Today's Paper

Two constitutional options before Rameshwar Thakur

Parvathi Menon

House session cannot be called before President’s rule is revoked

‘The Governor has to be guided by constitutional morality’

Bangalore: “Until Parliament decides on the Presidential proclamation of October 9 imposing President’s Rule in the State, or the President revokes the proclamation, the state of ‘Trishanku’ created by Article 356 of the Constitution, will continue,” according to B.K. Chandrashekar, Legislative Council Chairman and a former professor of law. Clause 3 of Article 356 makes it mandatory that both Houses of Parliament approve (or disprove) the Presidential proclamation before two months of it having been made.

Speaking to The Hindu on the constitutional reasoning that could inform the Governor’s decisions at this politically volatile juncture, Prof. Chandrashekar said that there were two possible constitutional options. In the first, the Governor assesses the claim of the Bharatiya Janata Party (BJP) and the Janata Dal (Secular), is satisfied that they have the figures and decides to recommend verification. He must make a report to this effect to the Union Government. Clause 2 of Article 356 allows the President to revoke President’s Rule by a subsequent proclamation that does not have to be approved by Parliament. Only then can the Governor convene a session of the legislature and ask the claimants to prove their majority.

The second option, according to Prof. Chandrashekar, is for the Governor to recommend dissolution of the Assembly, based on the circumstances under which the claim has been made.

“The two parties that have come together are the two parties that dismantled the government in the first place. Both parties gave letters to the Governor — the BJP to say that it was withdrawing support to the government, and the former Chief Minister to say that he was resigning. Until 24 hours before they went to the Governor on October 27, they were accusing each other of immorality and treachery. The Janata Dal (Secular) even put out a full-page advertisement against the BJP.” There is, therefore, no clear-cut case before the Governor for the claim that they will form a stable government, he says.

“In the working of any Constitution, however, there is the question of morality. The Supreme Court’s interpretation of the Constitution in the Bommai Case is an example of a moral interpretation of the Constitution” said Prof. Chandrashekar, adding that the present situation in Karnataka called for the Governor to be guided by “constitutional morality.”

R.N. Narasimha Murthy, former Advocate-General, and Prof. Chandrashekar both point to the differences between the Rameshwar Dayal case in which the Bihar government was dismissed in 2004 and the present situation in Karnataka.

“The question of mala fide on the part of the Governor does not arise here as the parties themselves ignited the crisis in which the Governor had no role,” said Prof Chandrashekar. The JD(S) asked for the dissolution of the Assembly and the party’s president, H.D. Deve Gowda, even wrote to the President on October 24 seeking the dissolution of the Assembly fearing “horse-trading.”

Given this situation Mr. Murthy and Prof. Chandrashekar have suggested that the President refer this matter to the Supreme Court under Article 143(1) of the Constitution which empowers the President to seek the Supreme Court’s opinion on any question of law or fact of public importance. “The Supreme Court would do well to interpret and develop the law on such a matter, one that is likely to recur, in the interests of the real beneficiaries of the Constitution of India, the people,” said Prof. Chandrashekar.

Convening session

The Governor, therefore, cannot call a session of the Assembly to allow the present claimants to prove their majority before President’s Rule is revoked. This also means that the time frame for either the installation of a JD(S)-BJP government, or dissolution of the Assembly, is unlikely to be decided before the first or second week of November.

>Corrections and clarifications

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