BS Yeddyurappa has been sworn as the 23rd Chief Minister of Karnataka. How long he will continue to be the Chief Minister of Karnataka is still up in the air. Elections were held for 222 seats, with the Bharatiya Janata Party winning 104, Congress 78, Janata Dal (Secular) 37, Bahujan Samaj Party 1, Karnataka Pragnyavantha Janatha Party 1, with an independent candidate winning the remaining seat.

Elections were not held for 2 seats and one Anglo Indian member is nominated in the 225-member house. HD Kumaraswamy of the JD(S) won on two seats.

After the results were announced, the BJP was eight short of the 112-halfway mark needed for a simple majority in the 222-member house, but went to the Governor Vajubhai R Vala and staked claim to form the government “as the single largest party with 104 newly-elected legislators”. On the other hand, the Congress and JD(S) grouping submitted a list of 117 candidates to the governor and claimed that they be invited to form the Government with HD Kumaraswamy as the chief minister.

Late night on May 16, the governor invited Yeddyurappa to take oath of office on May 17 at 9 am and gave him 15 days time to prove majority support on the floor of the Assembly. The Congress and JD(S) moved the Supreme Court registrar for an urgent hearing and the Supreme Court refused to stay Yeddyurappa’s swearing-in after a dramatic, late-night hearing that started at 1.45 am and went on for more than three hours till about 5 am on May 17.

But the Supreme Court also asked the Attorney General to furnish the letter in which Yeddyurappa had informed the governor that he had the numbers for a majority in Karnataka Assembly, and said that the case would be taken up next at 10:30 am on Friday.

This piece tries to answer what has happened since then and what may happen going forward.

1. The governor has invited and sworn in BS Yeddyurappa. Has he followed the Constitution? Wasn’t a different standard used , most notably in Goa in 2017?
There is no one standard to be used here. There is no definitive finding of law or provision in the constitution which says exactly what a governor should do in a situation where no one party or pre-poll coalition has crossed the halfway mark. In this regard, discretion is vested with the governor to take a call on the basis of the situation. Governor Vajubhai Vala was therefore not in the wrong in inviting Yeddyurappa. Equally, if he had chosen to invite HD Kumaraswamy, he would not have been in the wrong either.

The position of law, as it stands, does not give any clear guidance to the governor. However, this may be resolved by the Supreme Court’s judgement in the pending three judge bench case filed by the Congress over the Karnataka governor’s choice. It is possible that the court will lay down concrete directions to governors on how to deal with this situation.

2. But surely, given how the numbers stand, and with Yeddyurappa’s letter to the governor only mentioning 104 MLAs, how did the governor conclude that Yeddyurappa will be able to form a government? Particularly when the Congress plus JD(S) had given a letter with signatures of 117 MLAs?
The Governor can’t really weigh competing claims at this point. He doesn’t have the means to be able to tell who will provide the more stable government. This is why the mechanism of the floor test is necessary - it makes it clear, without a shade of doubt who supports whom in the Assembly and if anyone grouping has enough to form a stable government.

3. What happens now? We know that Yeddyurappa does not have a majority, with 104 MLAs. How can then he prove his majority on the floor of the house, as he has been asked to prove?
The reason that there is no standard in such a situation is because the floor test in the Assembly is the real basis to find out whether the claimant to the chief minister’s post actually enjoys the numbers. It’s possible that other parties may have a change of heart and support him. Or it is possible that certain individual MLAs in other parties may “defect” and express their support for him.

4. There have been lots of reports about horse trading. But isn’t there something called an anti-defection law? And can he simply break away members of the Congress or JD(S)? There is some confusion in some circles that one-third of any political party can legally choose to break away and cross over to another grouping.
No, there is no provision for any “legal” defection after the 91st Amendment to the Constitution. All defection is now liable to disqualification in accordance with the Tenth Schedule of the Constitution.

Apart from defection, it is also possible that if two-thirds of the members of a political party so choose, they can “merge” their party with another. This is strictly speaking not defection but a process by which at least two-thirds of the members of the legislative party (all the members of the party) agree to merge their party with another.

