WWW.LIVELAW.IN IN THE SUPREME COURT OF INDIA (CIVIL ORIGINAL JURISDICTION) WRIT PETITION (CIVIL) NO.

OF 2018

(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA) IN THE MATTER OF:1.

AKHIL BHARAT HINDU MAHASABHA, Through its national General Secretary, Sh. Munna Kumar Sharma Hindu Mahasabha Bhawan, Mandir Marg, New Delhi-110001 …PETITIONER VERSUS

1.

Union of India Through its Secretary, Ministry of Home Affairs, Govt. of India, North Block, New Delhi.

2.

State Of Karnataka Through the Chief Secretary State Secretariat, Bangalore, Karnataka.

3.

Indian National Congress Through its president 24, Akbar Road, New Delhi.

4.

Janata Dal (S) No.5, Safdarjung Lane, New Delhi -110003. Also at: JP Bhavan,, 19/1, Platform Road,, Sheshadripura, Bengaluru, Karnataka -560020.

5.

Sh. H. D. Kumaraswamy No.5, Safdarjung Lane, New Delhi -110003.

…. RESPONDENTS

THIS IS A WRIT PETITION UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA WHEREBY PETITIONER IS PRAYING FOR ISSUANCE OF WRIT OF CERTIORARI WHEREBY QUASHING THE IMPUGNED LETTER DATED 19.05.2018 APPOINTING RESPONDENT NO.5 AS CHIEF MINISTER OF

WWW.LIVELAW.IN

KARNATAKA OR PASS SUCH OTHER OR FURTHER ORDER THIS HON’BLE COURT MAY DEEM FIT AND PROPER.

To, The Hon’ble Chief Justice of India And his Companion Justices of The Hon’ble Supreme Court of India

The humble petitioner above named MOST RESPECTFULLY SHOWETH:1.

The present writ petition is being preferred in the shape of Public Interest Litigation since the prayer made in the instant writ petition is in the interest of the inhabitants of Karnataka. The writ petitioner has no personal interest in the litigation and that the petition is not guided by self-gain or for gain of any other person/institution/body and that there is no motive other than public interest in filing the writ petition. That the petitioner is a General Secretary of Akhil Bharat Hindu Mahasaha. He is a citizen of India and as such he is competent to invoke writ jurisdiction of this Hon’ble Court under Article 32 of the Constitution of India against the impugned letter dated 19.05.2018 issued by the Hon’ble Governor of Karnataka as per media report. A copy of the media report dated 20.05.2018 is annexed herewith as ANNEXURE P-1 (Page No.

to

).

Vide impugned letter dated 19.05.2018, Respondent No.5 has been appointed Chief Minister of Karnataka and has been asked to take oath on 23.05.2018.

2.

That since the petitioner is a political party duly registered under Section 29A of the Representation of People Act, 1951. It has no member in the assembly of karnataka. The head office of the petitioner is Hindu Mahasabha Bhawan, Mandier Marg, New Delhi. Sh. Munna Kumar Sharma is its national General secretary.

3.

That the cause of action for the present Writ Petition has arisen on 15.05.2018 when Respondent No.3 before declaration of assembly election results,2018, supported the Respondent No.4 & 5 to form the government who has not been given mandate by the people of Karnataka . Further cause of action arose on 19.05.2018 when the Hon’ble Governor appointed Respondent No.5 as Chief Minister of Karnataka and further invited him take oath on 23.05.2018.

4.

That the nature of injury is that representative parliamentary democracy coupled with popular government is the basic feature of Indian Constitution, which has been violated by the respondents.

5.

That the petitioner is a National General Secretary of Akhil Bharat Hindu Mahasabha (a registered political party under the representation of People Act, 1951 having its head office at Hindu Mahasabha Bhawan, Mandir Marg, New Delhi) and is engaged in the political activities for last more than 90 years. The petitioner is a citizen of India and as such he is competent to invoke the Writ Jurisdiction under Article 32 of The Constitution of India.

