Question of Numbers
G.S. Paper II: Separation of powers between various organs dispute redressal mechanisms and institutions; Parliament and State Legislatures – structure, functioning, conduct of business, powers & privileges and issues arising out of these; Structure, organization and functioning of the Executive and the Judiciary
• On August 22, the dissident legislators approached the Governor with a memorandum expressing lack of confidence in the Chief Minister.
• On September 18, Speaker P.Dhanapal ruled that this amounted to voluntarily giving up their membership of the party and disqualified 18 of them.
• The DMK leader, M.K. Stalin, who also heads the Opposition in the Assembly, approached the Governor.
• The Leader of the Opposition’s demand was that the Governor order a floor test as the ruling party has lost the majority.
• Governor’s inaction for weeks prompted the opposition leader to move the Madras High Court for a direction to the Governor to direct the Chief Minister to seek a confidence vote.
• The disqualification of the ousted legislators by the Speaker of the house saw them approach the High Court.
• The key political question that has arisen in Tamil Nadu is whether Chief Minister Edappadi K. Palaniswami commands a majority in the State Assembly.
Abdicating their responsibilities:
• The Governor of Tamil Nadu is obviously averse to ordering a floor test.
• The Chief Minister is not keen on demonstrating his strength on the floor of the House.
• The Speaker is concentrating on ensuring that dissidents are kept out of any possible confidence vote, if and when one takes place.
• The Leader of the Opposition has not moved a motion of no confidence, but, on the contrary, believes that the Governor should order a floor test.
• Dissident legislators from the ruling All India Anna Dravida Munnetra Kazhagam (AIADMK) has not asked for a meeting of the legislature party to replace Mr. Edappadi Palaniswami with some other leader.
The Interim Orders Passed By the Madras High Court:
• Instead of grappling with the core question concerning the government’s legislative majority or lack of it, the Madras High Court has passed two interim orders which add to the prevailing confusions.
• These interim orders are contrary to the doctrine of separation of powers and touch on matters outside the judicial domain.
• Between the rebel group, the ruling party, and the main opposition Dravida Munnetra Kazhagam (DMK), they have used High court as a battleground for the three way political sparring.
• In the prevailing melee, the State Legislative Assembly – the highest deliberative body in the state, which should ideally witness an informed debate based on reasoned arguments, has been given a go by.
The Two Prime Issues before the High Court:
• The Madras High Court needs to arrive at a decision on the following questions:
• The question whether the Governor ought to intervene.
• The question whether the Speaker was helping the ruling party by disqualifying rebels and thereby converting its minority into a majority.
Is Governor’s Inaction Justified?
• The principal reason for the political impasse is Governor Ch. Vidyasagar Rao’s silence.
• Going by the observations made by the Supreme Court last year, his inaction is possibly justified.
The Arunachal Pradesh Precedent:
• The observations of the Constitution Bench which dealt with the Arunachal Pradesh crisis last year is important.
• It read as follows: “The activities within a political party, confirming turbulence, or unrest within its ranks, are beyond the concern of the Governor”.
• “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, the Constitution Bench observed, make such issues, a matter of his concern”.
• A breakaway group, according to the judgment, could be legitimate and recognizable only if it constituted two thirds of a party as stipulated in the Tenth Schedule.
• The Governor could embark on a constitutional course of action only on the claims of such a group.
The Scope for Recourse:
• Does it necessarily mean that Governors should not act until a rebellion touches the two-thirds mark within the legislature party?
• A Governor can act even if the dissidents’ legislators within a party are less than two third majority of the political party during a Constitutional Crisis.
Governor’s role during A Constitutional Crisis:
• A Constitutional Crisis is said to have occurred when the government is seen to have lost the confidence of the House.
• The correct reading of the judgment in the Arunachal Pradesh case is that the court bars Governors only from political embroilment.
• The court, at the same time, has not restrained the Governors from their constitutional duty to allay doubts that a particular regime has lost its majority.
• But the Governor of Tamil Nadu has not acted on a reasonable apprehension that the Palaniswami government has been reduced to a minority.
Profound questions: Should the court prompt the Governor for a floor test:
• The question now is this: Should DMK’s petition for a direction to the Governor to order a floor test be allowed by the Madras High Court?
• But since ordering a floor test is a matter that falls under the Governor’s discretion, is such a petition maintainable?
Court’s concern about a truncated majority:
• The court’s attention was drawn to the fact that the Speaker of the Tamil Nadu Legislative Assembly was planning to disqualify the dissenters in an effort to bring about a majority in a truncated House and not about directing the Governor.
• Hence, the Madras High Court passed an order staying a possible floor test that may have taken place after the feared disqualification.
• This, according to the High Court, was said to be in the interests of justice, as otherwise the government would have sailed through the vote.
Speaker disqualifies dissident members and the stay on floor test:
• But the disqualification of dissident Members of the legislative assembly was carried out by the Speaker.
• And once again, on petitions challenging the Speaker’s order, the court did not grant a stay.
• Instead the Madras High Court extended the stay on the floor test.
Can the Court stall a floor test:
• It is not clear what provision in the Constitution empowers the court to stall a floor test, but there are precedents.
Lessons from precedents:
• The Supreme Court had ordered a ‘composite floor test’ in 1998 and 2005 in Uttar Pradesh and Jharkhand, but these directions attracted considerable criticism.
• The only persons aggrieved by the possible adoption of a confidence vote in their absence will be the disqualified MLAs.
• Therefore, only a stay of their disqualification or an interim direction allowing them to vote during a floor test could have met the interests of justice.
The Court Setting a legislative agenda: Judicial Overreach:
• Instead of adopting this constitutionally permissible course — disqualification under the anti-defection law is justiciable, whereas setting the legislative agenda is outside judicial purview — the court chose to stay the trust vote.
• A stay of the disqualification would have addressed the fears of those disqualified as well as obviated the need for the questionable stay on the floor test to be extended.
• Thereafter, only the constitutionally relevant question on whether the Governor ought to be directed to order a trust vote would have remained for adjudication.
The Supreme Court’s Judgement in the Karnataka Case in 2011.
• The main basis for the challenge to the disqualification of 18 legislators is the 2011 judgment in the Karnataka case.
• The Supreme Court had quashed the disqualification on the ground that the Speaker had given insufficient opportunity and time.
• The Court had also noted that approaching the Governor to set in motion a constitutional process to replace the Chief Minister could not attract the drastic action of removal from the House.
• Speaker of the Tamil Nadu Legislative Assembly, Mr. Dhanapal’s decision will still have to be tested against the proposition that expressing lack of confidence in the Chief Minister may not amount to voluntarily giving up the party membership.
Emergence of A Pattern:
• Taking up disqualification petitions for adjudication just ahead of a floor test has now become a pattern.
• When the floor test remains the sole and supreme means of ascertaining majority, the partisan element should be taken out of anti-defection law.
The Way Forward: Time to amend the Anti Defection Law:
• The adjudicatory power should be transferred to an independent body such as the Election Commission.
• The time may have come to amend the law conferring on the Speaker the authority to adjudicate questions of defection.
Source: “THE HINDU Editorial – September 23, 2017″