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Governor could have waited longer, say experts

Amberish K Diwanji in New Delhi

Is the move by Bihar governor Vinod Pande to call the National Democratic Alliance to form the government legally and constitutionally valid? Legal experts agree that while Pande's decision does meet the letter of the law, it does not meet the spirit of the law.

"As per the figures of support available as of today, in fact till the time that the governor chose to exercise his discretion to call in Nitish Kumar, it is clear that the NDA did have the edge in numbers," said legal luminary and constitutional expert P P Rao, a senior advocate at the Supreme Court.

The NDA, in its letter to the governor on Friday morning, claimed the support of 146 members in the legislative assembly. This includes its own 124 along with 12 pro-Jharkhand MLAs and 10 independents. Nitish also claimed by evening that the total MLAs with him had risen to 151.

Another senior Supreme Court advocate who did not wish to be named agreed that as per the law, the governor was right in inviting Nitish Kumar to form the government. "As of Friday morning, the NDA was the largest formation and in that sense, the governor took the right step," the advocate said.

"The Constitution is very clear that the governor must first invite the single largest party, and now this also means the largest coalition of parties, to form the government and prove its majority on the floor of the house. And if the NDA cannot prove its numbers, obviously it will have to go. Thus legally the governor does appear to have done the right thing," the advocate added.

However, Rao pointed out that any governor must not only be fair, but also appear to be fair. "Certainly the governor's action does not have the latter trait," he said.

Rao said the governor could have taken other steps. For instance, the governor appeared to be in an unseemly haste. "The fact is that Laloo Prasad Yadav and Sonia Gandhi were due to meet and the Congress was actually on the verge of extending support to the RJD. After the Yadav-Gandhi meeting, the fluid situation would have crystallised and it would have become very clear which formation had more MLAs. Surely the governor could have waited for a day or two more," he added.

The other advocate also agreed that the governor could have waited a little longer, especially since many of the independents and smaller parties, often with just a couple of MLAs, were still undecided over who to support. This is more a case of following precedent than just the Constitution, this advocate added.

To add a further twist to the tale, the 12-member alliance between the Communist Party of India and the Communist Party of India (Marxist-Leninist) had declared that if the NDA came to power, they would vote against it but if the RJD came to power, they would only abstain.

Thus in the Bihar assembly of 324, with the CPI-CPI(ML) abstaining, the house strength is 312, with 157 being the Rubicon figure. However, with the CPI-CPI(ML) voting against it, the NDA and its allies will have to muster the support of 163 to win the vote of confidence.

"I am not sure that even in its letter to the governor, the NDA actually has this number, while for the RJD, the majority mark is lower. Hence this governor has given rise to a controversy by acting as he did and thus hurt his credibility," added Rao.

Rao was also critical that the governor had not exercised other methods of finding out who had the numbers. "The governor could have, like President K R Narayanan had done at the Centre, asked the legislators to provide letters of support to ascertain which party has more support. Or the governor could have asked the assembly to meet and asked them to choose the leader of the assembly on the floor of the house," he added.

The unstated fear is that with the NDA forming the state government, the alliance will seek to use its resources to lure the independents and smaller parties or try and break some of the bigger parties.

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