6.

That the petitioner has not approached the concerned authority prior to the filing of the instant writ petition.

7.

That the Respondent No.1 &2 are the states within the meaning of under Article 12 of the Constitution of India and as such they are necessary parties.

8.

That Respondent No.3 is a political party duly registered under the Representation of People Act, 1951 and it has given support to Respondent no.4 political party before declaration of assembly results on 15.05.2018. The said support extended by Respondent No.3 in favour of Respondent No.4 and 5 to form government in Karnataka whereby blocking the passage for the single largest party that such post poll unethical / illegal coalition is against the concept of the popular government as envisaged in the Indian Constitution.

9.

That the Respondent No.4 is a political party duly registered under the Representation of People Act, 1951 and Respondent No.5 is its state president and has got only 38 seats out of 222 seats in the assembly election 2018. The people of Karnataka did not see a leader in Respondent No.5 and therefore, they did not give a mandate to Respondent No.4 &5, this is fraud on the electorate and the constitution.

10.

That the Hon’ble Governor of Karnataka exercising power under Article 164 of the Constitution of India has appointed the Respondent

No.5

as

the

Chief

minister

of

Karnataka

overlooking the mandate of the provision of Article 163(1) and (2) of the Constitution of India. The governor has not exercised

his power as envisaged in Article 163(1) & (2) of the Constitution of India which requires the governor to exercise his discretion to ascertain the people will in favour of the majority party failing which to find out ways for stable and popular government. If these twin elements are missing, the governor is not bound to invite a political party who have only 38 seats and has support of a political party who was arch rival

in the

assembly election. Such post poll coalition is not recognized by the Indian Constitution. Therefore, the governor is bound to consider the concept of popular government in parliamentary democratic system. The opportunist post poll coalition has to be disregarded by the governor keeping in view the people will who voted against the Respondent no.4 & 5. Therefore, the present writ Petition before this Hon’ble Court. BRIEF FACTS 11.

The election Commission of India issued press note dated 27.03.2018 for the general election to the legislative assembly of Karnataka, 2018. A copy of press notes dated 27.03.2018 issued by the Election Commission of India is annexed herewith as ANNEXURE P-2(Page No.

to

).

The opening paragraphs of the press note reads as under: “ By virtue of its powers, duties and functions under Article 324 read with Article 172(1) of the Constitution of India and Section 15 of the Representation of the People Act, 1951, the Commission is required to hold general election to constitute the new Legislative Assembly in the State of Karnataka before expiry of its present term.”

The total numbers of electors in the state of Karnataka are 4,96,82,357. Press note release by election commission of India contains various measures to ensure free and fair poll. In this connection reference may be made to para No.15 of the press note where protection to electors of SC/ST and other weaker section has been provided. In Para No.18 provision has been made for systematic voters education and electoral participation. Thus the election Commission of India had taken all measures prescribed as per law to maintain purity and free and fair poll for total 224 assembly seats. 12.

That as per schedule of general election of legislative assembly of Karnataka the poll events and schedule are as under:

Schedule for General Election to the Legislative Assembly of Karnataka, 2018 POLL EVENTS SCHEDULE Date of Issue of Gazette Notification

17.04.2018 (TUE)

Last Date of Nominations

24.04.2018 (TUE)

Date for Scrutiny of Nominations

25.04.2018 (WED)

Last Date for Withdrawal of

27.04.2018 (FRI)

candidatures Date of Poll

12.05.2018 (SAT)

Date of Counting

15.05.2018 (TUE)

Date before which election shall be

18.05.2018 (FRI)

completed

As per schedule of election of state assembly was held on 12.05.2018 and result were declared on 15.05.2018 of 222 seats and result of two seats were withheld. As per result of

Karantaka state assembly, the following political parties got the respective seats i.e. Bhartiya Janta Party 104 seats, Indian National Congress 74 seats and Janta Dal (s) 38 seats. 13.

