The previous part of this article on the immunity a Governor enjoys can be accessed here. This is the second part.
In a democracy, the verdict of the people has to prevail. So much of importance is given to elections and is independently conducted by forming Central and State Election Commissions and the rule is that the party obtaining majority seats shall rule. The people have voted a particular party convinced upon the policies and promises of that particular party. They are entitled to choose a right party or a wrong party but the verdict of the people has to be respected. It has to prevail. They have a right to reject that party in the next election if it fails to deliver. Until then, the decision of the majority of the people has to be respected,
If a wrong judgment of a court is as binding as a right judgment, then even a wrong choice by the people is binding. The Governor being the executive head of the State as stated in Article 154 (1) of The Constitution of India, is obliged to give effect to the mandate of the people.
The Congress is not staking a claim to form a government since it is sure that JD(S) will not support it, therefore, it has chosen to support the JD(S) to form a government.
Article 154(1) reads as follows
The executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution.
The BJP has emerged as the single largest party and therefore, naturally, it has to be called first to form a government and then prove its majority on the floor of the house. In case it fails to prove majority the Governor could call the Congress party which has come next. If the Congress fails to prove its majority on the floor of the house then the turn of JD(S) may arrive. But, the Congress and JD(S) which fought the elections as opponents have formed an unholy alliance. The Congress called the JD(S), the ‘B’ Team of the BJP. It is based on campaigning that the people have cast their votes. The people have rejected the JD(S) or relegated it to the third position. Now, the Congress is not staking a claim to form a government since it is sure that JD(S) will not support it coming to power. Therefore, the Congress has chosen to support the JD(S) to form a government. The objective is to keep the BJP out of power. That is, it is supporting the BJP’s alleged ‘B’ team to come to power whereas the people have elected the ‘A’ team. That is, the Congress wants to hand over power to a person coming third in the race. What morality is this? The Congress wants persons rejected by the people to rule though it has got the maximum percentage of the votes. And the JD(S), having secured less than 25% votes wants to rule giving untenable reasons. It is hungry for power.
What right has the Congress and the JD(S) to speak about morality? They promised to serve the people and sought votes independently and they are now ignoring the mandate of the people. And the Congress leadership including the docile former Prime Minister speaks about morality. Was not Dr.Manmohan Singh a benami of The Gandhi family? The people did not give license to the Congress and the JD(S) to align together post elections. The unholy alliance is against the WILL of the people. How could this be given effect to? This is rather treacherous, sheer cheating and a fraud on the people. “You choose anybody we will not permit it we will not respect you and take to the streets. We will allow the loser to rule and though we are second we will not rule since No.3 will not support us”. What type of action is this? Shameful. I do not think there was any occasion for a party coming third to rule a State. The Congress should be ashamed of its acts. Sri Deve Gowda also became Prime Minister by chance. The JD(S) said it maintained equidistance from both the BJP and the Congress. Now, there is an unholy marriage.
Now, I would suggest that no law in India could stop the Governor from refusing to recognize a post-poll alignment as being against the wish of the people. The Contract is unconscionable and could be rejected.
The Congress and JD(S) have entered into an unholy contract that one will support the other to rule the State. 2 losers join together to oust the winner. Though the support is said to be unconditional cabinet berths are the consideration for the contract. Berths will come later. We may refer to Section 23 of the Contract Act.
Allowing the JD(S) to rule will certainly not be conscionable. It is against the verdict of people.
Section 23 of The Contract Act
What considerations and objections are lawful, and what not-The consideration or object of an agreement is lawful, unless-
it is forbidden by law; or
is fraudulent; or
involves or implies injury to the person or property of another;
the Court regards it as immoral or opposed to public policy.
In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void.
The Congress and the JD(S) have entered into a contract for future consideration. Even otherwise a consideration need not always be monetary. The promise of marriage has been held to be a consideration and a settlement on consideration of marriage has been held by courts as a sale deed for consideration. The Congress and JD(S) have contracted a marriage. The consideration is to rule the State or keep the BJP out. Here also trying to keep a majority party out of power by an evil contract of connivance is unlawful. It is against the will of the people and certainly, every person would consider this as being immoral. What is wrong if the Governor would say that I will not accept your post-poll contract since it is against the verdict of the people. The people did not authorize the second and third parties to join together. It is unholy, immoral, fraudulent and sheer cheating. One has to find out whether a criminal case could be lodged against the leaders of both the Congress and JD(S). Sri Rahul Gandhi says the Governor’s action has murdered democracy. What has he done? He has mocked at the people by disrespecting their verdict. He has disrespected the power of the people. It is a massacre of the people. The JD(S) has buried the people under its feet. Why are the Congress and JD(S) in such a hurry?
Let the BJP prove majority. If it is unable to do so, let the Governor refuse to call either the Congress or the JD(S) to form a government.
Afterall, the Governor has never said that he will not call them. Why should the fractured Congress raise a hue and cry? As the largest share of votes and the second successful party, it has not even staked a claim to form the government. Why should it hold a brief for the JD(S)? The Congress is giving vent to its anger upon the BJP which is wiping out the Congress from State after State.
