support, on his own, outside the Assembly. The prudent course for him would be to cause the rival claims to be tested on the floor of the House.”

Thus, Governor’s action of ordering for a floor test is certainly a right approach. But, the constitutional act cannot be read out of a political context. The political context is clear. Manjhi was expelled from the ruling Janata Dal (United). He does not enjoy the support of majority MLAs in JD (U). Nitish Kumar, on the other hand, enjoys the support of majority JD (U) MLAs. He also enjoys the support of most of the non-BJP parties. Manjhi has the backing of BJP only. Therefore, he cannot win the floor test without resorting to horse trading. The Governor by giving sufficient time for Manjhi to prove his majority on the floor of the House has actually provided an enough opportunity to resort to horse trading.

The right course, instead, would have been immediate summoning of the legislature to conduct the floor test. Even the Sarkaria Commission recommended that in such situations of proving the majority in legislature, the Governor should advise the Chief Minister to summon the Assembly as early as possible so that the 'majority' may be tested. The Sarkaria Commission’s observation is noteworthy here: “The Governor's task is to see that a government is formed and not to try to form a government which will pursue policies which he approves.” The Governor being a BJP appointee and with the party supporting Manjhi, his action is alarming