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Blog of Vincent Augustine D'Souza

Karnataka conundrum

Article 163 (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.

Karnataka went to polls on 12/5/2018. After that there have been twists in the tale.

First twist was after the polls and before counting of votes. Siddaramaiah was Congress CM candidate. A day after polling he said he was ready to step aside if party wants Dalit CM. MLAs have to agree to that.

Counting took place on 15th May. At one time BJP was leading in more than 112 seats. It came down and BJP ended with 104 seats. Congress won 78 seats. JD(S) won 37 seats. JD(S) ally BSP got one seat.

Second twist was Congress support to JD(S) H. D. Kumaraswamy as CM. Congress President Rahul Gandhi had referred to JD(S) as B team of BJP and (S) in JD(S) stood for (Sangh Parivar). Congress said Governor should invite Kumaraswamy to form government.

B. S. Yeddyurappa staked his claim to form government. On 16th May Governor Vajubhai Vala invited him to form government and prove majority in 15 days.

As mentioned in Article 163(2) it is Governor’s discretion to invite anyone to form government. For a long time Supreme Court did not admit any petition regarding inviting anyone to form government or dismissing any government. That changed with Bommai case. In 1998 BJP had gone to Supreme Court against UP Governor’s decision. On 24/2/1998 Supreme Court ordered floor test on 26/2/1998. Kalyan Singh got 225 votes and won. Jagdambika Pal got 196 votes and lost.

This time Congress went to Supreme Court on 16th May. Supreme Court sat after midnight, it was 17th May. This was unusual and unnecessary. This was third twist. Supreme Court did not stay BSY’s swearing in. It fixed 18th May to decide on 15 days time given to prove majority.

Fourth twist was on 18th May. Supreme Court fixed 4 p.m. on 19th May as time for vote of confidence. This was a blow to BJP. Congress and JD(S) MLAs were in Hyderabad and it was difficult to make some of them resign on switch sides.

Supreme Court vacation began on 19th May. Karnataka Governor had appointed K. G. Bopaiah as pro-tem Speaker. Fifth twist was Congress-JD(S) went to Supreme Court against his appointment and wanted R. V. Deshpande of Congress as pro-tem Speaker. It cited convention. Supreme Court said there were cases when Seniormost MLA was not made pro-tem Speaker. Convention is not law. It cannot direct Governor to appoint Seniormost MLA as pro-tem Speaker.

Sixth twist was at 4 p.m. on 19th May. BSY did not move motion of confidence in Legislative Assembly. He announced his resignation.

Governor invited Kumaraswamy to form government. He was to take oath on 21st May. Then came the seventh twist. Oath taking had to be postponed to 23rd May because 21st May is death anniversary of Rajiv Gandhi. I do not know why it could not be on 22nd May.

More twists are on the way. On 20th May Mallikarjuna Kharge spoke of give and take. Kumaraswamy said there will be no Rotational Chief Ministership.

BSY was CM for 55 hours. He will be caretaker CM for more than 86 hours.

Defence of Death Penalty

In 17 countries there are laws against denial of Holocaust. Imprisonment is from one year to 10 years. France had passed a law against denial of Armenian Genocide. The French Constitutional Council struck down that law. Switzerland, Greece, Cyprus and Slovakia have laws against denial of Armenian Genocide. India should have a law against opposition to death penalty for murder and other high crimes.
Abetment to murder, attempted murder, conspiracy to murder, false claim to have committed murder in order to mislead police and judiciary and/or to debunk and discredit death penalty, threat to murder, abduction, acid throwing, threat to throw acid, banditry, character assassination, drug trafficking, highway robbery, hijacking, human trafficking, kidnapping, leakage of question papers of public examinations, CAT, CET, JEE and such tests, double rape, repeat rape, gang rape, revenge porn, hoax call or message about bomb in building, plane, train, ship, bus or any other vehicle, terrorist act, transmission and/or uploading of nude pictures to cause damage to someone are high crimes. Adultery, apostasy, blasphemy, heresy, schism, and killing of cow are not high crimes.
Punishment to individuals who oppose death penalty should be minimum three years jail. Associations opposing death penalty should be banned and members put in jail. Newspapers, magazines, books, TV channels and other media opposing death penalty should be shut down and their owners, editors, anchors, printers, publishers put in jail. If a TV channel is owned by husband and wife both should be in jail.
Once the President rejects a mercy petition of a person sentenced to death it should be the end of the matter and the convict should be hanged. Any lawyer who approaches any court against President’s rejection should be hanged.
Any film or TV serial or episode in a TV serial that opposes death penalty or wants to show that the convict sentenced to death is not guilty should be banned.
Sometimes question papers of Board Examinations are leaked and lakhs of students are made to suffer for no fault of theirs by appearing for re-examinations.
Government of India should bring an Ordinance that makes death penalty mandatory in every case of murder and other high crimes. The law should be passed in the next session of Parliament. Death penalty can be by beheading, blowing up with dynamite, hanging or other means. Those who behead others should be beheaded. Those who plant bombs should be blown up with dynamite, whether bombs explode or not.

Removal of CJI

On 23/4/2018 Vice President and Chairman of Rajya Sabha M. Venkaiah Naidu rejected notice for the removal of CJI Dipak Misra. Many in Congress and some opposition parties are unhappy about it and want to go to Supreme Court. CJI is the master of roster and he will decide whether to admit the petition or not.
Many talk of impeachment of CJI. They are wrong. Constitution mentions only impeachment of President. Others are removed or sacked.
The notice was poorly drafted and the plan for removal was haphazardly executed. Phrases like “appears to have antedated”, “he too was likely”, “may have been” meant there was no certainty about the charges. The idea of removal is said to have originated with Sitaram Yechury of CPI(M) and Congress leaders were divided about removal of CJI. Congress took the lead and took signatures. AAP, AIADMK, BJD, DMK, TMC, TDP, TRS and some other parties did not support removal. The term of some Rajya Sabha MPs who signed the notice ended. Manmohan Singh did not sign the petition and it was said Congress had given up on removal.
Then came verdict in Judge B. H. Loya case which was not to the liking of Congress. It became active again and submitted the notice on 20/4/2018. It held a press conference about it. Venkaiah Naidu had programmes in Telangana till 24/4/2018. He returned on 22/4/2018 to consult Constitutional experts. Next day morning he rejected the notice.
Dipak Misra’s last working day is 2/10/2018. The process for removal is long, Congress and allies do not have numbers to remove him, and he would have retired by the time the matter for removal came up before Rajya Sabha. The idea was to embarrass CJI and BJP.
Venkaiah Naidu could have taken time to decide on the notice. He acted swiftly. He said it was to end needless speculation following a spate of statements in the press that seem to vitiate the atmosphere.
Judges Inquiry Act gives power to Chairman to either admit the motion or refuse to admit the same. Venkaiah Naidu acted legally and constitutionally. Opposition MPs are wrong to say his act is illegal and unconstitutional and there has not been application of mind.
Former Lok Sabha Secretary General Subhash Kashyap said Venkaiah Naidu rightly rejected removal notice. There are no prima facie cases against CJI. Opposition made wild and unsubstantiated allegations against CJI. Venkaiah Naidu has consulted Subhash Kashyap among others.

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