When the party coming second does not stake a claim why should the Governor call the party coming last to form a government? Let the JD(S) wait and see if the BJP proves majority. If it fails then, the Governor may call upon Sri Kumaraswamy to form a government. Obviously, both the Congress and JD(S) have no faith in their own MLAs. They accuse the BJP of attempting at horse-trading. Are your MLAs so brittle? If so, they are unfit to rule. Let them not rule. There are 2 sides in horse-trading if it happens. What about the morality of your MLAs who are prepared to get sold? They are misfits to rule. You concede your MLAs are not principled. You are entertaining them in Hill resorts at a huge cost.
If winning over MLAs is horse-trading what is the name of winning over a party’s support that too by a minority party, winning over the majority party? It is unchaste.
I would, therefore, suggest this. Let the BJP prove majority. If it is unable to do so, let the Governor refuse to call either the Congress or the JD(S) to form a government. Let him say it is an immoral contract and a fraud on the people.
Let the Governor recommend Central Rule and pave way for re-election. Maybe this will involve expenditure but it would be nothing compared to the amounts spent on the flock of MLAs being maintained. This is better than paying MLAs salary allowances for walking out of Assemblies. Let the people decide again as to who should rule. The cost would be nothing if democracy has to be upheld.
This will be doing justice, equity and acting with a good conscience as stated in the Preamble of the Constitution. Afterall, the Supreme Court itself has held on several occasions that in the absence of any law, Court shall be guided by principles of justice, equity and good conscience. So shall be the Governor.
Allowing the JD(S) to rule will certainly not be conscionable. President’s Rule will steer Karnataka out of troubled waters. The Cauvery water dispute is just about to be over. Let not JD(S) be allowed to fish out of troubled waters.
Note:
1. The views expressed here are those of the author and do not necessarily represent or reflect the views of PGurus.
- The Karnataka Fiasco and special status of the Governor – Part 2 - May 19, 2018
- The Karnataka Fiasco - May 18, 2018
Supreme court has seriously erred in reducing the time from 15 days to ONE day. The Governor should have insisted a gurantee that the unholy post poll alliance between JD(S) & Khangress that it give stable government for FIVE years, else poll expenses will be charged to their account or their election symbols as a party will be suspended in that state for a period of equal to the number of years left i.e. 5 years (-) miinus 6 months = 4.5 years.
Governor focus should be stability of the government that is being formed irrespective of whether it encourages horse trading, for each election costs government tax payer money being spent on reconducting the elections.
SUPREME COURT INTERFERED WITH THE CONSTITUTIONAL DUTY CAST UPON THE CONSTITUTIONAL HEAD OF THE STATE….WHICH IS CONSTITUTIONAL.
SC stated that the decision of the GOVERNOR TO CALL THE SINGLE LARGEST PARTY, ( in the absence of pre-poll alliances) TO FORM THE GOVERNMENT IS CONSTITUTIONAL.
IF So
How SC went against its own finding and passed an Order directing the GOVERNOR TO FORM THE GOVERNMENT WITHIN ,24 hours ???
SC cannot ENCROACH upon/ INTEREFERE with the Constitutional duty cast upon the Constitutional Head of the state.
Good point!
While it may be true that the alliance between Congress and JDS may be unholy, any post-poll alliance could be termed that way. Factured mandates necessitate such post-poll allinaces. You can’t blame the political parties alone for this.
IMHO, BJP should have allowed JDS and Cong to stake claim and come to power. There is no basic meeting of minds, and there are so many internal feuds that their alliance would have come down on its own weight. BJP would have had a good image and returned to power either through splits in Cong and/or JDS, or with a good majority in re-election. And BJP would have gained even more votes in 2019 LS elections.
An easy way to create split among opponents has been converted by BJP into unity of the Opposition.
Someone should teach the virtues of ‘delayed gratification’ to BJP.
I agree when you say // some one should teach the virtues of “‘delayed gratification’ to BJP. // But I don’t agree that a Governor should first allow the party coming last to form a govt..That is against the verdict of the people..I think in every state Governor “must” ask for the single largest party to prove majority in the floor if there comes a fractured mandate and if somehow the single largest party fail to prove the majority thereafter the govt should call for the parties coming second,third to prove the majority respectively.I think in a country where there is democracy this “must” be the way forward..I stand with the Governor of Karnataka in this time but I don’t stand with those Governor where the party with highest seats were not called first for floor test..Please be noted that there is no such rule in the constitution to whom the governor should call first to prove majority in the house and it solely lies on the will of the Governor but that would give a bad feeling to the people about the Governor being partisan or biased.Hence, the parties must come with an constitutional norms that would keep the verdicts of people high and let allow the Governor call the party with highest number of seats for floor test..Thanks.
But one thing I forgot to mention that there must be a minimum time period to prove the floor test..I can’t say what should be the time span to prove the floor test as it is not mentioned in the constitution..As in the case of the Governor of Karnataka giving “15” days to prove the floor test,this move is being seen as a “mockery of democracy” by various people..I can’t really comment on this topic as I have limited knowledge and as there is no provision in constitution for the time span for proving floor test, it will be very hard to decide what is right..So I leave it for the experts to decide..Thanks..