That when the counting was going on, Respondent No.3 i.e. Indian National Congress declared its support irrespective of the election final result, to Respondent No.4 & 5 with a view to form a coalition government. Before the election result would be declared by the Election Commission of India Respondent No.5 sought to meet the Hon’ble Governor of Karnataka claim to form

the

government.

Subsequently,

they

held

press

conference and informed the media that they have support of Indian National Congress Party and they have more than required number, therefore, they will form the government. Subsequently, Bhartiya Janta Party also staked claim to form the government being single largest party with 104 seats. The Hon’ble governor appointed Sh. B.S. Yadurappa as a Chief Minister and invited him to take oath on 16.05.2018. However, Respondent no.3 & 4 challenged the said appointment before this Hon’ble Court. This Hon’ble Court vide order dated 17.05.2018 issued notice to the Respondents and passed certain interim order. This Hon’ble Court heard the aforesaid petition on 18.05.2018 again and directed Sh. B.S. Yedurappa to prove his majority by 4:00 PM on 19.04.2018. A copy of the order dated 18.05.2018 in Writ Petition (c) No.536 of 2018 passed by this

Hon’ble Court is annexed herewith as ANNEXURE P-3(Page no.

to

).

However, the said Writ Petition is pending before this Hon’ble Court. Be it as it may, the new assembly of Karnataka was constituted on 18.05.2018 and Sh. B.S. Yedurappa resigned on 18.05.2018 as he could not secure required number of 112 votes. Thereafter, the Hon’ble Governor appointed Sh. H. D. Kumaraswamy who is state president of Janta Dal (S), as Chief Minister of Karnataka and invited him to take oath on 23.05.2018. This action of the governor is contrary to Article 163 (1) & (2) of the Constitution of India. 14.

That the Hon’ble Governor is required under Article 163 (1) & (2) of the Constitution of India ensures that people will prevails through its elected representatives. This exercise of power is required

to

be

inconsonance

with Section

62

of the

Representation of People Act. At this point the provisions of Article 163 (1) and (2) are reproduced herein below: 163. Council of Ministers to aid and advise Governor (1) There shall be a council of Ministers with the chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this constitution required to exercise his functions or any of them in his discretion (2) If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion”

The exercise of power by the Hon’bel Governor is based on people will and therefore, the right to electorate is required to choose their representative in the assembly finds mentions is section 62 of the Representation of People Act, 1951. Section 62 of the Representation of People Act 1951 provides for right to vote. The provision of Section 62 reads as under: “62. Right to vote.— (1) No person who is not, and except as expressly provided by this Act, every person who is, for the time being entered in the electoral roll of any constituency shall be entitled to vote in that constituency. (2) No person shall vote at an election in any constituency if he is subject to any of the disqualifications referred to in section 16 of the Representation of the People Act, 1950 (43 of 1950). (3) No person shall vote at a general election in more than one constituency of the same class, and if a person votes in more than one such constituency, his votes in all such constituencies shall be void. (4) No person shall at any election vote in the same constituency more than once, notwithstanding that his name may have been registered in the electoral roll for the constituency more than once, and if he does so vote, all his votes in that constituency shall be void. (5) No person shall vote at any election if he is confined in a prison, whether under a sentence of imprisonment or transportation or otherwise, or is in the lawful custody of the police: Provided that nothing in this sub-section shall apply to a person subjected to preventive detention under any law for the time being in force.”

As per section 66 the election result of general election of legislative assembly of 2018 was declared on 15.05.2018. A

copy of the result status of legislative assembly of Karnataka 2018 for 224 is annexed herewith as ANNEXURE P-4 (Page No.

to

).

The electorates send their representatives to the legislative assembly by exercising right to vote provided under Section 62 of the Representation of People Act, 1951. 15.

