The past few days have been of great uncertainty. No single party has crossed the half-way mark to form the government on its own in the state. This was followed by a very swift post-poll alliance between the Congress and the Janata Dal (Secular) parties. With their combined numbers, they crossed the half-way mark and staked claim to form the government. Their choice of Chief Minister was also made public. Very speedily, the BJP announced that it was going to form the government. The BJP also announced that its Chief Minister — Yeddyurappa — would take oath the following morning.
In an unprecedented move, the representatives of Congress and JD(S) requested for an urgent hearing on the matter by the Supreme Court. Way past midnight, the judges and lawyers stayed up to argue the case. The prime contention was if the Chief Minister could be allowed to swear in. While the justices allowed swearing-in the following morning, they requested further documents, including a copy of the letter sent to the Governor by Yeddyurappa. The order stated that the oath ceremony would not be stayed. However, the court noted that the oath "shall be subject to further orders of this Court and final outcome of the writ petition."
BJP's Yeddyurappa took oath of office, forming a minority government and was given 15 days by the Governor to prove majority. On Friday, in the second hearing of the matter, the Supreme Court made a few observations and orders. First, the justices said that the floor test must be done by 4 pm on Saturday, May 19. Second, the floor test shall be conducted by pro tem speaker. Third, secret ballots are not to be allowed in the test. Fourth, the government has been stopped from nominating an Anglo-Indian member.
Crucial questions raised
The last few days have raised some crucial and interesting questions.
1 The first is if the Governor discharged his constitutional duty properly by inviting the BJP to form the government? The Governor, under the Constitution is the nominal head of state and has executive, judicial and legislative functions to perform. The Sarkaria Commission had recommended that the Governor should "be eminent in some walk of life and from outside the state. He should be a detached figure without intense political links or should not have taken part in politics in the recent past. Besides, he should not be a member of the ruling party." This recommendation, which has blatantly been ignored, is to ensure a balanced, non-partisan head in the states.
As nominal head of state, it falls on the Governor to appoint the Chief Minister and Council of Ministers under Article 164 of the Constitution. Whilst there is no official clause to this extent, the Sarkaria Commission report discusses hung assemblies. The first option in such a case is to call the largest pre-poll alliance to form the government. If there is no such arrangement, the second right is that of the largest party. The third right is that of a post-poll alliance. And the fourth option is to allow a coalition with 'external support.'
If this is to be abided by, the Governor was right in inviting the BJP (the largest ruling party) to stake claim. This is contrary to what happened in Goa and Manipur. Whilst the Congress was the single largest party, it was not invited to form the government in either of these states and the BJP is the ruling party there.
The SR Bommai case, which has been quoted by various sources has little relevance on the current scenario. In the judgment, the justices expressly excluded circumstances like the current one. However, in the case of Rameshwar Prasad in 2006, the Supreme Court had noted, "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. No such power has been vested on the Governor. Such a power would be against the democratic principles of majority rule."
2 In Karnataka, following the oath by the Chief Minister, the Governor gave the BJP more than two weeks to come up with majority. This is an undesirable situation. History tells us that 'horse-trading' is a distinct possibility in this scenario. Not only does horse-trading encourage malpractice, it also severely diminishes the image of a democracy and tramples on the mandate of the people. The reasonably quick deadline for the floor test, set by the court decreases the chances of such tactics.
3 Added to this already complicated rubric is law against defection. Members in the state can join the BJP in this case, thereby giving it a majority. However, unless 2/3rd of the members jointly decide to defect, this is not allowed. In the first hearing, it was argued that the anti-defection law did not apply to legislators in Karnataka because technically they had not been sworn in yet. The Supreme Court said such a proposition was preposterous. Yesterday the court also reduced the number of days to prove majority in the House.
This is a time that demands pensive reflection. Democracies, like any other system of governance, need to be nourished and cared for. Boundaries have to be established — drawn and redrawn. The role of constitutional functionaries needs to be assessed against democratic, constitutional values. The paradigm of possibilities needs to be expanded to meet new challenges.
Later today, the elected representatives of Karnataka will decide on which party or parties are to remain in power during the floor test.
Perhaps, equally importantly, this entire saga has tested the provisions as well as the safeguards that are required in a democracy. We are left with questions that demand answers which combine politics, ethics and constitutionalism.