The country witnessed another state election on 12th may 2018 in Karnataka and on 15th may this cakewalk turned into a cliffhanger for BJP. BJP has a total tally of 104 which makes it the single largest party but former PM H D Deve Gowda and Sonia Gandhi agreed to form a government to keep BJP out making their total tally as 116. The drama has just begun, with Karnataka throwing up a fractured verdict now it is up to the Karnataka governor Vajubhai R Vala to take the call. This former RSS man maintains a cordial relationship with PM Narendra Modi as an old BJP warhorse. He has held key portfolios like finance minister of Gujarat and speaker of its assembly and served the government for almost six decades. He was nominated as the governor in 2014. Let’s find out Has Karnataka’s Governor decision made way for unconstitutional democracy?
Vajubhai Vala as predicted invited BS Yeddyurappa leader of 104-strong BJP group in the state assembly to take oath as chief minister on Thursday and gave him 15 days to prove his majority. It looks like he acted on his prejudice of being a part of BJP and ignored the Congress-JD combine claim that HD Kumaraswamy be given the first opportunity to form the government.
There is a huge amount of controversy regarding the role of governor. The governors under the Government of India Act 1935 were by the Raj, of the Raj, and for the Raj. Democracy demands that the machinations of post-electoral alliances be rejected as they violate the mandate of the legislature. The constitution empowers a governor to appoint a chief minister but remains silent on the issue of his/her role in case of a fractured mandate. Preference has to be given to the pre-poll alliances and the largest single party without a majority. The Sarkaria commission which reviewed the working of arrangement between the union and the state has laid down the order of preference when there is no clear-cut majority to a single political party or coalition of pre-poll alliance partners:
1. The group of parties which had pre-poll alliance commanding the largest number;
2. The largest single party staking a claim to form the government with the support of others;
3. A post-electoral coalition with all partners joining the government; and
4. A post-electoral alliance with some parties joining the government and the remaining including independents supporting the government from outside.
The National Commission to Review the Working of the Constitution (NCRWC) made a distinction between ‘pre’ and ‘post’ election coalitions which is necessary for the government because most of the time post-election coalition are made with secondary goals.
The election is one of India’s greatest strength and if we look at the present scenario the constitutionality of governor’s role is on the verge of sinking. Supreme Court in Rameshwar Prasad & Ors vs Union of India & Anr (2006) also approved the Sarkaria commission concepts. In Goa and Manipur, BJP government violated every canon of constitutional propriety.
How BJP formed Government in Goa and Manipur –
A similar situation was there in Goa election where Congress with NCP had 18 seats and was the single largest party, needing only three more for a majority. The BJP had 13, (well short of a majority), with the remaining ten seats in the 40-member assembly going to other parties and independents. BJP went into coalition with the MGP (three seats), Goa Forward Party (three seats) and three independents. Goa governor Mridula Sinha appointed BJP rather than Congress which was the single largest party and the case even went to the Supreme Court where Chief Justice Khehar advised the Congress to hold a dharna before the governor instead of approaching the court which was astounding, It is true that Nitin Gadkari of the BJP had swung into position earlier than the Congress but the governor cannot act on who wins the race to the Raj Bhawan. Independence of constitution depends on examination and not on who wins the race. It is true that the BJP went to the governor first. But the Congress had to be “called” as the largest party. That was the duty of the governor.
When the pressure came from the central government on the Goan Governor, she confessed that she took the advice of Union Minister and is guilty of constitutional impropriety.
A similar situation arose in Manipur Election where BJP formed the government. The BJP’s argument that the governor is not obliged to invite the single largest party to form the government is not only spacious but demonstrates a lack of understanding of settled legal principle which was clearly established in the case of S.R Bommai vs Union of India by a 9 judge constitutional bench of the Supreme Court. This Principle is the law of the land and Governor is duty bound to first “invite” the single largest party/group to form the government which was the case with Congress in Goa and Manipur election.
How was the principle of Consitution violated?
The constitutional principle has been violated by the governor of Goa and Manipur and now the ball is in the hand of Karnataka’s governor Vajubhai R Vala. People’s concern and lost democratic principle have shifted the concern from who should be the chief minister to how should the governor be appointed. According to Punchhi Commission, there had been a politicization of the governor’s post. In 2014 PM changed virtually all the governors and lieutenant-governor. The constitution was led down even before the emergency in 1975 by Congress under the rule of Indira Gandhi and certainly during it which sat bad precedent later followed by Modi. It is about time that these problems were addressed.
Major legal experts like former attorney general Mukul Rohatgi, senior advocate Rakesh Diwedi, Rajeev Dhavan has unanimously agreed that Karnataka’s governor is sitting in the examination room and the result depends on how he applies his conscience and discretion in taking a decision.
The constitution is not drama, it is essential for the working of the country and now the verdict of validating the constitutionality of governor lies in the hands of Vajubhai R Vala to. The governor’s action seems to be immoral and illegal which is setting up a bad precedent for Indian democracy. BJP has not been able to show even prima facie that it can form a government with the support of the majority of the legislators in the assembly. In a parliamentary democracy, the rule is by a majority. The governor should have exercised his power as the rule set up by Punchi commission to call all the three parties separately and give a chance to BJP to prove their majority and it is clearly evident that they in spite of being the largest party do not have the majority support so Congress- JD alliance seems to be in a better position to form the governor and satisfy the majority rule.BJP clearly falls short of the halfway mark and the governor’s decision has set aside the constitutional norms and SC demarcated guidelines.
Here you can read out our detailed guide on Indian Constitution and its parts.