Op EdsOP. ED.

Introduction

India got its freedom in 1947, and thereafter got its Constitution in 1949, which is a sacred and sacrosanct document and is also the longest written Constitution in the world. As our independent nation flourished and evolved, so did its democracy, which also highlighted the short-comings of the Constitution from time to time. To deal with such shortcomings, Parliament stood up to its responsibility and amended the Constitution from time to time.

In Democracy, election of representatives from constituencies is one of the most important processes, and so does presence of political parties. Various political parties set-up their candidates from different constituencies for elections of members to LokSabha/Legislative Assembly. These candidates get elected mostly, rather than Independent candidates.

However, party politics has been severely undermined by the politics of Aaya Rams and Gaya Rams. It has been time and again experienced that upon being elected to the legislature, lawmakers switch parties and cause political instability – often enticed by the rival party with plum public posts or, simply, money. The earliest example was from Haryana where in 1967, one Gaya Lal switched parties three times within the same day. This is in no way less than a fraud with the electors, who elect representative for a period of 5 years and is also a fraud with the political party under whose symbol such candidate contested and got elected.

Parliament though brought anti-defection law and amended it also from time to time, but people have made such laws redundant by their cunning methods.

Our country is facing similar problem even today. We have seen that in many States like Karnataka and Madhya Pradesh, ruling party MLAs have begun to resign in strategic numbers and join rival political parties for extraneous considerations best known to them. Thereby leading to reduction in the number of simple majority giving the opposition party /coalition (otherwise in minority) a shot at forming the government by demanding a floor test. Recently, it is being seen that the same strategy is being used to give advantage to the parties in getting more Members of Parliament elected to Rajya Sabha (Council of States). Thus, in the present article, I’ve made an attempt to examine the history of Constitutional amendments to deal with the malpractice of defection, how successful have they been and what future course is required in wake of current practices of horse trading.

Historical Development

Prior to 1974, Article 190(3)(b) of the Constitution of India prescribed that seat of a member of Legislative Assembly shall become vacant, if he resigns by writing to the Speaker. Thus, the Speaker had no control over the same and the seat used to become vacant at the drop of a hat.

The instances of misuse of this provision led to the introduction of the Constitution (33rd Amendment) Act, 1974[1]. The Statement of Objects and Reasons of such 33rd Amendment was as under:

“Articles 101(3)(b) and 190(3)(b) of the Constitution permit a member of either House of Parliament or a member of a House of the Legislature of a State to resign his seat by writing under his hand addressed to the Speaker or the Chairman, as the case may be. In the recent past, there have been instances where coercive measures have been resorted to for compelling members of a Legislative Assembly to resign their membership. If this is not checked, it might become difficult for Legislatures to function in accordance with the provisions of the Constitution. It is, therefore proposed to amend the above two articles to impose a requirement as to acceptance of the resignation by the Speaker or the Chairman and to provide that the resignation shall not be accepted by the Speaker or the Chairman if he is satisfied after making such inquiry as he thinks fit that the resignation is not voluntary or genuine.”

(emphasis supplied)

Thus, amendment was brought to place a check on the genuineness of the resignation. Now the seat was to be vacated only upon the acceptance of resignation by the Speaker with a view that he/she shall apply his/her mind to satisfy himself/herself that such resignation is voluntary.

To stop MLAs to join the opposition parties or defying the party whip during voting in the house without tendering actual resignation, the Constitution (52nd Amendment) Act, 1985[2], was brought to deal with the menace of such open defection, with the following Statement of Objects and Reasons:

“1.The evil of political defections has been a matter of national concern. If it is not combated, it is likely to undermine the very foundations of our democracy and the principles which sustain it. With this object, an assurance was given in the Address by the President to Parliament that the Government intended to introduce in the then current session of Parliament an anti-defection Bill.

  1. The Bill seeks to amend the Constitution to provide that an elected member of Parliament or a State Legislature, who has been elected as a candidate set up by a political party and a nominated member of Parliament or a State Legislature who is a member of a political party at the time he takes his seat or who becomes a member of a political party within six months after he takes his seat, would be disqualified on the ground of defection if he voluntarily relinquishes his membership of such political party or votes or abstains from voting in such House contrary to any direction of such party or is expelled from such party. An independent member of Parliament or a State Legislature shall also be disqualified if he joins any political party after his election. A nominated member of Parliament or a State Legislature who is not a member of a political party at the time of his nomination and who has not become a member of any political party before the expiry of six months from the date on which he takes his seat shall be disqualified if he joins any political party after the expiry of the said period of six months. The Bill also makes suitable provisions with respect to splits in, and mergers of, political parties. A special provision has been included in the Bill to enable a person who has been elected as the presiding officer of a House to sever his connections with his political party. The question as to whether a member of a House of Parliament or State Legislature has become subject to the proposed disqualification will be determined by the presiding officer of the House; where the question is with reference to the presiding officer himself, it will be decided by a member of the House elected by the House in that behalf.” (emphasis supplied)

In the aforesaid manner, Article 191(2) along with the  Tenth Schedule were inserted in the Constitution of India to deal with the extra-ordinary situations of destabilising the “constitutionally elected governments” and attacking the democracy, by resorting to unfair means.

