No, the SR Bommai Case Has No Relevance to the Karnataka Election

Politicians and journalists are trying to use this case to justify their views, but the answer lies elsewhere.

Representative image.

(Photo: The Quint)

Who is SR Bommai and why are people talking about his case?

SR Bommai was Chief Minister of Karnataka for a grand period of seven months, before his government was dismissed by the Governor because it had supposedly lost its majority.

He filed a case against this, which led to a landmark Supreme Court judgment in 1994. That has suddenly become relevant again, thanks to the 2018 Karnataka elections, where Governor Vajubhai Vala has to decide between inviting the BJP (as single-largest party) or the JD(S) + Congress (as a post-poll alliance with a majority) to form the government.

Or at least, a bunch of talking heads from both sides of the spectrum think it is relevant to deciding who should be invited to form the government in Karnataka.

Hang on a minute, those tweets say entirely opposite things! What does this binding, 9-judge bench decision say? Should the Governor invite the single-largest party to form the government, or a post-poll coalition?

Errr, neither? The Bommai case is a big one, yes, but it doesn’t say anything about what’s to happen in a hung assembly like we have in Karnataka now.

Now wait just a minute. Are you saying that all these lawyers, politicians and journalists are talking nonsense?

Yes, that’s correct.

What makes you the expert? Who says the Bommai judgment has nothing to do with this situation?

Well, the Bommai judgment, actually. Here’s paragraph 396 of the judgment, if you don’t believe me:

“We make it clear that what we have said above is confined to a situation where the incumbent Chief Minister is alleged to have lost the majority support or the confidence of the House. It is not relevant to a situation arising after a general election where the Governor has to invite the leader of the party commanding majority in the House or the single largest party/group to form the Government. We need express no opinion regarding such a situation.”

Wait, doesn’t that say the Governor has to invite the leader of the single-largest party to form the Government? Isn’t that what the BJP are saying?

Nope, the judgment lays down no legal position on that situation. It literally says that in the next sentence. And it also says “party/group” there, so even if we wanted to extract an answer from it, that line is of exactly zero use.

So the BJP’s argument in its letter to the Governor is a misreading of the case?

Yes, but it’s a misreading of convenience that’s not unique to them.

Last year, in the aftermath of the Goa elections, when the tables were reversed, Congress spokesperson RS Surjewala said the same thing. And even tried to use the very paragraph I’ve quoted above to justify the argument.

So what does this Bommai judgment actually deal with?

To cut a long story short, it dealt with what to do when a State Government is dissolved by the President and President’s Rule imposed under Article 356 of the Constitution. And that too, specifically when an existing government loses its majority or is reported to have lost its majority because of defections and that kind of thing.

And since there is no existing government here, it would be utterly stupid to mention the Bommai case and anyone doing so should be given a whack?

Yes to the utterly stupid part. No to the physical violence part (though I understand why you would want to).

So are there any rules whatsoever to decide who becomes the government in Karnataka?

No, there are no hard and fast rules on who should be invited to form a state government. The Constitution, the Representation of the People Act, 1951, all of these are silent on this.

So the Governor can do whatever he wants? That’s a bit arbitrary, isn’t it?

The Governor has a lot of discretion, yes. But this isn’t a carte blanche – there are conventions and customs that he is supposed to adhere to. And he can’t appoint people who are disqualified under the law from holding such positions, of course.

So what do the conventions say? Should the single-largest party or a coalition be invited to form the government?

The relevant conventions were summarised in the Sarkaria Commission Report of 1988, as well as the Punchhi Commission Report of 2010.

If no party has a clear majority, the Governor is to select a chief minister as per the following order of preference:

1. The group with the largest pre-poll alliance commanding the largest number
2. The single-largest party with support of others
3. The post-electoral coalition with all parties joining the government
4. The post-electoral alliance with some parties joining the government and the remaining, including Independents, supporting from outside

So, does that mean the single-largest party, ie the BJP should be invited to form the government in Karnataka ahead of the JD(S) + Congress combine?

This is not entirely clear. The Punchhi Commission noted in its report that there was uncertainty over the claims of a post-poll alliance which might mean the Governor would just have to invite the single largest party to form the government.

Report of the Punchhi Commission on Centre-State Relations, Volume II, Page 73

But doesn’t that same paragraph also say that in cases of narrow majorities, there are no uniformly accepted conventions?

Exactly, which is the problem. In fact, going by recent precedent, the post-poll coalition is the one that gets favoured. Goa, Manipur and Meghalaya in the last year have seen BJP post-poll coalitions invited to form the government even though the Congress had a majority.

And what has the Supreme Court said in such cases? Largest party or post-poll alliance?

The Supreme Court has never answered this question, even when asked to do so, as the Congress did last year over the Goa situation. The Court just ordered a floor test to check the majority being claimed by Manohar Parrikar’s government, rather than assess whether the governor should have invited the BJP’s coalition to form the government in the first place.

The only guiding principle the apex court seems to recognise is of whether a government can maintain a stable majority – this was the touchstone according to the Rameshwar Prasad case in 2006 (when considering whether the Bihar assembly should have been dissolved), and was the basis for ordering floor tests in Goa (2017) and Jharkhand (2005).

Digvijay Singh’s (L) attempts to secure Goa for the Congress were thwarted by Manohar Parrikar (R) of the BJP who was sworn in as Chief Minister(Photo: The Quint)

What if the majority is being established through horse-trading?

According to the Rameshwar Prasad case, mere allegations and suspicions of underhanded stuff can’t invalidate a provable majority. So all the suspicions at present that the BJP is going to try poaching Congress and JD(S) MLAs is unlikely to sway any challenge in the courts. Which is inevitable, whatever Governor Vala does.

So basically there’s no definitive answer to any of this?

Not really, apart from the stable majority thing. Oh, and that Bommai most certainly isn’t an answer.

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