Free to Choose

BS Yeddyurappa (Left) taking oath at Raj Bhawan, Bengaluru
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Discretionary power is essential to handle nuanced situations

EVEN AS BS YEDDYURAPPA has been sworn in as the Chief Minister of Karnataka, a legal battle and controversy have dogged the decision of Governor Vajubhai Vala to invite BJP’s Yeddyurappa to form the state government. On the face of it, the decision appears questionable as the BJP does not have the requisite number of legislators for a simple majority in the Assembly. But this is a simplistic and even too-clever-by-half argument.

By precedent, prescription and a binding judicial verdict, the strength of a legislature party that has formed the government in a state is to be tested on the floor of the Legislative Assembly and nowhere else. There are obvious exceptions to this. If, for example, the Governor finds that on paper a claimant for power has only 10 per cent of the numbers in the Assembly, he will be well within his rights to reject the claim. In the present case, even on paper, Yeddyurappa leads the single largest party of legislators in the Assembly. The Governor took the right decision.

This has been challenged by many as ignoring the bigger—and on paper, the majority commanding—post- poll coalition formed by the Congress and Janata Dal Secular. The gap between the BJP and the JDS-led group is less than 15 members in a 224-member house. In this case, the Governor used his discretion—bestowed on him by Article 163(2) of the Constitution—and called the BJP to form Karnataka’s next government.

The important point in the current situation is that the discretion of the Governor cannot be challenged in a court of law. Neither can this discretion be interpreted away as it was done in the case of Article 356, something that effectively destroyed the power of the Governor to deal with emergencies or any emergent situation. If the same principle is applied in the case of Article 163(2), it begs the question: why give the Governor that discretion to begin with? A guidebook on how to appoint a chief minister will suffice.

Discretionary power is an essential complement to handle a much larger set of nuanced situations, not all of which—or even a fraction thereof—can ever be inscribed in a Constitution. It bespeaks an unseemly fear of executive power that modern legal theories have sought to hem it in. Goa, Meghalaya and now Karnataka are just examples on a long list of failures to appreciate the diversity of situations that can arise in political life.