The bold pronouncement on Karnataka Governor's appointment of Mr. Yediyurappa as the next chief Minister ( Massive blunder by the Governor -DC July 27) shows the author's full awareness of the parameters of his own freedom of speech - but one wishes he spent some time to get a closer acquaintance with the relevant constitutional provisions and history. Such assertions are not uncommon, but the issue here is of great contemporary relevance to the general public; hence this reaction.
Under Article 164(1) of our Constitution the Governor can "appoint" any one - eligible to be a member of the House- as Chief Minister; - he/she need not be a member of either House. Recall 1996 when Mr. Deve Gowda, then Chief Minister of Karnataka was appointed Prime Minister by the President of India under the corresponding Article 75(1). At that time no one could guess the quantum of support Mr. Gowda's government would secure - he later proved the confidence of the Lok Sabha.
The concept of a 'political party' was wholly unknown to our Constitution until the anti-defection law - the X Schedule was introduced in 1985. Even today 'a political party' is irrelevant for the functioning of the Constitution in all other respects.
The numerical strength of the House and party wise break-up are not relevant because confidence related issues are decided on the basis of 'members present and voting' in the House. The Governor concerned in the historical Bommai case had undertaken the exercise more or less as advised by the present learned author viz : count the heads and decide that the CM had lost the confidence of the House and on that basis recommend imposition of President's rule. The Supreme Court held that the confidence enjoyed by a government has to be determined on the basis of votes recorded on the floor of the House and not on the Governor's judgment as to who would support whom.
Even in 2018, the Governor did not err in appointing Mr.Yediyurappa as the CM - the Supreme Court faulted him for giving too long a time to prove his majority in the House.
K.N. Bhat, Senior Advocate, Supreme Court of India & Former Additional Solicitor General Of India
