After Karnataka, the Supreme Court can finally decide on how a hung verdict is handled

Source – theprint.in

By the middle of next week, Karnataka will have a new government headed by Janata Dal (Secular) leader H.D. Kumaraswamy. The Congress, which has the second highest number of MLAs in the new assembly, will also be part of the new government.

The events of the last six days starting 15 May, the day of the Karnataka election results, have only underlined the need for institutional reforms.

These are the kinds of reforms that no politician worth his/her salt — notwithstanding their allegiance — will allow via legislative action. One who is in power today may be occupying the opposition benches after a few years. So why enact a law that may hurt them when they come to power?

We want our courts to stay away from legislating or trying to run this country, especially through that one phrase that gets our goat every time — obiter dicta. But it will have to be the courts that set the ground rules to be followed in case of a hung assembly like Karnataka’s.

For those who don’t follow the law, obiter dicta refers to oral observations by judges while hearing a case that may not find place in the final judgment but are enough to send out a message to the parties — especially if one of the parties is the government.

Our highest court — the Supreme Court of India — will, once again, have the opportunity to settle the question of whom the governor or the President should invite to form the government in case voters fail to give majority to a single party.

The petition filed by Kumaraswamy and Karnataka Congress president G. Parameshwara, on which a three-judge bench ordered the advancing of the floor test for Yeddyurappa, is still alive and it presents an opportunity for the apex court to ensure that there are set, legally binding principles to guide a governor in case no party has a clear majority.

In Karnataka, governor Vajubhai Vala was quick to invite B.S. Yeddyurappa, leader of the BJP Legislature Party, to form the government despite the fact that his party — even though the single largest — didn’t have the numbers while the JD(S)-Congress combine seemed to have it.

However, last year, in Goa, Meghalaya and Manipur, three states where the Congress had won the largest number of seats and also staked claim before the respective governors to form the government, the BJP-led post-poll alliance was invited to assume office.

In the run-up to government formation, there was talk of horse-trading, with allegations and counter-allegations about crores of rupees being paid to buy MLAs. Karnataka was no different. The only difference here was that audio tapes and recorded phone conversations, allegedly between BJP leaders and Congress and JD(S) MLAs, appeared to confirm the worst suspicions about how a minority is turned into a majority.

There were allegations aplenty about threats of government agencies like the ED, income tax department, and CBI being pressed into action if the MLAs didn’t play ball

But this wasn’t the first time we were seeing such naked abuse of money and government resources to lure MLAs from one side to another. If it was the BJP allegedly doing it in Karnataka, the Congress is said to have done it several times in the past.

However, whenever the issue has come before courts, it has somehow been deferred.

Here’s something that the three Supreme Court judges — A.K. Sikri, S.A. Bobde and Ashok Bhushan — who passed the order preponing the trust vote can do to ensure fair play in the future.

Who should get invited first to form the government and prove majority: In numerous judgments, the SC has cited the recommendations of the Justice Sarkaria Commission on Centre-state relations in this regard. However, due to various self-serving reasons, no government has ever tried to give the recommendations the legislative backing they require.

The recommendations, which find mention in the judgment of a Constitution bench of the Supreme Court in Rameshwar Prasad versus Union of India, refer to the options the governor has in case of a hung verdict.

The order of preference for the governor in such cases is an alliance of parties that was formed prior to the elections; the leader of the “largest single party staking claim to form the government with the support of others, including independents”; the leader of a “post-electoral coalition of parties, with all the partners in the coalition joining the government”; and, finally, the leader of a post-electoral alliance, with some of the parties in the alliance forming the government and the remaining ones, including independents, supporting the government from outside.

Appointment of pro-tem speaker: The court can order that the most senior member of the assembly — in terms of legislative experience — should be appointed pro-tem speaker. In case there are two or more MLAs in a house with the same experience, then the one senior in age can be made pro-tem speaker to administer the oath to MLAs and, if necessary, preside over the trust vote.

Pro-tem speaker not to suspend, remove any member: It must be made clear that the pro-tem speaker’s only job would be to administer the oath and, if required, preside over the trust vote. He/she must be barred from using any rule/guideline to suspend or remove any elected MLA from the house since, in close situations like Goa and Karnataka, even one MLA’s vote can make or break a government.

How the trust vote must be conducted: Should it be a secret ballot, show of hands, or open ballot? In every case, depending on which side of the political aisle one stands, the demand is different. In Karnataka, for example, the BJP, which was trying to break the Congress and the JD(S), would have liked nothing better than a secret ballot. The Supreme Court may like to use this opportunity to settle this issue finally.

Powers of speaker during trust vote: There have been instances where a ruling party has split mid-term, and the role of the speaker becomes very crucial in these circumstances. Should the speaker be allowed to disqualify legislators who don’t attract the 10^th Schedule — those who have broken away from the party without the mandatory two-thirds strength — just before a chief minister or Prime Minister is going to face the vote of confidence?

Or should the speaker — if s/he is trying to help the opposition come to power through the backdoor — allow legislators who have broken away without the necessary numbers to participate in a trust vote?

The SC has the opportunity to settle these questions too.