It is clear from both the above Constitutional Amendments that the Indian democracy and Constitution had been evolving on the basis of past experiences and challenges coming up. After the 52nd Constitutional Amendment, no other Constitutional Amendment has been done to deal with the new challenges which kept on coming up in this regard.

Current Scenario

In the last one decade, new challenges have been coming up. For the lure of offices and other considerations best known to all, MLAs have started hopping on to a flight to some remote resort where they are kept under tight security even from their family members and then made to tender resignations “voluntarily”. These strategic resignations are to dodge the Tenth Schedule, which otherwise would have been attracted in case of group absenteeism. However, such absenteeism does not attract the Tenth Schedule in case of elections of Rajya Sabha. Such a situation may also give birth to infamous practice of convenient abductions or political murders as seen in history across jurisdictions, to force absenteeism.

It is interesting to note that such MLAs who resign have contested Bye-Elections on the ticket of the party which benefits from the resignation from their earlier affiliation. In fact, a lot of such resigning MLAs are awarded requisite ministries in the newly formed government, sometimes immediately and sometimes if they successfully win the bye-election as its candidate. Such practices have made resignation a powerful tool for elected legislators to negotiate quid-pro-quo deals within their party and if the need be, with the party in opposition which is already hungry for power.

Such practices mock the current Constitutional democratic set up and ridicule the public mandate. They seriously tend to commit a fraud by bringing in a lost party to power, as against the wishes of the governed. One might argue that there is nothing wrong with such practices, because if the rebel MLA is re-elected in the bye-election under a different party, it would be an automated approval of the defection. But this is a fallacious argument. Rebel MLA already having been a part of a successful campaign has a clear head start as against any other candidate which will be set up by the defected party for that constituency. Therefore, defection in the first place by way of resignation is a fraud on the trust of the public which puts such a candidate in power by virtue of his affiliation to a particular political party.

Critics may also argue that people vote for the candidate, based on his individual merits as public figure rather than on the basis of the political party to which he/she is a member of. However this holds good only in theory. It is well known that in every contested election a symbol is allotted to every contesting candidate in accordance with the provisions of the Election Symbols (Reservation and Allotment) Order, 1968. Such symbols may be either reserved or free. ‘Reserved Symbol’ is a symbol which is reserved for a recognised political party for exclusive allotment to contesting candidates set up by that party and ‘Free Symbol’ is a symbol for candidates other than those setup by the recognised political party. Recognised political party means either a National Party or a State Party. A detailed procedure is provided in law for recognition of a National and State Party. Thus, a person gets to contest election under the ‘Reserved Symbol’ only when he is setup as a candidate of ‘Recognised Party’. It is thus clear from the above that a candidate setup by recognised party gets the privilege of contesting election under the symbol of a recognised party.

A parliamentary democracy, like that of India, functions on the basis of the party system.  The Tenth Schedule to the Constitution recognises the importance of the political parties in our democratic set up.  It is open for Parliament to provide that the members of the political party elected on a party ticket, act according to the decisions made by the party and not against it.

It is indeed a privilege, for a candidate set up by a recognised political party, that he gets votes based on the goodwill of the political party, including the goodwill of star campaigners of the party who solicited votes for that candidate. The political party incurs huge expenditures in the said election campaigns for the candidate. The candidate also benefits from the ideology of the political parties manifested in the election manifesto because it also influences people to vote. Hence, it is not just the candidate who is voted for, but it is the political party who is also put to vote of electors. If the contrary were to be believed there would not be any difference in the success rate between the candidates setup by the  recognised political parties and an Independent candidates.

In the history of parliamentary elections in India prior to 2019 Lok Sabha Elections, a total of 44,962 independents have contested polls but only 222 of them have won to become Member of Parliament (MP) rendering a mere 0.49% chance of success.[3] In the first election in 1951, where 37 Independent Candidates won, the number has fallen down to 3 in the 2014 elections.[4] These ever declining figures even prompted the Election Commission and Law Commission to recommend that Independent Candidates must be debarred from contesting elections altogether.[5]

Therefore it is clear that people do vote for the symbol of political parties and there is hardly any doubt as to the vital role political parties play in the success of any candidate from any constituency. The Supreme Court has also opined that political parties are sine qua non of parliamentary democracy.[6]

Hence, a recognised political party is at a higher pedestal than a candidate, due to which the claim of a recognised political party must be recognised upon the seat concerned of MLA, even in case of vacancy of seat for any reason (resignation, death, etc), until the results of the bye-elections are declared.