That a perusal of Karnataka result status of legislative assembly would show that the main contesting political parties are Bhartiya Janta Party, Indian National Congress & Janta Dal (S). It is important to mention that in the previous legislative assembly, Indian National Congress was in majority and as such it was a ruling party and JD(s) was in opposition. In the current legislative assembly election of Karnataka, Indian National Congress and Janta Dal (s) had their own election manifestoes. The respective election manifesto of Respondent no.3 is annexed herewith as ANNEXURE P-5. (Page No. to ) The respective election manifesto of Respondent no.4 is annexed herewith as ANNEXURE P-6. (Page No.

to

)

The electorates have believed the manifestoes of the political parties and accordingly have voted the candidates. The election result 2018 of Karnataka shows that Bhartiya Janta Party has got total 104 seats, Indian National Congress has got 74 seats, and Janta Dal (S) has got 38 seats. 16.

That Sh. H.D. Kumara Swami, President of Janta Dal (s) has been interviewed by Livemint and his interview has been published on 27.03.2018. In the said interview a question was put to the president of Respondent No.4 and answer thereto by the Respondent no.5 are reproduced as under: “Congress president Rahul Gandhi has called you BJP’s ‘B’ team. Your comments.

Poor Rahul Gandhi doesn’t know the ABCD of Karnataka politics. They (Congress) use us when required and are now calling us the BJP’s ‘B’ team. Who is the reason for me joining hands with the BJP earlier (in 2008)? Before criticizing us let Rahul Gandhi go to his mother and ask what was promised and why people rejected their party which was ruling (at the centre). I have said this many times, in the democratic setup of this country, they (Congress) are more dangerous than the BJP. Today if we stand next to the BJP and just cough, the Congress will be washed out of Karnataka. Whatever little dignity the Congress party has is thanks to the JD(S). The Congress led by Siddaramaiah should be the Z or Y team of the BJP. By discussing about the JD(S) time and again, you (Congress) are inviting your own ouster, as predicted by the BJP, from Karnataka.” A copy of the interview dated 27.03.2018 published by Livemint is annexed herewith as ANNEXURE P-7(Page No. to

).

The aforesaid interview of Respondent No.5 is very clear that in the assembly election Respondent No.3 & 4 were arch rivals (sworn enemies). A cursory look on the Karnataka result status would show that majority of the seats won by Janta Dal (s) is by defeating Indian National Congress candidates. In this connection reference may be made to assembly constituency number 198, 215, 179, 39, 197, 212, 148, 211, 192, 187, 138,

182, 186, 189, 191, 31, 181, 210, 183, 193, 190, 58, 136, 220. Thus Janta Dal (s) has own 24 seats out 38 by defeating Congress candidates. Similarly, Congress has succeeded against Janta Dal (s) on some seats. Therefore, the voters who voted for Congress candidates and those voted for Janta Dal (s) candidates believing the election manifesto do feel cheated/defrauded by post poll coalition between Respondent No.3 & 4. Infact the Preamble of our Constitution which reads as under: “WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN, SOCIALIST, SECULAR, DEMOCRATIC, REPUBLIC and to secure to all of its citizens; •JUSTICE social, economic and political; •LIBERTY of thought, expression, belief, faith and worship; •EQUALITY of status and of opportunity; and to promote among them all; •FRATERNITY assuring the dignity of the individual and the unity and integrity of the nation; •IN OUR CONSTITUENT ASSEMBLY, this 26th day of November,1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.” The founding father of the constitution gave expression to the resolve of the people of India, to constitute India into sovereign (socialist, secular, democratic, republic). It is submitted with great respect that the act of forming post poll coalition is subversive of democracy in much as the expression of will of the electorate is given a complete go bye. Democracy is government of the people by the people, for the people. Whenever two political parties enter into a post poll coalition no

reference is ever made to the electorate and the people are rendered voiceless and helpless which is contrary to the very principle of democracy. 17.

