Operation Lotus 2: Vala a willing party?

The degree of shamelessness with which the Karnataka post-poll drama is being played is a clear and blatant abuse of power by Karnataka governor Vajubhai Vala, who invited the BJP to form the government despite the fact that it didn’t have a simple majority. This is a gross violation of the rule of law, democratic values and is an attack on the federal structure of this country. In a lighter vein, it can also be seen as a case of an order passed by one who is mathematically challenged!

Either way, Mr Vala has acted in a manner that does not befit the office of the governor, which is sanctified by the Constitution. His order to invite BJP leader B.S. Yedyurappa to form the government despite the fact that the BJP does not have sufficient numbers is a clear act of apparent bias. In so doing he has scuttled the mandate of the people. He will now be remembered more for a blatant violation of law than for safeguarding it.

While everyone is caught in innumerable debates across the nation in the mainstream and vernacular media on the propriety of the governor’s actions, the following facts need to be understood before we embark on analysing what many believe is a grave error of judgement.

Here are the facts: The governor is appointed as the executive head of the state by the President of India. He is bound to function within the confines of the powers vested with him and the duties cast upon him by the Constitution and other legislation. The Election Commission has tabulated the results of the just-concluded Assembly elections and submitted a detailed list of 222 candidates, who have been elected from all political parties. The list included the names and signatures of 104 BJP candidates, 78 from the Indian National Congress and 38 from the Janata Dal (Secular) party, along with two Independent candidates.

On May 16, the BJP leader, B. S. Yeddyurappa (the newly-appointed chief minister), reached the office of the governor and staked claim for the post of chief minister, even though the BJP, at 104 seats, was short of eight seats for a simple majority. He asked the governor for 10 days’ time to prove his majority. On the very same day, the JD(S) and Congress met the governor and staked their claim to form a coalition government and submitted the names of 118 candidates from both the parties as well as two Independent candidates.

Having received the list of elected legislators from the Election Commission and having acknowledged the receipt of claims made by the BJP and the JDS-Congress alliance, the governor was duty-bound to invite JD(S) leader H.D. Kumaraswamy to form the government and prove his strength on the floor of the House.

It is settled in law that when the elections are inconclusive to the extent of there being no clear majority by any given political party, the governor has to offer the opportunity to the leader of that party which has the largest number of candidates with him. The second option is that he should invite the party which through any pre-poll or post-poll alliance or from outside support demonstrates sufficient numbers on its side to form the government. The constitutional convention of inviting the single largest party in the case of a fractured mandate has been outlined by the Sarkaria Commission recommendations, which were affirmed by a Supreme Court Constitution Bench in Rameshwar Prasad vs Union of India in 2005. The question, therefore, is whether the governor exercised his discretion while inviting the BJP to form the government despite the fact that the party did not have the required numbers to do so? He should have invited the party or the group that had demonstrated a simple majority and should have directed them to prove the same on the floor of the House. The Constitution does not allow for arbitrary exercise of discretion by the state executive. Discretion should be just and on the basis of facts presented.

With the apparent bias in exercise of discretion in favour of Mr Yeddyurappa, the governor has demonstrated that he has little or no respect for the rule of law. He has given room for the BJP to improve its number tally by attempting to break the Congress Party or the JD(S) and the same cannot be done without horse-trading, which is an offence. All of us in Karnataka are well aware of the shameless horse-trading in the name of “Operation Lotus” that happened after the 2008 elections. The governor seems to be a willing party for Operation Lotus redux.

The Supreme Court’s judgments in S.R. Bommai vs Union of India (1994) and Rameshwar Prasad vs Union of India (2006) have dealt with such situations. In both the cases, the court laid down detailed guidelines to be followed by the governor and the Centre in the case of a fractured mandate.

In the S.R. Bommai case, the Supreme Court dealt with the case of dismissal of six state governments — in Karnataka, Meghalaya, Nagaland, Madhya Pradesh, Himachal Pradesh and Rajasthan. The cases of Karnataka, Meghalaya and Nagaland were similar in that in all these states the incumbent governments were dismissed and President’s Rule was imposed on the basis of the governors’ satisfaction that the governments had lost majority support in the respective Assemblies, without giving them an opportunity for a floor test. The court held the proclamation of President’s Rule in these states unconstitutional because in each of these states, the governor had hastily recommended exercise of power under Article 356.

The question before us all as the Supreme Court reconvenes for a hearing today (Friday) based on the midnight petition submitted by the Congress, is whether there will be judicial course correction which curtails room for such horse-trading and the matter of who rules Karnataka is decided on a fair and equitable basis.

The media clamour over conflicting views of legal luminaries, on the face of it, is not only political but also an expression of their biases. There’s a need to stop feeding the public with false information and advancing politically biased legal opinions. It is time that the Supreme Court took note of it and stamped out such abuse of power.

There’s an old saying in Kannada: “One who challenges another for a round of wrestling, must enter the ring with at least a loincloth on him.” The degree of shamelessness with which the Karnataka post-poll drama is being played is like the wrestler who entered the ring improperly clothed.