There are two aspects to the ongoing controversy over when the Karnataka assembly speaker, K.R. Ramesh Kumar, should schedule the trust vote in favour of chief minister H.D. Kumaraswamy.
The first is the scope of the speaker’s powers under the Tenth Schedule in the disqualification proceedings pending against the MLAs who have submitted their resignations from the assembly, and are awaiting their acceptance by the speaker.
The second is whether the speaker could be directed, either by the governor or the Supreme Court, to hold a trust vote within a time-frame in the midst of the assembly proceedings called for the purpose.
On both, clear answers are available from the Supreme Court constitution bench’s judgment in a 2016 Arunachal Pradesh case.
The Supreme Court on Monday refused to hear the prayer of two MLAs of the Karnataka assembly for a direction to the speaker to hold the trust vote on the same day. A bench headed by the Chief Justice of India Ranjan Gogoi has indicated that it might list their case on Tuesday for hearing. The petitioners, one belonging to a minor party, and the other an independent, R. Shankar and Nagesh stated that they had withdrawn their support to the ruling coalition, making it a minority government.
Meanwhile, the speaker, Kumar, has reportedly asked the 15 rebel MLAs – who have been camping in Mumbai since their resignation from the assembly – to appear before him on Tuesday for a hearing on the disqualification petitions against them for voluntarily quitting their parties.
The Supreme Court is also likely to hear the applications filed by chief minister Kumaraswamy and Karnataka Congress chief, Dinesh Gundu Rao, seeking clarifications on the court’s interim order on the rebel MLAs. The order stated that the MLAs who have resigned from the assembly, but are awaiting acceptance from the speaker, cannot be compelled to attend the proceedings of the House. In their view, the order poses uncertainty over the question of the issue of a whip to them to attend the assembly and vote in favour of the confidence motion.
Karnataka chief minister H.D. Kumaraswamy and his deputy G. Parameshwara with other members during an assembly session at Vidhana Soudha. Photo: PTI
As the Supreme Court begins hearings on these issues, it cannot ignore the unanimous judgment delivered by a five-judge constitution bench in the Arunachal Pradesh case in 2016.
Scope of governor’s powers
The Karnataka governor, Vajubhai Vala, twice last week directed the chief minister to complete the floor test. His first direction was to complete the floor test by 1:30 pm last Friday. When it was ignored, he renewed his directive through another letter to the chief minister and the speaker – to complete it by 6 pm on Friday. The second directive was also not complied with by the chief minister and the assembly.
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The completion of the floor test at the earliest, the governor suggested, was a constitutional imperative at a time when allegations of horse-trading are widely being made. The speaker reportedly said that he would not be able to take up the trust vote unless all discussions on the ongoing confidence motion, moved by the chief minister, have been completed.
The governor’s direction, therefore, raises the question of whether he could send a message to the assembly to complete the proceedings within a deadline, and the consequences of the assembly’s non-compliance with such a direction.
The Arunachal Pradesh case
On November 3, 2015, the then Arunachal Pradesh governor, Jyoti Prasad Rajkhowa advanced the state assembly session by one month from January 14, 2016, to December 16, 2015, without the aid and advice of his council of ministers. This because he believed that the then chief minister, Nabam Tuki, had lost the majority in the assembly, and therefore, was required to test it at the earliest.
The governor also indicated that the manner in which the proceedings of the House should be conducted by issuing a message to the assembly on December 9, 2015. As the then challenged it in the Supreme Court, a five-judge constitution bench heard and delivered its judgment on July 13, 2016.
Justice J.S. Khehar’s main judgment – with which the other four judges concurred – held that the governor can summon, prorogue and dissolve the House only on the aid and advice of the council of ministers with the chief minister as the head. “And not at his own,” he wrote.
Arunachal Pradesh speaker Nabam Rebia. Photo: PTI
Justice Khehar was categorical that allowing the governor to overrule the resolve and determination of the state legislature or the state executive would not harmoniously augur with the strong democratic principles enshrined in the provisions of the constitution.
But what happens when the majority of the incumbent chief minister is debatable? Justice Khehar, relying on the opinion expressed by eminent authors M.N. Kaul and S.L. Shakdher, held that the mere fact that some members of the ruling party defected does not necessarily prove that the party has lost confidence of the House.
If the governor has reasons to believe that the chief minister and his council of ministers have lost the confidence of the House, only then is it open to the governor to require them to prove their majority in the House by a floor test. Only in such a situation – where the government in power on the holding of such a floor test is seen to have lost the confidence of the majority – would it be open to the governor to exercise the powers vested with him under Article 174 at his own, and without any aid and advice, Justice Khehar held.
Unlike the situation in Karnataka, the governor of Arunachal Pradesh did not call for a floor test, and therefore, the bench concluded that he could not have summoned the House, in his own discretion, by advancing the session.
Justice Khehar’s judgment also dealt with the governor’s power to address messages to the House and concluded that the bench had no hesitation in holding that such messages have to be in consonance with the aid and advice tendered to him.
