Karnataka Governor H R Bhardwaj's recommendation to the Centre to impose President's Rule in the state after the Bharatiya Janata Party government won a controversial trust vote on Monday evoked divergent views among constitutional and legal experts.
While one section dubbed the Governor's action as 'unfortunate' and accused him of acting in a 'partisan' manner, others were of the view that the 'wrong' decision by Speaker K G Bopaiah created such a situation that forced Bhardwaj to act in such a manner.
Former Additional Solicitor General C S Vaidyanathan said the Governor's action was 'justified' against the backdrop of the unfolding events that culminated in a 'wrong decision' by the Speaker disqualifying 16 MLAs, in effect barring them from participating in the confidence motion moved by Chief Minister B S Yeddyurappa.
But Constitutional experts like Subhash Kashyap and Rajeev Dhavan were of the view that the Governor exceeded his jurisdiction.
"The whole thing (Governor recommending President's Rule) is the most unfortunate and unseemly and also he has no business to give direction to the Speaker. The Governor is not right in recommending the President's Rule," Kashyap said.
Dhavan said, "Instability in the state due to defection is not good for democracy. But President's Rule is also death of democracy".
"Governor Bhardwaj has to play no partisan role as he is representative of Karnataka not of Centre," he said.
Kashyap and Dhavan were of the opinion that the Governor has no business to interfere in the functioning of the state legislature and he was 'wrong' in advising the Speaker to maintain the configuration of the House.
Former Lok Sabha Speaker Somnath Chatterjee, who preferred not to comment on recommendation of President's Rule, was critical of both the Governor and the Speaker over their handling of the political situation in Karnataka.
He said neither the Governor should have advised the Speaker nor the latter should have disqualified the MLAs without following the proper procedure.
"I am surprised at both the events," he said. "I do not think that the Governor of a state has power or authority to give direction to the Speaker of the assembly in discharge of his (Speaker) duties," he said.
He was also critical of Bopaiah's role as Speaker for disqualifying 16 members from the House which he said was against the principle of natural justice.
"I cannot find any authority which will enable Speaker of any legislative assembly or house of people to disqualify members merely on application," he said.
Chatterjee, however, refused to comment on whether Speaker was right in disqualifying 16 legislators -- 11 from BJP and five independents, saying the matter is sub-judice.
"The Speaker (action) is subject to judicial review," he said, adding, "The party legislators are amenable to disqualification if it can be inferred from their conduct that they are involved in anti-party activities."
With regard to Speaker disqualifying MLAs even before trust vote or before the legislators violating party whip, Dhavan said, "Disqualification has taken place earlier and so allowing them to vote is self-defeating. The Xth Schedule is not only concerned with whip but also with going against the party by legislators."
The senior lawyer also justified the Speaker disqualifying even the Independent MLAs.
"According to a Supreme Court judgment, even Independent MLAs cannot trade in their status. If there is a breach of faith of the people by them, they can be disqualified." Vaidyanathan, who questioned the action of the Speaker and 'justified' the recommendation of President's Rule, said 'under Article 356, the Governor has the power and duty to inform President about the failure of Constitutional machinery.'
"What he (Bhardwaj) has done is based on assessment of events of last few days and today when the Speaker disqualified 16 MLAs in anticipation of their action," he said, adding that the role of Speaker was totally 'wrong.'
"The Speaker's action is in anticipation and totally unconstitutional," he said and shared the view of Chatterjee that disqualification of MLAs which included five independent legislators is against the principle of natural justice.
"The MLAs were not given adequate notice to respond "which is against the principle of natural justice and therefore Speaker's order is null," Vaidyanathan said.
He said the Speaker has to follow certain procedure which was absent in this case as even in the case of Independent MLAs, there was no material suggesting that they could have been disqualified as they were not owing any allegiance to any party.
With regard to Independent MLAs, Kashyap said that is a 'dicey' situation. "Even Independent MLAs can be disqualified or are amenable to disqualification if they give up their independent status or indulge in activities that is tantamount to joining a political party," he said.
