Karnataka polls: As SC begins hearing BSY's claims to forming govt, here are key questions court will consider

The Supreme Court bench of Justices AK Sikri, SA Bobde and Ashok Bhushan has taken up the joint petition of Congress and JD(S) against Karnataka governor Vajubhai Vala's decision to invite BJP legislative party leader BS Yedyurappa to form government. The governor went by the convention of inviting the single largest party ignoring the claims of HD Kumaraswamy to form a government with the support and participation of the Congress.

The BJP notched up 104 MLAs and is short of eight MLAs for a simple majority. On the other hand, JD(S) demonstrated, to the governor and the public, that it has the support of 116 MLAs, four more than the simple majority required to win the vote of confidence. The Karnataka Assembly has 224 seats, so the majority figure should have been 113. However, polling was held only for 222 constituencies, because polling in two constituencies was put off to 20 May by the Election Commission. So the current majority figure is scaled down to 112.

File image of Supreme Court of India. PTI

So the question the Congress and JD(S) have raised and the Supreme Court will consider is this: If the JD(S)-Congress combine has already demonstrated that it has the ability to form a stable government (with 116 MLAs), why did the governor chose the BJP, which has, officially, only 104 MLAs in its corner? Where from and how did Yedyurappa assure the governor that he would muster eight or more MLAs to form a stable government? And more importantly, how was the governor convinced that Yedyurappa had the numbers? And that his claim to form a stable government was more worthy of consideration than Kumaraswamy's who already had 116?

This is the crux of the issue. That is why the Supreme Court had on Thursday asked to see the two letters that Yedyurappa wrote to the governor staking his claim to form a stable government. What the court wants to see, obviously, is if Yedyurappa mentioned that he had already cobbled up the numbers (112 or more).

Why the court wants to see this has its roots in the Sarkaria Commission report of 1984. While delineating the role of a governor in the event of the hung House (where no party gets a majority), the commission had set an order of priority for the governor to consider before inviting any party to form government. The order of merit, discussed in this article, looks like this:

1. An alliance of parties that was formed prior to elections.
2. The largest single party staking a claim to form the government with the support of others, including 'Independents'.
3. A post-electoral coalition of parties, with all the partners in the coalition joining the government.
4. A post-electoral alliance of parties, with some of the parties in the alliance forming government and the remaining parties, including 'Independents' supporting the government from outside.

In the present case, the first point does not apply. So the governor was right in calling the single largest party to form government, which is the second in order of priority. But that is, if we read the second priority only partly. The latter part of the sentence says "form government with the support of others, including Independents". What this means is that the largest party can lay claim but also show that it has enough numbers, that is the support of other MLAs, to form government.

That is also to say that the governor's discretion to call the largest party is conscripted by the need for him to assure himself that the person laying claim can indeed form a stable government.

This is what the Supreme Court is likely to put under scrutiny. If Yedyurappa just staked claim as the single largest party, without showing how he would be able to form a stable government, then the court might have a role to play. If the two letters that Yedyurappa wrote are silent on this aspect, then the question will arise: How did the governor convince himself that Yedyurappa could form a stable government. Because, at the other end, the Congress-JD(S) had already assured him of the numbers.

The case seems to rest on this. If the court is convinced from the two letters that the governor had enough reasons to believe that Yedyurappa could form a stable government, it is unlikely to interfere. If the court is not convinced, then it remains to be seen if orders a recall of the governors order or severely curtails the time given to Yedyurappa to prove his majority on the floor of the House.

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