In the end, the Janata Dal (Secular)-Congress combine sailed through the trust vote after edging out the Bharatiya Janata Party in the southern Indian state of Karnataka. But the transition of the state government has raised a plethora of legal issues, which came to light after the state’s governor invited the BJP to form a government, even though it did not have the numbers.
While the BJP had emerged as the single largest party, the Congress and the JD-S managed to form a post-election alliance that had the numbers to clear the required majority in the newly elected state legislative assembly.
A highly charged legal battle also took place in the Supreme Court when the Congress-JD-S alliance filed a petition against the governor inviting the BJP to form the government, after which the Supreme Court ordered a floor test on Friday.
Karnataka Governor Vajubhai Vala, a longtime confidant of Prime Minister Narendra Modi, has also come under fire for his decision to invite the BJP to form the government. However, under Article 361 of the constitution, the governor of the state is not answerable to the court regarding their actions. But such decisions can certainly be scrutinized by the court and the court has the discretion to overturn such decisions if it deems fit.
In a fractured mandate, where neither a party nor a pre-coalition commands a majority, the Karnataka governor’s call to invite the single largest party, the BJP, was based on the Sarkaria Commission‘s recommendation. The commission report specifically dealt with the situation where no single party obtains absolute majority and provides the order of preference that the governor should follow in selecting a chief minister.
The commission recommended an elaborate step-by step approach and emphasized that “the governor, while going through the process of selection as described, should select a leader who, in his [the governor’s] judgment, is most likely to command a majority in the assembly. The governor’s subjective judgment here plays an important role.”
The order of preference “suggested” is an alliance of parties that was formed prior to the elections; the largest single party staking a claim to form the government with the support of others, including “independents”; a post-electoral coalition of parties, with all the partners in the coalition joining the government; a post-electoral alliance of parties, with some of the parties in the alliance forming a government and the remaining parties, including “independents” supporting the government from outside.
And upon being faced by several contesting claims, the commission suggests that the most prudent measure on part of the governor would be to test the claims on the floor of the house.
The Sarkaria Commission recommendations were discussed at length in the case Rameshwar Prasad vs Union of India, a judgment headed by a five-judge bench of the Supreme Court, making it a binding law.
Hence, following the suggestion of the commission, the governor of Karnataka invited the BJP to form the government in the state and asked them to prove the majority within 15 days. However, the BJP had won only 104 seats and the post-poll coalition between Congress and JD-S had 117 seats in its favor.
In such a case, if a political party with the support of other political parties or other MLAs stake a claim to form a government and satisfies the governor about its majority to form a stable government, the governor cannot refuse the formation of the government and override the majority claim because of his subjective assessment that the majority was cobbled by illegal and unethical means. No such power has been vested with the governor. The governor is not an autocratic political Ombudsman.
On the day of the results of the Karnataka elections, the Congress-JD-S alliance submitted two letters to the governor, one confirming the post-poll coalition and the second that they command the majority with 117 seats. Hence, the governor’s decision to call BJP to form the party was justifiable or not will be decided by the Supreme Court later.
Besides, the power for defection lies with the Speaker of the legislative house under the Tenth Schedule of the Constitution and not with the governor. The Tenth Schedule refers to curbing the mischief of political defections motivated by the lure of office or other similar considerations, popularly known as horse-trading.
This enables the Speaker in a quasi-judicial capacity to declare that a member of the house stands disqualified for the reasons mentioned in the Tenth Schedule of the Constitution. However, the Speaker’s quasi-judicial capacity subjects him to judicial review if there are “infirmities based on violations of constitutional mandates, mala fides, non-compliance with Rules of Natural Justice and perversity, are concerned.”
Clearly, not only was the governor at fault for inviting the BJP, the fact that B S Yeddyurappa resigned as chief minister before the floor test raises questions about his decision. In India’s keenly contested political space, the Karnataka case has sparked debates that are legal as well as ethical.