At that point when JD(S) leaders got the whiff of a split in the party — with some MLAs preparing to join hands with the Congress to form the government, they approached the BJP and gave it their unconditional support to form a government. The Karnataka governor then submitted a report to the effect that BJP legislators, together with JD(S) legislators — numbering 129 — had filed individual affidavits extending unconditional support to a BJP-led government. On the basis of the governor’s report, the Centre took a decision and vacated President’s rule.

It is important to note here that 129 legislators were presented, not only before the governor but also before the President. It was only when the governor was satisfied that B.S. Yeddyurappa enjoyed majority support that he rightly appointed him CM, exercising the power vested in him under Article 164(1) of the Constitution. Once the governor is satisfied with the majority support enjoyed by an individual who has laid claim to being appointed CM and the governor goes ahead and appoints him or her, that is where his involvement rests. Nowhere does the Constitution authorise the governor to impose a condition that the CM should seek a vote of confidence in the legislature. Yet, the Karnataka governor did precisely that, thereby creating conditions for further political instability.

I had, as a governor of Jharkhand myself, occasions to consider whether it is open for the governor, after appointing a person as CM, to impose a condition that he should take a vote of confidence in the assembly, when the incumbent CM had resigned after a few MLAs had withdrawn their support to him. Thereafter, before appointing another person the CM who satisfied me of having a majority, I examined various constitutional provisions and consulted constitutional experts. I then found that imposition of such a condition is not authorised by the Constitution, although such impermissible measures have been imposed by some governors. Therefore, when I appointed a new person the CM, I refused to impose any condition to the effect that he should take a vote of confidence within a time frame, stating that after he is appointed, a CM can be removed only by a vote of no-confidence in the assembly.

The occasion for a governor to call upon a CM to take a vote of confidence arises only when some of the legislators who had extended support to an incumbent CM withdraw their support and it appears to the governor that the said CM does not enjoy majority support. It was the imposition of such an uncalled-for condition which created further political instability in Karnataka and gave a handle to the president of JD(S) to make a somersault and get a whip issued against his MLAs voting for B.S. Yeddyurappa, for reasons known only to himself.

Going by the subsequent statements of JD(S) legislators, it appears that many would have indeed voted for Yeddyurappa, but for the party whip introduced through the Tenth Schedule to the Constitution. The Tenth Schedule, was introduced as a remedy to correct the evil of ‘horse trading’ but has proved to be worse than the evil it was meant to correct. It is being used to ensure political bonded labour, by forcing MLAs to obey the party whip.

Parliament should take due note of this and pass a law that will prevent such unscrupulous political conduct which greatly undermines Indian democracy.

The writer is a former chief justice of the the Punjab and Haryana High Court, and former governor of Jharkhand and Bihar