Just like Bihar, Guv

Defections are highly objectionable and have been dealt with in the Tenth Schedule to the Constitution and should be stringently curbed. But neither the possibility of defections nor horse-trading, the bane of Indian politics, is a legally permissible ground either for imposing President8217;s rule or for dissolution of a state assembly. A full bench of the Karnataka high court relied upon horse-trading, which was mentioned in the governor8217;s report to justify President8217;s rule, dismissal of Bommai8217;s government and dissolution of the assembly in Karnataka. The Supreme Court in its judgment in S. Bommai disagreed and overruled the high court.

In its subsequent judgment in the Bihar assembly dissolution case, the Supreme Court ruled that minority governments are not unknown. It further observed as follows: 8220;It is also not unknown that despite various differences of perception, the party, group or MLAs may still not opt to take a step which may lead to the fall of the government for various reasons, including their being not prepared to face elections. These and many other imponderables can result in MLAs belonging to even different political parties to come together. It does not necessarily lead to assumption of allurement and horse-trading8221; emphasis supplied.

The Supreme Court further categorically ruled that 8220;if a political party with the support of other political party or other MLAs satisfies the governor about its majority to form a stable government, the governor cannot refuse formation of the government because of his subjective assessment that the majority was cobbled by illegal and unethical means of horse-trading and allurements. No such power has been vested with the governor. Such a power would be against the democratic principles of majority rule. The 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.8221;

These principles enunciated by the Supreme Court are clearly overlooked by spokespersons of certain political parties who harp on horse-trading and cobbling of majority by unethical means. Obviously these statements proceed upon the legal misconception of the factors to be taken into account by the governor in formation of a government.

At present the Karnataka assembly has been kept in suspended animation. One of the reasons for keeping an assembly in suspended animation is, as explained by Justice Jeevan Reddy in Bommai8217;s case, to ensure that imposition of President8217;s rule does not result in absolute dismissal of the assembly 8220;in the sense of physical death of a living being8221;. Keeping the assembly in suspended animation does not preclude the President from restoring the government by revoking the proclamation. Consequently in the present context in Karnataka where there is prima facie a clear majority of MLAs supporting B.S. Yeddyurappa8217;s claim to form a government, the proper course would be to revoke the proclamation imposing president8217;s rule, invite the leader of a party or combination of parties which has the requisite numerical strength to form the government and ask him or her to substantiate the claim by a vote of confidence on the floor of the House within a reasonable period of 10 to 14 days. If the confidence motion fails and thereafter despite sincere and best efforts by the governor to form an alternative government it is impossible to do so, then as a last resort the Assembly may be dissolved and early elections ordered.

What is of the utmost importance is that in these matters the governor must act independently, impartially and apply his own mind without seeking directions from the Centre or guidance from any political party or political functionary, however important or dominating. It is true that the governor can be removed by the Centre. But it must always be remembered that the governor is not the servant of the Centre. A Constitution Bench of the Supreme Court in Hargovind Pant8217;s case unanimously and categorically ruled that the governor cannot be regarded as an employee or servant of the Government of India. The Supreme Court further observed, 8220;it is impossible to hold that the governor is under the control of the Government of India. He is not amenable to the directions of the Government of India, nor is he accountable to them for the manner in which he carries out his functions and duties. His is an independent constitutional office which is not subject to the control of the Government of India8221;.

Proper discharge by the governor of his constitutional role in the bizarre political twists and turns in Karnataka is essential for proper maintenance of Centre-state relations. The office of the governor is an important political institution. John Stuart Mill reminds us that 8220;political institutions are the work of men; owe their origin and their whole existence to human will. In every stage of their existence they are made what they are by human voluntary agency8221;.

Rejection by the governor of Yeddyurappa8217;s claim to form the government on the ground that majority has been cobbled by foul and unethical means, like horse-trading and allurements, would be unconstitutional. Indeed, such a decision would be contrary to the Supreme Court8217;s aforesaid authoritative ruling in the Bihar assembly dissolution case. Besides, it would be a fatal blow to the federal fabric of our Constitution which at all costs should be avoided.

The writer is a former attorney-general for India