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Mainstream, VOL LII No 50, December 6, 2014

A Pretender to the Throne

Sunday 7 December 2014, by P.B. Sawant

Ever since the day Devendra Fadnavis, at present holding the office of the Chief Minister of Maharashtra, failed to establish his majority in the State Assembly according to law, he has been running the government illegally and unconstitutionally. Admittedly, his party, the BJP, is in minority in the Assembly with only 123 members (including the Speaker) in a House of 288 members.

The Governor called him as the head of his party to form the government, because he claimed that his party can command the support of the majority in the House, with the condition that he proves his majority in the House within fifteen days of his holding the office which was October 31, 2014. The Assembly session was convened on November 10 and the resolution for expressing confidence in the government was tabled on November 12. There were three subjects on the agenda on that day, in the order of priority as (i) the election of the Speaker, (ii) the election of the Leader of Opposition, and (iii) the vote of confidence. The Speaker, without consulting the House and in his alleged authority, changed the order and took the third subject second, and again, without consulting the House, called for a voice-vote on the resolution of confidence, and after hearing the voice of “Ayes” and without taking the voice of “Nays”, declared that the resolution was passed.

It is alleged by some Opposition members that some of them were outside the House, waiting for the second scheduled subject to finish, while some who were in the House, did not know what was happening when the resolution was taken up by the Speaker for consideration and was, without discussion, put to vote. It is alleged by them that the entire episode was pre-planned by the ruling party, and the voice-vote on the resolution was a sleight of hands by it; whatever may or may not be the merit of these allegations, one thing is crystal-clear: that the method followed for the alleged passage of the resolution was totally against the law and Constitution.

The Supreme Court, in its decision on the S. R. Bommai and Ors v/s Union of India and Ors case, AIR 1994 SC 1918(1), has in unequivocal language laid down the legal procedure of taking vote when a party has to establish its majority. To appreciate the said direction of the Court, it is necessary to understand the background of the relevant case.

During 1989 and thereabout, the Central Government (read precedent) on the advice of the Governors of the concerned six States dissolved the governments in some States, and the government and Assemblies in other States. The advice given by the Governors was in the form of the report made to the President u/a 356(1) of the Constitution. When the matters reached the Supreme Court, the Court found that the Governors, without verifying the majority or minority supporting the ruling governments in the States, had made the report to the President. The opinion expressed by the Governors was their own personal and subjective.

In order to put an end to the practice of the Governors making reports to the President on their subjective satisfaction, the Supreme Court in the said judgement states as follows: “In this connection, it is necessary to stress that in all cases where the support to the Ministry is claimed to have been withdrawn by some Legislators, the proper course for testing the strength of the Ministry is holding the test on the floor of the House. That alone is the constitu-tionally ordained forum for seeking openly and objectively the claims and counter-claims in that behalf. The assessment of the strength of the Ministry is not a matter of private opinion of any individual, be he the Governor or the President. It is capable of being demonstrated and ascertained publicly in the House. Hence when such demonstration is possible, it is not open to bypass it and instead depend upon the subjective satisfaction of the Governor or the President. Such private assessment is an anathema to the democratic principle, apart from being open to serious objections of personal mala fides.” (para 77 of the judgement)

In this connection, the Court also referred to the report of the Sarkaria Commission which had been set up to straighten the Centre-State relations that “the strength of the Ministry should be tested on the floor of the House”. The Court also referred to the report of the five- member Committee of the Governors appointed by the President pursuant to the decision taken at the Conference of Governors held in New Delhi in November 1970. The Committee unanimously recommended as follows: “......the test of confidence in the Ministry should normally be left to a vote in the Assembly. Where the Governor is satisfied by whatever process or means, that the Ministry no longer enjoys majority support, he should ask the Chief Minister to face the Assembly and prove his majority within the shortest possible time. If the Chief Minister shrugs this primary responsibility and fails to comply, the Governor would be duty bound to initiate steps to form an alternative Ministry. The Chief Minister’s refusal to test the strength on the floor of the Assembly can well be interpreted as prima facie proof of his no longer enjoying the confidence of the Legislature.........”

