On July 1, the Nepali Congress and the CPN-UML reached a deal to form the government with KP Sharma Oli, the UML chairperson, taking the prime ministerial seat first. That would be possible in a coalition formed as per Article 76 (2) of the Constitution of Nepal.

While the Congress and the UML were confident that Article 76 (2) would be invoked as the President invited the parties to form the new government, outgoing Prime Minister Pushpa Kamal Dahal’s CPN (Maoist Centre) had been claiming that the government formation process should be shifted to Article 76 (3). Maoist leaders repeatedly claimed in and outside Parliament that as the Dahal government was formed as per Article 76 (2), his successor should be appointed under Article 76 (3).

Article 76 (3) coming into play meant Oli would not become the prime minister this time, as the constitutional provision pertains to a minority government led by the largest party. Congress President Sher Bahadur Deuba, as the parliamentary party leader of the largest party in the House of Representatives, would become the prime minister.

On July 3, the UML recalled its ministers while also withdrawing its support to the Dahal government. The prime minister was then left with two options: resign or face the House.

Despite knowing that he would lose the confidence motion, Dahal opted for the vote. That was because he believed the President would initiate a new government formation process under Article 76 (3) after he lost the trust vote.

Article 76 (3) says in cases where the prime minister of a coalition government fails to win the confidence of Parliament, the President appoints the parliamentary party leader of the largest party in the House as prime minister. “Our party believed that Article 76 (3) would be invoked after the prime minister lost the vote of trust. This is why he [Dahal] chose the vote of confidence instead of resigning,” an office bearer of the Maoist Centre told the Post.

However, President Ramchandra Paudel, hours after Dahal lost the floor test on Friday evening, called two or more parties to stake a claim to the government as per Article 76 (2). Paudel had consulted some constitutional experts before making the call. All the experts except one had suggested that he go for a coalition government—rather than a minority one—citing the Supreme Court’s rulings. They were of the opinion that there is no constitutional barrier to calling for government formation under Article 76(2) as Dahal’s floor test was his fifth since taking office in December 2022 in the House elected that year.

Article 76 (3) is automatically invoked when the prime minister appointed under Article 76 (2) fails the floor test in the first attempt. The last time he faced Parliament was on May 20 after the Upendra Yadav-led Janata Samajbadi Party, Nepal withdrew its support.

The Maoist Centre is not happy with the President's decision. "Yes, the President's call is not what we wanted. We believe it was a political move rather than legal," Hit Raj Pandey, the party's chief whip, told the Post. Asked if his party will challenge the move in court, Pandey said "no".

However, the party’s office bearers said the Maoist Centre will not confront the President directly. Lawyers close to the party are most likely to file a writ petition in the court.

"There is every possibility that our legal wing will challenge the President’s move in the Supreme Court," he told the Post. Lawyers close to the party reiterate that Article 76 (3) is the only option for government formation after the prime minister loses the vote of confidence.

Former attorney general Mukti Pradhan is one of those advocates close to the Maoist Centre who make such a claim.