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| @ | April 25,2020

LATE last month, at the cusp of the COVID-19 lockdown of our Courts and much of India, the Supreme Court was at the centre of a pitched battle between political heavyweights attempting to wrest control of the State of Madhya Pradesh.

By upholding Governor Lalji Tandon’s decision to ask Mr Kamal Nath to prove his Government’s majority on the floor of the house, the Court ended weeks of uncertainty and possibly horse-trading.

Two significant directions were issued; first, that the Speaker’s decision to defer the Assembly’s Session was indicative of an attempt by the Congress-led faction to indulge in horse-trading and was thus struck down, and second, a floor-test to conduct a trust vote was ordered with near immediacy. In effect, this meant that Mr Kamal Nath’s last-ditch efforts to bargain with and win back his deserters would come to nought.

Predictably, the political cogs turned as expected, leading to Mr Kamal Nath’s ignominious departure as Chief Minister after a brief fifteen-month term, and the return of Mr Shivraj Singh Chauhan for a record fourth term.

However, the Court’s final order that contains the reasons behind the operative portion of its earlier order makes for fascinating reading. The final judgment is a scathing, no-holds-barred indictment of India’s political underbelly and the unscrupulous wrangling that dominates regional politics. Now that the dust has settled on the political machinations in the State, one cannot ignore the Court’s observations that call for deep reflection by our political class.

Speaking for the Bench, Justice D.Y. Chandrachud rejects any notion that the Court’s power of review cannot entertain an examination of the Governor’s actions – akin to entering the “political thicket” as per the Solicitor General, and he also rejects the erstwhile Chief Minister’s argument that the Governor lacked the constitutional authority to call the House for a Trust Vote in an ongoing legislative assembly.

In a crisply worded judgment, which leaves no room for misinterpretation, the Bench applied the ratio from S.R. Bommai to hold that a Government must prove that it enjoys the confidence of the House. Noting that such ‘proof of confidence’ can only be established on the floor of the House, the Court had held that it was not within the domain of the Governor to verify such facts himself and thus determine the outcome. The Court reiterated that such determination had to be left “to the floor of the house.”

Interestingly, to Mr Sibal’s argument that the Governor lacked such power to summon the House in an ongoing assembly session, the Court rejected his contention and negated the view that the Constitution Bench in Nabam Rebia had made merely ‘incidental remarks’ in the nature of non-binding observations. In Rebia, the Supreme Court had held that the Governor was indeed within his rights to ask the Chief Minister to obtain the verdict of the Assembly if such facts arose that suggested a loss of support.  In fact, the Court held that the Rebia judgment was consistent with the nine-judge decision in SR Bommai.

After delving into the intertwined constitutional issues of whether the Governor was vested with the power to call a trust vote, and whether he exercised such power legitimately, the Court goes on to slam the conduct of the dramatis personae involved. While rejecting the “political thicket” argument, the Court serves a solemn reminder to all concerned that its role as the ultimate arbiter of the Constitution enjoins it to determine all constitutional issues; including those within “the realm of democratic politics”.

Chandrachud’s concluding remarks in the Judgment are a sobering reminder that India’s political reality is still nowhere near the lofty ideals envisioned by the founding fathers. Justifying its decision for an immediate floor-test, the Court adverts to the realities of “illegitimate and unseemly political bargaining in the quest for political power.”

For lawyers observing this case closely, one extremely interesting limb of argument deserves special attention. Dr Singhvi, appearing for the Speaker of the Madhya Pradesh Assembly, put forth the proposition that the Governor’s action calling the House to session prior to the Speaker’s determination of the MLA’s resignations amounted to a “short-circuiting” of the Speaker’s discretion. Amusingly, the Court ‘short-circuited’ this argument and effectively called the Speaker’s bluff, when it asked Dr Singhvi if the Speaker would be willing to accept speaking to the resigning Members via video conferencing at an “independent neutral venue.” To this, the Court was meekly informed that there were no instructions “to accept such a modality.”

Unsparing in its disgust for an apparently unquenchable and ‘we-will-stop-at-nothing’ lust for power, the Court was then constrained to note that this case had once again “shone a light on the often-fluid allegiances of democratically elected representatives.” Holding the proverbial mirror to our elected representatives, the Court wondered how their conscience could permit such egregious conduct. The Judgment ends with an affirmation that a Constitutional Court’s duty is to uphold democratic values while maintaining “an arm’s length from the sordid tales of political life.”

