BENGALURU: Amid protests and dharna by Congress and JD(S) across the state on the governor's decision to invite B S Yeddyurappa to form the government, constitutional experts are divided in their opinion. A section of experts says as per prevailing precedents and Supreme Court's ruling in S R Bommai's case and Sarkaria Commission recommendations, the decision of the Governor is incorrect. However, other experts opine that the law has been followed in toto and it is at the Governor's discretion to take the right decision.
With no party getting a majority, what exactly are the rules, precedents or the convention in such a case? The Constitution has no specific guidelines on what the Governor should do or whom he should invite in case there is a face-off between parties or coalition allies. In fact, the Sarkaria Commission recommendations, which were affirmed by a Constitution Bench of the Supreme Court in the Rameshwar Prasad case in 2005, are often the guiding principle for Governors to take the correct decision. The Commission report, in fact, outlines the three options before the governor when there is a hung assembly.
The options before the Governor in such a case in the order of preference are: an alliance of parties that was formed prior to the elections; secondly, the single largest party staking a claim to form the government with the support of others, including independents; thirdly, a post-electoral coalition of parties, with all the partners in the coalition joining the government; and finally, a post-electoral alliance of parties, with some of the parties in the alliance forming a government and the remaining parties, including independents, supporting the government from outside.
A midnight sitting by the Supreme Court itself denotes that there is something wrong in the Governor's decision, opine Supreme Court senior lawyers. They add, "Looking at the precedents and the Goa, Manipur and Meghalaya cases, why was this rule not applied to Karnataka ? The Court has called for Yeddyurappa's letter to ascertain whether he has the required numbers. Further, a combination of 116 given in writing and physically shown by signatures clearly shows the numbers are not with Yeddyurappa. So calling the single largest party does not arise here when they have only 104 plus one. In fact, to get a majority now, this party will resort to horse trading only."
However, well-known constitutional expert C V Sudhindra says the decision of the Governor is absolutely correct. He adds, "The governor has done the right thing by inviting the single largest party's leader to prove his majority and given sufficient time where he can enrol or enlist the support of independents or other legislators. The Governor has been obliged to to do so based on S R Bommai judgment and the subsequent decisions of the apex court that has followed. Taking away the MLAs to resorts is an insult to them."
Countering this, K V Dhananjay, constitutional expert says the Supreme Court is likely to strike down the Governor's decision as this is incorrect with Yeddyurappa in no position to cobble up a majority. He adds, "Supreme Court is bound to strike down the invitation as this will result in horse-trading.If the Governor has invited the single largest party to form the government, he has to see that there is no horse-trading. Going by earlier precedents, the Governor should have invited the parties who have gone for a post-poll alliance. However, as a matter of public morality, the alliance of both Congress and JD(S) is an act of public shame who were at loggerheads."
THE GOVERNOR'S DISCRETION
The Constitution clearly says the decision of the Governor is final and the validity of anything done by him as a matter of his discretion cannot be questioned.
The Sarkaria Commission was set up in June 1983 to examine the relationship and balance of power between state and Central governments and suggest changes within the framework of the Constitution. However, the discretionary powers of the Governor offer him or her vast liberty in actions.