The present uses to which the Constitution is put remain bewildering to a lay citizen. Bommai v Union of India (1994) held explicitly that in situations where there is a hung assembly (where no political party has obtained a clear majority of seats), the final decision rests not with the various feuding parties but with the concerned legislature through a “floor” test (voting on a confidence vote. This means that the governor’s discretion is always a triggering act that enables the legislature to decide the matter. The gubernatorial discretion is an aspect of trusteeship; the final powers vest with the concerned legislature. But it may not be used to defeat or to deny the constitutional provisions like that of anti-defection in the Tenth Schedule.
Constitutional “good faith” requires an “informed” act of discretion resting on “sound basis,” aiming to provide a “stable” government. Further, all three considerations have to be applied with (in President Abdul Kalam’s words echoing the Sarkaria Commission Report) a duty to “rise above day-to-day politics and override compulsions emanating from the central system or the state system” (regardless of a pre-poll or post-poll alliance).
Courts, commissions, and academic commentators have reiterated the pivotal role of governors in creating an expeditious floor test, within 48 hours or a week (though the maximum period is 15 days). But while impartiality is theoretically prescribed, it has always proved to be a difficult virtue. Governors are appointed on sheer political expediency; the courts remind them repeatedly of their constitutional position and role. But ultimately, it is the responsibility of legislatures to conduct themselves constitutionally. What can be said in favour of the decision taken by Vajubhai Vala? The chosen legal experts (whose names are not in the public domain) probably advised him that there were no fixed parameters for the exercise of discretionary powers. In addition, there were two diametrically opposed views that thrived on the cultivated confusion between “mandate” and the appropriate method of calling a “majority” party to form a government.
The mandate idea has been extensively discussed in Kesavananda and cannot be explored here but it is well known that a larger voting percentage share does not necessarily translate into a higher number of seats in our electoral system. What is relevant to the governor’s exercise of discretion is not the popular mandate but assignation of the prerogative to form the government to a single majority party. Precedents of gubernatorial discretion are varied, and the governor may decide according to each situation. However, it is settled that the floor test should be done expeditiously within 48 hours or a week. The outright grant of 15 days is an open invitation for “ideological realignment”— a term that conceals buying and selling of legislator’s party preferences. The governor, as it happens, did not check fully the evidence of prima facie majority, although he was aware that the post-poll coalition had 116 members against the claim of the BJP 104 seats. The BJP’s act of political hope that it will manage to rise somehow to the required majority from its 104 seats should have been closely examined to avoid the allegation that action was undertaken without due diligence.
The present events in Karnataka poignantly demonstrate what has been repeatedly shown in Independent India’s history. As Udai Raj Rai says, political institutions “work by natural play of political forces, and not by decorative, though irritating, discourses and platitudinous discussions”. In other words, what matters is the acquisition, distribution, exchange, and consumption of the power to rule, although it is dressed on all sides by appeals to democratic ideals and constitutional faith.
But the interpretation of norms and their development are judicial duties. Unlike political actors who pursue politics of interest, courts perform the politics of values (not what we desire but what we ought to). Power may conscript the values of the Constitution to its own ends, but constitutional courts do not act in self-interested ways. The trick consists in retooling the law and jurisprudence as an “enterprise” (to use Lon Fuller’s words); there is no guarantee that the enterprise will always succeed but is it a reason to altogether abandon the quest?
The late midnight sitting of the Supreme Court of India on May 16/17 suggested some grounds for hope. While declaring itself unable to stay the early morning swearing in of B S Yeddyurappa, the SC asked him to file an appearance and to share the two letters handed to the governor claiming majority for the BJP. It also described as “preposterous” the argument of the attorney general that the defection law “will not apply before the elected Member is sworn as an MLA”.
Continuing the hearing on May 18, the same Bench comprising Justices A K Sikri, S A Bobde and Ashok Bhushan, took the view that a floor test was the most “practical option” and overruling the Karnataka counsel, ordered a floor test on Saturday at 4 pm. The Court was also assured that no member of the Anglo-Indian community will be appointed for now and the pro tem speaker shall conduct the proceedings. Some controversy has already arisen on the choice of K G Bopaiah (not the seniormost member of the legislature) as pro term speaker. The substantive proceedings in the next 10 weeks will hopefully settle the nature and scope of gubernatorial discretion. The SC should also develop its powers of suggestive jurisprudence to reinforce the Sarkaria and Puncchi commission reports. It should resolutely negate the Law Commission draft white paper (from April 17, which recommends simultaneous elections to the Lok Sabha and the assemblies from 2019) which problematically suggests the relaxation of provisions of the Tenth Schedule in the case of a hung Parliament or assembly.
The Supreme Court’s revival of democracy will for long be applauded, and it must continue its quest to augment constitutional discipline, regardless of the political events today. To ensure an agenda of effective norms that arrest the abuse of discretion and power from all our political institutions is a Herculean task, but one that alone justifies judicial review powers.