5. So if he can’t get MLAs from Congress or JD(S) to breakaway, how exactly does the governor expect him to prove his majority with only 104 MLAs?
There are a couple of possible scenarios:

  1. JDS rethinks its alliance with the INC and either offers outside support to the BJP or formally joins the BJP in an alliance.
  2. BSY realizes his bluff has been called and does not face the floor test at all.

Either way, instead of conclusively determining the strength of the parties for himself, the Governor has to resort to the floor test (whatever the numbers) to be absolutely sure who can and cannot form the government.

This is of course ruling out the possibility that there will be a BJP-INC government but stranger things have been known to happen!

6. Yeddyurappa had only asked for seven days to prove his majority on the floor of the house. Why did the governor give him 15 days? Will it not encourage horse trading?
Indeed it will. Fifteen days is an unreasonably long period of time in the circumstances. More so since there’s another alliance/group which claims to have the numbers. It is unclear why the governor thinks that 15 days are needed but on the face of it, it seems unjustified.

7. Can the BJP get members to resign their seats and thus bring down the strength of the house? With 104 MLAs, Yeddyurappa would be able to prove his majority only in a house of 207 MLAs whereas there are 222. So can 15 MLAs be made to resign, thus allowing him to prove majority?**
In order to resign, they have to be first sworn in as MLAs by the pro-tem speaker. Then the Speaker needs to be elected. The Speaker has to then accept their resignation. This move will only delay the question of Yeddyurappa proving his majority and not conclusively prove it.

8. HD Kumaraswamy actually won in two seats. So that means he will have to give up one seat – or will, for the purposes of this floor test, that seat also be counted as a JD(S) seat? Are we then looking at 221 seats with 111 as the number required for majority?
As per the Representation of the Peoples Act, 1951 HD Kumaraswamy has 14 days from the date of the results to give up one of the two seats. Only when he formally notifies the Speaker of the House of his choice will the number reduce from 222 to 221. At the moment, the Karnataka State Legislative Assembly will continue to have a strength of 222 and his second seat will also be counted as JD(S) seat. If, for some reason, there is a tie, and both sides are stuck in a dead heat, the only way out might be a short period of President’s rule and fresh elections.

The trust vote which takes place immediately after elections is not clearly laid down in any rules or the Constitution. One school of thought is that it is just a regular motion of parliament and therefore rules related to quorum, multiple seats, and majority of present and voting apply. Another approach is to treat it as an extension of the election and finding out which party/coalition has actually won the majority in the election. The court itself has not clarified many key points. For instance, while the pro-tem speaker can conduct the trust vote, is he entitled to cast the deciding vote in case of a tie? Is he entitled therefore to disqualify members for defections? If the regular rules apply, would the speaker be justified in holding a trust vote with the bare minimum quorum of 10% of the members? This FAQ has been answered on the basis that the trust vote is just an extension of the electoral practice and parties are showing their majority based on number of seats won, and not just voting on a motion in accordance with parliamentary rules.

9. Attorney General KK Venugopal argued in the late-night hearing in the Supreme Court that the anti-defection law does not apply before the MLAs take oath. The court said it was a preposterous claim. What is the legal position?
Anti-defection law will apply from the moment a person becomes an MLA. However, the point of the law is to link her actions as an MLA to how she became an MLA. There is a deeming clause in paragraph 2 of the Tenth Schedule which clarifies this position. So if a person has been voted on a Congress ticket, even if she shifts parties before taking oath, she can still be disqualified for voting against the Congress whip. In any case, this was most likely a passing reference and did not have anything to do with the issues directly at stake in the hearing.

10. Why do the MLAs need to resign? Why can’t they just not show up pretending to be sick or just be absent on the day of the vote, thus reducing the strength of the house to 207?
Unlike a vote of no-confidence, a majority of the House** is needed to form the government and show support of the majority of the House, not just members present and voting. This is only logical since a floor test is a substitute for having a single party/pre-poll coalition having a simple full majority in the elections.

**[Editor’s note: According to Subash C Kashyap, the former secretary general of the Lok Sabha, a vote of confidence would require the support of the majority of members “present and voting” to succeed. In Practice & Procedure in Parliament, MN Kaul and SL Shakdher say that the voting procedure for both the confidence and no-confidence motions are similar. A majority of members present and voting should support for the motion to succeed.]