Conclusion

The current situations as observed in the case of Karnataka, Madhya Pradesh and Rajasthan, tell us a tale of how parties have circumvented the defection law to put the ruling party in an unfair position. The duly elected Governments in the respective States were subjected to a vote of confidence which they were destined to lose, due to the prior resignations in strategic numbers enticed by personal considerations. It also gives undue advantage in Rajya Sabha Elections also like in Gujarat and Madhya Pradesh. Such practices can set up a trend which may prove to be fatal to the concept of federalism in this country wherein an all powerful Central Government can deploy its resources to help their party in the States where other parties have formed the Governments by orchestrating a similar fall.

Therefore to remedy the situation we suggest that if a duly elected Government comes in minority, upon vacancy of seats due to resignations or death of MLAs then also such Government shall be permitted to continue until the Bye-Elections are completed upon such seats. In other words, the party on whose ticket such resignee/dead MLA won the election should have a claim over such seat.  This can be achieved in the following manner:

  • The house strength and majority mark must be deemed to be unchanged i.e. not reduced by the number of vacancies, till the results of bye-elections to such vacant seats are declared.
  • The vacant seat must be counted as notional seat of the party on whose ticket such resignee/dead MLA won the election, till the results of bye-elections to such vacant seats are declared.
  • The Election to the Council of State (Rajya Sabha) be deferred, till the results of bye-elections to such vacant seats are declared, if the strategic number of vacant seats has bearing on the result of election to the Council of States.

This will ensure that no opposition party will gain any advantage from inducing such strategic resignations, in forming the Government or taking undue advantage in election like Member of Council of State (Rajya Sabha) but at the same time, the legitimate chance of opposition party to form the Government will not be hampered but only delayed by 6 months. It will also reinforce the true spirit of a democracy that ultimately it is the people who will decide the fate of any Government in bye-elections.

If the resignee MLA actually won the preceding elections on his independent merit, he will have a fair shot of getting re-elected in the by-elections either independently or on the ticket of different party. Similarly if the opposition party manages to win the bye-elections with numbers adequate to establish majority, they will get their due shot at forming the government in accordance with the public mandate. We urge Parliament and the polity of our country to consider, debate and bring an amendment to give effect to these proposed changes in law, as it will also ensure that the strategic resignations of today do not turn into mysterious abductions or deaths of tomorrow.

Further to support our suggestion, the time period to conduct such by-elections may be reduced from 6 months to 3 months. This will ensure that the legal fiction suggested operates only to achieve its purpose and not become a tool for further abuse.


*Former Additional Advocate General of Madhya Pradesh and  Practicing Advocate in High Court of Madhya Pradesh.

** Final year student pursuing BA LLB (Hons.) from National Law Institute University Bhopal.

[1] Constitution (33rd Amendment) Act, 1974

[2] Constitution (52nd Amendment) Act, 1985

[3] https://www.news18.com/news/politics/since-the-1st-elections-only-0-49-of-independent-candidates-have-managed-to-enter-lok-sabha-2047541.html

[4] https://factly.in/law-commission-india-recommending-independent-candidates-debarred-from-contesting-elections/

[5] Law Commission of India, Government of India, Report No. 255 on Electoral Reforms, 2015

[6] Kuldip Nayyar v. Union of India, (2006) 7 SCC 1.

Case BriefsSupreme Court

Supreme Court: The bench of Dr. DY Chandrachud and Hemant Gupta, JJ has held that the Madhya Pradesh Governor was right in ordering floor test after the State Government lost majority. The bench said,

“in a situation where the Governor has reasons to believe that the Council of Ministers headed by the Chief Minister has lost the confidence of the House, constitutional propriety requires that the issue be resolved by calling for a floor test. The Governor in calling for a floor test cannot be construed to have acted beyond the bounds of constitutional authority.”

In a detailed judgment, the Court also explained the scope of the power of the Governor and the law revolving around floor tests.

On the timing of directing a trust vote

The Court explained that in directing a trust vote, the Governor does not favour a particular political party and that it is inevitable that the specific timing of a trust vote may tilt the balance towards the party possessing a majority at the time the trust vote is directed. The Court, however, added,

“where the evidence indicates that circumstances of violence and coercion exist that would undermine a free and fair vote in the assembly, the Governor and the court must take measures to ensure that the sanctity of the trust vote is maintained.”

It, hence, held that in the present case there existed no extraordinary circumstances for the Governor to determine that a trust vote was not the appropriate course of action on 16 March 2020.

On short-circuiting the Speaker’s discretion

The Court noticed that neither the Governor, nor for that matter this Court, has the power to impinge upon the authority of the Speaker to take a decision on the said issue, however, it refused to accept the submission that holding of a trust vote would short-circuit the jurisdiction of the Speaker on a matter of resignation and disqualification. It explained that holding of trust vote is a matter which can brook no delay since the authority of the government presided over by the Chief Minister depends on the Council of Ministers continuing to have the faith of the legislative body as a collective entity. Particularly where the Members resigned in an expression of a lack of faith in the existing government, the convening of a floor test is the surest method of assessing the impact of the resignations on the collective will of the house. It concluded by holding that,

“nothing prevents the Speaker from taking a decision either on matters of resignation or disqualification despite convening of a trust vote.”

