The Supreme Court has refused to stop the Governor of Karnataka from swearing in BJP’s BS Yeddyurappa at 9:30 this morning for which the INC had desperately tried, urging the court to open at 1:42 AM of 17 May. Whichever way the court decision might have gone, the wide array of views about the governor’s discretion points at the failure of the Constitution. Such a situation has precedents galore, which makes it surprising that MPs of no Lok Sabha sat down together to formulate a law that would clearly explain which party or alliance ought to be invited to prove its majority in the House in the event of a hung Parliament or hung Assembly.

The predicament of the kind the governor faced on 16 May has plagued decision makers from time immemorial. The absence of a clear statute in the Constitution, which makes a relevant Supreme Court judgment a guide, is reminiscent of the Kurukshetra war in the Mahabharata or jurisprudence in Islam. After the passing away of Bheeshma and Drona, when Karna became the commander of the Kaurava army, yet another meeting with the Pandavas was held. The few elders who had survived the battle that far rued the fact that neither side had followed the rules set at the beginning just as, now, from the era of Jawaharlal Nehru to that of Narendra Modi, both the Indian National Congress and the Bharatiya Janata Party have observed the convention more in breach.

In Islam, it is said if the Qur’an is unable to solve a problem in life, the seeker may look into the Shari’ah for the relevant law. If the Shari’ah fails, too, one may look up the Ahadith to know whether the Prophet and his companions had faced a similar dilemma in life. If there is no hadith that deals with the issue, convene a meeting of Islamic scholars to get the moralistic view on it.

In the absence of a well laid down law, how a governor is supposed to select the party or coalition to form a government in the event of a hung Assembly or the President in the case of a hung Parliament is supposed to be decided on the basis of what is called a “landmark judgment” of the Supreme Court in the SR Bommai versus Union of India case. The varied interpretations thereof have rendered the process as uncertain as the Islamic society looks while smarting from a fatwa of a mufti.

The INC is seeking refuge in a blog written on Facebook by Union Finance Minister Arun Jaitley following the formation of a BJP-led government in Goa where the party ruling at the Centre had fallen four seats shorter of the INC tally. Jaitley had justified the move by delineating not only the fact that the coalition led by the BJP had numbers on its side but also the fact that the INC had not even staked its claim to form the government. The opportunistic, selective citation of the finance minister by the INC would, of course, not permit the accommodation of the second detail. In fact, the supporters of the Modi government had been asinine enough to reduce BJP president Amit Shah to a joke following the government formations in Manipur, Nagaland and Goa. The jokes that were once popular on social media created an impression that Shah was a manipulator. The so-called bhakts (fans of Prime Minister Narendra Modi) now cannot complain if the rival camp is taking advantage of Shah’s character assassination by the very people who were expected to defend him vehemently.

The sanctity of a State government has been violated since the time of India’s first Prime Minister Nehru. In July 1959, the Nehru government dismissed the democratically elected EMS Namboodiripad government of Kerala under the ruse of the killing of a fisherwoman in police firing. The accidental death happened during an agitation triggered by an education bill that the Church and Nair community had been opposing out of their fear of schools run by them getting regulated. The Congress, which was yet to come to terms with their first loss to communists two years ago, exploited the activism for their own political gains. When the manipulation did not succeed in weakening the State government, they prevailed upon Nehru to exercise the highhanded option of Article 356.

In all, Nehru had imposed President’s Rule on different States eight times. In 1977, the Morarji Desai government dismissed nine Congress governments of States, claiming that they had lost the legitimacy to rule. This was one of the 16 occasions when that Janata Party government had invoked Article 356. Back in power in 1980, Indira Gandhi dismissed nine governments of States ruled by the opposition when her advisers reasoned with her that she could lose Uttar Pradesh, Bihar and Rajasthan in the Assembly elections that were to follow if a mahagathbandhan (grand alliance) of that era materialised in these provinces. The invocation of Article 356 in this instance was to render the political parties ruling in the nine States powerless, thus making their alliance ineffective. These were among the 50 occasions when Gandhi abused her powers using the tool of President’s Rule.

Under Rajiv Gandhi, things were a little better but far from projecting him as a virtuoso. He exercised the option six times while Atal Bihari Vajpayee and Chandrashekhar —notwithstanding his short tenure — did it five times each. The apex court’s order in the Bommai case of 1994, while widely cited as well as celebrated, did not bring in a foolproof regime. If “the majority enjoyed by the Council of Ministers shall be tested on the floor of the House” (according to the court order), it is silent on what party or alliance the governor should call (first) to prove the majority in the Assembly. In fact, the verdict was not supposed to deal with this issue at all, as it was a judgment on Centre-State relations on the backdrop of repeated use or abuse of Article 356. Keep aside the fact that the governor is the Union’s representative in the State. It is surprising that the Bommai judgment is being cited widely in the context of Karnataka, which is about the discretion of a governor to invite a party or alliance to form the State government rather than about a decision of the Centre to terminate a State government.

What is relevant in this story is the following story of 1996. Then Prime Minister HD Deve Gowda had, at the insistence of the Congress, dismissed the Sureshchandra Mehta government of the BJP in Gujarat that had been formed after the revolt by Shankersinh Vaghela. The BJP was not given a chance to prove its majority in the House despite the Bommai judgment. Having started his social service career in 1971 in Jana Sangh, today’s Karnataka governor Vajubhai Vala was the head of the Gujarat unit of BJP during that time. It is unlikely either Deve Gowda or Vala has forgotten that episode. If they did not, the JD(S) patriarch should be the last person to crib about not being invited to form the government.

But condoning tit-for-tat in the governance of the country is not the purport of this article. The fact that neither the UPA nor the NDA — nor even a third front constituent — has a clean record of respecting the mandate of the people of the States highlights a constitutional void. Wasting no time, the government of the day, any party or group of MPs must bring to Parliament a Bill clearly laying down the dos and don’ts of the governor’s role in both inviting a government and recommending its dismissal to the Centre.