The Governor should have called for a floor test or an Assembly session a long time back
The 10th schedule of the Constitution deals with the disqualification on grounds of defection. In the case of Ravi S. Naik case the Supreme Court had said that voluntarily giving up membership of a political party may be express or implied by conduct. The political turmoil in Rajasthan brings a proposition to ponder, as to whether the court can interfere with the power of the Speaker, even before the Speaker has made any decision on defection.
If we are considering a situation where the Speaker has taken a decision, we must then understand Clauses 6 & 7 of 10th schedule, read with Article 212. The 10th schedule was inserted by way of the 52nd amendment in the year 1985, when there was a dire need of an anti-defection law, because the earlier attempt of Parliament in the year 1973 and 1979 had failed to bring any amendment for curbing defection.
The main objective of the 10th schedule is to curb the evil of defection in politics. The decision under Paragraph 6(1) of 10th schedule and Article 191 for disqualification is not the decision of the House, nor is it subject to the approval of the House. The decision operates independently of the House by the Speaker (quasi-judicial authority). Therefore the same is subject to judicial review.
The Constitutional Bench of the Supreme Court in the case of Kihoto Hollohan in paragraph 110 has stated that “judicial review cannot be available at a stage prior to the making of a decision by the Speaker/Chairman and a quia timet action would not be permissible”. Quia timet action is the right to be protected against anticipated future injury that cannot be prevented by the present action.
In the Rajasthan Assembly the Speaker has only issued disqualification notice and, at a later stage, agreed to call for the Assembly session. No decision had been made by the Speaker during that time and the courts have already started interfering. The same is not in spirit of Kihoto Hollohan.
The ‘Whip’, for the understanding of the common man, is a colonial concept, borrowed during the British Rule. The word is used for mainly managing the floor in the Assembly. A whip is a written order that political party issue to its members for being present for an important vote. In Rajasthan the ruling party has issued a whip to its MLAs to attend party meetings (not Assembly), failing which, disqualification notices were issued to them.
The question is this: Does not attending a party meeting, despite notice, amount to voluntary giving up of membership under the 10th schedule? In the case of Ravi.S.Naik the Supreme Court said that inferences can be drawn from the conduct of a member that he has voluntarily given up membership of a political party to which he belongs. Voluntarily giving up of membership is a question of fact and the parameters for the same have to be decided by the Speaker as a quasi-judicial authority, which, again, is subject to judicial review. Then, again, this review can happen only after the Speaker’s decision is made and not prior to that.
In the Kihoto case it was stated that political parties function on the strength of common belief. It was further stated that “Intra-party debates are of course a different thing. But a public image of disparate stands by members of the same political party is not looked upon, in political tradition, as a desirable state of things.”
The constitutional bench in the Raja Ram Pal case, while dealing with Article 174, said that “the power to summon the State Legislature has been given not to the House(s) but to the Governor”. Normally his power is exercised with the help and advice of the council of ministers (Art 163). The constitutional bench in the case of State of Punjab vs Satya Pal, while dealing with Article 174, has said that the said power for prorogue of the House is without any restrictions. The manner in which such power under Art 174 is exercised – good faith or abuse of constitutional power – can be construed from the same.
The constitutional bench in the Nabam Rebia case, while dealing in detail the power of the Governor, has held that the discretionary power of the Governor is subject to judicial review. As per that observation, the Governor has no freedom to determine when he can act independently. The Governor has to act as per the Constitution and the power and functions of Governor are defined. In the absence of any constitutional provision, there has to be a legitimate interpretation for the same, or a reference to where the court has laid down a guideline for discretion.
It was also stated that if the Governor doubts majority support for the Chief Minister, he can call for a floor test. Only in a situation where the government in power, after the floor test, is seen to have lost majority, can the Governor exercise the power vested in Article 174 on his own, without any aid and advice from the council of ministers.
Considering the Rajasthan political crisis, where the Governor was neither calling for a floor test nor was calling the assembly session at that time (it has now been decided that Assembly session will be from August 14), it was contrary to the various precedents of the Supreme Court.
The Nabam Rebia case also gives due regard to the Rule of Business of the House. Rule 12(1), under Chapter IV under Rule of Procedure and Conduct of Business of Rajasthan Assembly, contemplates that discretion is on the Speaker to direct sitting of the House.
The rules are framed under Article 208 of the Constitution. In view of the various constitutional precedents already available, the right constitutional recourse for the Governor at that time would have been either to call for a floor test or Assembly session immediately, instead of waiting for the 21-day notice, which would have been an effective measure to restore the collapsed constitutional machinery in Rajasthan immediately.
The Author is an Advocate-On-Record, Supreme Court of India
Opinions expressed in the above article are the author’s own