After the high octane drama that unfolded last night with a midnight hearing, the top court had refused to stay the swearing-in of BS Yeddyurappa as new Karnataka CM. But, the Supreme Court also said that the oath administered to the CM is subject to further orders by the apex court.
The court also demanded the submission of letters dated May 15 and May 16 which were written to the governor by the BJP.
Further, the 15-day time period granted to the BJP to prove majority on the floor of the House remains open to challenge and is likely to be a hot point of argument during the hearing on Friday.
BJP’s BS Yeddyurappa has been sworn in as the new Karnataka chief minister and while one may criticise any political party for unethical behaviour, not every immoral act is illegal.
Here are the legal options and possible scenarios ahead of the apex court hearing on May 18.
NAMES OR NO NAMES?
The Supreme Court has demanded the submission of letters that find mention in the communication with the Governor. There is still no clarity on the content of these letters.
While the order uses the word “letters”, the oral observation of Justice Sikri to Attorney General was “you show us the list”.
While the order was being dictated, Abhishek Manu Singhvi arguing for Congress said that he specifically wants the names of those who support and “not vaguely like two independents”.
It is unlikely that the Attorney General will submit any specific names because submitting these names to the Supreme Court will be a brazen political argument in a court of law.
Since there are only three parties with no independents, the question is how will the BJP muster up the number without being caught on the wrong side of anti-defection law?
Attorney General Venugopal went on to say that anti-defection applies only post swearing-in.
While this may be a perfectly sound legal point but it shows how political opportunism brazens out due process and breaches the trust that the Constitution has reposed in the political class.
Will the government actually say it on oath to the Supreme Court that they shall rely on abstentions and defections from the Congress or the JD(S)?
The Governor can also refuse to be a part of the proceedings citing his privilege and protection under Article 163 which grants a limited discretionary power to him along with immunity from any court proceedings. It will be a bold argument for the Executive to make before the apex court and refuse to give any list.
NO PRECEDENT OR LAW TO COMPEL GOVERNOR
Neither the Bommai (1994) judgment nor the verdict of Supreme Court in the case of Nabam Rebia (2014) pertaining to Arunachal Pradesh sets any precedent on how the Governor should exercise his discretion while appointing a government.
Article 163, 164 grant powers to the Governor to act according to his discretion while appointing a chief minister and a council of ministers.
Both, Bommai judgment and Nabam Rebia judgment, are an extensive authority on the relations of the Centre and state, and how should the President exercise his special powers. The Nabam Rebia judgment lays down that the Governors must act in a non-partisan manner, but this proposition has not been developed by legal authority or any constitution bench judgment with respect to formation of the government.
If the Governor through the Attorney General refuses to share names or details of people who are supporting the BJP, the apex court cannot compel. They can call for a constitution bench or pass a verbally scathing order but to actually annul swearing-in of a CM because he could not show names to the Supreme Court is not permissible under the present law.
REDUCE THE TIME OF 15 DAYS
That’s the only remedy that the courts have devised so far when matters of poaching or alleged abuse of power by Governors have emerged.
In many cases, the latest being Goa, the apex court asked the floor test to be done within 48 hours in a bid to avoid horse-trading or poaching of MLAs. The Congress team backed by top lawyers is cognizant of the fact reducing the 15-day time period is the only tangible result that they can legally achieve.
DEFECTION DOESN’T LEAD TO DISQUALIFICATION
The most crucial point here is that while a legislator can lose his membership on defection (according to Tenth Schedule of the Indian Constitution), it does not bar a legislator from re-contesting.
Defection is not an offence under the Representation of People Act, 1951. It does not lead to a member being debarred from contesting elections.
One could argue that this lacuna in law has been exploited by all political parties. The Constitution left it to the discretion of the electorate whether a member should be re-elected or not. But, in a country where elections are dominated by caste and muscle power, poetic justice must not be expected through electoral process.
The case of Karnataka once again emphasises that courts have no way to prevent poaching or horse trading. Individual cases can be tried under anti-corruption act or sections of Indian Penal Code but there is no legislative or judicial wisdom or precedent to avoid this situation in the first place.
Also read: BJP in Karnataka: The number game