On seeking Access to the ‘Captive’ Members

On the plea that access be made to the twenty-two Members who have been elected on the ticket of the INC were “spirited away” to Bengaluru, the Court held that in order to facilitate a trust vote for which the twenty-two Members should be free to participate in the house should they opt to do so, directions in that regard should be issued both to the Director General of Police of Karnataka as well as to the Director General of Police of Madhya Pradesh.

The Court, however, said that it cannot issue a direction mandating that a trust vote cannot be convened if any one or more Members do not remain present in the House.

“Whether or not to remain present is for the individual Members to decide and they would, necessarily be accountable for the decisions which they take, both to their political party and to their constituents.”

Factual Timeline

  • On 28 November 2019, elections for the fifteenth Legislative Assembly of the State of Madhya Pradesh were held.
  • On 11 December 2018, results were declared and INC staked the claim to form the government together with the support of four independents Members, two Members of the Bahujan Samaj Party and one Member belonging to the Samajwadi Party.
  • On 10 March 2020, leaders of the BJP met the Speaker of the Madhya Pradesh Legislative Assembly and handed over what purported to be the resignation letters of twenty-two Members belonging to the INC.
  • On 13 March 2020, the Chief Minister addressed a communication to the Governor alleging that following a foiled attempt on 3/4 March 2020 to allure Members owing allegiance to the INC, the BJP had on 8 March 2020 arranged three chartered aircraft “to whisk away” nineteen Members to Bengaluru.
  • On 14 March 2020, the INC issued a three-line whip to ensure the presence of all its Members in the forthcoming Budget Session and to vote for and support the government.
  • On 15 March 2020, the Governor addressed a further communication to the Chief Minister that since the facility for mechanically recording votes (through the “press of a button”) was not available, the trust vote should be taken by the raising of hands.
  • On 16 March 2020, the Governor recorded that despite his earlier letter dated 14 March 2020, the Chief Minister did not initiate the process of proving his majority on the house floor and the proceedings of the Legislative Assembly were adjourned to 26 March 2020. He asked the Chief Minister to have the floor test carried out on 17 March 2020 and to establish his majority.
  • On 19 March 2020, the Supreme Court had ordered a floor test in the Madhya Pradesh Assembly to be held on March 20, following which Chief Minister Kamal Nath tendered his resignation. Bharatiya Janata Party leader Shivraj Singh Chouhan had later taken oath as the new state Chief Minister.

[Shivraj Singh Chouhan v. Speaker, Madhya Pradesh Legislative Assembly,  2020 SCC OnLine SC 363, decided on 13.04.2020]

Hot Off The PressNews

Supreme Court: A division bench of Dr. DY Chandrachud and Hemant Gupta, CJ has issued notices to the Madhya Pradesh Chief Minister Kamal Nath, Speaker, principal secretary of assembly, state of Madhya Pradesh and Governor on a petition filed by BJPleaders seeking directions to hold an immediate floor test in the State Assembly and slated the matter for further hearing at 10:30 am on Wednesday.

Senior advocate Mukul Rohatgi, appearing for the BJP leaders, said that the floor test is required in the matter. The petition, filed by former Madhya Pradesh Chief Minister Shivraj Singh Chouhan and others, sought a floor test in the Madhya Pradesh Assembly in the wake of the ongoing political crisis in the state, which had sparked off by the exit of Congress leader Jyotiraditya Scindia.

The petitioners said that they are approaching the Supreme Court as the respondents, Speaker and Madhya Pradesh Chief Minister, have violated the constitutional principles and have deliberately and willfully defied the directions issued by the Governor on March 14, requiring the Chief Minister to prove his majority on the floor of Madhya Pradesh Legislative Assembly.

“It is submitted by the petitioners that the leaders of the main opposition party namely the BJP also on March 14 had addressed a letter to the Madhya Pradesh Governor that the government was reduced into minority and attempts of horse-trading were being made,”

The petition said that in such a situation, the Governor should exercise his constitutional powers and direct the Chief Minister to prove his majority on the floor of the house.
The development comes as the Madhya Pradesh Assembly, which met on Monday morning for the Budget session was adjourned till March 26, immediately after the Governor’s address, in view of the coronavirus outbreak.

Earlier, Madhya Pradesh Governor Lalji Tandon had written a letter to Chief Minister Kamal Nath (/topic/chief-minister-kamal-nath) directing him to conduct the floor test on March 17.

(Source: ANI)

Hot Off The PressNews

Supreme Court:  After hearing the Congress-NCP-Shiv Sena’s plea today against the decision of the Maharashtra Governor inviting Devendra Fadnavis to form the Government for 2 days, the 3-judge bench of N.V. Ramana, Ashok Bhushan and Sanjiv Khanna, JJ has said that it will pronounce the verdict tomorrow.

