Constitutional scholar Chandrakant Gyawali says, 'Even if the Chief Minister appointed under 168(2) resigns after not receiving a vote of confidence, it will go under 168(3)'
What you should know
After Chief Minister Jitendra Sonar (Sonal) resigned in Madhesh Pradesh without receiving a vote of confidence in Parliament, a new debate has begun among political parties on whether the process of forming the next government should be repeated under Article 168(2) of the Constitution or go to 168(3).
According to constitutional scholar Chandrakant Gyawali, even if the Chief Minister appointed under Article 168(2) resigns after not receiving a vote of confidence, the provincial head must call for the appointment of a Chief Minister as per Article 168(3) of the Constitution.
Earlier, the Supreme Court had set two precedents in the case of the Far West and Gandaki governments. Gyawali said, 'If the Chief Minister appointed under Article 168(2) of the Constitution does not receive a vote of confidence from the parliament, or resigns because he is unable to do so, Article 168(3) of the Constitution applies. The leader of the UML parliamentary party, as the largest party in the Madhesh Provincial Assembly, is appointed the Chief Minister. Two precedents have already been established in the case of the Far West and Gandaki governments in this regard. If one article is repeatedly appealed to, other articles will not work. It should be repealed, otherwise, another article should be used to form a government. That is the provision, essence and spirit of the Constitution.'
But another legal expert, Tikaram Bhattarai, says that in the event of resignation without taking a vote of confidence in the parliament, Article 168(2) will still be invoked. He argues that Article 168(3) will be invoked only if there is no situation to form a government according to 168(2). There is an example of 168(2) being invoked in a similar political situation in the Kosi government. However, he claims that in the case of Gyawali Province, there is no situation where a government is formed by repeating the same article.
Jitendra Sonal, who was appointed Chief Minister 25 days ago, resigned after not getting a vote of confidence . The Sonal-led government, which became the Chief Minister by sidelining the Congress and UML, collapsed in 25 days. Sonal had scheduled a vote of confidence in the Madhes Provincial Assembly on Saturday. Sonal resigned after it was certain that he would not get a vote of confidence after the MPs who supported his appointment as Chief Minister joined the opposition.
Since he did not have a majority in his favor, a new debate has started on government formation after he resigned before the process for the vote of confidence had even begun.
Sonal was appointed Chief Minister with the support of 56 MPs from five parties, including Janata Samajwadi Party, Janmat, Maoist Center, Lospa, and Unified Socialists, as per Article 168(2) of the Constitution.
According to the Constitution, if the Chief Minister appointed under Article 168(2) fails to receive a vote of confidence, the leader of the parliamentary party of the largest party in Parliament is appointed as Chief Minister.
According to Article 168(3) of the Constitution, if it is not possible to appoint a Chief Minister within 30 days of the date of the declaration of the final results of the Provincial Assembly elections as per Clause (2) or if the Chief Minister so appointed fails to receive a vote of confidence, the Provincial Chief shall appoint the leader of the parliamentary party with the largest number of members in the Provincial Assembly as Chief Minister.
If the Chief Minister appointed under Article 168(2) fails to receive a vote of confidence, then Article 168(3) provides for the appointment of an MP from among the members of the Provincial Assembly who can receive a vote of confidence as Chief Minister.
