Supreme Court’s directive means BS Yeddyurappa must hasten his buying of MLAs, but he may buy time instead

The Supreme Court's intervention in the political natak of Karnataka could mean, on the face of it, that BS Yeddyurappa, who was sworn in as BJP's chief minister on Thursday morning, must expedite his shopping for MLAs. That is if he hasn’t already finished with it already, which is unlikely. Buying up MLAs isn’t difficult but, even in India, it isn’t as easy as picking up tomatoes at the neighbourhood grocer.

In the 12 May Assembly election, the results of which were announced on 15 May, BJP won 104 seats, while the combined strength of post-election combination of Congress and Janata Dal (Secular) is 116. Governor Vajubhai Vala has ignored the claim of the JD(S) to form government with support of the Congress, presumably because it’s a post-poll alliance. Instead, Vala picked Yeddyurappa as chief minister, giving him 15 days to prove his majority.

Hearing a petition by the Congress-JD(S) combine on Thursday morning, the Supreme Court asked Yeddyurappa, hours before he took oath, to produce before it on Friday morning the letter he had given the governor to claim majority support.

This doesn’t mean Yeddyurappa must prove his majority in the Supreme Court on Friday: All the court has asked from him is his letter to the governor. This could, however, mean he may have to hasten the process of reaching the halfway mark in the Assembly because he has no clue as to what turn the case may take on Friday when the court will resume proceedings.

But, at this point, buying time is easier for the BJP than buying MLAs. The case could be dragged on longer by questions over the veracity of the claims Yeddyurappa made to the governor and, in that context, the 1994 ruling of the Supreme Court in the famous SR Bommai case becomes important. The verdict in this case, bandied about by politicians and lawyers as the ultimate in law in such cases, laid down that the floor of the Legislature was the only place where the majority or the lack of it of a chief minister must be tested. Procedural wrangles over what the BJP might paint as a judiciary-versus-governor row might also mar the case.

This situation arises because there are no rules laid down anywhere on how a governor must select a chief minister after elections and how much time he must have to prove his majority in case he doesn’t have enough seats.

A constitutional blackhole

Article 164(1) of the Constitution merely says:

The chief minister shall be appointed by the governor and the other ministers shall be appointed by the governor on the advice of the chief minister, and the ministers shall hold office during the pleasure of the governor...

The Constituent Assembly had considered and abandoned an "instrument of instructions" that would have, among other things, codified the role of governor in choosing a chief minister. But Dr BR Ambedkar, the architect of the Constitution, discarded the idea and favoured instead "conventions" to take shape.

Karnataka governor Vajubhai Vala greets newly sworn-in Karnataka chief minister BS Yeddyurappa. PTI

The "conventions" and "precedents" we now have are hardly of any use since the Congress, almost from the start, mauled, corrupted and politicised the institution of a governor in a way even the forefathers of the Constitution can’t recognise. Indira Gandhi reduced governors to rubber stamps, making them dance to her tune, dismissing state governments at will, denying parties the chance to rule when they could and dismissing chief ministers when it suited her. This moral and constitutional decay continues.

We now have precedents of past governors choosing chief ministers from pre-poll coalitions, post-poll alliances and single-largest parties with or without absolute majorities. Yeddyurappa belongs to the last class. You can pick the right precedent from the past to defend or trash the Karnataka governor’s action in inviting Yeddyurappa to form the government.

To quote the most recent examples, we had governors in Meghalaya (2018), Manipur (2017) and Goa (2017) ignoring the Congress, the single largest party, and inviting the BJP to form governments. After the 2013 Delhi elections, AAP formed the government with outside support from the Congress, even though BJP was the single largest party. After the 2014 Maharashtra elections, the single largest party (BJP) formed government.

In Karnataka itself, the ruling Congress was voted out in the 2004 polls and the BJP emerged as the single-largest party. But Congress formed government in alliance with the JD(S). Examples of all kinds are endless.

Method to the madness

It was first the Sarkaria Commission on Centre-state relations, set up in 1983, that first sought to bring some method to the madness. Para 4.11.04 of its report, submitted in 1988, refers to situations where no single party has a majority and lists the order of preference that a governor must follow in selecting a chief minister in such cases. The order is:

1. An alliance of parties that was formed prior to the 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 a government and the remaining parties, including "Independents" supporting the government from outside.

While the ruling in the 1994 Bommai case limited the venue of testing a chief minister’s majority to the floor of the Assembly, the 2006 verdict by five-judge bench of the Supreme Court headed by Chief Justice YK Sabharwal in the Rameshwar Prasad case went a step ahead. It said:

"If a political party with the support of other political party or other MLA's stakes claim to form a government and satisfies the governor about its majority to form a stable government, the governor cannot refuse formation of 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. Such a power would be against the democratic principles of majority rule. Governor is not an autocratic political ombudsman. If such a power is vested in the governor and/or the president, the consequences can be horrendous."

"For the last few years, formation of government by a party having a majority has become rare. Therefore, the coalition governments are in place in several states and in fact at the Centre. There is nothing wrong in post poll adjustments and when ideological similarity weighs with any political party to support another political party though there was no pre-poll alliance, there is nothing wrong in it."

Will the Supreme Court apply this 2006 verdict to the latest Yeddyurappa case? Or will it decide to let off Vala, respecting the so-called discretionary powers that a governor is said to enjoy? The verdict of the three-judge bench will answer these questions, unless Yeddyurappa, in the mean time, proves his majority somehow, giving the whole drama yet another twist.

The author tweets @sprasadindia

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