The decision therefore lays down the law that in all cases where the majority of the ruling party is in doubt or when the Governor invites a party which has minority of seats in the House, but claims that it can command support of the majority to run the government, the Governor should ask the party to prove its majority in the House by seeking openly and objectively its majority. The majority is capable of being demonstrated and ascertained publicly in the House. Hence, when such demonstration is possible, it is not open to bypass it and instead depend upon the subjective satisfaction of the Governor or the President. Such private assessment is an anathema to the democratic principle apart from being open to objections on the ground of personal malafides.

In the present case, undoubtedly the ruling BJP party is in a minority in the House, being short of majority by at least 22 members. The Governor had invited it to form the government because it was the party with the largest number of MLAs. However, as required by law and convention, he had asked it to prove its majority within fifteen days, obviously according to law as laid down by the Supreme Court in the above decision. Even otherwise, commonsense dictates that the majority world be proved only by counting votes. However, the party resorted to a subterfuge, and sabotaged the law by resorting to voice-vote. The Speaker, as stated above, took the vote of only those who were in favour of the confidence-motion and did not even ask the House if there was anyone opposed to it. The Speaker then defended his decision in favour of the motion on the ground that he “heard a loud voice”. This was a clear circum-vention of the law. The Opposition complained that not only were they not asked about their opinion, but when they demanded “poll”, the request was rejected.

The Supreme Court has in clear terms laid down that the vote to be taken on the floor of the House was by demonstrable means and not by audible means. The vote had to be further public and open. In no uncertain terms, the Court has therefore directed that the votes should be counted. It may be recalled in this connection, that the second Vajpayee Govern-ment when it lost majority and was confronted with the problem of taking vote of confidence in its favour, it failed by one vote and had to resign. Therefore, after the aforesaid Bommai judgement everyone has been following the same, as law, as they are bound to.

As per the direction given by the Governor, it was the duty and responsibility of the BJP to establish support to it by the majority, by taking votes in the House and requesting the Speaker to do so. It not only did not do so, but knowing fully well it had no support of the majority, it chose to play mischief with the law and establish its so-called majority by a sleight of hand. This was undemocratic, illegal and against the Constitution as has been held in the Bommai case.

Even according to the rules of the House, counting of votes on any measure is a rule. The voice-vote is taken only when the entire House agrees to do so. The House agrees to do so on matters where there is unanimity and when the matters are of less importance. This is because when all are agreed on a measure, it is a waste of the valuable time of the House to take votes.

What in fact the usurper ruling party has done in the present case is that it has in effect substituted the personal and subjective opinion of the Speaker for the opinion of the Governor, which is deprecated by the Supreme Court, and it is to avoid the allegations of malafides when subjective opinions are sought to be presented for the objective situation in the House, that the floor-test is recommended.

However, in the present case there could not have been a more important matter than allowing or disallowing a party to run the government. The confidence reposed by the House or by the majority in the House in the government is the basis of its mandate to the government. That is the first principle on which a party rules the State in a democratic regime. To play truant with this principle, is to betray the people and to throttle democracy itself. To treat such a serious matter as casual like any other usual, common matters of no less importance and take a voice-vote on it, is, to say the least, gravely objectionable apart from being against the law laid down by the Supreme Court in the Bommai case.

What has happened in the Maharashtra Legis-lative Assembly is a matter of grave importance to the entire country. If such reprehensible circum-ventional tactics to sabotage democracy and the Constitution are allowed to be practised, it will be the death of democracy and the rule of law in this country. It is, therefore, necessary that all the democrats in the country take up cudgels and rise on this occasion, not only to condemn the party arrogating to itself the power to rule illegally, but also to save democracy and the rule of law in the country.

The author is a former Judge of the Supreme Court (now retired). On retirement he was for sometime appointed the Chairman, Press Council of India.