An unfortunate shadow of doubt

Does the SC’s inability to decide about the constitutionality of Yeddyurappa’s appointment suggest something worse than unwarranted caution?

Has the Supreme Court been over-cautious in the way it has so far handled the political crisis in Karnataka? Whilst ordering a vote of confidence for Saturday afternoon it also chose to postpone a decision on the Constitutionality of the appointment of B S Yeddyurappa as Chief Minister. This issue is the critical nub of the problem but it’s now left hanging in the air for 10 weeks. Was this a mistake on the Supreme Court’s part?

There are several reasons for believing it is. First, if Yeddyurappa should never have been appointed Chief Minister in the first place, to allow a vote on the floor of the House to determine his continuation in office was to permit him — indeed, encourage — to split other parties or, at least, lure and, even, purchase individual MLAs. Given that there’s no other way he could win, Yeddyurappa had no other option except to lose or resign.

More significantly, the Supreme Court’s decision to keep the Constitutional issue undecided for nearly three months leaves open the theoretical possibility of another Governor taking a decision similar to the one taken by Vajubhai Vala when he appointed Yeddyurappa. That’s unlikely to happen but the Supreme Court has not closed the possibility it might.

However, the most important reason for believing the Supreme Court has erred is the fact there are several earlier judgements, including one by a five-judge Constitution Bench, that clearly established how a Governor should behave in the event of a hung Assembly. All that the Supreme Court had to do was follow what earlier benches have unequivocally laid down. If it had, it would have come to the swift conclusion that Yeddyurappa’s appointment was ab initio wrong.

A brief perusal of two of these judgements makes clear why the Supreme Court doesn’t need 10 weeks to make up its mind. In the 2006 Rameshwar Prasad case the Court ruled: “If a political party, with the support of other political parties or other MLAs, stakes claim to form a government and satisfies the Governor about its majority to form a stable government, the Governor cannot refuse formation of government and override the majority claim because of his subjective assessment that the majority was cobbled by illegal and unethical means. No such power has been vested with the Governor. Such a power would be against the democratic principles of majority rule. Governor is not an autocratic political ombudsman. If such a power is vested in the Governor and/or the President, the consequences can be horrendous.”

Last year, in the Goa case, the Supreme Court ruled: “When no political party is in majority, then it is the bounden duty of the Governor to see who can form the government. If nothing happens, then the Governor is duty-bound to call the leader of the single-largest party but if someone goes to the Governor with a list of supporters, then it is a different issue altogether.”

On both occasions, the Supreme Court’s verdict was explicit and clear. In a hung Assembly the Governor must choose the person who has or is most likely to have majority support rather than the leader of the singlelargest party unless, of course, the two are the same. In the present circumstances in Karnataka this could not have been Yeddyurappa, particularly after H. D. Kumaraswamy submitted signatures to show he has the support of a 116 MLAs, five more than the majority.

Now for an intriguing but, perhaps, disturbing question. Does the Supreme Court’s inability or unwillingness to decide about the constitutionality of Yeddyurappa’s appointment suggest something worse than unwarranted caution? Was it an attempt not to upset the BJP and, in particular, Narendra Modi? To put it bluntly, did it hint at seeking the easy option? And does that amount to pusillanimity?

After the bold, brave and muchapplauded triple talaq and privacy judgements, it’s prima facie hard to believe the Supreme Court would lack the conviction to pronounce forthrightly and immediately on the Constitutionality of Yeddyurappa’s appointment. Yet it’s also true that an unfortunate shadow of doubt has fallen on this issue. It needs to be dispelled as soon as possible. Whilst it lingers, disquieting questions about the Supreme Court will remain.