When I shared a draft of this article with a dear friend, who is also a leading constitutional lawyer, he got back to me with some interesting counter-points. In fairness to my friend who analyzed my piece, I must state briefly what he said and why I disagree with him.

First, he argued that the Court’s criticism of the deserters in question was inadequate as it did nothing to stem the disturbing trend of desertions which surface frequently in different States.

The specific criticism was – “How could the Court permit mass resignation en route to joining another political party to circumvent Anti-Defection Act?” (sic).

Thus, according to him, the Court ought to have barred such deserters from joining other political parties even if they were not disqualified and their resignations accepted. In short, the remedy suggested was that the deserters be made to contest as independents in by-elections and thus “risk their future” and that if the Court had taken this approach, it would have enhanced its prestige.

I disagree with this argument.

The law which deals with the disqualification of Members, the 10th Schedule, is entirely silent about resignations – be it individual or in a group. We need to remember that once a Member resigns, he loses his privilege to participate in the legislative business of the House and becomes a regular citizen. Such a person is free to join whoever he pleases and naturally, his new political membership is no guarantee of reelection. Rather, one might argue that the disloyalty of such person might run counter to his prospects.

Besides, the text of the 10th Schedule is clear, and the Court cannot introduce words of caution which do not exist in the Constitution. Therefore, to expect the Court to rewire, reinterpret and thus rewrite the law, would be more dangerous than any defection or resignation.

Equally incorrect is the suggestion that the Bench might have concluded differently had the rebel MLAs disclosed their plans to join the BJP soon after acceptance of their resignations. Why would the Bench decide differently? A person who resigns from a Legislative Assembly is no longer an MLA or an MP. Such a person is now free to do as he pleases post-resignation – the whole point of the resignation is that he has lost the privilege of being a Member of the House!

Third, it was pointed out to me that the Governor could not have exercised his discretion to call the House to the session, since the question pertaining to the “validity” of resignations could only be settled by the Speaker. This argument too is fallacious and completely ignores the fact that the Speaker had accepted identical resignations, in the sense that they were presented in the same mode and manner, just days earlier by the first six members who had resigned.

If their resignations were good enough for the Speaker, what was so drastically different about the other sixteen which came after? To this, I was countered that the first six were ministers, and therefore their continuance had to be decided forthwith.

This rationale finds no force in law. The Court cannot be expected to go outside established principles of existing law.

To be clear, and to be absolutely clear, neither the Conduct of Business Rules of the Madhya Pradesh Assembly nor the Constitution of India permits the Speaker to distinguish between Members of the House while considering their resignations. To suggest otherwise is an attempt to justify the Speaker’s reluctance to accept the resignations of the latter sixteen is simply an admission of biased conduct.

Once the Governor was seized of credible information that confirmed multiple resignations in the House, such that would put the incumbent Government’s numbers in jeopardy, he was constitutionally duty-bound to call the House to the session so that the Chief Minister and his Council could prove their numbers. In upholding this course of action, the Court did no wrong.

Fourth, it was put to me that “by calling for an immediate trust vote, as opposed to the date, set by the Speaker, which was just six days away, the possibility of trust vote itself was defeated, thus frustrating both Bommai and Nabam. If immediate trust vote was aimed to prevent horse-trading, it was already accomplished by the BJP promising rebel MLAs whatever they agreed to. Therefore, heavens would not have fallen if the trust vote was allowed to take place on the 26th.”

This concern also contradicts itself, because the immediacy of the trust vote was critical in avoiding horse-trading/bargaining, which no doubt the incumbent Government would have resorted to. Besides, the Supreme Court in a catena of judgments has consistently reiterated the importance of calling for a vote on the floor of the house without delay.

There was absolutely no justifiable reason for the Speaker to delay the process by almost a week especially when the Governor had exercised his constitutionally mandated power to call the House to session. To argue that “the heavens would not have fallen” if the delay were permitted, is no argument in law and at best a personal subjective assessment.

Fifth, it was suggested that the Court must evolve its jurisprudence to deal with the ethics of mass-resignations, by-polls and mergers of rebel groups to prevent circumvention of the anti-defection law.

But I ask myself, why should that be?

It is not a Constitutional Court’s mandate to enter deeper into the realm of democratic politics. Why do we assume that our electorate is easily beguiled and would not punish opportunists at the hustings?

So no, it is not really the Court’s job alone, but in fact, Parliament which must amend the law on defection and ensure that opportunism and corrupt practices in politics are brought to an end.

 

[Jai Anant Dehadrai practices in the Supreme Court of India]

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