What a governor must do

Kapil Sibal writes: Supreme Court must now address itself to protecting the institution from political machinations.

Written by Kapil Sibal | Updated: May 22, 2018 8:36:42 am
Karnataka elections: yeddyurappa resigns, jdu-congress to form government The BJP, with only 104, could not have manufactured a majority except through dubious means. (File)

Had the governor played by the rules, the nation would have been saved an unsavoury spectacle. There was no doubt that the post-poll Congress-JD(S) alliance had the numbers. The BJP, with only 104, could not have manufactured a majority except through dubious means. In such situations, it is important for constitutional authorities to act in accordance with their oath of office and preserve and protect the Constitution rather than act in a blatantly partisan manner.

Let us examine the fall-out of the decision of the governor transgressing constitutional norms. First, governors are consistently being seen as the long arm of the Narendra Modi-Amit Shah axis, whether in Goa, Manipur or Meghalaya and earlier in Arunachal Pradesh and Uttarakhand. Governors are playing to the tune of the Pied Piper in New Delhi. The institution of governor has become suspect. Second and perhaps more serious is the impact of such existential playouts on the common man. People understand the nature of electoral politics. But when they see institutions being consistently devalued, they start losing faith not only in the institutions and those who occupy them, but also in democracy. That is truly worrisome.

The third element of concern is the manner in which the governor decided to administer the oath of office on May 17 to B S Yeddyurappa and to later prove his majority on the floor of the Assembly. That decision was taken late on Wednesday evening. The governor knew that the Congress-JD(S) alliance was likely to challenge the order and that by fixing the swearing-in at 9 am the next morning, it was highly unlikely for the court to give a hearing in the intervening period. Luckily, the Chief Justice of India was gracious enough to grant a hearing. That window of opportunity gave the Congress-JD(S) alliance some hope that the battle could still be won.

The court was confronted with the decision of the governor to swear in Yeddyurappa the next morning and ask him to prove his majority on the floor of the Assembly within 15 days. This was an invitation to the BJP to carry out political poaching. The court was aware that the Congress-JD(S) alliance, pursuant to the notifications issued by the Election Commission of India, had within its fold 116 MLAs with the support of an independent, taking the tally to 117.

The decision of the governor, therefore, to swear in Yeddyurappa could not have been based on numbers. The court should then have considered as to why Yeddyurappa was favoured in preference to an alliance which clearly had majority support in the Assembly. The letter to the governor by Yeddyurappa on May 15 was not before the court. It was clear that there was nothing on record to show that Yeddyurappa could claim support of any of the MLAs belonging to the Congress-JD(S) alliance. In these circumstances, it is settled law that the governor should not have invited Yeddyurappa and instead invited H D Kumaraswamy, leader of the JD(S), to form the government since the Congress had on May 15 written to the governor extending support to the JD(S).

On the 15th evening, a communication had been sent by the JD(S) as well as the Congress party to the governor along with signatures of all the MLAs, barring two, extending their support to the leadership of Kumaraswamy. These communications were on record. Despite these facts, the court declined to stay the order of the governor on the basis that he was not represented and that no such order could be passed in his absence. Whether such an order could have been passed or not is now history.

But the consequences of not granting stay of the order of the governor inviting Yeddyurappa were somewhat serious. The order of the governor in the light of the statement of the prime minister — “Sarkar toh hamaari hi banegi (It is only our government which will be formed)” — was a clear indication that the governor was on his side and was doing his bidding and that by all means, fair or foul, the BJP will install its government in Karnataka. This only meant that the message from the party leadership, with Amit Shah waxing eloquent in Karnataka, the Bellary brothers at work, allegedly keeping a couple of MLAs of the Congress-JD(S) alliance in captivity, was that all means would be adopted to manufacture a majority.

Had the BJP got a majority, what would have happened? The court would have been presented with a fait accompli of a government firmly in the saddle: A government born with taint but clothed with legality. It would have been impossible to render a judicial verdict holding such a formation to be unconstitutional. Corruption, illegality and impropriety, all put together, would have triumphed and the court would not have been able to dislodge the government. Not granting a stay gave an impetus to use illegal means to manufacture a majority. It goes to the credit of the Congress and the JD(S) that they were able to keep their flock together. The two who were allegedly captive came back home.

Perhaps the watchful eye of the Supreme Court made all the difference along with its sagacious decision to order a floor test on May 19 almost eliminating the scope of political poaching. Public view of the assembly proceedings made the taking of the trust vote transparent.

There are two lessons to be learnt. First, that the institution of the governor must be protected from the machinations of political parties. Two, that the Supreme Court must, once and for all, give a clear verdict on the role of the governors in such situations. When next the curtain rises after another assembly election, the country should not be witness again to the destruction of constitutional values, the protection of which alone is of seminal importance. In an era of declining political morality, constitutional values are under siege. As in this case, the courts must be ever vigilant.

The writer, a former Union minister, is a senior Congress leader

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