The Governor’s order on November 23, inviting Fadnavis to form a government & correspondence/letter of Fadnavis to the Governor claiming majority was produced before the Court today.

Submissions before the Court on Day 2 of the hearing:

Solicitor General Tushar Mehta:

  • Maharashtra governor was cognizant of facts, situation after polls results that had led to invoking of President rule in state
  • After being assured that no party was in position to form government in Maha, governor recommended President rule in state
  • Maharashta Governor had invited Shiv Sena, BJP and NCP for government formation, President’s rule was imposed only after they failed
  • Governor not supposed to conduct roving, fishing inquiry to ascertain which party has numbers to form Government
  • Question is can a party come, seek court’s intervention to hold floor test within 24 hours
  • Nobody is disputing that floor test is ultimate test, no party can say it has to be conducted in 24 hours
  • Particular time frame cannot be asked to be implemented on mere apprehension of particular party
  • Grant us 2-3 days’ time. Let us file reply

Advocate Mukul Rohatgi appearing for BJP

  • Ajit Pawar had support of 54 NCP MLAs so governor asked him to form Government
  • It’s nobody’s case that letters have been forged, Maharashtra governor acted correctly so it is end of their case
  • Now question is can this court say whether floor test can be ordered within a particular time frame
  • Governor’s action, calling a party to form government, is immune from judicial review
  • Matter fraught with serious consequences, governor’s discretionary power cannot be judicially reviewed
  • 5-judge bench supposed to examine power of Speaker in such matters
  • No case for grant of interim order has been made out by Shiv Sena, NCP and Congress
  • Procedures of assembly like pro-tem speaker cannot be interfered with
  • Shiv Sena, NCP, Cong are asking SC to decide how Governor and Assembly should act. Parties are seeking direction to governor, who is immune, to act as per their wishes
  • Court cannot interfere with House procedure regulated by Assembly rules

Kapil Sibal, appearing for Shiv Sena

  • Where was national emergency to revoke President’s rule at 5.27 am and CM being administered oath at 8 am next morning
  • If BJP has numbers, then they be asked to prove majority within 24 hours

Sr. Adv. A M Singhvi appearing for Sharad Pawar’s NCP and Congress

  • It’s fraud of worst kind, did a single NCP MLA tell Ajit Pawar that he supported him to go with BJP
  • Both sides agree that floor test is ultimate, BJP does not want it quickly
  • If BJP has majority, why is it worried? I am happy to lose on floor of Maharashtra Assembly

The Court asked Sr. Adv. A M Singhvi appearing for Sharad Pawar’s NCP and Congress to withdraw fresh plea with affidavits of 154 Maha MLAs supporting combine as it has not been supplied to BJP. It said,

“Whatever you file in court, you need to give to other side”

AM Singhvi withdrew the plea and said that he was as referring to affidavits of 154 Maha MLAs to shock court’s conscience that majority was with them.

(Source: PTI)


Also Read:

Case BriefsSupreme Court

Supreme Court’s three-judge bench comprising of N.V. Ramana, Ashok Bhushan and Sanjiv Khanna, JJ., heard the Congress-NCP-Shiv Sena’s plea today against the decision of the Maharashtra Governor inviting Devendra Fadnavis to form the Government.

Petitioners had requested the Supreme Court to order a floor test to held on Sunday itself.

Counsel representing the parties:

Shiv Sena: Senior Advocate Kapil Sibal

NCP: Senior Advocate Dr A M Singhvi

BJP: Senior Advocate Mukul Rohatgi and Solicitor General Tushar Mehta.

Order given by Supreme Court in Today’s Hearing:

Supreme Court issues notice to Centre, Maharashtra Govt, Devendra Fadnavis & Ajit Pawar on Congress-NCP-Shiv Sena’s plea. Court requested Solicitor General Tushar Mehta to produce relevant documents from Guv’s letter for inviting BJP to form govt & letter of support of MLAs by 10.30 am tomorrow.

“We have taken note of all the arguments, particularly the argument that the Governor’s decision dated 23-11-2019 inviting the Respondent No.3 to form a Government on 23-11-2019 is unconstitutional. With regard to the second prayer as at `b’, we are not going to consider the same at present. As adjudication of the issues and also the interim prayers sought by the petitioners to conduct floor test within 24 hours has to be considered after perusing the order of the Governor as well as the letters submitted by Mr. Devendra Fadnavis – Respondent No 3, even though none appeared for the State Government, we request Mr Tushar Mehta to produce those two letters by tomorrow morning at 10.30 a.m. when the matter will be taken up, so that appropriate order will be passed.”

Issue involved is the Governor’s decision dated 23/11/19 inviting them to form a government is unconstitutional.