That entering into post poll alliance is also opposed to the republic form of government that is part of the basic structure of the constitution. It is submitted that republic is ‘Re’ i.e. power and ‘public’. To put it straight, it is power to the people that is at the soul of the concept of ‘republic’. Viewed thus an act that renders people powerless and helpless is contrary to the very notion of republic. Infact, the post poll coalition between Respondent no.3 & 4 to form government in the state of Karnataka is in total disregard of their representative to the electorate i.e. their manifesto, and, keeping the people in dark for the formation of the government which is far from and contrary to a popular will and the concept of popular government. This Hon’ble Court in the case of “S.R. Bommai vs Union of India, (1994)3 SCC 1” have in Para No.128 held thus: “Article 25 inhibits the Government to patronise a particular religion as State religion overtly or covertly. Political party is, therefore, positively enjoined to maintain neutrality in religious beliefs and prohibit practices derogatory to the Constitution and the laws. Introduction of religion into politics is not merely in negation of the constitutional mandates but also a positive violation of the constitutional obligation, duty, responsibility and positive prescription of prohibition specifically enjoined by the Constitution and the R.P. Act. A political party that seeks to secure power through a religious policy or caste

orientation policy disintegrates the people on grounds of religion and caste. It divides the people and disrupts the social structure on grounds of religion and caste which is obnoxious and anathema to the constitutional culture and basic features. Appeal on grounds of religion offends secular democracy.” Thus it is crystal clear that a political party is prohibited from adopting any practice that is derogatory to the constitution of India and the laws. In this connection contents of Para No.132 of the judgement is also of importance

once and the same is

reproduced herein below: “Rise of fundamentalism and communalisation of politics are anti-secularism. They encourage separatist and divisive forces and become breeding grounds for national disintegration and fail the parliamentary democratic system and the Constitution. Judicial process must promote citizens' active participation in electoral process uninfluenced by any corrupt practice to exercise their free and fair franchise. Correct interpretation in proper perspective would be in the defence of the democracy and to maintain the democratic process on an even keel even in the face of possible friction, it is but the duty of the court to interpret the Constitution to bring the political parties within the purview of constitutional parameters for accountability and to abide by the Constitution, the laws for their strict adherence.”

18.

That a perusal of a entire scheme of the Indian constitution in respect of parliamentary democracy mandates that the chief minister must be a member of house of the state. The concept of parliamentary democracy does not permit to circumvent the

constitutional mandate by a political party or a political alliance to setup a non-member to be elected as leader of a majority party/alliance in the assembly to be appointed as chief minister. It is important to mention that the composition of legislative assembly is highly democratic and therefore the council of ministers has been made responsible to the legislative assembly under articles 164 of the Constitution of India. 19.

To examine the constitutional mandate in relation to the parliamentary democracy and appointment of chief minister, Reference of two constitution bench judgments of the Hon’ble supreme court are necessary viz: (a)

Harsharan Verma Vs Tribhuvan Narain Singh, Chief Minister, U.P. (AIR1971 SC1331)

(b)

B.R Kapur Vs state of Tamilnadu & ors. (2001 7SSC 231) A perusal of the judgement of Harsharan Verma would

show that council of minister shall be collectively responsible to the legislative assembly of the state. This Hon’ble Court has referred the judgement in the case of Harsharan Verma in the judgment of B R Kapur case. Therefore, the claim of respondent no.3 is dehors the constitutional scheme. 20.

That the in the case of B.R. Kapur Vs Tamilnadu, 2001 SCC 231, this Hon’ble Court have observed in Para no.72 to the effect that; “But where the country has a written constitution which ranks as fundamental law, legislative or executive acts which conflicts with the constitution must be held to be unconstitutional and thus illegal. The primary system of Government cannot be explained solely in terms of legal and conventional rules. It depends essentially upon the political base which underlies it, in particular on the party

system around which political life is organised. Given the present political parties and the electoral system, it is accepted that following a general election, the party with a majority of seats in the State legislature or the Parliament will form the Government.

