RSTV - The Big Picture: Supreme Court, Governor and Floor Test

Participants:

Anchor: Frank Rausan Pereira

Guests – Shekhar Iyer, Political Editor, Deccan Herald Sachidananda Murthy, Resident Editor, The Week Piyush Singh, Advocate, Supreme Court Virag Gupta, Advocate, Supreme Court

Importance of this Episode:

• Concerning the Karnataka Assembly level elections 2018, the Supreme Court of India had ordered a floor test to be conducted on Saturday (19^th May, 2018) in the legislative assembly of Karnataka at 4 pm. Karnataka Governor, Vajubhai Vala had given BS Yeddyurappa 15 days to prove his majority.
• The BJP was 8 members short of the 112 majority mark in Karnataka, but was invited by the Governor instead of the Congress-JDS combine which has 116 members. The court was hearing a petition filed by the Congress-JDS combine against the decision by the Governor of Karnataka to form the government in the state of Karnataka.
• A three-judge bench of justices A.K. Sikri, Ashok Bhushan and S.A. Bobde had directed the DGP to take all measures to keep things under control outside the assembly to ensure a smooth floor test inside the house.
• On this edition of the Big Picture, we will analyse the interim order of the Supreme Court of India.

Analysis by the Experts:

What was the decision of the Supreme Court and what was the interim order?

The Supreme Court has held with respect to the petition of the Congress and the JDS that:

1. A pro-tem speaker would be appointed
2. All MLA’s to take oath before 4 PM on Saturday (19^th May, 2018)
3. A floor test would be conducted by the pro-tem speaker at 4 pm on Saturday (19^th May, 2018)

The Supreme Court, after looking into the facts and the circumstances of the case has held that the floor test has to be held on Saturday (19^th May, 2018).

As far as the Governors decision itself is concerned, what does the Governor look at? Would he/she have to look at as to who has the numerical strength? Or would the Governor have to use his own discretion? Is this going to be tested in 10 weeks time from now as suggested by Abhishek Manu Singhvi, spokesperson of the INC?

The Governor should look at the person who commands a majority in the house; who enjoys the support of the majority members of the house and someone who is expected to provide a stable, strong, government. These are the words that have come out in several Supreme Court judgements and as well as the two commissions that went into the role of the Governor. Thus, in the event of Yeddyurappa losing, does that automatically mean that there can be a second motion? This is highly doubtful. This is because the directive is specific so as to only check the majority of Yeddyurappa, who has been invited to form the government. Thus, the event on 19^th May, 2018 would end with either Yeddyurappa winning the vote or losing the vote. Subsequently, the matter comes back again to the governor. Post this, the Congress-JDS combine can go to the Governor and seek claim to prove their majority. Thus, the leader of this group, in this case, Mr. Kumaraswamy, will be sworn in, and he will have to move a motion again for which another session of a floor test would be required.

When does the anti-defection law come into focus and when can it be applied: can it be applied once the MLA’s are sworn in?

The anti-defection law was introduced in 1985 via the 52^nd Constitutional Amendment. The people who drafted the constitution could not have envisaged that the elected representatives could defect from one party to another, or that there could even be a requirement for an anti-defection law. Thus, there was no anti-defection law in the original constitution of India. In 1967, the “Aaya Ram Gaya Ram expression” entered the politics of India. This phrase meant to convey the frequent floor-crossing by legislatures. The term was coined when Gaya Lal a Member of the Legislative Assembly from Haryana in 1967 changed party thrice in a fortnight first from the Indian National Congress to United Front, back to Congress and then within nine hours to United Front again. But it took as long as till 1985 to bring the anti-defection law into place. The anti-defection law strikes at the root of an idea that people who have faith in a particular individual or a particular party should not defect from one party to another for some vested interest. Now, this has certain exceptions, such as 2/3rds of the people of that particular party can merge or can move out of that particular party- that definitely is there, but it only comes into the picture once the oath of an MLA takes place.