11. Yeddyurappa has asked the 222 MLAs to vote according to their conscience. But we are told they can not do that and have to vote according to their party’s whip. What is this and what happens if they defy the whip
A “whip” is the direction that a party issues to its members in the legislature to vote in a certain way for a given measure. Failure to follow the party whip on voting in the house will get members disqualified under the Tenth Schedule of the Constitution.

12. Wait, but isn’t there a case of Karnataka itself where four JDS MLAs defied party whip and voted against it in the RS election and they were not disqualified – and now their term has formally ended with the dissolution of the house?
Indeed, they were not disqualified because the speaker did not take a decision at all.

13. So what happens to the anti-defection law?
It’s there on the books but the new “model” as perfected in Andhra Pradesh and Telangana is to engineer defections and have the Speaker take no decision in this respect for years on end. This will allow the defecting member to sit with the government, vote and even be a minister while clearly being disqualified under the law, simply because the constitutional authority, in this case, the Speaker, refuses to do her job.

14. This is getting very technical, you mean a speaker can do that – refuse to disqualify them? And what happens when the vote of confidence is taken and MLAs vote defying their party whips, particularly when there won’t even be a speaker?
There is never a situation of no speaker. A pro-tem speaker is appointed first. The floor test is taken. Then a full time speaker is elected by the House. Disqualification under the Tenth Schedule is not automatic but requires the Speaker to pass an order disqualifying the MLA. Should the speaker refuse to take a decision, a possible route may be to approach the High Court or the Supreme Court seeking a direction to force the Speaker to act. However, the question is currently pending before a Constitution Bench of the Supreme Court.

15. So the MLAs can resign only after being sworn in as MLAs. Or they could simply refuse to follow their party whip. That means much would depend upon the speaker. And who swears the MLAs in at all because right now there is no speaker?
Yes. They can resign only after being sworn in. They are usually sworn in by the pro-tem Speaker.

16. OK, so how is the pro-tem speaker elected? What are her powers?
The pro-tem Speaker is not elected. She is usually selected from among the senior-most members of the House (the ones who have served most terms). The pro-tem speaker has very few powers (mostly to swear in members and call for a floor test and vote for the new, full time speaker) and certainly not the powers of disqualification of members.

17. Can the pro-tem speaker accept resignations?
Highly unlikely. There’s no immediate precedent or law on this but the powers of the pro-tem speaker are limited only to carrying out the duties of easing in the new house.

18. The SC has asked the Attorney General to furnish the letter in which Yeddyurappa informed the governor that he had the numbers for a majority. Do we expect him to have mentioned the number of MLAs who support him? We know the Congress has mentioned a number. Does it tell us something about the Governor’s decision making? How crucial is this?
Not very crucial. It is being asked for by the court only to be satisfied that the governor had some basis to arrive at a decision to invite Yeddyurappa to form the Government. Even in the Goa Assembly case, the Supreme Court’s order notes the correspondence exchanged for the sake of completeness of understanding the facts of the situation. Since the Governor’s letter to Yeddyurappa mentions this particular letter, the Supreme Court has asked for a copy to make sure it has understood the facts and the series of events that led to the case.

19. What now?
With the matter in the Supreme Court, it is quite likely that we will see a court monitored floor test with the 15-day period reduced to some extent. In the present circumstances, the ideal scenario would be the court requesting the governor to call the Assembly to take the floor test within 48 hours, both the BJP and the Congress+JD(S) being asked to prove their strength on that day and the results submitted to the court. What happens after that will depend on what happens on the floor of the Karnataka State Legislative Assembly.

20. The Supreme Court has held, as pointed out in a piece yesterday, that a judicial review of the governor’s decision is possible on grounds of malafide intent. Do you think this is case of clear malafide intent?
Mala fide intent always depends on the specific facts of the case, and at least in the context of giving 15 days to Yeddyurappa to prove his majority, the Governor seems to have acted in bad faith, as I have said elsewhere. Should the Supreme Court order a floor test on a shorter date, they would be implicitly going on the premise that the Governor has acted in bad faith. Especially since the Governor has not provided any cogent reasons or grounds for suggesting why 15 days’ time is needed.

Responses to questions numbered 1, 4 and 8 have been supplemented by the author to clarify doubts raised by alert readers.