This is what the Constitution

postulates and permits. But in the matter of formation of Government if the said majority political party elects a person as their leader, whom the Constitution and the laws of the country disqualifies for being chosen as a member of the Legislative Assembly, then such an action of the majority elected member would be a betrayal to the electorates and to the Constitution to which they owe their existence. In such a case, the so called will of the people must be held to be unconstitutional and, as such, could not be and would not be tolerated upon. When one speaks of legislative supermacy and the will of the people, the doctrine essentially consists of a rule which governs the legal relationship between the legislature and the court, but what is stated to be the legislative supermacy in the United Kingdom has no application in our country with a written Constitution limiting the extent of such supermacy of the Legislature or Parliament. In other words, the people of the country, the organs of the Government, legislature, executive and judiciary are all bound by the Constitution which Hon. Justice Bhagwati, J. describes in Minerva Mills case (1980 (3) Supreme Court Cases, 625) to be suprema lex or the paramount law of the land and nobody is above or beyond the Constitution. When Court has been ascribed the duty of interpreting the Constitution and when Court finds that manifestly there is an unauthorised exercise of power under the Constitution, it would be the solemn duty of the Court to intervene.

The

doctrine

of

legislative

supermacy

distinguishes the United Kingdom from those countries in

which they have a written constitution, like India, which imposes limits upon the legislature and entrust the ordinary courts or a constitutional court with the function of deciding whether the acts of the legislature are in accordance with the Constitution. This being the position, the action of the majority of the elected members of a political party in choosing their leader to head the Government, if found to be contrary to the Constitution and the laws of the land then the Constitution and the laws must prevail over such unconstitutional decision, and the argument of Mr. Rao, that the will of the people would prevail must give way. In a democratic society there are important reasons for obeying the law, which do not exist in other forms of government. Our political system still is not perfect and there are always the scope for many legislative reforms to be made. But the maintenance of life in modern society requires a willingness from most citizens for most of the time to observe laws, even when individually they may not agree with them. Thus the act of, the governor in inviting Sh. H.D. Kumara Swami exercising power under Article 164 (1) of the Constitution of India is contrary to the judgement of this Hon’ble court rendered in the case of B.R. Kapur (Supra). 21.

That the political parties which are registered and recognized under the Representation People Act read with Rule 1(b) of 10th Schedule of the Constitution of India are bound to adhere to Constitutional Scheme while formation of popular government. Thus inviting Respondent No.5 which has only 38 members out of 222 seats has been asked to form government by the Hon’ble Governor of Karnataka is contrary to Article 163 (1) & (2) read with Article 164 of the Constitution of India and also against the ratio of the judgment of the Hon’ble Supreme court rendered in the case of S.R. Bommai vs Union of India, 1994 SCC (3)1 and B.R. Kapur Vs Tamilnadu, 2001 SCC 231.

In view of the aforesaid factual matrix, the petitioner prefer the present writ petition raising Constitutional questions for consideration by this Hon’ble Court, which are as under: (a)

Whether Article 164 read with Article 163 (1) & (2) permits appointment of a Chief Minister who has very small number of members in legislative assembly, on the basic of having post poll coalition?

(b)

Whether governor is bound to appoint any person as chief minister as per recommendation of the majority

political

party

even

if

the

said

recommendation for appointment a chief minister is dehors the constitutional scheme and basic feature of the Indian Constitution? (c)

Whether post poll coalition between two or more political

parties

is

permissible

under

the

Constitutional scheme even when they have not received mandate of the people, can stake claim before the governor to form government? (d)

Whether a political party with a 38 assembly seats out of 222 assembly seats can claim to form a popular government as per sprit of the judgement rendered by this Hon’ble Court in the case of Rameshwar Prasad (VI) Vs Union of India, 2006 (2) SCC1 ?

(e)

Whether a political party who has no mandate of the people of Karnataka to form popular government, can stake claim with support of another political party who has also been voted out of power by the people of Karnataka in the name of democracy overlooking the concept of popular government as per requirement of parliamentary democracy which is basic feature of the Indian Constitution?

