The Centre should have waited for the floor test to resolve the issue and should have gone to court against the Uttarakhand speaker’s decision if it felt aggrieved, says Prashant Bhushan.
New Delhi: The imposition of president’s rule in Uttarakhand has not found favour with some constitutional experts who believe bringing down elected governments has become a sort of a trend which does not augur well for democracy. However, there are experts who have also supported the decision – on the ground that the political situation in the state was such that only fresh elections could provide a way out and that is only possible if president’s rule is imposed.
Senior lawyer Prashant Bhushan was candid in his criticism of the imposition of president’s rule in Uttarakhand on Sunday, which happens to be the second such instance – after the Centre intervened in Congress-ruled Arunachal Pradesh – this year. “It shows that the Central government is desperate to get rid of non-BJP governments in the states. Even if they are getting half an opportunity, they are getting rid of them. The standard technique is to get some people to defect and thereafter prevent the use of the anti-defection act and impose president’s rule.”
Bhushan sees a trend in the Centre targeting opposition states. “There are many things which this government at the Centre and the state governments are doing which are unconstitutional. They should have waited for the floor test tomorrow and they should have gone to court against the speaker’s decision if they were feeling aggrieved.”
While referring to the March 18 episode, Jaitley had stated that ‘this is for the first time in the history of Independent India that a bill is shown as passed even when it has been defeated’. But Bhushan counters that “if they feel the speaker is doing something illegal, they can always approach the high court or the Supreme Court. But they should not impose president’s rule. Whether the speaker is doing something illegal or not should not be left to the discretion of the Central government which has a political vested interest in the matter.”
Observing that president’s rule is imposed when the government of the state cannot be run in accordance with the constitution, Bhushan said that if there is a state which is a case in point right now it is Chhattisgarh. “The way lawyers, independent activists, researchers and journalists are being attacked in Chhattisgarh and attempts are being made to drive them out of the state, it is a classic case for imposition of president’s rule. It is absolutely clear that the government there cannot be run in accordance with the constitution.”
Coming to the issue of the proposed disqualification of the nine rebel Congress MLAs – to whom show cause notices were served by the speaker – ahead of the confidence vote that was scheduled for March 28, Bhushan said “the speaker’s actions may have been illegal”. He said these legislators could have been disqualified only on two grounds: “one if they had voluntarily left the party, which they had not, and secondly, if they had voted against the confidence motion and violated a whip issued by the party, but that too had not happened yet.”
The noted advocate said ideally the Centre should have waited for the floor test to resolve the issue and should have gone to court against the speaker’s decision if it felt aggrieved.
Senior advocate, Kamini Jaiswal, said, “Through its actions, the BJP has undermined the political system, democratic norms, constitution and electoral process.”
Insisting that through its landmark judgment in the S.R. Bommai case – and several other orders – the apex court has clearly established that a floor test is the sole yardstick for proving a majority in a house, she said ideally this test should have been allowed to take place.
But since the Centre went ahead with the proclamation of president’s rule, Jaiswal questioned the logic behind the haste. “I hope the Supreme Court will take note of this conduct. They are playing with the constitution. I hope that the courts will come down heavily on such behaviour. They might be accused of judicial overreach. But we cannot allow this subversion of democracy to go on.”
For the BJP, she said, David Headley and rebel Congress leader Vijay Bahuguna are the new heroes. “These days anything these two people say is deemed the gospel truth. I think it is just bad times for the country. If this is the way an elected government is dismissed, then it says a lot. And who is this person who is mastering this move to topple of the government? He is the same former chief minister of the state who was removed by the Congress after charges of inertia and impropriety were levelled against him in the wake of the 2013 floods in the state. But now the BJP is joining hands with him and what else can we expect?”
Jaiswal said she always apprehended that the BJP would go all out to oust the elected governments of other parties in the states. So after Arunachal Pradesh and Uttarakhand, would it be Himachal Pradesh next? “Yes,” she replies.
