The Inevitable Fall
   29-Jul-2019
 
 
 
Former CM HD Kumaraswamy and CM BS Yeddyurappa  
 
The Cong-JD(S) coalition took over the reins of Karnataka in a post-poll alliance only to keep the BJP away from power. While the opportunistic alliance seized power, the State suffered. Lack of stability meant lack of governance, corruption, neglect of people. 14-month coalition rule in Karnataka is a lesson on why a State needs a stable government with a decisive mandate
 
The last fortnight filled Karnataka’s life with high-voltage political drama with nerve-wracking surprise twists as an also fair share of boredom sprinkled amidst it. The recurrent screen-changing from the legislature to court proceedings sandwiched with melodramatics was a perfect guidebook for acting and stagecraft. It transformed every anchor and guest on television channels into an expert on Constitutional provisions and legislative procedures. The ‘whip’, ‘point of order’, ‘confidence motion’ vs. ‘no-confidence motion’ ‘division of votes’, ‘disqualification of legislators’ and many other weighty jargons hitherto captive with the politico-legal punditry, effortlessly entered the popular vocabulary.
 
All this said, the travesty remains that media mills had so much grind that gravamen unknowingly slipped out. Thanks to monolithic media focus on confidence motion debate, the hasty file clearance drive by the Chief Minister hardly received any focus, leave apart critical analysis. Neither the media nor legislators seemed to bother or question if the sparing presence of the Chief Minister in the Assembly, the one who initiated the Confidence Motion, is owing to the ‘important file clearance drive’.
 
Coalition misuses Government Machinery
 
No sooner the confidence motion was moved by former Chief Minister HD Kumaraswamy, than the Governor of Karnataka despatched a firm direction to the Chief Secretary not to process any important files, pending conclusion of the confidence motion. In fact, the two messages communicated by the Governor to the Chief Minister to prove the confidence of the house when the house was in session were logical and legal sequels to the important direction issued to the Chief Secretary. Thanks to the selective deafness, there was ‘business as usual’ at all levels.
Now, take for instance an important cabinet decision of 11 July on Transfer of Development Rights (TDR) and consequent grant of Development Right Certificates (DRC) in favour of the royal family of Mysuru with regard to their Bengaluru Palace property located off Ballari Road and Jayamahal. It is a well-settled legal position that TDR can be issued only in respect of a litigation-free property, whereas the dispute between the State Government and royal family with regard to the ownership of Bengaluru Palace is pending adjudication before the Apex Court. To top it all, Bruhat Bengaluru Mahanagara Palike has formed a probe panel to examine the TDR frauds since 2006. What is even more interesting is that only a few days ago, the High Court of Karnataka refused to grant bail to a TDR fraud accused. The other important concern that seems to bother none is the fact that this crucial land clearance paves the way for felling of 854 trees as ‘infection’ to Bengaluru’s lungs is nobody’s botheration.
This cabinet decision is said to have been taken on 11 July, when two of the Cabinet Ministers of the erstwhile Government—H Nagesh (Small Scale) and R Shankar (Municipalities)—were in a Mumbai Hotel since 8 July along with other ten rebel MLAs.
 
Governor, irrespective of the numbers in the Assembly, could have justifiably recommended to the Union Government for dismissal of the Government irrespective of the numbers in the assembly since constitutional breakdown was writ large in Karnataka 
 
Only one mainstream English Daily reported this anomaly that too went almost unnoticed amidst the political thicket and furore. Many such important decisions have gone unnoticed amidst the high-drama that unfolded over few weeks. The first task before any popular government succeeding after this dark phase is to conduct a comprehensive review of all these decisions and come out with a detailed White Paper. To attach the much-desired credibility to its process and outcome of the probe, the future government may consider entrusting this task to an eminent former Judge of the Supreme Court. The situation in Karnataka was no doubt a textbook case of constitutional breakdown besides being a classic case of loss of popular mandate. 
 
CM Heads a Minority Government
 
The 9-judge Bench’s historic judgement in S.R. Bommai vs. Union of India (AIR 1994 SC 1918) case was near prophetic as the State of Karnataka, in last few weeks, witnessed two grave situations contemplated therein which justifies invocation of Article 356—internal subversion where, for example, a government is deliberately acting against the Constitution and the law and physical breakdown where the government willfully refuses to discharge its constitutional obligations endangering the security of the State. The apex court has clearly held that irrespective of the enjoyment of the majority, a State Government can be dismissed when there is a constitutional breakdown in the situations illustrated above.
 
Simply put, Governor, irrespective of the numbers in the Assembly, could have justifiably recommended to the Union Government for dismissal of the Government irrespective of the numbers in the assembly since constitutional breakdown was writ large in Karnataka. Ratio of the Bommai judgement is that Union is well justified in dismissing a Government despite numbers if the Constitutional machinery has broken down in the State. All that the Apex Court says is that such dismissal takes effect pursuant to the assent of the Parliament. Even then, the Central Government and Governor have shown exemplary restraint in their conduct by allowing enough leeway enabling the democratic process to unravel with its fullest bloom.
 
While political wisdom and concern for democracy of the Central Government and Governor in not invoking the Governor’s rule may be laudable, it’s undeniable that the hasty decisions taken by the Karnataka Government in last few weeks have caused grave and irreversible damage to the administrative and political fabric besides rupturing the Constitution.
 
The biggest of all the tragedies in this episode remains the irreversibility of some of the decisions, worse still, if at all it leads to endless battles in the course of a prolonged and futile reversal for no amount of weighty litigation by any Government in future, can reverse the felling of hundreds of trees and depletion of natural resources. Nevertheless, it will be inexcusable constitutional and moral sin besides being a political fatality if the succeeding government were to ignore its obligations to examine the past damage caused.
 
Before parting, it's befitting to recollect a forgotten fact that Bommai judgement among other things involved legal propriety of the dismissal of the BJP’s popular State Governments of Madhya Pradesh, Rajasthan and Himachal Pradesh in the wake of Ayodhya Movement. One of the prime contentions taken by the so-called ‘secularists’ during arguments in Bommai case was that ‘Secularism being a basic feature of the Constitution, a State government can be dismissed if it is guilty of ‘non-secular’ acts. One can, however, be rest assured that no ‘secularist’ will ever whisper a word on whether a ‘secular’ government be given a freehand for indulging in subversion of constitutional machinery by disregarding its constitutional obligations, endangering the safety of the precious recourses of the State.
 
(The writer is a practising advocate and the founder of Navayana Law Offices)