Legal debate

Karnataka governor invites Yeddyurappa: Here’s why the Supreme Court needs to step in

Given the numbers that the BJP currently has, to conclude that Yeddyurappa would form a stable government is plainly unethical and irrational.

The Karnataka Governor Vajubhai Vala on Wednesday invited Bharatiya Janata Party legislative party leader BS Yeddyurappa to form the government. He has given Yeddyurappa 15 days time to prove majority support on the floor of the Assembly.

The move raises serious constitutional and ethical questions. The BJP currently has the support of 105 MLAs. The Congress and the Janata Dal (Secular) put together, along with the Bahujan Samaj Party and two independents, have the support of 117 MLAs. The Congress and JD(S) have six legislators more than the 111 required to cross the halfway mark. The BJP, on the other hand, needs the support of six legislators to prove its majority.

The law as it currently stands gives the governor absolute immunity from judicial intervention in the exercise of his discretionary powers. Article 361 of the Constitution clearly states that the governor is not answerable to the court for decisions taken in the exercise of his powers and duties.

However, the Karnataka governor’s decision seems to be based on the assumption that Yeddyurappa has the best chance of forming a stable government. This assumption does not hold because another formation has already shown majority by providing the letter of support of all its legislators. While Article 361 provides governors absolute immunity from judicial interference, the courts have in the past indicated that a decision by the governor should not be arbitrary and patently malicious. Given the circumstances where JD(S) leader HD Kumaraswamy has already accused the BJP of trying to poach his MLAs with monetary and other inducements, it is a fit case to approach the highest court of the land to answer an important constitutional question: Is it time to place guidelines on how a governor should exercise his discretionary powers?

Governor’s discretionary powers

The Constitution in Article 361 provides governors immunity from judicial interference for a reason. The assumption here is that the governor will discharge his duties in a fair manner, respecting Constitutional propriety. Article 361 is no license for arbitrary functioning.

While the courts have reiterated this time and again, the governors do not enjoy absolute immunity when they cross the line. In SR Bommai vs Union of India, which went into the use of Article 356 of the Constitution by the President to dismiss a state government, the Supreme Court made it clear that decisions of the President under Article 356 should be fair and he should keep in mind the great political and constitutional consequence of exercising this extraordinary power.

The Supreme Court said judicial review of the decisions of the President would be possible if it is malafide. The court said:

“The scope of judicial review would be on the same or similar grounds on which the executive action of the State is challengeable under constitutional or administrative law principles evolved by this Court, namely, non-compliance with the requirements of natural justice, irrational or arbitrary, perverse, irrelevant to the purpose or extraneous grounds weighed with the President, misdirection in law or mala fide or colourable exercise of power, on all or some of the principles. The petitioner has to satisfy the Court only prima facie that the Proclamation is vitiated by any one or some of the above grounds and burden then shifts on the Council of Ministers to satisfy the Court of the legality and validity of the Presidential Proclamation issued under Article 356.

The governor plays a similar role in the states. In fact, Article 361 covers both the offices of the president and the governors. Therefore, the principle of fair play would apply in the current situation in Karnataka as well. In other words, irrational and arbitrary decisions are not acceptable under the Constitution.

Malafide intent

It is important to analyse if what the Karnataka governor has done is rational and fair and not arbitrary and malafide.

The BJP has the support of only 105 MLAs. The Congress and JD(S) together have 117. Even if the support of the two independent MLAs are discounted, it is clear that the post-poll alliance has crossed the halfway mark.

When this is the factual position, on what basis did the governor decide that Yeddyurappa would be in the best position to provide a stable government?

The implication of the governor’s decision is that he has put a stamp of approval on attempts to poach legislators from the other side. Unless some of the MLAs belonging to the Congress or the JD(S) switch over, there is no way the BJP could achieve majority in the Assembly.

In Rameshwar Prasad vs Union of India, the Supreme Court said:

“When the sole object is to grab power at any cost even by apparent unfair and tainted means, the Governor cannot allow such a government to be installed. By doing so, the Governor would be acting contrary to very essence of democracy. The purity of electorate process would get polluted.”

Vala is a former member of the BJP. Having disregarded the claim of a coalition with requisite numbers, he has gone ahead and invited a party in minority. This reeks of partisan functioning and is a classic case of denial of natural justice.

However, there is currently no precedent establishing how a governor should function when he decides to invite a person to take oath as chief minister. While some invoke the Goa case of 2017, where the governor invited the BJP despite Congress being the single largest party, to argue that the same principle should be applied here, the fact is that in Karnataka, the claim of the Congress and the JD(S) is on an even higher pedestal. Unlike Goa, the Congress and JD(S) here have shown that they have the majority support while staking their claim.

It is true that the courts have so far maintained the absolute nature of Article 361, but this is the time for the judiciary to rethink its stand on this constitutional provision and question the intent of the governor.

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Swara Bhasker: Sharp objects has to be on the radar of every woman who is tired of being “nice”

The actress weighs in on what she loves about the show.

This article has been written by award-winning actor Swara Bhasker.

