To Avoid Future Karnatakas, the Supreme Court Must Lay Down Clear Principles

In choosing a chief minister, governors must not give credence to a party whose only means of assembling a majority is to employ foul means.

After the Karnataka elections, democracy died no sooner it was born. The election itself was full of demagogic politics. Narendra Modi wanted to cross the Vindhyas to conquer the south in the right royal tradition of Aurangzeb, championing the cause of a ‘Congress mukt Bharat’ and aiming to smash the principal opposition party to oblivion.

The 2013 result had been especially disappointing for the Bharatiya Janata Party in terms of vote share and seats. The Modi juggernaut wanted total victory but its blitzkrieg failed. The Congress won the highest vote share – 38% to the BJP’s 36.2% and the Janata Dal (Secular)’s 18.3%. And though the BJP won 104 seats to the Congress’s 78 and JD(S)’s 37, simple maths would show the Congress and JD(S), with a combined 56.3% vote share and 115 seats, had the backing of an absolute majority.

Governors as party hacks

Having failed on all fronts, the BJP turned to its governor to deliver victory. Governor Vajubhai Vala is a party man in every sense. With an RSS background, he joined the Jan Sangh in 1971 and was a BJP minster in Gujarat for 15 years. No one  really expected him to be fair. Not after the experience of Goa and Manipur last year.

In Goa, governor Mridula Sinha twisted facts by calling the largest coalition ahead of the Congress, which was the largest party. The BJP had only 13 seats in a 40-member assembly. In Manipur, the governor was Najma Heptulla – formerly from the Congress but now a convert to Hindutva and anxious for gubernatorial office. The BJP had 21 seats to the Congress’s 28 in the 60 seat assembly. Poaching started left right and centre.  The BJP does not believe in opposition, only victory. And to win, the BJP in both those states enunciated the principle that the largest post-poll alliance should be called to form the government. In Karnataka, it argued the reverse.

The model governor

After the constitution makers abandoned the idea of an elected governor, a call was made for distinguished but neutral governors. The Bhagwan Sahay committee (1972) and Sarkaria commission (1988) deprecated the policy of ‘hire-and-fire’ governors and echoed the constituent assembly’s criteria of eminence – insisting that such a person should not have taken too great a part in politics.

The Venkatachalaiah commission (2002) and Punchhi commission (2010) were compelled to recognise that governors had all but wrecked the constitution. Modi changed all governors in 2014 except N.N. Vohra (Jammu and Kashmir), E.S.L. Narasimhan (Andhra) and S.C. Jamir (Odisha). It should not surprise us that Kalyan Singh – found in contempt by the Supreme Court for the Babri Masjid demolition – was made governor of Rajasthan. Tripura’s governor, Tathagata Roy, uses Twitter to promote Hindutva in the BJP’s cause. The less said of J.P. Rajkhowa and K.K. Paul – who as governors of Arunachal Pradesh and Uttarakhand, respectively, imposed President’s rule – the better.

Modi’s governors are party hacks. Governors should go though “confirmation” hearings after consultation. This is a question of principle even if it is true that the rot set in with the Congress. Modi has broken all bounds and expects the ‘payback’ he got in Karnataka and elsewhere.

The governor’s powers

During the Karnataka controversy, one commentator, Subhash Kashyap, said that in selecting a chief minister, the governor has “absolute discretion”. Soli Sorabjee, who was Atal Bihari Vajpayee’s attorney general and much criticised because he did a volte face on his stand in the Babri Masjid matter in favour of BJP, thought that the BJP should be called as the largest party. Others said the governor’s decision was based on the Sarkaria commission.

These views defy logic when it is clear that the BJP could not possibly have won a confidence vote through honest means.

According to Sorabjee, instances are not precedents. But that does not mean that principles do not exist. Ultimately, the governor has to care about three principles: (i) the electoral result based on each candidate’s tryst with the electorate must not be upturned by the MLA switching sides; (ii) the party or combination that forms the government must be stable; and (iii) defections of any kind must not be encouraged.

These principles are to be found in the report of the Bhagwan Sahay committee (1972), which was appalled by defections. The Sarkaria commission was clear that the party or combination which commands the widest support should be called. The Venkatachalaiah commission saw greater salience in pre-poll alliances but post poll alliances (other than those produced by defections) were not improper if the single largest party could not provide stability. The Punchhi report on federal relations wanted guidelines. President K.R. Narayanan and A.P.J. Abdul Kalam were rigorous in verifying the support claimed, and gave priority to the stability factor and the need to avoid cheating the electorate.

In Karnataka, the governor had a letter from the Congress-JD(S) coalition which clearly proved that the BJP did not have the numbers and would be defeated. His decision to invite B.S. Yeddyurappa was wrong in two respects. First, he should not have called the BJP if he was aware that in the face of the Congress-JD(S) post poll alliance, there was no possibility of its government surviving. This was the mistake President Shankar Dayal Sharma made in 1996 in  inviting Vajpayee’s BJP, which collapsed in the Lok Sabha after 13 days. Second, he gave the BJP 15 days to cobble together a majority. This could only mean inviting deceit – i.e. engineering defections.