(f)

Whether the act of Respondent No.4, 5 & 6 is fraud on the electorate of Karnataka as well as on the constitution?

In view of the aforesaid facts and circumstances, the petitioner has preferred the present writ petition, interalia on the following grounds:

GROUNDS A.

Because the action of the Hon’ble Governor of the State of Karnataka in inviting Sh. H.D. Kumaraswami, state president of Janta Dal (S) and appointing him as Chief Minister of Karnataka and resolve to administer oath of the office of Chief Minister on 23.05.2018 is unconstitutional. Therefore, the impugned letter dated 19.05.2018 is liable to be quashed.

B.

Because the post poll coalition between Respondent No.3 & 4 is fraud on election manifesto released by respondent No.3 & 4 whereby electorate have been misled and deceived by both the political parties. Such fraudulent, opportunist, collusive, tactics between these two political parties have defrauded the electorate of the state of Karnataka which is against the basic structure of the Constitution of India. Therefore, the impugned letter

dated

19.05.2018

by

the

Hon’ble

Governor

is

unconstitutional and liable to be quashed. C.

Because the act of the respondent no.3 & 4 political parties are unethical and contrary to the constitutional scheme for staking claim to form government without legitimate alliance of political parties, which is far from the concept of the popular government. This aspect has been considered and dealt with by a constitution bench judgement in the case of Rameshwar Prasad (VI) Vs Union of India, 2006 (2) SCC1. The contents of Para no.163 is reproduced as under: “There cannot be any doubt that the oath prescribed under Article 159 requires the Governor to faithfully

perform duties of his office and to the best of his ability preserve, protect and defend the Constitution and the laws. The Governor cannot, in the exercise of his discretion or otherwise, do anything what is prohibited to be done. The Constitution enjoins upon the Governor that after the conclusion of elections, every possible attempt is made for formation of a popular Government representing the will of the people expressed through the electoral process. If the Governor acts to the contrary by creating a situation whereby a party is prevented even to stake a claim and recommends dissolution to achieve that object, the only inescapable inference to be drawn is that the exercise

of

jurisdiction

is

wholly

illegal

and

unconstitutional. We have already referred to the Governor report dated 21st May, 2005, inter alia, stating that 17

18 MLAs belonging to LJP party are moving

towards JDU which would mean JDU may be in a position to stake claim to form the Government. The further assumption that the move of the said members was itself indicative of various allurements having been offered to them and on that basis drawing an assumption that the claim that may be staked to form a Government would affect the constitutional provisions and safeguards built therein and distort the verdict of the people would be arbitrary. This shows that the approach was to stall JDU from staking a claim to form the Government. At that stage, such a view cannot be said to be consistent with the provisions of Tenth Schedule. In fact, the provisions of the said Schedule at that stage had no relevance. It is not a case of 'assumption', or 'perception' as to the provisions of Constitution by the Governor. It is a clear case where attempt was to somehow or the other prevent the formation of a Government by a political party - an area wholly prohibited in so far as the functions, duties and

obligations of the Governor are concerned. It was thus a wholly unconstitutional act.” Therefore, the impugned action of the Hon’ble Governor is liable to be quashed. D.

Because in the case of Rameshwar Prasad (VI) (supra) in Para No.281, this Hon’ble Court has been pleased to hold that the governor can recommend dissolution of the assembly on the ground that the majority

projected had its foundation in

unethical and corrupt means by cobbliy a majority. In that situation the governor is duty bound to prevent installation of a cabinet where the majority has been cobble. This approach of the governor cannot be irrational, irrelevant or extraneous. The relevant paragraphs 281(2) is reproduced as under:

E.

