The most enriching and potent lesson in my life about politics was not derived from a bestselling book or from an inspiring speech by an upstanding statesman. It was derived from something that Inspector Jacques Clouseau, the protagonist in the English film, The Pink Panther said. Inspector Clouseau, effortlessly and rather unsarcastically, summarized Politics as where ‘Greed wears the mask of morality’. This cannot be closer from the truth in Indian politics of the twenty first century.
Indian states, in the past few years, have seen political instability of the worst kind. From resort politics to dharnas to locking the Governor outside the assembly, and from the Governor threatening the Chief Minister to prove majority on the floor of the House, to now the diametric reverse.
Yet again, India is witnessing an imbroglio in democratic polity. This time, in the State of Rajasthan, where the Speaker of the Legislative Assembly has issued notices of disqualification proceedings against 19 members of the Assembly, acting upon disqualification petitions filed by the Chief Whip of the Congress Party. The notice, issued by the Speaker seeks cause for the MLAs deliberately skipping two Congress Legislative Party meetings at Jaipur and acting in “deliberate collusion to topple the state government.”
Laying a challenge to these notices, the 19 MLAs moved the Rajasthan High Court contending, in a nutshell, that whips are applicable only in the domain where they are issued i.e. inside the House, and not outside. Further, not attending party meetings outside the Assembly can neither be a violation of a whip nor tantamount to voluntarily giving up membership of their political party, which would result in disqualification under Paragraphs 2 of the Tenth Schedule to the Constitution of India. At best, criticism of the affairs of the party is an act of inner-party dissent, which cannot be allowed to be suppressed with the fear of disqualification under the Tenth Schedule.
The 19 MLAs submitted that the judgment of the Supreme Court in Kihoto Hollohan v. Zachillhu, which authoritatively dealt with anti-defection as codified under the Tenth Schedule, settles the issue of ‘crossing the floor’, which was the missing element in the facts of this case.
According to Harish Salve, who appeared for the petitioners, the MLAs were ‘staying on the floor’. To go a step further, I would say there could have been no staying or crossing, simply because the Assembly was not in session and the MLAs were not on the floor. This matter of disqualification is now ordered by the Rajasthan High Court to be in status quo which will be suitably adjudicated both by the High Court and the Supreme Court.
The matter, however, has now entered a new dimension. The situs of the battleground has shifted from the courtrooms to Raj Bhavan, with the Chief Minister placating a dharna outside.
The law that stands settled as regards testing the strength of a democratically elected government is that it cannot be tested in the Governor’s drawing room, but only on the floor of the House. The well of the House is the sanctum sanctorum for deciding whether the government of the day stays or it goes.
That being the position in law, in the absence of a demand of no-confidence by the opposition, should a Chief Minister himself be entitled to say 'let me prove the majority of my government'? Shouldn’t this prerogative, that is one of trust or no-confidence, belong to the exclusive domain of the opposition coupled with the discretion of the Governor to say that the government of the day has lost majority?
Even if the Governor were to come to the conclusion that the government of the day has lost its numbers in the Assembly, the same should only be premised on a demand by the opposition parties alongwith pertinent material, and not on the basis of the demand made by the Chief Minister himself.
Again, the Governor is expected to act in a manner that is consistent with the high traditions of his office. In accordance with Article 164 of the Constitution, the Chief Minister holds office during the pleasure of the Governor. Has the Governor of Rajasthan expressed displeasure at the Chief Minister holding office? The answer is no. It is absurd that a Chief Minister, who as per his own version enjoys a stable government, sits on a dharna to arm-twist His Excellency to call a session of the Assembly so that he can prove his majority.
Isn’t the Chief Minister only hastening to call a session of the House to insulate his government from being challenged for the next six months i.e. till the next session of the House? These actions are in the teeth of democratic values. What seems to be happening is that the Chief Minister is trying to secure immunity from subsequent toppling if more MLAs break away. If the Assembly is in session, and the confidence motion is put to vote, the dissident MLAs will need to vote in favour of the confidence motion, or they would be subjected to incur the wrath of disqualification under the Tenth Schedule to the Constitution.
Insofar as Parliament is concerned, the Rules of Procedure and Conduct of Business in Lok Sabha, Chapter XVII contemplates only a ‘Motion of No-Confidence’ which in terms of Rule 198 is a ‘motion expressing want of confidence in the Council of Ministers’. That being said, these motions have come up before the Lok Sabha, and have been admitted and discussed under Rule 184 of the Rules, and decisions have been taken under Rule 191.
However, Rule 132A of the Rules of Procedure and Conduct of Business in Rajasthan Legislative Assembly, 1959, expressly envisages a confidence motion being called by the government to test its own strength, in absentia of such a demand by either the Governor, or the opposition.
In my respectful opinion, the law on this issue needs to evolve. An elected government cannot and should not be allowed to move a motion of confidence in itself. The motion of confidence, or rather of no-confidence, belongs to either the Governor (based on material placed before him), or to the opposition. A Chief Minister cannot be allowed to squander public trust by seeking a trust vote, where he intends to force his MLAs to vote with him, to keep a splintered government alive for the next six months.
This procedure perverts the role of the opposition as the custodian of checks and balances, which is the intention of the Constitution and the faith of the people. For this reason, Rule 132A of the Rajasthan Assembly Rules and all other similar rules in different state legislatures expose a loophole which is capable of being exploited, as in the present case, and may be also said to be violative of the basic structure of the Constitution.
The question that arises is that can the greed to remain in power justify being this cavalier with constitutional principles? The answer seems ominous.
The author is an advocate practicing at the Supreme Court of India and the Delhi High Court. Views are personal. He may be contacted at mail@rushabaggarwal.com.