Following are the documents to be produced tomorrow:

— Governor’s order on November 23, inviting Fadnavis to form a government

— The correspondence/letter of Fadnavis to the Governor claiming majority

[Shiv Sena v. Union of India, 2019 SCC OnLine SC 1501, decided on 24-11-2019]


Live Tweets from the Hearing:

  • #MaharashtraPolitics #KapilSibal appearing for #ShivaSena in SC, on Shiv Sena, NCP & Congress’ plea against the decision of Guv inviting Devendra Fadnavis to form govt: Court should order floor test today itself.
  • #Singhvi contends that How did Ajit Pawar become NCP when 41 of 54 elected NCP members signed a document at 3.30 pm on Nov 22 saying Pawar is not NCP legislative party leader.
  • #AbhishekManuSinghvi: Obligations of the Governor is to form a prima facie satisfaction of the majority on a written document. The document must have signatures, physical verification, satisfaction based on these things. This is the criterion.
  • #Rohatgi says there was no need for a Sunday hearing Justice Bhushan says that it is a prerogative of the #chiefjusticeofindia
  • Referring to the Jagadambika Pal case, #Singhvi says, “The only agenda would be to conduct a floor test between the competing parties. This is composite. May the best man win.
  • #Rohatgi: There are some things that are with the President which are not even open to judicial intervention.
  • #Rohatgi: Governor’s decision made yesterday is not open for judicial review. Art. 361, the President or Governor shall not be answerable to any court.
  • Ramana J.: These issues have been settled. Governor cannot just appoint anyone.
  • #MaharashtraCM #Rohatgi: Can the SC order the Governor to advance floor test? The petition is without annexures, they don’t know anything, they were sleeping for three weeks.
  • There is no supporting document to their claims. Senior advocate Mukul Rohatgi appeared for some BJP and independent MLAs, says this plea should have been filed in Bombay HC.
  • Sibal: Fadnavis has numbers, let him prove it on the floor of House, else we have numbers to form govt in Maha
  • Shiv Sena-NCP-Congress seeks SC direction for the composite floor test today itself.
  • Act of Governor recommending revocation of President’s rule ‘smacks’ of bias: Sibal to SC hearing Maha case

Also Read:

Hot Off The PressNews

Supreme Court: Refusing to interfere with the appointment of KG Bopaiah as the pro-tem speaker, the 3-judge bench of Dr. AK Sikri, SA Bobde and Ashok Bhushan, JJ said:

“Law can’t direct the Governor to appoint a particular person as Pro-tem Speaker. Unless convention becomes legal norm, it can’t be enforced by Court.”

The Bench had assembled on a non-working day to hear the interim petition filed by Congress-JD(S) against the appointment of BJP MLA Bopaiah as the protem speaker after the Court had directed that the Floor Test be conducted before a protem speaker. The Court had, on 18.05.2018, had asked newly sworn-in Karnataka Chief Minister BS Yeddyurappa to take a floor test at 4PM today.

While the Court had refused to interfere with the appointment of the protem speaker, it directed the live broadcast of the floor test and said:

“Live broadcast of Floor Test would be the best way to ensure transparency of proceedings.”

Earlier, Congress-JDS had approached the Supreme Court at late hours of Wednesday to stall the swearing in ceremony of BJP candidate BS Yeddyurappa as the Karnataka Chief Minister after the Karnataka Governor Vajubhai Vala asked him to seek trust votes in the floor test within 15 days of his swearing in. Without passing any order staying the oath ceremony of the new Karanataka Chief Minsiter, the Court said:

“In case, he is given oath in the meantime, that shall be subject to further orders of this Court and final outcome of the writ petition.”

(With inputs from ANI)

Hot Off The PressNews

Supreme Court: In the high-voltage political drama that has reached the highest Court of the nation, the 3-judge bench of Dr. AK Sikri, SA Bobde and Ashok Bhushan, JJ has asked newly sworn-in Karnataka Chief Minister BS Yeddyurappa to take a floor test at 4PM tomorrow to prove his majority. Justice Sikri said:

“Better to hold floor test on Saturday so that nobody gets any time.”

Senior Advocate Mukul Rohatgi, appearing for BJP, argued that BJP was confident that it will get the majority & might even get the support from few Congress and JDS MLAs. Senior Advocate Abhishek Manu Singhvi, appearing for Congress-JD(S), said “BJP is just saying they have the majority without any specific number and names whereas we had given the names and numbers, how could Governor had invited Yeddyurappa to form the Government.”

Stating that floor test is the best option in the given situation, the Court said that the larger question of law on how should Governor invite a person to form the Govt can be settled here later.

Justice Sikri said:

“It’s just the number game, who enjoys the majority should be invited to form the Government.”

The Court, hence, ordered the appointment of a pro tem speaker and also stayed the nomination of any Anglo Indian MLA before the floor test.

