Why the Supreme Court’s verdict after Karnataka polls is critical for India
In doing so, it further cemented a strong past record in preserving the democratic process, and set an important precedent for the futureanalysis Updated: May 29, 2018 08:42 IST
There is little doubt that the decisive moment in the race to form the government in post-poll Karnataka occurred at the Supreme Court. A three-judge bench of Justices AK Sikri, Ashok Bhushan, and SA Bobde had refused to stay the swearing in of BS Yeddyurappa in an emergency midnight hearing just 30 hours prior. In this hearing, however, they made their only substantive intervention: they directed that the floor test, which the Governor had directed to take place after a fortnight, be held the next day itself. It was enough. Amid strident accusations of horse-trading, intimidation and bribery, Yedyurappa, unable to prove his majority, resigned moments before the floor test, and the curtain came down on a frenetic week.
Events such as Karnataka put the courts in a particularly difficult position. The Constitution of India commits to the Westminster system of parliamentary democracy. One of the basic features of this model is that the judiciary shall stay firmly out of the political thicket. While the courts are expected to be on hand to ensure that elections are free and fair, what happens after the polls — from the formation of the government through its dissolution, and everything that takes place in Parliament during its term — is beyond judicial scrutiny. To the extent that there is abuse of authority, the remedy lies within Parliament itself, through an appeal to the Speaker — or, at most, in the next election.
In a functioning Parliamentary democracy, therefore, the Courts would have had no role to play once the Karnataka election results were declared. In many respects, however, India has long been a dysfunctional Parliamentary democracy. The reality is that fractured mandates yield all kinds of dirty tricks, which have the effect of frustrating the popular will: horse-trading, bribery and intimidation, splits and defections. In fact, these dirty tricks go back to independent India’s first state election, when C Rajagopalachari of the Congress became the chief minister of Madras by splitting the United Democratic Front, which had gained the maximum number of seats at the election; and they have continued ever since.
This is not a reality that the courts can be blind to, as it threatens the very roots of democracy. In such cases, therefore, the court is put in a bind: how does it respect the separation of powers, and parliamentary sovereignty, while nonetheless performing its function as a guardian of the democratic process?
There is no correct answer to this question, but in the three hearings before the Supreme Court in the early hours of Thursday morning, and then on Friday and Saturday, the court attempted to provide one by example. The INC-JDS combine made three requests to the court. In the first hearing, it asked the court to set aside the Governor’s invitation to Yeddyurappa, and to stay the swearing in. In the second, while maintaining the first request, it asked for the floor test to be advanced. And in the third, it challenged the Governor’s appointment of KG Bopaiah as the pro- tem speaker, who would conduct the floor test.
While agreeing to hear and decide the issue of the Governor’s invitation, the court refused to stay the swearing-in. It did so because even after the swearing-in, the chief minister would be required to prove his majority — and in any event, if it was later found that the Governor had acted illegally, his decision could be set aside, and status quo ante restored. On the second issue, the court decided to intervene, and advance the floor test. The reason for this was that this was not a situation of a fractured mandate, where a party needed time to convince fence-sitting independents, or smaller parties, to join it. This was a case where the single-largest party, and a combine of the second and third-largest parties, were both staking claim to already having a majority. In such a situation, an immediate floor test was the only resolution of the situation, which would avoid the very real possibility of horse-trading. And again, on the third issue, the court declined to intervene, holding that a live video-telecast of the floor-test would provide enough of a democratic check against any possibility of abuse. And so it proved.
The Supreme Court, therefore, struck a fine balance: it intervened only once, and that too to the limited degree of advancing the floor test, in order to ensure that the ground rules of the democratic process were respected; and in every other respect, it left the democratic process to iron itself out. In doing so, it further cemented a strong past record in preserving the democratic process, and set an important precedent for the future.
Gautam Bhatia is an advocate in the Supreme Court
The views expressed are personal