Forget political, it’s a constitutional crisis in K’tka

The hugely popular Kannada play ‘Mukhya Mantri’, where a fictional chief minister wheels and deals his way (using means fair and foul) to save his government from collapse in 24 hours, completed 700 shows this June. The achievement is all the more remarkable given that actual Karnataka politics in the last three decades has made some of the more outrageous schemes and twists in the play seem tame. As if in tribute, the latest round of instability has got not just the people in the state, but the nation at large, riveted to the drama playing out on TV screens over the last two weeks.

What has come to pass, in my view, is a form of constitutional breakdown where institutions and functionaries have thrown out rule books and decided they will do as they please, constitutional niceties and norms be damned! Each violation has become the basis to justify further violations of the norm and rather than return to the baseline for constitutional behaviour, we are seeing further and further deviation making any attempt at articulating what should happen seem like a futile exercise.

The saga started with an elaborate game of hide-and-seek between the rebellious Congress and Janata Dal (Secular) MLAs and the Speaker, KR Ramesh. The former wanted to resign, but the latter did not want to accept their resignations. When the latter wanted them to appear before him, they made the briefest of appearances before fleeing the state altogether. As the Speaker continues to refuse to decide on the resignations (in accordance with Article 190(3)(b) and use the threat of disqualification under the Tenth Schedule) the MLAs continue to defy him and their constituents.

That the MLAs’ motivations are hardly pure is evident to anyone – the Opposition’s involvement in the resignation suggests that further skulduggery is planned to ‘reward’ the MLAs for their resignation once the government is toppled. Between them, the MLAs and the Speaker have made a mockery of the anti-defection law intended to prevent precisely such a situation.

Even as Chief Minister HD Kumaraswamy pre-empted matters a week ago by seeking to prove his majority, matters have been complicated by the Speaker’s delay in holding such a vote and further messed up by the Governor’s attempt to force the process. While the law is fairly clear on the powers of the Governor (as laid down by the Supreme Court in Nabam Rebia v Deputy Speaker [2016]) nonetheless the Governor has sought to interfere in the functioning of the House by “sending a message” that a vote of confidence take place. This has been summarily ignored by the Speaker and no such trust vote has taken place. Though the Governor is entitled to ask a CM to prove his majority, this is not the constitutional manner of doing so.

Even the Supreme Court’s two interventions thus far have not inspired confidence in its ability to deal with this matter decisively. Its first interim order to the Speaker was plainly against the grain of constitutional propriety since the question of whether the court can direct a Speaker to take a time bound decision is still pending adjudication. The order was ignored by the Speaker with no consequences.

Its second order in the matter was just as baffling. In trying to ‘balance’ the rights of all parties, it ended up curtailing the powers of the Congress Legislature Party to issue a whip for a no-confidence without hearing the party. While it is not unheard of for courts to pass interim orders against parties who are not before it, to pass one that effectively abrogates the Tenth Schedule is simply unacceptable.

The court’s confused and contradictory positions are a clear contrast to the decisive manner in which it intervened in 2018 during the formation of this government. The bench then was clear and forthright in what they wanted to achieve (an end to horse-trading) and stayed firm once they had made up their minds. On the other hand, the court now seems unsure of what to do in the face of open defiance and has allowed itself to become a tool to delay constitutional processes.

Will the Speaker and the ruling coalition find further ways to avoid a trust vote? Will the Supreme Court bring any clarity to the matter? Will the Governor recommend the imposition of Presidential rule? These are the kinds of questions one would have been able to answer or take a reasonable stab at based on past precedents and settled institutional behaviour. But all of these things seem up in the air and citizens are left to only watch, helpless and incredulous, as events play out on their screens. At times such as this, one is only reminded of the opening line of Girish Karnad’s Tughlaq:

“God! What’s this country coming to!”

(Alok Prasanna Kumar is an advocate and Senior Resident Fellow at the Vidhi Centre for Legal Policy, based in Bengaluru)