Yeddyurappa’s resignation brings up the question: What if Supreme Court had not intervened?

Not since the results of the elections in Bihar in 2015 has the Bharatiya Janata Party under Prime Minister Narendra Modi and party president Amit Shah faced an electoral setback like it did on Saturday. Despite winning the most seats in the Karnataka assembly elections and being asked to prove his majority on the floor of the house, the BJP leader BS Yeddyurappa decided not to risk a floor test that he might have lost and chose to resign as chief minister just two days after being sworn in. The quick turnaround comes as a huge boost to the Congress and Janata Dal (Secular), which will now hope to form the government.

But it may not have happened at all, if the Supreme Court had not intervened.

A day after the results made it clear that the BJP did not have the numbers sufficient for a majority, Karnataka Governor Vajubhai Vala nevertheless invited Yeddyurappa to form the government. Vala did this despite a competing claim from the post-poll alliance of the Congress and JD(S), which together had sufficient members to cross the 112-seat halfway mark in the assembly.

Moreover, the manner in which Vala extended his invitation was also questionable. Even though both the claims had come in on May 16, Vala waited until after 8 pm on May 17 to invited Yeddyurappa. At the same time, he announced that Yeddyurappa’s swearing-in ceremony would take place the very next morning at 9 am. And, to top it off, though Yeddyurappa had only reportedly asked for seven days to prove his majority, Vala said he could have 15 days to do so.

Governor’s partisan role

If the implications were not clear then , they are amply evident now. The tiny window of time between Vala inviting Yeddyurappa and his swearing-in ceremony was intended to ward off any opportunity for the Opposition to mount a legal challenge. And the 15-day time period to prove majority was aimed at giving the BJP, which was at least seven seats short of a majority, enough time to entice other Members of the Legislative Assembly. Governors are political appointees, and though they are meant to not be partisan, they tend to act according to the whims of the Centre. Yet in this case, those whims were thwarted by another institution.

Despite the late-night announcement from the governor, the Congress and the JD(S) sent a petition to the Supreme Court registrar asking for an urgent hearing before the swearing-in took place. And so, for possibly only the second time in the institution’s history, a three-judge Supreme Court bench sat to hear arguments by the Congress-JD(S) against Vala’s decision to invite the BJP. The final order, pronounced at around 5.15 am after arguments began at 1.45 am, did not do much other than to make the swearing-in contingent on the final outcome of the legal case.

On the next day, May 18, after the swearing-in ceremony had taken place, the hearing resumed and the court insisted that Yeddyurappa’s floor test would have to take place the very next day. Mukul Rohatgi, appearing for members of the BJP, attempted to delay matters even further, but the Supreme Court was adamant. As it turned out on Saturday, Yeddyurappa chose to resign rather than actually face a floor test, presumably because his party did not have the numbers to win one.

Supreme Court’s intervention

But what would have happened if the court had not intervened? Questions were raised about the Supreme Court’s decision to hear the matter overnight, with many arguing that such special hearings should only take place in cases of life or death. Ultimately, it seems that it was the scrutiny from the apex court that forced the BJP to fall in line. The implication is that if indeed the court was not watching over matters, and had not insisted on a floor test right away, the BJP would have “horse traded” its way into power.

That is a very serious indictment for the BJP, the party that took charge of government in 2014 on an anti-corruption platform and claims to be driven by an ideology, not just a desire for power. But it also brings up questions about three decisions made by Vala, Karnataka’s governor: Why he chose to invite the BJP, when he chose to announce the invitation to Yeddyurappa, and why he was ready to permit him 15 days before the floor test.

The Supreme Court said very clearly, when it passed interim orders, that it would continue hearing this case. This suggests it will keep looking into those three questions and, whether it criticises Vala or not for what now seem like blatantly partisan decisions, it seems likely the court will add to the guidelines that governors can be expected to follow in such situations. That would be useful, in part because it is also uncomfortable to have the judiciary actively intervene in matters that should otherwise be limited to the executive and the legislature.

Matters of chance

It is worth noting how what was almost a chance development at the Supreme Court, which may not have taken up the urgent hearing at all, changed the fortunes of millions of people living in one of India’s largest states. Right-wingers who have applauded the tenure of Chief Justice Dipak Misra and criticised Justice Chelameswar’s decision to speak up against him will claim this is hypocrisy: How can the judiciary both be compromised and the bulwark against the BJP’s authoritarianism?

The answer is, simply, that these are not binaries. The Congress was as likely to use institutions like the Governor for partisan purposes, it just that the BJP is more efficient at it. And the entirety of the judiciary is not compromised. Indeed, one might even believe that it may have been questions about the independence of Chief Justice Misra that prompted him to take up the Congress-JD(S) petition with alacrity.

The smooth functioning of a democracy should not have to depend on matters of chance. Just because the JD(S) and Congress have come out ahead this time does not mean that the foundations of the state are any less shaky. Nor can we be certain that they too will not abuse the same processes if they were in a position to. For those concerned about the events of the last week, it is imperative that one look for more lasting solutions and hope that the Supreme Court, which is set to take up the question of gubernatorial discretion, help lay down the guidelines that can ensure less partisanship.