With a simple majority eluding the BJP in the Karnataka Assembly and the Congress quickly proclaiming support to third-placed JD(S) to keep the saffron party out of power, all eyes are now on Governor Vajubhai Vala.
Both the BJP, which is seven short of the halfway mark of 111 out of the 222 contested seats, and the Congress-JDS combine, which has a combined tally of 118, have staked to form the government in the state. And both have argued that the Governor should invite them to prove the majority first as the law is on their side.
While the BJP cited Supreme Court verdicts that say the party with the largest number of MLAs should be invited to form the government in the event of a fractured election result first, the Congress relied upon the recent examples of Meghalaya, Goa and Manipur, all three states where it had emerged as the single largest party but was not invited first because the BJP cobbled up the required numbers with a coalition first.
Like the two opposing sides, experts are also divided on the Governor’s next course of action. Vala met BJP’s chief ministerial candidate BS Yeddyurappa and JDS-Congress’ joint nominee HD Kumaraswamy on Tuesday evening, but did not decide on who he would invite first, saying he would wait for the Election Commission to give the final figures.
Former Attorney General Mukul Rohatgi, senior advocates Rakesh Dwivedi, Ajit Kumar Sinha and Rajeev Dhavan, retired Supreme Court judge P B Sawant and constitutional expert Govind Goyal were of the view that it was a "premature" stage to think what the Governor will do, but he has a choice to either invite the single largest party or the combination which has more number of MLAs.
While Rohatgi said it was a settled law that the Governor must call the single largest party, or the BJP here, to form government, Sawant was of the view that there was nothing in the constitutional scheme that would come in the way of the Congress-JD(S) combine forming the government.
Differing with them, Dwivedi and Goel said it was a "premature" stage for the Governor to take a call and, for all observers, it is a "wait and watch" game until the Election Commission announces the final outcome.
Dhavan said the correct way is to call the single largest party first and, if it fails to prove its numbers, then the Governor may go for the coalition option. Referring to Goa and Manipur polls, Dhavan said a mistake was committed in these two states as the single largest party, the Congress, was not invited to form the government.
His view was shared by Goel who said that as per the constitutional convention, the single largest party should be invited for government formation but there have been a few aberrations in the past like in Manipur and Goa.
Elaborating further, Dwivedi said after the final outcome, the arithmetic will be clear for the Governor to "apply his conscience" and either invite the single largest party or the combination, whichever will be in a position to provide a stable government in the state.
Emphasising on the stability factor, senior advocate and BJP spokesperson Aman Sinha drew the attention of S R Bommai (1994) and Rameshwar Prasad judgments of the apex court, which clearly stated that the Governor was obliged to invite the party which can provide stable and sustainable government.
He said in the present scenario, only the BJP was in a position to provide a stable and
sustainable governance and since BJP was emerging as a single largest party with a few short of majority, it is a clear indication that voters in Karnataka have opted for BJP.
The Congress, countered this, by citing Arun Jaitley’s old tweets he posted after the Goa verdict, in which he said the governor is constitutionally right in case of a hung verdict in inviting the leader of the majority coalition.
From a legal point of view, Sawant said, "It seems that JD (S) and Congress will be called by the Governor to form the government as their number is more than BJP alone. But they have to prove the number on the floor. The number game clearly shows there are not many parties. To run the government, in my opinion, JD (S) and Congress will be called."
On the contrary, Rohatgi said, "Here (in Karnataka) it is the BJP which is leading by a huge margin. The Governor is bound to invite the BJP. For formation of government, the Governor has to give a reasonable time to the party, probably a week, and then majority has to be proved on the floor of the House."
All legal experts were, however, unanimous that the Karnataka verdict has thrown open a test for the Governor to apply his conscience and discretion in taking a decision.
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