Fali Nariman on Karnataka floor test: Thank God for the Supreme Court

The eminent jurist talks to Kaunain Sheriff M on SC’s role in Karnataka crisis and Opposition’s bid to impeach CJI Dipak Misra.

Written by Kaunain Sheriff M | Updated: May 21, 2018 6:48:49 am
Fali Nariman on Karnataka floor test: Thank God for the Supreme Court Senior jurist Fali Nariman (Source: Express Photo/Tashi Tobgyal/File)

In the backdrop of the recent political crisis that unfolded in Karnataka due to the hung verdict, what do you think of the Supreme Court’s decision to order a floor test?

The headline should be: ‘Thank God for the Supreme Court’! The now-famous floor-test case is the result of two orders passed by a three-judge bench of the Supreme Court in February 1998 — reported in (1999) 9 SCC 95 (Chief Justice Punchhi, S.C. Agrawal and K.T. Thomas JJ.) Wise orders, rightly giving no reasons but only stating the following:

Order dated 24.2.1998
1. “We have heard learned counsel for the petitioner. We also heard the learned counsel for caveators. On hearing them, the order which commends to us is as follows:
(i) A special session of the Uttar Pradesh Assembly be summoned/ convened for 26-2-1998, the session commencing forenoon.
(ii) The only agenda in the Assembly would be to have a composite floor test between the contending parties in order to see which out of the two contesting claimants of Chief Ministership has a majority in the House

2. “The result is expected to be laid before us 27-2-1998 at 10.30 a.m. when the Bench assembles again.

Order dated 27-2-1998
1. We stand informed through the statements made at the Bar as also through the fax communication from the Speaker, U.P. Assembly that the composite floor test, in strict compliance of our order dated 24-2-1998 did take place orderly and peacefully and as a result thereof 225 votes were secured by Shri Kalyan Singh and 196 votes by Shri Jagdambika Pal, claimants in rivalry to the Chief Ministership of the State. This position concededly has emerged as of late.

“…In view of these developments, the impugned interim order of the High Court in putting Shri Kalyan Singh in position as Chief Minister should be and is, hereby, made absolute subject of-course to Democratic process. Shri Kalyan Singh had at a point of time offered to the Governor facing floor-test which was declined. On his dismissal his rival on being sworn in as the Chief Minister was required to undergo the floor-test in a time frame. We have facilitated both in one go. Both have had their measure of strength. In these circumstances, keeping any attendant issues alive in the form of the writ petition before the High Court would now be not conducive to political peace and tranquility, as also overall harmony.”

These two orders, though over 20 years old, have stood the test of time. They emphasise the supreme need for the Supreme Court of India to decide finally all matters pertaining to elections to Parliament and to legislative assemblies! — “matters” that present all manner of doubts and difficulties.

In recent times, the Supreme Court itself has looked vulnerable due to divisions within. In this context, how do you see the pre-dawn hearing of May 16-17?

The “vulnerability” of the Supreme Court is a passing phenomenon. The Supreme Court is always greater, and far more stable, than the individual judges who presently sit in it! In the present case, the Court has emphasised legality, and has upheld constitutionalism and the requirement of foreseeably-lasting and stable government after an election.

Karnataka Governor Vajubhai Vala’s role in the granting 15 days to BJP’s B S Yeddyurappa to face a floor test has given rise to questions about the discretion of the Governor. In your opinion, did the Governor exercise his discretion after proper application of mind to the facts and circumstances in the present case?

There can be no doubt about, nor any disturbance of, the discretion of a Governor because every Governor when assuming office is required to take an oath of office (Article 159) that he will “faithfully discharge the functions” of the Governor of the State. The problem has been that often Governors — who are under the Constitution appointed by the Central government — are sometimes men/ women-of-straw, and regard themselves as holding office on behalf of the political party in power at the Centre and act accordingly.

Although in the present case, the Governor had the option of inviting as Chief Minister the leader of the single largest party, he failed to take into account the combined seats secured by the two political parties on behalf of whom the leader of one of them [JD (S)] had promptly staked his claim as Chief Minister immediately after the result of the elections were announced.

As such, the answer to your question is that the Governor did not exercise his discretion after proper application of mind “to the facts and circumstances of the present case”.

The Congress has hailed the interim verdict of the three-judge bench comprising Justices A K Sikri, S A Bobde and Ashok Bhushan as “historic”. But the same party had crossed swords with the five-judge Constitution bench headed by Justice Sikri which was hearing the impeachment petition. Do you think the Congress’s decision to move the impeachment motion against Chief Justice Dipak Misra was a bad precedent?

Members of political parties in India are often like schoolboys still in school: excitable, volatile and never consistent! My own view is that the attack on the judiciary by the Congress party by moving and pressing the impeachment motion against the Chief Justice of India was wholly ill-advised and has set a totally bad precedent. As I had told one of the advocates who favoured “removal” — ‘for the impeachment of a Chief Justice you must shoot-to-kill, otherwise you only cause hurt to the institution of the Chief Justice and damage, almost irreparably, the Supreme Court of India!’

Besides, the unilateral withdrawal by the writ petitioners of the Writ petition in the Supreme Court (filed against the order of the Chairman of the Rajya Sabha refusing to admit the impeachment motion) speaks volumes of how ill-advised was the impeachment motion, and what a bad precedent it has established!

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