The issue that is up for debate here is that the Governor of the state of Karnataka called the single largest party, Yeddyurappa to form the government even when the coalition, albeit, a post-poll coalition of the Congress-JDS combine have enough seats among themselves to claim an absolute majority in the house. Now, we would need to look into the Sarkaria Commission’s report which was in 1988, we need to look into the S.R. Bommai judgement and we need to look into the Rameshwar Prasad judgement of 2005. All three of them say that it is the judgement of the Governor to look into which leader commands absolute majority of the house. Now, in this case, if Yeddyurappa has 104 seats, and the Congress-JDS combine has written letters to the Governor of having 116 MLA’s, then the idea of inviting the single largest party to form the government is questionable.

What is the status of an MLA between the issue of gazette notification and until he is sworn in?

He is a member of that political party, and he is subject to the discipline of that political party. But, the anti-defection law applies to the conduct of MLA’s inside the house. The tenth schedule speaks of the violation of the whip- the assumption is that the party would issue a whip to vote against a motion or for a motion as the case may be. Thus, in this case, since the matter concerns a motion inside the house, the violation of the law would happen as soon as they violate the whip.

There is another section of the anti-defection law which talks about the voluntary relinquishing the membership of a political party- and it can happen outside the house- as it recently happened in the case of Sharad Yadav, a member of the Rajya Sabha; this can also attract disqualification. So suppose a Congress or JDS MLA says that I have left my party and I am going to vote for BJP, it becomes a voluntary resignation from the party, and he loses the membership.

The decision on the disqualification is taken by the speaker of the house and not by the Governor or by any other person. But, it is clear that the majority will be proven on the floor of the house and nowhere else. This is clear and has been established right from the Bommai judgement onwards- that the place to test the strength is on the floor of the house.

The Governor is not required to give any proof to explain how he came out with the conclusion to invite the leader of any single political party to form the government. This was the matter of contention before the Supreme Court. This matter of discretion of the Governor has come under a lot of scrutiny. The parameters for exercising this discretionary power needs to be revisited.

Does it mean that the role of the Governor would diminish in the days to come?

The role of the Governor will get further defined. This is because where you allow a lot of room for discretion, there is scope for various interpretations. We have had instances over the past two-three decades, where either a single party has been called; there are instances where pre-poll alliance partners have been called, there are instances where post-poll alliances have been called. Thus, the manner in which a Governor of a state is expected to act needs some codifications. Right now the matters are left to the “discretions” of the Governor.

Thus, there certainly needs to be some fine tuning as far as the discretions of the powers of the Governor are concerned.

Are there instances in the past where the Governors have exceeded their briefs?

It is believed also that there may not be a requirement to define the role of a Governor- this is because if the Constitution starts specifying every minute detail as to how the President, Governor, etc. must function- that would almost be impossible to do so.

In the same scenario, in 2005 (Rameshwar Prasad) judgement which was with respect to the Bihar Assembly Elections, the RJD had secured 75 seats. The BJP and JDU were at 92 (thus they were the largest coalition among the parties). Buta Singh was the Governor of Bihar. The RJD had written to him with the support of the Congress that they want to form the Government. Then, Buta Singh writes to the President of India that he is not convinced that the letter given by the leader of the single largest party (RJD with 75 seats) that they have the majority as they had written: 75+10+5 and they have not given the names of the independent MLA’s with them.

Here, discretion and judgement come into play. Irrespective of what the Supreme Court had held in the Rameshwar Prasad against Buta Singh case, with Buta Singh going on to resign in 2006, but there was judgement written in that letter to the President. Whereas in the state of Karnataka, the Governor received a letter from the leader of the single largest party (BJP), from its leader BS Yeddyurappa, stating that he has majority of 104 plus other people and he does not name a single MLA, he does not name who those people are and from which party.

Now, if we go on to define everything that only such and such acts, and mathematically start defining the role of the governor, the President or the Prime Minister of India, then that would amount to being a constitutional failure. It would absolutely abrogate the Governor of his powers.

