SC does
well to circumscribe Karnataka governor. It must define boundaries of
gubernatorial discretion
The present events in Karnataka poignantly demonstrate
what has been repeatedly shown in Independent India’s history.
Source:
indianexpress
Written by UPENDRA BAXI | Published:
May 18, 2018 11:59:35 pm
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.
The
writer is professor of law, University of Warwick, and former vice chancellor
of Universities of South Gujarat and Delhi
