Karnataka Verdict: Constitutional Experts Say JD(S)-Congress Should Get First Shot

Senior advocates Aryama Sundaram & Sanjay Hegde say it would be proper for Governor Vala to choose JD(S)-Congress.

Outgoing Karnataka Chief Minister Siddaramaiah and JD(S) President HD Kumaraswamy address the media after a meeting with Governor Vajubhai Vala in Bengaluru on May 15, 2018. (Photograph: Shailendra Bhojak/PTI)
Outgoing Karnataka Chief Minister Siddaramaiah and JD(S) President HD Kumaraswamy address the media after a meeting with Governor Vajubhai Vala in Bengaluru on May 15, 2018. (Photograph: Shailendra Bhojak/PTI)

All three major parties have emerged from the Karnataka election results short of the majority mark. The Congress and the Janata Dal (Secular) have approached Governor Vajubhai Vala as a post-poll alliance, claiming the support of a majority of the state’s MLAs. That is more than the 104 seats that the Bharatiya Janata Party won as the single-largest party in the assembly.

Constitutional experts Aryama Sundaram and Sanjay Hegde – both senior advocates at the Supreme Court – weighed in on how this situation is likely to be resolved.

What Is The Governor’s Next Likely Move?

Sanjay Hegde:

The next move is obviously for the governor to take a call on deciding which party or which parties is in a position to form a stable government and to command in the legislature. The single largest party is the normal rule. But there are always exceptions to the rule. Is there a necessity at all times to go through this? Invite the single largest party, wait for it to fall and thereafter invite somebody else if required? To my mind the answer is, not always.

Here you have a case where there is a single largest party at 104, and an alliance which is clearly in the majority at 116. In these circumstances, to say that the single largest party at 104 would necessarily command the majority or the confidence of the house, to my mind is a bit of a stretch.
Sanjay Hegde, Senior Advocate, Supreme Court

Of course, there is nothing to stop the governor from doing it. But I don’t think constitutional scholars or historians will look at that very kindly. But governors don't necessarily look to the judgements of history or constitutional scholars. They also go by their own feel of the situation.

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What Is The Constitutional Precedent?

Aryama Sundaram:

The constitutional intention, clear intent, and the mandate is that the leader of the house will be one who commands a majority of the house. Secondly, essential to any democracy is that there is a government in place as soon as possible. These are the two basic constitutional mandates that are any governor’s duty to ensure.

The Supreme Court’s Rameshwar Prasad v. Union Of India judgement in 2006, says that if there’s an area of uncertainty, and if you’re not satisfied that anybody has the majority, and you're not sure who has the majority, then follow a checklist.

Go first to a pre-election alliance, see whether they can command the majority. If that fails, then go to the single largest party and say look here, can you get people with you to support you, and you form the majority. If that fails, then you go to the next step which says alright, as a group if you are able to get together and form the government and form a stable government, then all of you can together govern.

Now that’s a series which is given as guidelines, that is not written in stone.

This instance is a great pointer as to how sometimes we lose the woods for the trees. You have three parties, not one of them has the majority on its own. Two of them come together and say, we are now together, we have the majority. If the governor is satisfied with the two that are together, and the numbers of the two together is the majority, I see nothing wrong, and in fact I feel that will really be serving the basic constitutional mandate, for the governor to then call upon both of them to form the government.

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What if The Governor Decides To Wait For The Deferred Seats?

Sanjay Hegde:

By-elections are not within the governor’s purview. The normal elections process takes at least a month or so. It is not that the governor can keep an elected government from taking office for that long. That kind of decision will not find favour with the court if it is challenged. I would not expect the governor to do that. The governor has to normally keep the Raj Bhavan free from politics.

Under no circumstances would I recommend to the governor, if my advice was sought, that he call somebody to form a government and then give them three or four weeks to prove a majority. That is a time when a lot of trading takes place. Swear in whoever you think has a better chance of proving majority and ask them to prove their majority as soon as possible.

BJP workers celebrate the party’s lead in  Karnataka Assembly Election 2018  outside the party office in Bengaluru on Tuesday. (Photographer: Shailendra Bhojak/PTI)
BJP workers celebrate the party’s lead in Karnataka Assembly Election 2018 outside the party office in Bengaluru on Tuesday. (Photographer: Shailendra Bhojak/PTI)

Will The BJP Put Up A Fight?

Aryama Sundaram:

I don’t think the BJP is willing to let anything go without a fight. The Congress and the JD(S) have done a Goa to the BJP in Karnataka. But, when I talk about the basic mandate of the Constitution, it is to ensure that the governor swears in a stable elected government. And ensure that there is an elected government as soon as possible.

There is another mandate and I think we shouldn’t lose sight of that, which is to prevent horse trading.

That’s why the Anti-Defection Law also came in.

Now I don’t think the governor should say... look here, you are the largest party. I will give you enough time to horse trade and pull people out of two other parties. In this case, the two independents’ votes are immaterial because in the numbers it doesn't really matter. Here are two parties. And the parties are together today. Now if you are saying give the party which has got the most seats the first chance, they’ll get some of those people out of the other party to come over to them. To ensure that all that does not happen, if the governor is satisfied that these – the JD(S) and the Congress – have the numbers, he should call on them to form the government and not give an opportunity to the single-largest party, whatsoever may be his political compulsion.

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The Relevance Of The Supreme Court’s Bommai Judgement

Sanjay Hegde:

The Bommai judgement basically says that everything has to be decided on the floor of the assembly. The judgement also says that you should make a reasonable, objective assessment as to who is likely to command the majority in the assembly. The Bommai judgement is not a carte-blanche for the governor to invite somebody and then say, now cobble up a majority.

Aryama Sundaram:

What the Bommai judgement has said is, whenever there is uncertainty, it is best to test it on the floor of the house. The operative word is uncertainty. In this particular case, as of today, there is no uncertainty between the JD(S) and the Congress a) having the numbers, and b) saying we are going to go together. If they fall out later, that will be seen at some stage. That does not mean that the governor needs the numbers to be first proved in the house, before allowing the government to take charge. If he wants, he can say ‘I will allow you people to form a government, but I want you to have a vote of confidence in the next 13 days. And that is not so that you can go and cobble up enough support to get people onto your side, but basically to see that both of you are really together and you’re going to stay together and form the government.

Watch the full interview here.

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