The fall of the erstwhile Kamal Nath government in Madhya Pradesh on March 19 was a foregone conclusion. The Supreme Court directed in an interim order that a floor test be conducted in the assembly session of March 20, without considering the merits of the speaker’s adjournment of the session from March 16 to 26 following the coronavirus outbreak.
On Monday, the Supreme Court bench comprising Justices D.Y. Chandrachud and Hemant Gupta gave a reasoned judgment in the case, again skipping the issue of whether concerns over the spread of a serious epidemic could enable the speaker to adjourn the house and delay the floor test.
The bench had to adjudicate the challenges to the governor’s exercise of his discretion to ask the chief minister to seek a trust vote on a particular day, and to the speaker’s power to adjourn the proceedings of the assembly to March 26.
In defence of the governor
The bench found nothing constitutionally improper in the conduct of the Madhya Pradesh governor, Lalji Tandon, in calling for a trust vote in the Madhya Pradesh legislative assembly on March 16, following the resignation of 22 Congress MLAs.
“Where the Governor has reasons to believe that the incumbent government does not possess the support of the majority in the legislative assembly, the correct course of action would be for the Governor to call upon the Chief Minister to face the assembly and to establish the majority of the incumbent government within the shortest possible time,” the bench held.
“An exception to the invariable rule of testing whether the government has the assembly’s confidence on the floor of the house is envisaged only in extraordinary situations where because of the existence of all pervasive violence a free vote is not possible in the House,” the bench reasoned, without explaining why the threat of the spread of coronavirus could not be considered as an extraordinary situation, warranting a similar exception.
In its 68-page judgment, the bench adopted an inconsistent line of reasoning to defend the governor, as if the moment an active politician assumes the office, he or she could be expected to rise above party considerations.
“The Governor is not denuded of the power to order a floor test where on the basis of the material available to the Governor it becomes evident that the issue as to whether the government commands the confidence of the house requires to be assessed on the basis of a floor test. Undoubtedly, the purpose of entrusting such a function to the Governor is not to destabilise an existing government,” the bench held.
Both the former speaker and the Congress had submitted that the governor could not demand a trust vote except at the initial constitution of the legislative assembly following an election, which produced a fractured verdict. But the bench did not agree that the authority entrusted to the governor cannot be exercised once a government has been formed.
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Drawing a distinction between the summoning of the house on the aid and advice of the council of ministers, and the governor using his discretion to summon the house to ensure a floor test, the court reasoned:
“In a situation where the House has been summoned following the aid and advice of the Council of Ministers, the position would be more nuanced in the sense that the remedy of a no confidence motion would be available to any segment of the legislature seeking to espouse the view that the government has ceased to command the confidence of the house. In exercising the constitutional authority to demand a trust vote, the Governor must do so with circumspection in a manner that ensures that the authority of the House to determine the existence or loss of confidence in the government is not undermined. Absent exigent and compelling circumstances, there is no reason for the Governor to prevent the ordinary legislative process of a no confidence motion from running its due course.”
The bench had no explanation why the BJP could not have moved a no-confidence motion against the Kamal Nath government, following the resignation of the 22 rebel Congress MLAs from the assembly. The bench, however, proceeded on its finding that there existed no parallel proceeding for convening a trust vote.
On a bare reading of the affidavit submitted by 54 members of the BJP, which was treated as a motion of no-confidence by the then speaker, the bench found that it did not postulate a request for convening a discussion on a motion of no confidence. Both Kamal Nath and the speaker had argued before the court that in an ongoing session of the legislature, the only way to test whether the government has a majority strength is through a no-confidence motion moved under Rule 143 of the Madhya Pradesh Assembly Rules, which provides a limit of 10 days, within which a decision should be taken.
Former Madhya Pradesh CM Kamal Nath. Photo: PTI
“Based on the resignation of six ministers of the incumbent government (accepted by the Speaker), the purported resignation of 16 more members belonging to the INC, and the refusal of the Chief Minister to conduct a floor test despite the House having been convened on 16 March 2020, the exercise of power by the Governor to convene a floor test cannot be regarded as constitutionally improper,” the bench held, without considering the reasons behind the assembly’s decision not to have the floor test on March 16.
“The adjournment of the session till March 26 would have allowed the state of political uncertainty to continue and furnish avenues for political bargaining on terms which cannot be regarded as legitimate. It is with a view to obviate illegitimate and unseemly political bargaining in the quest for political power that this court has consistently insisted upon the convening of a trust vote at the earliest date,” the bench reasoned, as if holding of the floor test on March 20 could obviate illegitimate and unseemly political bargaining in the quest for political power.
By relying on a series of precedents in which the court had directed holding of immediate floor tests in the assembly earlier, the bench closed its eyes to the allegation that the BJP had confined the rebel Congress MLAs who resigned from the assembly at a resort in Bengaluru only with the purpose of illegitimate and unseemly political bargaining in its quest for political power.
Apparent inconsistency
The bench, having rightly rejected the contention that it should be wary of entering the ‘realm of politics’ where no ‘judicially manageable standards’ can be maintained, held thus:
“Merely because the prima facie determination made by the Governor was of the political support enjoyed by the incumbent government or the action demanded was a political process (the floor test) is not a reason for this Court not to hear the matter. There is no doubt that the present case is suitable for judicial determination by this Court. In fact it is eminently so.”
But when the bench had to deal with the immorality of the BJP confining rebel Congress MLAs away in Bengaluru, the bench reasoned:
“The spectacle of rival political parties whisking away their political flock to safe destinations does little credit to the state of our democratic politics. It is an unfortunate reflection on the confidence which political parties hold in their own constituents and a reflection of what happens in the real world of politics. Political bargaining or horse trading is now an oft repeated usage in legal precedents. Poaching is an expression which was bandied about on both sides of the debate in the present case. It is best that courts maintain an arm’s length from the sordid tales of political life.”
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The bench continued:
“The present controversy has shone a light on the often-fluid allegiances of democratically elected representatives. This is a matter for their conscience and the court expresses no opinion on the matter. However, in directing a trust vote, the governor does not favour a particular political party. 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. All political parties are equally at risk of losing the support of their elected legislators, just as the legislators are at risk of losing the vote of the electorate. This is how the system of parliamentary governance operates.”
One wonders whether the bench has already concluded that the Tenth Schedule to the constitution seeking to disqualify a legislator on the ground of defection is no longer relevant.
As the bench observes at one place:
“An underlying assumption of the anti-defection scheme outlined in the Tenth Schedule of the Constitution is that the political party is the defined political unit which the Constitution recognises. Where we increasingly see a breakdown in the composition and allegiances of the political party due to private allurements offered to Members as opposed to public policy considerations, the law may have to evolve to address these burgeoning evils.”
This was an opportunity before the court to let the law evolve to address the evils, which it has identified. But the court appears to have missed it rather inadvertently.
At one stage, the bench observes:
“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.”
Not even the outbreak of COVID-19? One wonders whether the bench was oblivious to the concerns expressed both inside and outside the court when the case was being heard. The bench took note of the submission that ongoing sessions of the legislative assemblies in Rajasthan, Maharashtra, Chhattisgarh, Odisha and Kerala had, as in Madhya Pradesh, been adjourned as a result of the outbreak of coronavirus, and that there was nothing untoward in the speaker’s decision to adjourn the assembly.
But the bench chose to keep a mysterious silence on this submission.