All women growing up in India, South Asia, or anywhere in the world frankly; will remember in some form or the other that gentle girlhood admonishing, “Nice girls don’t do that.” I kept recalling that gently reasoned reproach as I watched Sharp Objects (you can catch it on Hotstar Premium). Adapted from the author of Gone Girl, Gillian Flynn’s debut novel Sharp Objects has been directed by Jean-Marc Vallée, who has my heart since he gave us Big Little Lies. It stars the multiple-Oscar nominee Amy Adams, who delivers a searing performance as Camille Preaker; and Patricia Clarkson, who is magnetic as the dominating and dark Adora Crellin. As an actress myself, it felt great to watch a show driven by its female performers.

The series is woven around a troubled, alcohol-dependent, self-harming, female journalist Camille (single and in her thirties incidentally) who returns to the small town of her birth and childhood, Wind Gap, Missouri, to report on two similarly gruesome murders of teenage girls. While the series is a murder mystery, it equally delves into the psychology, not just of the principal characters, but also of the town, and thus a culture as a whole.

There is a lot that impresses in Sharp Objects — the manner in which the storytelling gently unwraps a plot that is dark, disturbing and shocking, the stellar and crafty control that Jean-Marc Vallée exercises on his narrative, the cinematography that is fluid and still manages to suggest that something sinister lurks within Wind Gap, the editing which keeps this narrative languid yet sharp and consistently evokes a haunting sensation.

Sharp Objects is also liberating (apart from its positive performance on Bechdel parameters) as content — for female actors and for audiences in giving us female centric and female driven shows that do not bear the burden of providing either role-models or even uplifting messages. 

Instead, it presents a world where women are dangerous and dysfunctional but very real — a world where women are neither pure victims, nor pure aggressors. A world where they occupy the grey areas, complex and contradictory as agents in a power play, in which they control some reigns too.

But to me personally, and perhaps to many young women viewers across the world, what makes Sharp Objects particularly impactful, perhaps almost poignant, is the manner in which it unravels the whole idea, the culture, the entire psychology of that childhood admonishment “Nice girls don’t do that.” Sharp Objects explores the sinister and dark possibilities of what the corollary of that thinking could be.

“Nice girls don’t do that.”

“Who does?”

“Bad girls.”

“So I’m a bad girl.”

“You shouldn’t be a bad girl.”

“Why not?”

“Bad girls get in trouble.”

“What trouble? What happens to bad girls?”

“Bad things.”

“What bad things?”

“Very bad things.”

“How bad?”

“Terrible!!!”

“Like what?”

“Like….”

A point the show makes early on is that both the victims of the introductory brutal murders were not your typically nice girly-girls. Camille, the traumatised protagonist carrying a burden from her past was herself not a nice girl. Amma, her deceptive half-sister manipulates the nice girl act to defy her controlling mother. But perhaps the most incisive critique on the whole ‘Be a nice girl’ culture, in fact the whole ‘nice’ culture — nice folks, nice manners, nice homes, nice towns — comes in the form of Adora’s character and the manner in which beneath the whole veneer of nice, a whole town is complicit in damning secrets and not-so-nice acts. At one point early on in the show, Adora tells her firstborn Camille, with whom she has a strained relationship (to put it mildly), “I just want things to be nice with us but maybe I don’t know how..” Interestingly it is this very notion of ‘nice’ that becomes the most oppressive and deceptive experience of young Camille, and later Amma’s growing years.

This ‘Culture of Nice’ is in fact the pervasive ‘Culture of Silence’ that women all over the world, particularly in India, are all too familiar with. 

It takes different forms, but always towards the same goal — to silence the not-so-nice details of what the experiences; sometimes intimate experiences of women might be. This Culture of Silence is propagated from the child’s earliest experience of being parented by society in general. Amongst the values that girls receive in our early years — apart from those of being obedient, dutiful, respectful, homely — we also receive the twin headed Chimera in the form of shame and guilt.

“Have some shame!”

“Oh for shame!”

“Shameless!”

“Shameful!”

“Ashamed.”

“Do not bring shame upon…”

Different phrases in different languages, but always with the same implication. Shameful things happen to girls who are not nice and that brings ‘shame’ on the family or everyone associated with the girl. And nice folks do not talk about these things. Nice folks go on as if nothing has happened.

It is this culture of silence that women across the world today, are calling out in many different ways. Whether it is the #MeToo movement or a show like Sharp Objects; or on a lighter and happier note, even a film like Veere Di Wedding punctures this culture of silence, quite simply by refusing to be silenced and saying the not-nice things, or depicting the so called ‘unspeakable’ things that could happen to girls. By talking about the unspeakable, you rob it of the power to shame you; you disallow the ‘Culture of Nice’ to erase your experience. You stand up for yourself and you build your own identity.

And this to me is the most liberating aspect of being an actor, and even just a girl at a time when shows like Sharp Objects and Big Little Lies (another great show on Hotstar Premium), and films like Veere Di Wedding and Anaarkali Of Aarah are being made.

The next time I hear someone say, “Nice girls don’t do that!”, I know what I’m going to say — I don’t give a shit about nice. I’m just a girl! And that’s okay!

Swara is a an award winning actor of the Hindi film industry. Her last few films, including Veere Di Wedding, Anaarkali of Aaraah and Nil Battey Sannata have earned her both critical and commercial success. Swara is an occasional writer of articles and opinion pieces. The occasions are frequent :).

Watch the trailer of Sharp Objects here:

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This article was published by the Scroll marketing team with Swara Bhasker on behalf of Hotstar Premium and not by the Scroll editorial team.