Guest post by BOBBY KUNHU
There is all around jubilation in the anti-BJP, particularly the Congress camp that the Supreme Court has cut short the time given to Yediyurappa by the Governor to prove his majority from 15 days to 24 hours. This jubilation is extremely myopic and self serving and is in no way rooted in the tall claims that the Congress has been making about trying to save the Constitution. All the Supreme Court order does is reduce the window of opportunity for the BJP to indulge in horse trading and increase the chances of the Congress-JDS combine to keep their flock together and win the assembly – and also substantially reduce the resort costs.
Regardless of the outcome of the floor test, the Supreme Court decision ordering the same while letting go of the patently unconstitutional decision of the Governor without any scrutiny or reprimand is a face saving exercise. This along with its earlier reluctance to review the Governor’s invitation to Yeddiyurappa gives blanket impunity to Governors – who are non-elected appointees of the Union government – to act according to their whims or the will of their employers.
The letters on record were enough to show the unconstitutionality of the Governor’s action and nullify the oath. Now BSY would on record have served as the Chief Minister without the necessary eligibility because of the connivance of the Governor and the panchayat style endorsement by the Supreme Court. Moreover, at the risk of repetition, it should be underlined that the non-staying of the invitation to Yedyurappa to form the government opened the race course for horse trading – however short the window might have become. Given the rich, ambiguous and controversial jurisprudential history on the question of the Governor and President’s discretionary role on the process of who should be invited to form the government – and the recent opportunist controversies in Goa, Manipur and Meghalaya – this was an opportunity for the Supreme Court for a setting a precedent on timely intervention without upsetting the Constitutional norms. But no, the Supreme Court seemed interested in saving the face of the Governor for the time being. By the time the case is finally disposed off – enough time would have elapsed to extricate the Governor without much harm.
Let me try using a hypothetical situation and demonstrate the dangerous constitutional conundrum that the Supreme Court could land itself and the polity in. If the BJP loses the floor test tomorrow and as the official Chief Minister of Karnataka (he is not even an acting chief minister till he tenders his resignation), Yediyurappa can recommend the dissolution of the house and holding of fresh elections and given his track record the Governor can very well accept the recommendation. Unlike the invitation to form the government which was patently unconstitutional, this will give rise to a perfectly constitutional action and which will be much more difficult to challenge.
Let me expound on why and how the Supreme Court lost an opportunity to save democracy and also redeem itself from the popular perception that it is bending backwards to facilitate the executive. Despite the vast number of decisions on the discretionary powers of the Governor/President and various commission reports – the process is still mired in the realpolitik. Let us not kid ourselves that Governors, Presidents, Speakers or other Constitutional functionaries just by virtue of their Constitutional position are objective. Nearly all of them have strong loyalties to the political parties or formations that mentored them. But the difference is that before 2014 – even during the period that is often described as the dark age of Indian democracy, emergency – there was at least a pretense to Constitutionality. But now all of that has been shed and the official executive position is that what suits the BJP/RSS is Constitutional and what doesn’t is not only unconstitutional, but also seditious. Further, ornamental Constitutional positions have brazenly started usurping and exercising power of the elected executive in almost all non-BJP ruled states. Add to this how the Union government effectively has been using its investigative agencies – CBI, Enforcement Directorate and the Income Tax Department etc. to get its political agenda enforced.
This was the right time for the Supreme Court to step in as a corrective force as envisaged in the political structure of the Constitution and lay down the basic rules with a firm hand. Instead the court chose to abdicate this serious responsibility and played the role of a political negotiator between the two rival groups – reinforcing the negative public perception that it is increasingly accruing to its credit. What it achieved was a huge face saving for Vajubhai Vala for his untenable decision and the strange protocol he employed to invite Yediyurappa. Of course the court has ordered that Yediyurappa cannot take policy decisions and has annulled the appointment of the Anglo-Indian member to the house. But it hasn’t revoked the transfers effected by Yediyurappa to the police who will continue at least till the confidence motion lasts depending on the outcome! But these are minor issue compared to the larger loss to democracy.
The only larger question now which can salvage the situation, if only academically for the time being would be a clear and reasoned final order where the Supreme Court doesn’t use excuses for shying away from reviewing patently illegal and extra constitutional discretionary decisions of the governor. But by then the government of Karnataka will be well settled – and this drama would have been buried in the subconscious of public memory. But because it could serve as a precedent, hopefully it would contain guidelines to urgently repair possible permanent damages to democracy.
Suddenly, with the short term goal attained and the role of the Governor’s powers remaining undefined – the Congress was happy. Its spokesperson on NDTV captured it unwittingly and succinctly when he said that the Congress wouldn’t desist from doing the same that the BJP was doing when they come to power making it clear that the Congress also wanted the power to take arbitrary decisions.
The chorus after the Governor invited Yedurappa to form the government, including from non-partisan observers, was that he was killing democracy. But, if BJP is killing democracy, the Supreme Court seems to be nailing the coffin and Congress is not helping much by meandering into obfuscations
I see no reason to celebrate. Rather, I see every reason to mourn.