by May 19, 2018 0 comments

SC STEPS INApex court’s decision to direct an immediate floor test in the Karnataka Assembly is welcome

The electorate of Karnataka may have spoken on 12 May and votes for the State Assembly counted on 15 May but it has taken the intervention of the Supreme Court to ensure the will of the people is translated into a representative Government, whatever its political color, which commands a majority in the House after a floor test. Whatever the outcome of the confidence/no-confidence motion later today, the fact that it needed the highest court in the land to state the obvious and direct an expeditious beginning to the process of government-formation in light of a fractured verdict is both a reason for celebration and a cause of concern. The former because it is clear that what was effectively a 15-day window for horse-trading provided to Chief Minister BS Yeddyurappa to prove his majority on the floor of the House by Governor Vajubhai Vala was, not too put too fine a point on it, ethically untenable. The latter because partisan decisions by Governors of States, a hoary tradition started and perfected by the Congress Party, it must be said, means that the executive will end up creating a national consensus and popular sentiment in favor of the need for judicial intervention to protect our democratic traditions, which would be the end of the concept of the separation of powers. In the present case, however, there was really no choice for the Court but to intervene. The all-night hearing by a three-judge Bench of the Supreme Court which ended on Thursday morning and the interim order it passed when it reconvened on Friday morning on a writ petition challenging the decision of the Governor of Karnataka to invite the BJP’s Yeddyurappa as leader of the single largest party but shy of the majority-mark and not the post-poll Congress-JDS alliance which at least on paper had the numbers, was very apt. The Bench began by decoupling the issue of the validity, legality and constitutionality of the Governor’s decision from the immediate need to prevent a miscarriage of democracy which may have been the end result of his decision to allow Yeddyurappa 15 days to prove his majority. The issue of what the Governor’s powers are and how far they are open to judicial review will now be taken up after ten weeks when the Court reopens after the summer vacation. The hope is that a larger Bench will take up the issue and, if it thinks fits, lay down fixed procedures and delineate clearly the functions of the Governor that may curtail his/her discretion in certain circumstances, just as has been done by the apex court regarding the role of the Speaker of a legislature.

The substantive portion of the Supreme Court’s interim order which directed an immediate floor test to test the claims of both sides ought to be an abiding embarrassment for the legal advisors consulted by the Governor. The 15-day window granted by the Governor was shut firmly and just over 24 hours granted for the floor test scheduled for 4 p.m. today. Yeddyurappa, who was sworn-in by the Governor on Thursday morning as Chief Minister, was restrained from taking any policy decision till the completion of the floor test. The nomination of an Anglo-Indian member to the Vidhan Soudha, who has voting rights, by the Governor on the recommendation of the day-old BJP Chief Minister was scrapped. The Director-General of Police, Karnataka, was asked to provide full security to all MLAs so that they floor test could be conducted in a free and fair manner. Then there was the contention of the Karnataka Chief Minister’s counsel that the MLAs-elect, all with certificates from the Election Commission, could not be considered to be defectors attracting the provisions of the Anti-Defection law if they switched sides on the technicality that they were yet to be sworn-in which was dismissed as “preposterous” by the Bench head by Justice AK Sikri and comprising Justice SA Bobde and Justice Ashok Bhushan. Similarly, a highly unusual submission — that the Court direct the floor test be conducted by secret ballot — was held to be untenable. Last but not least, the Court directed that the pro-tem Speaker, usually the senior-most legislator, be appointed by the Governor to administer the oath of office to the legislators and immediately upon the conclusion of the same conduct the floor test. And herein is another row in the making given the choice of pro-tem Speaker, BJP MLA and Yeddyurappa confidante KG Bopaiah. As a former Speaker of the House, he had come in for sharp criticism from the Supreme Court for, ironically, his disqualification of 11 BJP MLAs in May 2011 when the current Chief Minister’s earlier term in office was unraveling. The Congress-JDS has proposed eight-term legislator RV Deshpande, the senior-most MLA, as the pro-tem Speaker, who will have a crucial role today and is going back to the Court against the Governor’s decision. It will be an interesting Saturday evening by all accounts.

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