How Supreme Court Missed An Opportunity to Lay Down Law On Constitutional Options In Case of Hung Electoral Verdicts

The French sociologist, Alexis de Tocqueville, who visited America in the 1830s had remarked: “Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.”The unravelling of the political situation in Goa, following the hung verdict in the assembly elections, could lead one to make a similar observation about the role of the Indian Supreme Court in it.The Supreme Court, on March 14, was confronted with the question whether the Goa Governor, Mridula Sinha, was correct in appointing the BJP’s Manohar Parrikar as the Chief Minister, without consulting the leader of the single largest party, the Congress, which secured 17 seats in the assembly.Although the BJP finished second by securing only 13 seats, it managed to secure the support of ten other MLAs, some of whom are independents or belong to the two regional parties.The Supreme Court skirted the issue before it, and instead granted the petitioner, the Congress Legislature Party leader, Chandrakant Kavlekar, some relief by requesting the Goa Governor to advance the date of the assembly session for the floor test, to March 16th.“The only agenda for the day would be, the holding of a floor test to determine whether the Chief Minister administered the oath of office, has support of the majority. The floor test shall be held on 16.03.2017, as early as possible, but surely during the course of the same day”, says the order issued by the Court on March 16.The peaceful conduct of the Goa assembly session on March 16, and the result of the vote of confidence may vindicate both the Governor’s action and the Supreme Court’s decision on March 14.But the Supreme Court’s order requesting the Governor to hold the assembly session on a particular day, and determine the day’s agenda, is deeply problematic.If the members of the assembly or its presiding officer want a discussion to precede the vote of confidence, what is wrong with it? Considering that it is a hung assembly, and that some members may be unsure of whom to support for the formation of the Government, a free debate in the House, begun by the speeches of rival candidates, could have made a meaningful contribution to the decision of the MLAs. The vote of confidence sought by Atal Behari Vapayee in 1996 was preceded by such a day-long debate in the Lok Sabha. Therefore, to deprive the Goa MLAs such a debate to precede the vote, was meaningless, and the Court had no explanation to offer, why it denied them the opportunity to debate the mandate and the vote on the floor of the house, before the floor-test.As it happened, the Congress was not keen to have a debate in the House before the vote of confidence either. Had it been keen on a debate, it would have requested the Court to modify its order suitably.Instead, it tried to debate the subject of mandate with the bench itself. Kavlekar’s counsel, Abhishek Manu Singhvi, tried to convince the bench that mandate is an essential facet of democracy, which is a basic feature of the Constitution, and therefore, as the mandate in the elections was against the BJP, the court could not permit the hijacking of the mandate by the BJP.Attractive though the argument is, it failed to persuade the bench, which kept asking the petitioner, what prevented the Congress, from staking its claim, if it had the majority support in the assembly. It was essentially a political argument, which was given the legal colour by the bench. Show us the numbers, we will give the order suitably, the bench told Singhvi, oblivious of the fact that it was not for the bench or the Governor to decide who has the numbers.Kavlekar’s senior counsel, Abhishek Manu Singhvi told the bench that his party waited for the invitation from the Governor for consultations, but was caught unawares by the unexpected invitation to the second largest party in the assembly, the BJP.Swearing-in before the floor-testKavlekar did not make a specific prayer to stay the swearing-in ceremony of the Manohar Parrikar Government; therefore, the bench was silent about the swearing-in in its order. But the bench did ask under what grounds, it could stay the swearing-in. The answer to this from Singhvi was that vote of confidence did not require a Government in place.After all, between Parrikar’s appointment as the Chief Minister on March 12, and his swearing-in on 14th, there was no Government, and it would have hardly mattered, if that situation continued till March 16, when the floor-test was advanced under the directions of the Court.It is incorrect to infer from the proceedings on March 14, as most Supreme Court correspondents have reported, that the Court ‘refused’ to stay the swearing-in of Parrikkar’s ministry. The court was not faced with a prayer for stay; therefore, its decline did not arise.Had the Court quashed the Governor’s appointment of Parrikar as the Chief Minister, as prayed for by the petitioner, there would have been no need for a prayer for stay of...

How Supreme Court Missed An Opportunity to Lay Down Law On Constitutional Options In Case of Hung Electoral Verdicts

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How Supreme Court Missed An Opportunity to Lay Down Law On Constitutional Options In Case of Hung Electoral Verdicts

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