Jethmalani's Karnatak Case Intervention

Mala Jay

Is there anyone else in the whole world that could have intervened in a historic Supreme Court hearing on such a weighty matter that he had nothing to do with?   Would three august judges who were already under tremendous pressures of time and responsibility have permitted any other lawyer to interrupt proceedings and willingly let him have his say?

The answer to both questions is no. Nobody else would have dared to poke his oar into the highly charged Karnataka hearings on Friday.  Nobody else would have been allowed to even if he had tried.  

Not unless he is living legend Ram Jethmalani, age 94, doyen of Indian law and jurisprudence.

And that is exactly what he did. There was already a busload of legal luminaries present in court - 35 for the Petitioners and 40 for the Respondents, to be precise.  

From the outset the three judges on the Bench had drawn the red line against interveners and interlopers.  They would brook no interference and entertain no third-party intrusion while hearing the Petition that could alter the political history of the nation. 

Filed by the Congress-JD(S) combine in Karnataka against the decision of State Governor Vajubhai Vala to invite BJP’s B S Yeddyurappa to form the government, the case involved the finer points of constitutional law and the functioning of democratic institutions. Much was at stake –including even restoring the integrity and image of independence of the Judiciary itself. 

Perhaps that was one of the reasons why Justices Sikri, Bobde and Ashok Bhushan chose to make an exception and listen to what Ram Jethmalani had to say on the matter.  

The nonagenarian did not disappoint.  What he said was crystal clear - “The governor’s order is a gross abuse of the constitutional power and this has brought disrepute to the constitutional office he has been holding”.

When Jethmalani speaks he does not mince words or beat around the bush.  He asked in his characteristic style: “What has the BJP said to the Governor that he took such a stupid action?  Did he not have the common sense to see that his order of invitation to Yeddurappa was an open invitation to indulge in corruption?”.

Looking the three honorable judges straight in the eye he thundered: “This Governor has acted in a manner in which no Governor should.  It is now up to you, the apex court, to set the law right. I no longer have the physical energy. But the intellectual energy keeps me going. I am not for any party in the case but for myself and for the country”.

The impact was palpable. The Bench absorbed the gravity and clarity of his words.  Justice Sikri spoke for all his brother judges -  with an assuring that while deciding the larger issue of whether the Governor’s action was legally valid or not, the Bench would keep in mind all that he had said.

Indeed, in the Interim Order that they passed at the end of the hearing, the judges pointedly said: “In a matter like this, detailed hearing is required to decide as to whether the action of the Governor in inviting Respondent No. 3 (Yeddurappa) to form a government was valid in law or not.  It may consume substantial time and the final decision cannot be given immediately”.

That was why the judges in effect divided the matter before them into two parts – one for immediate resolution by calling for a floor test the very next day; and secondly postponing the fundamental issue of the Governor’s action for a more detailed hearing, probably after the court’s summer vacation recess.

Jethmalani’s interjection seems to have played a part, howsoever small, in guiding the Bench towards looking more deeply into the question of Governor Vajubhai Vala’s controversial invitation to the leader of a party which clearly did not have the numbers in a House in which there were no visible “floating votes”.

That is what Jethmalani does and has done throughout his illustrious career at the Bar. He takes a categorical position on a knotty issue and then he articulates in such a forceful and emphatic way that a seed of doubt is planted into the mind of even the most obdurate judge who may have already decided to the contrary.

Apart from his brief oral submission, Ram Jethmalani had of course given the Bench more food for thought in the form of a written submissions on points of law and constitution. Here is a summary:   

1. The Governor is a Democratic Public Servant and he cannot act in violation of the well-known constitutional principles.

2. The Judgment of the 5-judge Bench in Rameshwar Prasad(VI) v. Union of India reported as (2006) 2 SCC I at Para 165 clearly states as under:
“165. If a political party with the support of other Political party or other MLAs stake claim to form a Government and satisfies the Governor about its majority to form a stable Government, the Governor cannot refuse formation of the Government and override the majority claim because of subjective assessment that the majority was cobbled by illegal and unethical means.”

3. The Judgment of this Hon’ble Court in Chandrakant Kavlekar v. Union of India reported in (2017) 3 SCC 758 should also read in the light of the above said principle.

4. Even if the matter was not covered by any Supreme Court judgment, a decent Governor with some knowledge of democratic principles and rule of law must have acted in a different manner. It more than obvious that some superior force has compelled him to make the mockery of the democratic principles and the constitution.

5. The Governor must have a Council of Minister under Article 163 to aid and advice the Governor.

6. The election of this Governor is undemocratic, shameless, unconstitutional and totally a denial of the decent democratic principles.

7. The BJP must have done its best to secure a majority and it failed whereas its opponents had a readymade majority which was entitled to form the Government as a matter of law and decency. To say the least the behavior of the Governor is that of a complete corrupt and malicious slave of somebody else.

8.  No case of any kind has arisen to justify this insulting and unconstitutional action of the Governor.

9. Even a layman totally ignorant of legal principles would have had the decency and wisdom to hear those whose political standing he tried to destroy.

May 20, 2017

Mala Jay

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