[Exclusive]: Why the Congress-JDS has moved the SC in #KarnatakaCMRace [Read grounds of petition]
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[Exclusive]: Why the Congress-JDS has moved the SC in #KarnatakaCMRace [Read grounds of petition]

Aditya AK

As reported earlier, leaders of the Congress party and the Janata Dal (Secular) have challenged the decision of Karnataka Governor Vajubhai Vala to invite the BJP to form the government in the state in the Supreme Court.

The Governor’s decision that was made public late on Wednesday evening prompted Congress and JDS leaders to knock on the doors of the Supreme Court in the wee hours of Thursday morning.

So why has the coalition approached the Supreme Court? Here are the primary grounds for challenge in the petition:

  • the impugned action/decision of the Hon’ble Governor dated  15.05.2018 in inviting B.S. Yeddyurappa, of Bharatiya Janata Party to be appointed as the Chief Minister of Karnataka and to form the Government by proving his majority within 15 days is unconstitutional, arbitrary and illegal and violative of Article 14.
  • the decision of the Governor flies in the face of the well-established constitutional convention that the Governor is Constitutionally obliged to invite the party/alliance of parties which has ex-facie demonstrated to the Governor that the said party/alliance of parties enjoys the support of the majority of the Legislators.
  • the constitutional convention of inviting the single largest party in the case of a fractured mandate has been outlined by the Sarkaria Commission recommendations, which were affirmed by a Constitutional Bench of this Hon’ble Court in Rameshwar Prasad v Union of India reported in 2006 (2) SCC 1.
  • the Sarkaria Commission report specifically dealt with the situation where no single party obtained absolute majority. It provided the order of preference the Governor should follow in selecting a Chief Minister in such a fluid situation: (1) An alliance of parties that was formed prior to the elections. (2) The single largest party staking a claim to form the government with the support of others, including independents. (3) A post-electoral coalition of parties, with all the partners in the coalition joining the government. (4) A post-electoral alliance of parties, with some of the parties in the alliance forming a government and the remaining parties, including independents, supporting the government from outside.
  • If such party/alliance of parties presents to the Governor letters of support of the Legislators which clearly show that the majority of the Legislators are with the party/alliance of parties staking claim to form the Government, then the Hon’ble Government has a Constitutional duty to first invite such party and or alliance of party’s which prima facie enjoys the support of the majority of the legislators.
  • the post-poll alliance between the INC and the JD(S) has 116 seats, and 2 independent MLA’s have also offered support to the coalition of the JD(s) and INC and therefore legislators supporting the alliance is 118…It was therefore incumbent upon the Hon’ble Governor to invite the post-poll alliance of JD(s) and INC to form the Government and direct them to prove the majority in the floor of the house.
  • this issue is no longer res-Integra, as a matter of fact, a three-judge bench in Chandrakant Kavlekar v. Union of India (2017) 3 SCC 758 has upheld the action of the Governor in the context of the elections of the Goa Legislative Assembly
  • this Hon’ble Court upheld the decision of the Governor by directing an expedited floor test. Therefore, it is submitted that the action of the Hon’ble Governor in this particular case to take a detour from the well-settled Constitutional convention as also the judgment of this Hon’ble Court in Chandrakant Kavlekar v. Union of India, (2017) 3 SCC 758 ex-facie unconstitutional, arbitrary, void-ab-initio and is violative of Article 14 of the Constitution
  • theGovernor, without affording an opportunity to the said coalition, has hastily proceeded to appoint Shri B.S. Yeddyurappa as the Chief Minister of Karnataka to pre-empt the coalition parties from forming the Government. It is submitted that the INC together with JD(S) etc. is in a position to form the Government and will demonstrate its majority on the floor of the House if given an opportunity.
  • despite the BJP being short of majority, in its hunger for power, by using the Office of Governor, has got itself invited from the Governor.
  • discretionary powers under the Constitution conferred on the Governor are not the ipsi dixit of the Governor but have to be exercised within the constitutional norms and conventions guiding the exercise of such discretion.
  • Law has been well settled by this Hon’ble Court that Constitutional Convention is as binding as Constitutional Law. [see Supreme Court Advocates on Record Association v. Union of India, (2016) 5 SCC 1 (para 767 and 768); Supreme Court Advocates on Record Association v. Union of India, (1993) 4 SCC 441].
  • For that, the impugned decision is brazenly opposed to the spirit of the Constitution as is reflected in Constitutional convention and practice having the force of law

Therefore, it has been prayed that the decision of the Governor to invite the BJP to form the government and the call to appoint BS Yeddyurappa as Chief Minister of Karnataka be set aside as being unconstitutional.

Read the petition:

Congress-JDS-petition-Supreme-Court.pdf
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