Dharma is subtle, yet not so fluid that it can be interpreted as per convenience. The principle of dharma is ever realisable and ever verifiable. The Karnataka Raj Bhavan, by discrediting constitutional propriety and past precedents to facilitate the leader of a numerically-minority party to take oath as chief minister, has buried the constitution of India.
Karnataka governor Vajubhai Vala was legally and morally wrong in inviting the BJP to form the government in one of the biggest states of India. He was legally incorrect because democracy rests on the principle of majority. So by negating the majority and deceitfully helping the minority BJP, the governor violated the principle of constitutional propriety. Despite having the majority and staking claim, the post-poll Congress-JD(S) alliance was deliberately not allowed to form the government. The figures belie the decision of the governor.
The constitution does not provide any specific guidelines to the governor for the appointment of the chief minister where no single party has the majority to form the government. But in such cases, we have Supreme Court directives and precedents that should guide the conscience, conduct and discretion of the governor. The discretion has to be exercised within the limits of the law.
Secondly, while exercising his discretionary powers, he should be judicious, act impartial and display a sense of fair play. His subjective satisfaction should have an objective basis and in a case like Karnataka, where an alliance has the explicit majority, the question of ambiguity and personal satisfaction does not arise.
The governor, by deliberating ignoring these facts, made a mockery of the constitution. Under Article 159 of the constitution, the governor is required to faithfully execute the office to preserve, protect and defend the constitution and the law. The Karnataka governor failed to perform his raj dharma; he had earlier sacrificed his seat for Modi in Gujarat and now, he has sacrificed the constitution for him. Morality is not the doctrine of how good we preach, rather how righteous we conduct and make ourselves to be worthy of it.
The Supreme Court in S.R. Bommai and Rameshwar Prasad has fine-tuned the guidelines for governors to deal with Karnataka-like situations. In the Rameshwar Prasad case in 2006, the apex court had made it clear that if a political party, with the support of another political party or other MLAs, stakes claim to form a government and satisfies the governor about its majority (the phrase that needs to be highlighted) to form a stable government, the governor cannot refuse formation of government and override the majority claim.
Further, there is the recent judgement in the Goa case. The BJP had won only 13 of the 40 seats in the 2017 Goa assembly elections. The Congress emerged as the single largest party with 17 seats. In this case, the Supreme Court observed: “when no political party is in majority, then it is the bounden duty of the governor to see who can form the government. If nothing happens, then the governor is duty-bound to call the leader of the single largest party but if someone goes to the Governor with a list of supporters, then it is a different issue altogether”. There cannot be two constitutions – one applicable to Goa, Manipur and Meghalaya and another for Karnataka.
The Supreme Court, by reducing the window period of 15 days given by the governor for the floor test, has lessened the chance of horse-trading by the BJP. The minority government will meet its fate on the floor of the House.
However, for the future, we need to introspect on the discretionary powers of the governor. Gone are the days when ethics and morality used to guide the conscience keepers. Role of governor vis-a-vis Article 164 of the constitution needs to be revisited and the powers of the governor to appoint chief minister should be codified through constitution amendment. Who should be invited to form the government and what should be the order of preference should be clearly spelt out to ensure a healthy democratic order.
Jaiveer Shergill is a Supreme Court lawyer and national media panelist, the Indian National Congress. The views expressed are personal.