“(2) The impugned Notifications do not suffer from any constitutional invalidity. Had the Governor tried to stall staking of claim regarding majority that would have fallen foul of the Constitution and the notifications of dissolution would have been invalid. But, the Governor recommended dissolution on the ground that the majority projected had its foundation on unethical and corrupt means which had been and were being adopted to cobble a majority, and such action is not constitutional. It may be a wrong perception of the Governor. But it is his duty to prevent installation of a Cabinet where the majority has been cobbled in the aforesaid manner. It may in a given case be an erroneous approach, it may be a wrong perception, but it is certainly not irrational or irrelevant or extraneous.” Because Article 164 read with Article 163 (1) & (2) do not permit appointment of a Chief Minister who has very small number of members in legislatures, on the basis of having post poll coalition. Therefore, appointment of Respondent No.5 as Chief Minister of Karnataka is unconstitutional.

F.

Because governor is not bound to appoint any person as chief minister as per recommendation of the majority political parties.

If the claim of the Chief Minister to be appointed is against the basic feature of Indian Constitution, the governor can not appoint as same would be dehors the Constitutional scheme. In this connection reference may be made to the judgement of this Hon’ble in the case of B.R. Kapur Vs State of Tamilnadu & Ors. Therefore, appointment of Respondent No.5 is unconstitutional. G.

Because the post poll coalition between two or more political parties is not permissible under the Constitutional scheme as the same without mandate of the people.

H.

Because the Hon’ble Governor is required to consider while exercising his discretionary power

the foundation of post poll

coalition keep in view the people will. A political party who has no mandate of the people of Karnataka to form popular government, cannot stake claim with support of another political party who has also been voted out of power by the people of Karnataka. The governor is under constitutional obligation to consider concept of popular government to be provided. The present post poll coalition is based on power sharing concept of two political parties who have been voted out by the people of Karnataka. In the present case, the Respondents No.3, 4 & 5 have with malafide intention to have power sharing have defrauded the electorate. The said approach of the political parties is against the constitutional scheme.

22.

That the petitioners have not approached this Hon’ble Court or any prior occasion in connection with the subject matter of the present petition. PRAYER

It is therefore, most respectfully prayed that this Hon’ble Court may graciously be pleased:(i)

To, declare that entering into post poll alliance by Respondent No. 3 & 4 political parties is fraud on the electorate and violative of the constitution of India.

(ii)

To issue writ of certiorari quashing the impugned letter dated 19.05.2018 issued by the governor of Karnataka appointing Respondent No.5 as the Chief Minister and also to take oath on 23.05.2018 as illegal coalition and unconstitutional.

(iii)

To pass such other or further order as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.

Abhishek (Advocate for the petitioner)

Drawn & Settled by: Mr. Barun Kumar Sinha, Adv Mr. Brindra Kumar Choudhary Mr. Arun Kumar Drawn on: 20.05.2018 Filed on: 21.05.2018

IN THE SUPREME COURT OF INDIA (CIVIL ORIGINAL JURISDICTION) WRIT PETITION (CIVIL) NO. OF 2018 (UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA) IN THE MATTER OF:Sh. Arun Kumar,

…Petitioner VERSUS …Respondents

Union of India & Ors.

AFFIDAVIT I, Arun Kumar, S/o Late S. K. P. Sharma aged about 50 years R/o 44, Gulab Vihar Apartments, Sector -9, Rohini, Delhi – 95, do hereby solemnly affirm and state as follows:1.

That I am the petitioner in the aforesaid matter and am conversant with the facts and circumstances of the case and am competent to swear this affidavit.

2.

That I say that I have understood the contents of synopsis list of dates and events at pages Petition from paras at pages

to

and contents of Writ Petition to

. I say that contents have

been incorporated as per my instructions and same are true to the best of my knowledge and belief and nothing material has been concealed therefrom. 3.

That I say that Annexure P-1 to P-

annexed along with the

Writ Petition are true copies of its respective originals.

DEPONENT VERIFICATION I, the deponent above named do hereby verify that averments made in this affidavit are true and correct to the best of my knowledge and belief. No part of it is false and nothing material has been concealed therefrom. Verified at New Delhi on this the 21st day of May, 2018. DEPONENT