Source: twitter.com/arvindgunasekar

Hot Off The PressNews

Supreme Court: In yet another high-profile election drama, when the Congress-JDS approached the Supreme Court at late hours of Wednesday to stall the swearing in ceremony of BJP candidate BS Yeddyurappa as the Karnataka Chief Minister after the Karnataka Governor Vajubhai Vala asked him to seek trust votes in the floor test within 15 days of his swearing in, the 3-judge bench of Dr AK Sikri, SA Bobde and Ashok Bhushan, JJ directed:

“As far as swearing-in is concerned, we are not restraining it, but we are making it subject to the outcome of the case.”

In the hearing that began at 01:45 AM, Congress-JDS contended that despite presenting the list of 116 MLAs, governor Vajubhai Vala has invited the BJP which has 104 MLAs to form the government and has given relatively longer time of 15 days to prove the majority on the floor of the House.

Below are the highlights of the midnight drama that transpired post Karnataka Election:

  • Senior Advocate Abhishek Manu Singhvi (For Congress-JDS):
    • There are innumerable instances where combination of post-poll group was called despite there was a different single largest party, one such instance being the Goa Elections Goa where BJP outnumbering single largest party was called to form the Government and the Supreme Court had upheld this.
    • We are challenging the act of Governor not calling us. Should a person be given 15 days for proving majority? Governor can’t negate democracy and after the swearing in happens I can’t come to Supreme Court.
    • 104 ahead of 116 is adding insult to the injury. Giving 15 days is encouraging unconstitutional sin of poaching.
  • Bench: it is to be considered whether the Court can restrain a Governor,
  • Singhvi: Governor action is subject to judicial review. The argument is court should not issue injunction and judicial review is not the question.
  • Bench: We don’t even have the letter other party has written to governor.  How can we decide?
  • Singhvi: In Meghalaya, Manipur and Goa, Congress was the single-largest party but BJP and other parties were invited to form Government. Governor’s exercise of Government duty is under judicial review. Court can question Governor. Supreme Court can defer the swearing-in.
  • Bench: You want us to scrutinise discretion of governor but you don’t have letter given to governor which found basis for inviting BJP.
  • Singhvi: Governor doesn’t give any reason in calling BJP. Claim of BS Yeddyurappa is leader of BJP whereas Kumaraswamy is claiming Congress support. Unless Supreme Court sees Mr Yeddyurappa’s letter to the Governor, the court can defer the swearing-in. On what basis the governor invited BS Yeddyurappa.

_____________________________________________________________________________

  • Attorney General KK Venugopal (For BJP): Defection is one member crosses to other party. Defection law won’t apply before he is swearing in as MLA.
  • Bench: You mean before swearing in MLAs can switch sides? In a case like this how you will have more numbers when the other side has already given 116 to Governor. JDS and Congress outweigh BJP. In a situation like this on what basis Mr Yeddyurappa has staked claimed. The arithmetic defies in what way he was invited to form Government.
  • AG: Even if swearing-in takes place it is reversible. Once the floor test takes place real picture will be known.
  • Bench: Why 15 days were given by the governor?
  • AG: It is governor’s decision. Waiting for 15 days heavens will not fall. What’s the purpose of stopping the swearing-in? Let the floor test take place.
  • Bench: Your argument is floor test will fail.
  • AG: We don’t know.
  • Bench: What’s bothering us is the fluid situation.
  • AG: The the time given to BJP for proving majority can be reduced to seven days

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  • Former Attorney General and Senior Advocate Mukul Rohatgi (For BJP): This case should have never been taken up at midnight.
  • Bench: On what basis you are claiming?
  • Rohatgi: 
    • Heavens won’t fall if someone is sworn in. Last time Supreme Court heard in night, the case related to hanging of Yakub Memon.
    • Congress wants injunction and wants governor not to discharge his function. Action of swearing can always be reversed by Supreme Court.
    • Question is can court stop governor from discharging his constitutional duty? Can Supreme Court stop President from signing warrant of appointing judges? Job of governor is to give oath – whether right or wrong.
    • Supreme Court can’t ask governor to file affidavit and can’t issue notice.
  • Bench: Is this your interpretation that governor action amenable but the governor as individual not answerable to court?
  • Rohatgi: 
    • Yes. Governor can’t be stopped to do his job. It is unheard of.
    • Supreme Court can reduce time period from 15 to 10 or 7 days for BJP to prove majority.

_____________________________________________________________________________

  • Bench: Swearing in will go on.
  • Singhvi: Don’t stay the swearing-in but defer it for two days. Defer swearing-in for at least till 4.30 and ask Mr Yeddyurappa to produce the letter he gave to the governor.
  • Bench: This petition is a subject of hearing later on.

Supreme Court issued notice to BS Yeddyurappa and other respondent’s and listed the matter for further hearing on 18.05.2018. The Court, in it’s order, said:

“it is necessary to peruse the letters dated 15th May, 2018 and 16th May, 2018 submitted by the respondent No.3 to the Governor which find a mention in the communication dated16th May, 2018 of the Hon’ble Governor.”

