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Eminent jurist Fali S. Nariman said the year 2018-19 needs Governors who are true to the oath of office and who must ensure that the person invited to be Chief Minister is capable of forming a “responsible and reasonably lasting government.” Mr. Nariman said the Sarkaria Commission states the “correct constitutional position” in case of a hung Assembly. The Commission notes that the Governor should give first priority to a pre-poll alliance to form a government. If this fails, the second preference is for the single largest party. If that does not work, the Governor should opt for a post-poll alliance or coalition.


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But Mr. Nariman indicated that a lot depends on the integrity of Governors.

“In the year 2018/2019, a Governor (to whichever political party in power at the Centre he/she owes his/her appointment) must be true to the oath of office and must ensure that the person he/she invites to be Chief Minister will be able to form a responsible and reasonably lasting government in the State. In other words, the person who is invited must be able (in the honest and independent opinion of the Governor) to ensure a stable government in the State,” Mr. Nariman responded by e-mail to The Hindu on Thursday in the background of the tussle over government formation in Karnataka.

Mr. Nariman said: “Merely paying lip-service to the principle of appointing as Chief Minister the leader–of–largest–single–political–party and asking him to get a confidence vote in the House is no longer enough.”

“In the choice of Chief Minister, a Governor must endeavour to inform himself of all the ground realities of a given situation. This is particularly important in the context of the present continued and constant influx of unaccounted cash which somehow still keeps floating around in large quantities, despite the professed abolition of a cash-economy by the erstwhile policy of demonetisation of large currency notes!” Mr. Nariman said.

The comments come even as Karnataka Governor Vajubhai Valas decision to invite B.S. Yeddyurappa to form the government is under scanner in the Supreme Court.

Asked when it would be a “reasonable time” for a Governor, after exploring all alternatives, to conclude that there is a “failure of constitutional machinery,” Mr. Nariman replied: “Just as there is no time prescribed in the Constitution for the Governor to give his assent to a Bill passed by a State Legislature, so also there is no time prescribed by the Constitution as to when he/she should decide whether there has been a failure of the constitutional machinery in the State.”

“A shrewd and independent Governor — well informed by the contents of the judgment of the Supreme Court of India in Bommais case — is always able to make a correct assessment of the time of failure of the constitutional machinery in the State,” he said.

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