With the resignation of the BJP’s BS Yeddyurappa as Chief Minister just before a trust vote Karnataka’s political cliffhanger might have ended, at least for time being, but the power and role of Governor in the formation of a government in the eventof a fractured verdict willcontinue to be debated for some time to come.
The validity of the decision of the Karnataka’s Governor Vajubhai Vala to sworn-in BS Yeddyurappa as Chief Minister will be examined by the Supreme Court in greater details in later hearings but political commentators and analysts have already started raising concern over the decision. However there are others who have sought to justify his stand as ‘constitutionally permissible’. Some have taken a middle path when calling the decision as ‘legal’ but ‘unethical’.
The Congress party which is today crying foul about Governor Vajubhai Vala’s decision had vehemently opposed the decisions of the Governors of Goa, Manipur and Mizoram, where it has emerged as the single largest party, to invite post-poll alliance to form the government. The BJP which had formed the governments in these states on the basis of post-poll alliances has termed Congress-JD(S) post poll alliance as ‘opportunistic’ as the Congress has outmanoeuvred BJP in its own game this time.
It shows that political parties have always interpreted the power of the Governor in accordance with their own convenience and suitability. Our higher judiciary has also not addressed the matter in unison. Lack of uniformity in judicial pronouncements has made the situation even worse.
One needs to go into the real spirit behind the norms in question to find the answer to this constitutional imbroglio as there is complete absence of explicit constitutional provision to guide a Governor in the event of a fractured verdict. Sarkaria Commission recommendations which have also got the sanction of the Supreme Court in 2006 in Rameshwar Prasad & Ors v. Union of India case provides an elaborate step-by-step approach and lays greater emphasis on the fact that the Governor should invite a leader who, in his judgment, is most likely to command a majority in the Assembly and in case of conflicting claims the most prudent measure would be to test the claims on the floor of the House. In the Bommai case, albeit in a different situation, the Supreme Court also preferred the centrality of the floor test as against the governor’s discretion “the floor of the assembly is the best place to test majority”.
The court in the Rameshwar case laid down that “If a political party with the support of other political party or other MLAs stake claim to form a government and satisfies the governor about its majority to form a stable government, the governor cannot refuse formation of the government and override the majority claim because of subjective assessment that the majority was cobbled by illegal and unethical means.”
Thus the discretion of a Governor in inviting a leader or party to form the government is subject to assessment on his part that the leader would be able to prove a majority on the floor of the House certainly not by employing fraudulent means such as poaching or engineering defection from other parties.
A five-judge bench of the Supreme Court in the Nabam Rebia and Bamang Felix vs Deputy Speaker case (2016) categorically stated that “The appointment of the Chief Minister is based on the postulate that he commands or is expected to command the support of a majority of Members of the Legislative Assembly…Therefore, it is not as if the Governor has untrammelled discretion to nominate anyone to be the Chief Minister of a State”.
Was decision of Karnataka’s Governor Vajubhai Vala inviting BS Yeddyurappa to form the government despite knowing the fact that he won’t be able to prove his majority as Congress and JDS has already forged a post poll alliance, not unethical but also illegal? The fact that Governor knew it very well that in the given situation BS Yeddyurappa didn’t command a majority in the Assembly and won’t be able to win the confidence without resorting to unethical means of poaching and or engineering defections in the Congress and the JDS smacks of partisan politics. By doing so, Governor not only lowered down the prestige and honour of the constitutional chair he is holding but also made travesty of parliamentary democracy.
When BS Yeddyurappa approached the Governor and staked claim to form the government instead of hurriedly accepting his claim he should have first satisfied himself by asking him as to from where he would get the magic number to prove his majority.
By inviting Yeddyurappa to form the government the Governor not only threw the state into constitutional crisis but also wasted time and money of many state agencies including the Supreme Court which in a mid night hearing asked the Chief-Minister to prove his majority in 24 hours instead of 15 days time given by the Governor to face the floor test.
Time has come to fix the constitutional lacuna of absence of explicit set guidelines as to how a situation of fractured mandate will be dealt by a Governor. This can only be addressed through a constitutional amendment as suggested by the MM Puncchi Commission (2010) clearly stipulating specific guidelines and approaches which ought to be followed by the Governor leaving minimum scope for the exercise of discretion. The discretion vested in the Governors has been misused ample times in the past and if not rectified it will continued to be done in future as well.
The proposed amendment must incorporate broader principles laid down in the SR Bommai vs Union of India, Rameshwar Prasad & Ors v. Union of India (2006) and the Nabam Rebia and Bamang Felix vs Deputy Speaker case (2016). It should also take into account the reports of the Sarkaria Commission (1988) and the MM Puncchi Commission. A single largest party without cogent evidence as to how it would prove majority should never be invited to form the government. That is the lesion we must at least learn from the Karnataka conundrum.
The writer is a Professor of Political Science at Aligarh Muslim University, Aligarh.