Elections are a matter of Human Rights
Article 21(3) of the Universal Declaration of Human Rights (UDHR) mandates that,‘[T]he will of the people shall be the basis of the authority of government’. Thus a government which rules without the will of the people by twisting Constitutional Conventions and misusing Constitutional Offices can be argued to violate the basic human rights of the citizenry. Preamble of the UDHR purports that human rights should be protected by the rule of law. It is thus incumbent upon the Judiciary to adjudge the legality of the alleged unconstitutional act of the Governor of Karnataka in the recent Karnataka Assembly Elections. This article throws light on the competing legal practices and thus highlights how judiciary intervenes on such contentious issues.
Knocking the Supreme Court’s Door
The political drama from the South knocked the door of the Supreme Court in the North, on the intervening night of 16th and 17 of May 2018. It was only the second time when the Supreme Court entertained a guest so late yet refused to stay the oath ceremony of Yeddyurappa as Karnataka’s CM.
Nobody got a majority
This whole drama has arisen on the account of the Karnataka Assembly elections results that gave a roller-coaster ride to the BJP as it fell short of a majority and has to satisfy itself with 104 seats while Congress (78) and JD(S) (37) together secured 115 seats along with the support of two independent MLAs, raising its tally to 117 with 5 seats ahead of the magic number to form its government.
Thereafter, the ball was in the court of the Karnataka’s Governor Vajubhai Vala since both the parties gave their application to him with the intent to form a government. The Governor’s decision to invite BJP first to form the government and prove its majority within 15 days on account of being the ‘Single Largest Party’ despite the JD(S) in alliance with the Congress showing a majority. This gave chance to every other party to attack BJP calling the day as black day in the history of Indian politics.
With no clear rules for Governors in hung verdict, BJP & Congress cite precedents that suit them best. While BJP staked claim to form a government in Karnataka as the largest party, quoted the action of President SD Sharma who invited the ‘Single Largest Party’ headed by former Prime Minister Atal Bihari Vajpayee. Though, this convention was criticised after the Vajpayee government lost the trust vote in 13 days in 1996. Congress contended that Governors overlooked this convention while inviting BJP led ministries recently in Goa, Manipur and Meghalaya. It is interesting to look into the election results of these three states.
In the March 2017 election in Goa, the Congress won 17 of the 40 seats while the BJP won only 13 seats. However BJP was invited to form the government after a post-election coalition with other parties.
Likewise, in the Manipur Assembly elections of 2017, which has strength of 60 seats, Congress won 28 and BJP 21. But, BJP was invited to form the government on the basis of a post-poll arrangement.
The Meghalaya elections in March 2018 were no exception. Here out of the total strength of 60 seats, Congress had managed 21 while the BJP had only 2 seats. Yet again, BJP was invited to form the government by the Governor on the basis of a post-poll arrangement which showed a majority.
The three instances show that governors appointed during the BJP government’s tenure have followed the practice of swearing in a government on the basis of post-election coalition between parties which have a majority in the Assembly. The same principle should have been adopted by the Governor of Karnataka Vajubhai Vala who once vacated his seat in 2001 to enable the then Chief Minister of the Gujarat who contested his maiden election.
In each of these cases, the governors pointed to the convention set up by President KR Narayan in 1998 where he stressed on total numbers for inviting combination after being satisfied that it was in a position to form a stable government. He invited ‘Single Largest Party’headed by former Prime Minister Atal Bihari Vajpayee which lasted for 13 months in 1998.
This view was affirmed in January 2006 by a five-judge Constitutional bench of the Supreme Court in the Rameshwar Prasad case. It held that Governor has no option but to invite any party or alliance, either pre-poll or post-poll, to form the government once he was satisfied that it commanded majority support in the assembly.
The foundation for limiting the Governor’s discretionary power was laid down by a seven-judge Constitutional Bench of the Supreme Court in the landmark SR Bommai case in March 1994.
Strategizing the Floor Test
Congress raised serious concern through their joint petition with JD(S) before the Supreme Court over the 15 day time given to Yeddyurappa Government to prove the majority through floor test citing Bommai’s judgment where court held that Governor must order to prove majority to new government through floor test as soon as possible otherwise it will promote horse trading. The Supreme Court on Friday, after hearing both the sides, ordered the floor test to be held at 4 PM on Saturday reversing the time allotted by the Karnataka Governor to newly-crowned CM Yeddyurappa to prove majority. The bench also directed the new CM to not take any executive decisions. The Court also barred the nomination of an Anglo-Indian MLA by Karnataka Governor till the time BJP showcase its majority on the floor of the House. The Court decided that the larger Constitutional issue will be heard after 10 weeks on Congress-JD(S)’s plea on the illegality committed by Karnataka Governor to invite BJP first to form the Government.
Knocking the door two days in a row
The Congress-JD(S) lead alliance has knocked the S.C’s door yet again. This time questioning the Governor’s decision regarding appointment of the Pro tem Speaker. Since punishment for defection and the consequent disqualification of a MLA is the discretion of the Speaker thus the de-facto political affiliation of the speaker of the house is of paramount importance. The Congress-JD(S) alliance claims that the Governor has illegally appointed the pro tem speaker. The Governor did not appoint the senior-most MLA, R.V. Deshpande of the Congress, who won his eighth election this time defying the convention of appointing the MLA who has won the highest number of elections as the pro tem speaker. The governor instead chose a KG Bopaiah, a third time winner who has been previously rebuked by the Supreme Court for his actions during a trust vote in 2010. The Supreme Court said that Bopaiah acted in ‘hot haste’ defying principles of Natural Justice and Fairplay.
The Supreme Court has decided to entertain the guest tomorrow at 10:30 AM. Whether Yeddurappa led BJP can prove its majority despite being 8 MLAs short in the floor of the Karnataka House Assembly is also an interesting question. More importantly, it will be pertinent to see how the judiciary responds to this political façade.
Co-authored by: Mr. Aman Chachan & Pranav Bhaskar Tiwari