As far as the time given to the floor-test itself is concerned, there is a lot of ambiguity there too. Let’s go back to the case of Shibu Soren (2005) when the Governor gave him 21 days to prove his majority on the floor of the house, the courts intervened and said no, it would be 48 hours. When we look at the case in Karnataka, the Governor says 15 days, the Supreme Court says no, this would be done tomorrow itself. So, who is to decide? And what is the right time-frame for a floor test?

The Governor normally gives a fair time period. We have seen earlier that Presidents give a one month time period for a Government. Suppose the Governor had done a little more due diligence in the case of Karnataka, asking BS Yeddyurappa in this case to show the letters of support. If this had happened, and then he was given a couple of weeks to show his majority, then no one would have challenged it.

Is this a classic case of the Governor exceeding his brief?

It is believed that this is a case where the Governor has exceeded his brief. Experts believe that the powers of the Governor will definitely be under scrutiny in the wake of these developments, and perhaps such powers may undergo certain changes. In the previous judgements by the Supreme Court such as the Rameshwar Prasad case and the SR Bommai case, the Supreme Court examined the options available to the Governor with respect to inviting the parties and their leaders to form the government. In this case, there was a letter available from the Conress-JDS combine that they have the majority. The other aspect we need to consider with respect to the order by the Supreme Court is that it has appointed the DGP to ensure security and that the floor-test is conducted in a smooth manner- this shows that the Supreme Court was also apprehensive that something untoward might happen. But inside the house, DGP can’t take any action. Thus, many questions need answering- for example, in case something untoward does happen in the house, then what can the DGP do inside the house? Especially because no observers has been appointed by the Supreme Court post its directive. These are some of the questions that need to be answered.

As far as the political implications of the interim order of the Supreme Court is concerned, today, the Congress has dragged in Goa, Meghalaya and a few other states as well. Where does one see things heading?

It is believed that the actions taken by the Congress was more to drive home the point that the Governor in Karnataka hasn’t quite done the right thing. They wanted to highlight the different standards followed by the BJP. But, beyond this the other questions that arise center around as to what might happen if Yeddyurappa wins or loses, and what kind of equations would develop within JDS, and between the JDS and the Congress. These depend on the outcome of the floor test.

Concluding Statements:

The Congress had claimed a moral victory with the Supreme Court order that brought down the time frame from 15 days drastically down. In fact, this perhaps can be interpreted as a legal victory as well for them. As per the Supreme Court judgement, there would be no constitutional ambiguity from the moment the judgement was delivered till when the floor test takes place. Before 4 PM, the MLA’s would have to take oath and at 4 PM the floor test has to be done.

There are three points which emerge: 1. There can be a demand for the resignation of the Governor because his decision has been drastically changed by the Supreme Court.

2. The second point is that if Yeddyurappa fails to get the trust vote there may be chances of a President rule also; this is especially true if the other group (the JDS-Congress combine) is unable to give their support numbers.
3. We need to see that the Supreme Court order is implemented in true spirit by the speaker and by others.

Finally, it is believed that this is a classic case where both sides would claim a moral victory and both sides would also claim the mandate of the people.

Read more Gist of Rajya Sabha TV to help you ace current affairs in the IAS exam.

Multiple Choice Question

Consider the following statements

1.  A floor test is a motion through which the government of the day seeks to know whether it still enjoys the confidence of the legislature. In this procedure, a CM appointed by the Governor can be asked to prove majority on the floor of the Legislative Assembly of the state.
2. The chief minister has to move a vote of confidence and win a majority among those present and voting. If the confidence motion fails to pass, the chief minister has to resign. The idea behind a floor test is to ensure transparency in the constitutional process.
3. A no-confidence motion, or vote of no-confidence, or a no-trust vote, can be sought by any House member to express that they no longer have confidence in the government.
4. The anti-defection law in India, technically the Tenth Schedule to the Indian Constitution, was enacted to address the perceived problem of instability caused by democratically elected legislators in India’s Parliamentary System of Government.

Choose the correct answer from the below-given options

A) None of the above statements are true.

B) Only statements 2, 3 and 4 are true.

C) Only statements 1, 3 and 4 are true.

D) All the above statements are true.

Answer: D

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