Senior Supreme Court lawyer Indira Jaising said there can be no justification for imposition of president’s rule a day before the Assembly was to convene for a vote of confidence. Drawing a parallel with the developments in Arunachal Pradesh, she said: “I think they are doing the same thing they did in Arunachal Pradesh, the only reason was to preempt a show of strength on the floor of the house. So they are hoping to repeat what they did in Arunachal Pradesh. It goes against the grain of democracy because it is undeniable that whether a government enjoys a majority can only be tested on the floor of the House.”
On Jaitley’s insistence that the crisis had been precipitated by the actions of the speaker who had declared the money bill as passed when actually it had fallen due to more votes being cast against it, Jaising said, “That is no ground for imposition of president’s rule or for saying that the government has lost the majority on the floor of the House. It could only have been grounds to proceed against the speaker if it was proved that he did not act in accordance with the rules.”
Former Solicitor General Gopal Subramanium too agreed that the Centre erred in not allowing a floor test to take place to determine the strength of the ruling party in the state assembly.
“The first thing is the floor test. The point here is the floor test alone should have been the pearl’s drop. Second, for all parties, i.e, be it the governor or anyone, floor test is the first rule. But, similarly, if someone decides to go before the floor test and pass a money bill, that is not correct. In this case, according to me, both sides ought to have followed a common procedure under the constitution which contemplates a floor test, which did not happen finally.” Subramanium said.
As a professional lawyer, he said, one needs to look at a bit more at the reasons that led to dissolution. “What are the reasons which the governor gave while recommending the dissolution of the assembly?” he asked.
But from what had emerged out of the developments in the Uttarakhand assembly, he said, the important aspect was how the money bill was passed on March 18 “when the passage of the bill is purportedly undertaken in a House without a full majority having voted for it and it is claimed that it has been passed by the house. That is a very serious infraction of the Constitution.”
“Irrespective of who the political party is,” Subramanium said, “the degree of respect which is accorded to the democratic institution of a legislature is that bills have to be properly introduced, they have to be properly carried through – which means they have to be voted upon – and if there is any lack of support, then the speaker has a duty to call for a proper vote and there should be head count or a vote count on the basis of which the bill can be said to have been passed. The transaction of business within a house must be flawless and if a flaw is attached to it, then you forget other grounds, then this ground is enough to be considered (for imposition of President’s Rule).”
On the issue of the anti-defection law, he said it applies as soon as the 10th Schedule operates – which means you act in a manner contrary to the terms of the schedule and you act contrary to a whip, which is a clear direction to act in a manner.
However, the former solicitor general clarified that casting of votes and disqualification are two different issues. “For the purpose of disqualification, a procedure has to be followed. For voting you have to go by the votes as polled. The speaker cannot say that the Bill is passed because I have disqualified the members without following the schedule.”
The correct procedure, he said, is to first have vote of confidence. “Only after that you can pass a bill, and during that if anybody commits an act of disqualification then he has to be proceeded under the 10th Schedule.’’
Some constitutional experts – like former Attorney General Soli J Sorabjee and noted constitutional expert K. K. Venugopal – have, in the meantime, said that in the present case the reasons given in his report by the governor in support of imposition of president’s rule are worth looking into. But they have questioned the logic behind imposing president’s rule a day before the assembly was to have voted for or against the continuation of the government.
Sorabjee was quoted as saying that “at this stage it is difficult to comment on the constitutionality of the decision. But, I think they could have waited till tomorrow (Monday).”
On the other hand, Venugopal while observing that “it looks rather strange; first, it was Arunachal Pradesh and now Uttarakhand,” qualified his statement saying that it would not be proper for him to comment without going through the reasons cited by the governor.
Note: This article was edited on March 28 to add the comments of Indira Jaising, Gopal Subramanium, Soli Sorabjee and K.K. Venugopal