The political developments in Karnataka, after the BJP withdrew its support to the Ministry headed by H D Kumaraswamy, are in no way comparable to the facts as they obtained in the case of the dismissal of the Bommai ministry and the dissolution of the Assembly in Bihar leading to the two Judgements of the Supreme Court in S R Bommai Vs. Union of India (reported in (1994) 3 SCC 1) and Rameshwar Prasad Vs. Union of India (reported in (2006) 2 SCC 1).

Both were cases wherein the reports made by the respective Governors were not based on verifiable, cogent material relevant for the purposes of arriving at the conclusion that the Government of the State could not be carried on in accordance with the provision of the Constitution. In both the cases, on a perusal of the reports of the Governors, the Supreme Court based its orders on a positive finding that the reports of the Governors were malafide and the consequent proclamations issued by the President based on these reports were illegal and unconstitutional.

The report by Buta Singh, then Governor of Bihar, was characterised as having been prepared with the object of preventing a particular political party from forming the Government. However, the Presidential Proclamation resulting in the dissolution of the Assemblies of Madhya Pradesh, Rajasthan and Himachal Pradesh were upheld by the Supreme Court in Bommai’s case.

An analysis of the two judgments therefore leads to the conclusion that given a different set of facts where cogent and relevant material is available to justify an inference – that the cobbling up a majority is not in the normal course of a political development with a sincere desire to provide a stable and democratically acceptable government, but an attempt by the legislators to hijack the administration of the state for their unprincipled selfish purposes – it is open to the Governor to arrive at a bonafide conclusion that the proposed Government cannot be carried on in accordance with the provisions of the Constitution. Thereby he can make a report to that effect to the President.

The President, that is the Council of Ministers at the Centre, will of course have to examine the report in detail and  be satisfied that the Governor’s report is based on cogent and relevant material to justify the issue of a Proclamation under Article 356 of the Constitution and its continuation.

The sudden change of stand by both the BJP and JD(S) who were accusing one another and swearing that they would have no alliance again and who even publicly demanded the dissolution of the House cannot be accepted by any reasonable person as a second coming together reflecting the will of the people of the state. The Legislators, as trustees of the people, have to act in accordance with the will of the people. Electoral consciousness of the voters in Karnataka has not at any point of time been whimsical and unpredictable.

The decision of a few legislators to save themselves from facing dissolution of the Assembly, to change overnight their political stand and support, and from minute to minute, despite loud proclamation to the contrary till yesterday cannot by any stretch of imagination be accepted as a reflection of the will of the people of Karnataka. 
If the personalised decision of the individual legislators is accepted to form the basis for setting up a new coalition government, it results in a distortion of the democratic political system itself and gives rise to some very basic, fundamental questions touching the continuance of the democratic system, upon which our constitution is founded.

The basic question fundamental to the governance of the state on democratic principles is as to whether the unprincipled and self serving decision of the BJP and a section of JD(S) legislators to forge an alliance again to form a Government can be said to reflect the will of the people.

Have we, the electorate, surrendered our rights to have a democratic set up to govern us, to be decided by the legislators to suit their whims, fancies and selfish ends?  This is not a question of political ethics or morality but of the democratic rights of the people and, basic and fundamental to the sustenance and survival of democracy itself, as against the emergence of an Oligarchy.

The extent to which the elected representatives of the people can use the trust - or more aptly misuse the trust - placed by the people in electing them as their representatives has to be nationally debated and decided by the Supreme Court.

There cannot be a better case than the present one in Karnataka to undertake this judicial exercise which will have to lay down the guidelines for survival of the democratic system in this nation. State administration cannot be reduced to a game for legislators to play but should be run on democratic norms and principles.

In view of the complexity of the situation in Karnataka today as a result of unprincipled, power hungry politics shamelessly making its rounds around Raj Bhavan, the appropriate course is for the President to seek the advice of the Supreme Court under Article 143(1) of the Constitution on the role the Governor of the State under the circumstances.

 Article 143(1) reads as follows: “ If at any time it appears to the President that a question of law or fact has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to that Court for consideration and the Court may, after such hearing as it thinks fit, report to the President its opinion thereon.'

Bommai and Rameshwar Prasad are authorities for what they decide in the facts and circumstances of the two cases only. Such a reference to the Supreme Court seeking advice would be legitimate constitutionally and politically desirable. In both the decisions, the Supreme Court has not addressed itself to the basic question, but proceeded on undisclosed underlying assumptions that the legislators always represent the will of the people in all their actions and decisions. Law and in particular, Constitutional law, is not static and has to develop to suit the changing social needs and realities of life. No Judgment can offer a rigid formula or a final solution for all situations and eventualities.

(The writer is a senior advocate.)