Without passing any order staying the oath ceremony of the new Karanataka Chief Minsiter, the Court said:

“In case, he is given oath in the meantime, that shall be subject to further orders of this Court and final outcome of the writ petition.”

[Dr. G. Parmeshwara v. Union of India, WRIT PETITION (CIVIL) Diary No.19482/2018, order dated 17.05.2018]

(With inputs from NDTV)

Case BriefsSupreme Court

Supreme Court: The special bench of Jagdish Singh Khehar, CJ and Ranjan Gogoi and R.K. Agrawal, JJ refused to stay the swearing in ceremony of Manohar Parrikar as the Chief Minister of Goa and the asked Mridula Sinha, the Governor of the State to conduct a floor test on 16.03.2017 to determine whether the Chief Minister administered the oath of office, has support of the majority.

As per the result of the electoral process in the State of Goa which was declared on 11.03.2017, the BJP Legislature Party had the support of 21 MLAs out of the 40 elected members. However, the leader of the Congress Legislature Party had alleged that the support in favour of the BJP is a mis-representation of fact.

The bench hence, said that the instant sensitive and contentious issue raised on behalf of the petitioner, can be resolved by a simple direction, requiring the holding of a floor test at the earliest. The holding of the floor test would remove all possible ambiguities, and would result in giving the democratic process, the required credibility.

It was directed that all pre-requisite formalities for holding a floor test, including the formalities   required to be completed by the Election Commission, be completed by 15.03.2017.  [Chandrakant Kavlekar v. Union of India, 2017 SCC OnLine SC 240, order dated 14.03.2017]

Case BriefsSupreme Court

SUPREME COURT: Putting an end to the Uttarakhand Assembly crisis, the bench of Dipak Misra and Shiva Kirti Singh, J.J., allowed Harish Chandra Singh Rawat to assume the office of Chief Minister of Uttarakhand. On 09.05.2016, the Court had ordered a floor test wich was observed by the Principal Secretary, Legislative and Parliamentary Affairs, and Secretary, Legislative Assembly. As a result of the voting, except by the 9 disqualified members of Legislative Assembly, Harish Rawat obtained 33 out of 61 votes. The Court granted liberty to the Union of India to revoke the proclamation of President’s Rule in the State of Uttarakhand in course of the day.

Regarding the issue of justifiability of the proclamation of President’s Rule that was made on 27.03.2016 which was annulled by the impugned order passed by the High Court, the Court said that the said issue will remain alive as it is required to be scrutinized whether within the scope of judicial review, such a finding could have been arrived at or for that matter whether the opinion arrived at by the President of India to proclaim the President’s Rule at the relevant point of time was justified or not.[ UNION OF INDIA v. HARISH CHANDRA SINGH RAWAT, Special Leave to Appeal No. 11567/2016, decided on 11.05.2016]

Case BriefsHigh Courts

Uttaranchal High Court: While deciding the issue that whether the Speaker of the Uttarakhand Legislative Assembly followed the principles of natural justice, and whether the criteria enshrined in Para. 2 (1)(a) of the Tenth Schedule of the Constitution was met while disqualifying nine rebel MLAs of Indian National Congress (INC), the bench of U.C Dhyani, J., dismissing the petitions, observed that from the facts and the documents presented before this Court, it is clear that the Speaker of the Legislative Assembly did not violate the principles of natural justice and in undue haste, did not disqualify the rebel MLAs. At the same time, the Court observed that by the conduct of the petitioners, it has been established that they had ‘voluntarily given up the membership of their political party’, thereby fulfilling the criteria of Para. 2(1)(a) of the Tenth Schedule.

The present petitions were filed against the Order dated 27.03.2016 issued by the Speaker of Uttarakhand Legislative Assembly disqualifying nine rebel MLAs of INC. The petitioners via their counsels C. A. Sundaram et al., argued that the Speaker showed undue haste while issuing the impugned Order thereby violating the principle of audi altrem partem.

The Court observed that the principles of natural justice cannot be put into a strait jacket. Relying on landmark decision of the Supreme Court on the same point, the Court stated that a quasi- judicial authority such as that of a Speaker is required to maintain a balance between ‘delayed justice’ and ‘hurried justice’. However there is nothing in the facts to show that the Speaker violated the principles of natural justice. Speaking of the criteria laid down on Tenth Schedule of the Constitution, the Court stated that while the petitioners beheld their act of defection to be an act of ‘dissent’, but for the Speaker the same amounted to fulfillment of the criteria laid down in Para. 2(1)(a) of Tenth Schedule of the Constitution. The Court also directed that the present decision of the Court shall “not come in the way of Speaker to review his own order, in accordance with law, if the petitioners are so advised to move for the same, on any of the grounds available to them in law.” [Subodh Uniyal v. Speaker Legislative Assembly, 2016 SCC OnLine Utt 465, decided on 09.05.2016]