Karnataka verdict: Of hung Assemblies, governors, govts and courts

The Supreme Court has nullified Karnataka Governor's decision to give BJP chief minister B S Yeddyurappa 15 days to prove his majority and ruled the floor test should be held on Saturday at 4 pm

The Supreme Court has ruled that the floor test should be held tomorrow at 4 pm. It has thereby nullified the Karnataka governor’s decision giving the BJP chief minister, Mr Yeddyurappa, 15 days to prove his majority. That was too long by any measure.
 
The events of the last few days once again open an old sore in the Constitution. Since 1967, whenever there has been an unclear outcome in an assembly election and the Governor has to decide who will form the government those whose claim has been ignored have set up a hue and cry.
 
Thus, what has happened in Karnataka this month is no different from the two dozen or so previous such events. The only difference is that on previous occasions it was the Congress that was responsible and this time it is the BJP. But the fact is that different writers have produced the same script.

 

This is not surprising, given the Constitution’s provisions. At the heart of the matter is Article 163(2) which says:
 
“If any question arises whether any matter is or is not a matter in which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion.”
 
Morality, propriety, democratic norms etc don’t enter into it. It is about politics and power, not anything else.

 
That is why two previous Commissions – Sarkaria and Punchchi – have tried to reduce this discretion by prescribing norms for the manner in which it can be exercised. But no political party or government has tried to eliminate gubernatorial discretion in the matter of appointing governments because it suits all of them to retain this discretion.
 
That’s pretty much all there is to it.
 
Can anything be done?
 
Many suggestions have been made by well-meaning people. But all of them ignore one basic fact: no political party will act in a way that damages its future or current interests.

 
The simple fact is that the governor, despite the constitutional garb, is an agent of the central government. This, too, has been pointed out several times by experts. But aggrieved parties pretend they don’t know this while the party that benefits from a governor’s decision harps on it.
 
The real question therefore is whether the centre needs an agent in the states. The British when they ran India needed one. This is clear enough. But why is one needed now?
 
One answer is that the sovereign needs someone to (a) prevent secession, (b) to establish law and order if it breaks down and (c) to make sure the state government is not violating fundamental rights.

 
These requirements suggest that proposals to abolish the governor’s post will not be heeded. But what about his powers to appoint a government after an election? It is this aspect that needs study and a decision, which will have to be a political one.
 
When tempers run high it is easy enough to say that this power should be abridged as was suggested by separately Justices Sarkaria and Punchchi. But then what will happen to Article 163(2)? How should that be amended, if at all?
 
This is the question the country has to grapple with in the coming months. There is a fundamental conflict between it and fair play.

 
It is hard to say how this conflict can be resolved given that the resolution will have to be initiated by any central government which stands to lose an important power. Chances are that we will simply have to muddle along as we have been doing for the last four decades.