Voters cannot be cheated by MLAs abandoning the party affiliations on which they stood for election. The spectacle that followed Vala’s decision to swear in Yeddyurappa reminds us of the lengths to which parties have to go to protect electoral integrity. Congress MLAs were herded to a resort. The JD(S) was closeted elsewhere. Missing MLAs were considered potential defectors. Voting in the assembly contrary to party whip would lead to potential disqualification but could be compensated in other ways: crores of rupees, and good news from the Enforcement Directorate.

Supreme Court steps in

The Congress approached the Supreme Court which held a pre-dawn hearing. A controversy was later raised by the former attorney general Mukul Rohatgi that such hearings should not take place in cases where the order was reversible by the court later. The argument is specious. It is for the Chief Justice of India to decide the importance of the issue, which he did at 1.15 a.m. Congress counsel Abhishek Singhvi was obviously right in saying at the hearing that if he had waited, he would have been accused of coming too late; and if early that it was too early.

At the first hearing, the Supreme Court broadly decided that: (i) the petitions needed to be heard; (ii) the swearing in would not be disturbed but subject to the petition’s result in court; (iii) the attorney general and Yeddyurappa would collect all the material from the governor and produce them on May 18.

Contrast this with Justice J.S. Khehar in the Goa imbroglio impatiently asking the Congress legislator who had come to court to go to the governor. This was absurd because it was the governor’s actions that he was challenging.

On May 18, the Supreme Court narrowed in on the need to advance the date of the confidence vote because the governor’s 15-day latitude was an invitation to horse trading. For the BJP, Rohatgi argued for time over the weekend. The court was adamant that the confidence vote be held the next day (May 19) under a pro tem speaker appointed by the governor. Such decisiveness by the Court was commendable, but allowing the governor to appoint the pro tem speaker proved a problem. Instead of following convention to appoint the oldest member (R.V. Deshpande), the governor appointed the controversial K.G. Bopaiah, who as speaker in 2010 disqualified 11 BJP MLA’s to protect Yeddyurappa. His conduct elicited a condemnation by the Supreme Court as being “partisan” and violative of “natural justice and fair play”. Naturally, the Congress petitioned the Supreme Court over Bopaiah’s appointment. In the ensuing emergency hearing, the court  felt that no decision could be taken without hearing Bopaiah first. Since the Congress was unequivocal that the trust motion take place on that day itself at 4:00 p.m. as indicated by the Supreme Court, it dropped the speaker issue.

On May 19, the Congress and JD(S) MLAs trooped back for the swearing in and confidence vote. Realising he didn’t have the numbers, Yeddyurappa announced his resignation. The Congress had earlier flaunted unauthenticated audio tapes of the BJP (including Yeddyurappa) importuning Congress MLAs. Yeddyurappa himself suggested the BJP had hoped MLAs from the other side would cross over on the basis of their “conscience”. As if that could be an excuse for them cheating by giving up on the affiliation on which they won their election.

Now the Congress-JD(S) will stake their claim. The governor ought not to insist on a confidence motion. If the BJP wants to table a no-confidence motion to horse trade, that would be blot on its record. It is important that Modi’s government treat the incoming H.D. Kumaraswamy government in Bangalore with fairness and respect.

What is to be done?

In the first place, governors must be screened by the Rajya Sabha according to principles laid down by the court. This has become necessary. Secondly, principles have to be laid down by the Supreme Court on this entire area. In Rameshwar Prasad (2006), the Supreme Court said that it could go into whether the governor’s report was based on relevant material and made in a bona fide manner when looking at the imposition of President’s rule – following in this regard Bommai’s case of 1993. In choosing a chief minister, governors must not give credence to a party whose only means of assembling a majority is to employ foul means.

During the May 18 hearing, the Supreme Court bench described as “preposterous”  the attorney general’s view that the anti-defection law did not apply in the interregnum before an MLA is sworn in. We must surmise that even though the anti-defection law technically did not apply, the principle of not cheating the electorate did. As we move forward, therefore, it should be made clear that it is contrary to constitutional principles for an elected MP or MLA to switch sides before swearing in. Nothing would be left of electoral democracy if individual MLAs/MPs subvert the platform they were elected on.

The Supreme Court now has an opportunity to lay down principles which have evaded the polity so far and permitted constitutional abuse. The Karnataka case should not be declared infructuous but heard threadbare for the future, as the judges of the Supreme Court intend to do. Normally, it should not require a Supreme Court to do this. But in India it has to, because the integrity of electoral democracy is at stake.

Rajeev Dhavan is a senior advocate in the Supreme Court of India