Law

‘Resignation Is a New Loophole for Bypassing Anti-Defection Law’: Rajeev Dhawan

The senior Supreme Court advocate said that the idea of parliamentary democracy was not just to have a majority, but also the right to rule for a full five years.

New Delhi: Once a government is formed, it should have the right to rule for the full term and a chief minister cannot be asked to prove their majority via a floor test every time someone goes to the governor or the Supreme Court with the claim that the government has lost its majority, said senior advocate Rajeev Dhawan while pointing to how, of late, resignations of legislators have become a mechanism to bring down governments.

Speaking to The Wire about the use of mass resignations for dislodging elected governments, Dhawan said, “The idea of parliamentary democracy is not just having a majority, it is having the right to rule. Even if it is a minority government, you do not make it vulnerable through oppressive morality.”

Dhawan said the onus of proving that the government has lost its majority should be on the members who can do so by moving a no-confidence motion against it in the assembly. “The idea of this new loophole, of resignations, is abhorrent and therefore a new situation has to be worked out,” he said and added that “minority governments have a right to rule, because they can’t be put to test every time someone goes to the governor or the Supreme Court.”

Also read: SC Judgment on Disqualified Karnataka MLAs Could Further Weaken Anti-Defection Act

The senior advocate said that even if a government becomes a minority one, “you should not make it vulnerable by oppressive morality”.

‘Anti-defection law has completely failed’

As for its power to curb defections, he said, the Tenth Schedule of the Constitution had failed completely, even after amendments.

He said when the anti-defection law was created, it took five years to validate it. “After that, there was loophole after loophole in the law – for example with relation to the one-third rule that was finally amended.”

Then, Dhawan said, “What happened in Karnataka, Manipur and Arunachal Pradesh has shown that every possible loophole that could be exploited – both in the conduct of the legislature and in the conduct of the speaker – has been exploited.”

‘SC role has been conceptually wrong’

“The Supreme Court”, he added, “has unfortunately played a role in this which, I think, is conceptually wrong. So now we are on the latest loophole – that you just resign and disappear.”

Stating that “the Tenth Schedule is full of so many loopholes that we now need a law which says that there will be no defections or resignations and when there is a resignation, it automatically needs a fresh election”, he admitted that this too would be an “an incomplete solution”.

Asked about what his suggestion would be, the legal luminary said: “My solution would be – and I have argued this for the last 20-30 years – that there should be no such thing as a confidence motion. This is a creation of this court and our practice. Confidence motion means that no minority government can ever survive.”

Senior advocate Rajeev Dhavan. Photo: YouTube video screengrab

Also read: When the Supreme Court Came to Legitimise ‘Resort Politics’

‘Only no-confidence motions should be used to challenge minority governments’

Dhawan said the concept of a minority government is that you have the numbers but they are not enough. So legislators who want to move a no-confidence motion should do so.

As for the role of the apex court, he said: “So what should the Supreme Court do? It should say please do not bother me about numbers. Please don’t bother me if you become a minority. This entire field in fact belongs to the assembly itself. Don’t force an assembly to have a confidence motion because if the numbers are not there it is bound to lose.”

The system of confidence vote was started by governor Dharma Vira (of Punjab), he said. “On November 29, 1966, he told the then-chief minister, ‘You hold this election now by December 18.’ The CM said, ‘I am not bound by this at all’. Eventually, the government fell.”

‘Why seek confidence vote, let others bring in no-confidence motions’

Dhawan insisted that “the idea of a confidence motion is a hara-kiri motion saying ‘aa bael mujhay maar (come and hit me)’. Even in Vajpayee’s first term (of 13-days in 1998), someone had to table a no-confidence motion.”

He said that in the event that the government becomes a minority one, the governor may have a role. “When there is a no-confidence motion, he decided thereafter whether the state should go to the polls or whether he should call in another party.”

But, Dhawan said, “What the Supreme Court and the governors did in Arunachal Pradesh and Karnataka – you simply cannot have confidence motions. So many minority governments have survived in England in the last 70 years. Why? Because even though they were a minority, nobody tabled a no-confidence motion against them.”

Also read: BJP’s Karnataka Experiment Is a Cautionary Tale for Maharashtra

‘No crossing of floor, no resignation is the solution’

So the solution, he said, was “no crossing of floor and no resignation”. Therefore an MLA should remain with whatever political party he begins with in the first six months. “You may abstain and you may bring the numbers down, but as a matter of principle there should be no crossing of floor.”

He said that India has suffered “too much” because of this tendency to bring down governments. “Once a party forms a government, it should remain there.”

“It is only in India that you get ‘Aaya Ram Gaya Rams (political turncoats)’. An MLA may express himself in a certain way. The party may expel him. The result should be that he should leave. But these details have to be worked out,” Dhawan said.

The most important thing to note, the senior lawyer said, was that every government would become vulnerable because of the confidence vote.

“We can’t leave chief ministers vulnerable. Their office would normally be five years. We can’t make them so vulnerable that every time somebody resigns or crosses the floor, then with the help of the Governor you tell them, ‘do the confidence motion just now – today or within 24 hours’. These are areas which need to be worked out,” Dhawan said.