Supreme Court of India in New Delhi. Photo: PTI/Atul Yadav
Two grounds justifying the governor’s message to the assembly on December 9, 2015, were cited: one, a notice for the removal of the speaker, Nabam Rebia, addressed by 13 MLAs to the secretary of the legislative assembly, was pending and had to be taken up by the assembly immediately after the expiry of 14 days under Article 179 of the constitution.
The bench held that the governor has no express or implied role under Article 179 on the subject of the removal of the speaker or deputy speaker. It is for the MLAs to determine whether such a notice should be adopted or rejected, the bench clarified.
Second, it was suggested that a petition was preferred by the chief whip of the Congress Legislature Party for the disqualification of 14 MLAs belonging to the ruling Congress – under the Tenth Schedule. The governor informed the presiding officer of the House that till the assembly session was prorogued, the party composition of the House should not be altered.
The constitution bench emphasised that the governor has no role in the disqualification of members of the assembly. The exclusive jurisdiction on the above issue, the bench held, rests with the speaker of the assembly – under Paragraph 6 of the Tenth Schedule. The remedy for any wrongdoing under the Tenth Schedule, the bench held, lies by way of judicial review. “It does not lie within the domain of the Governor, to interfere with the functions of the Speaker”, the bench made it clear.
The bench added:
“The Governor is not a guide or mentor to the Speaker. The Governor cannot require the Speaker to discharge his functions in the manner he considers constitutionally appropriate. Both the Governor and the Speaker have independent constitutional responsibilities. The Governor’s messages with reference to such matters (as were expressed in the message dated 9.12.2015) do not flow from the functions assigned to him. The Governor cannot likewise interfere in the activities of the Assembly, for the reason that the Chief Minister, or the entire Council of Ministers, or an individual Minister in the Cabinet, or for that matter even an individual MLA, are not functioning in consonance with the provisions of the Constitution, or in the best interest of the State. The State Legislature does not function under the Governor. In sum and substance, the Governor just cannot act as the Ombudsman of the State Legislature.”
The bench then set aside the governor’s message to the assembly dated December 9, 2015.
Political thicket
In his latest directive to the chief minister, the governor of Karnataka referred to the attempts at horse-trading to justify his deadline for completing the trust vote in the assembly. The Supreme Court, in the Arunachal Pradesh case, held that it is not within the realm of the governor to embroil himself in any political thicket.
The bench held as follows:
“The Governor must remain aloof from any disagreement, discord, disharmony, discontent or dissension, within individual political parties, The activities within a political party, confirming turbulence, or unrest within his ranks, are beyond the concern of the Governor. The Governor must keep clear of any political horse-trading, and even unsavoury political manipulations, irrespective of the degree of their ethical repulsiveness. Who should or should not be a leader of a political party is a political question to be dealt with and resolved privately by the political party itself. The Governor cannot make such issues, a matter of his concern. The provisions of the Constitution do not enjoin upon the Governor, the authority to resolve disputes within a political party, or between rival political parties.”
The bench distinguished between governor’s reports to the president on the political scenario of the state, and the scope of his authority to engage through his constitutional position, and exercise his constitutional authority, to resolve the same. The former, it held, is justified, while the latter is not.
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Although the factual matrix in Arunachal Pradesh case was different, the observations of the court on the role of the governor have a resonance in the ongoing turmoil in Karnataka.
Justice Khehar held:
“Any action taken by the Governor, based on disputations, with reference to activities in which he has no role to play, is liable to be considered as extraneous. It is not for the Governor to schedule the functioning of the Assembly. It is also not in the Governor’s domain, to schedule the agenda of the House. The Governor has no role with reference to the ongoings in the Assembly. The Governor must keep away, from all that goes on, within the House…. The Governor need not worry about, or involve himself in, issues which are within the realm of other constitutional authorities. The Indian Constitution provides for checks and balances, and a regime of redressal, for all situations.”
Justice Madan B. Lokur, in his separate judgment in the Arunachal Pradesh case, was more emphatic than Justice Khehar. He was categorical that in the event the governor could not get the advice of the chief minister or the council of ministers, and responsible government was not possible, the governor could resort to the “breakdown provisions” and leave it to the president to break the impasse.
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In Arunachal Pradesh, the governor did not require the chief minister to prove that he had the confidence of the assembly but summoned the assembly to meet on a particular day, without the aid and advice of the chief minister. In Karnataka, the chief minister offered to seek the confidence of the assembly himself without the directive from the governor, but the governor chose to interfere with the proceedings of the assembly, convened for the purpose, by ‘directing’ when the trust vote must be completed.
Notwithstanding these factual differences, the holdings of the Supreme Court on the scope of governor’s powers in the context of the proceedings of the House are quite relevant in Karnataka. For the same reason, the Supreme Court too will find the scope for its intervention before the assembly takes up the trust vote, extremely limited.
The assembly should be allowed to debate the pros and cons of the trust motion – moved by the chief minister fully – before it takes up the vote on the motion. Curtailing the debate to hasten the vote, and the result is not the essence of democracy.