The Bombay High Court has dismissed a couple of writ petitions challenging the appointment of three ministers in the State cabinet less than 6 months before assembly elections.
The Division bench of Justice SC Dharmadhikari and Justice GS Patel heard the petitions filed by Vijay Wadettivar and Surinder Arora (both active politicians) challenging the induction of Radhakrishna Vikhe Patil, Jaydatta Kshirsagar and Avinash Mahatekar as Cabinet Ministers and Minister of State, respectively in the Maharashtra State Cabinet of Ministers.
All three joined the ruling BJP-Shiv Sena alliance in the State after resigning from their respective parties.
The Court observed that in the absence of an adjudication by the Speaker on their alleged defection and disqualification, it was not possible for it to rule on it. The Court also observed that if politicians are switching loyalties during elections purely for political gains then voters must teach such 'defectors' a lesson. Court
Appearing on behalf of the petitioners, SB Talekar submitted that probity in public administration and ensuring purity in public affairs is the object behind the insertion of these Constitutional provisions. Quoting extensively from the Constituent Assembly debates, Talekar said that the Constitution never envisaged the induction into the Cabinet or the Ministry of persons who are not members of either House, and who cannot continue for more than six months in such ministerial berths and who simultaneously have no prospect or possibility of a re-election within six months.
In other words, a non-legislator Minister is dutybound to face the electorate within six months. He cannot continue as a non-legislator minister any longer than that. There is no possibility at all of non-member ministers facing an election simply because the term of the Legislative Assembly is less than six months from the date of their induction.
In an attempt to substantiate the motivation behind such 'defections', Talekar cited the example of Vikhe Patil who was earlier the leader of opposition and an MLA for the Indian National Congress from Shridi constituency.
Patil ensured a Lok Sabha nomination by the BJP for his son from the Kopargaon constituency. Therefore, it is clear that the Respondent No. 5 (Patil) desired to defect to the Bharatiya Janata Party, Talekar argued.
Talekar relied on the judgement of Supreme Court in S.R. Chaudhuri v State of Punjab and Others and VR Kapoor v State of Tamil Nadu in support of his arguments and Article 164 (4) to be read in with Articles 173 and 191(2) and the Tenth Schedule of the Constitution.
Senior Advocate VA Thorat appeared on behalf of the State and Chief Minister Devendra Phadnavis. He submitted that in the garb of placing an interpretation on certain Articles of the Constitution, we cannot re-write the Constitution itself. That which is not expressly provided in the Constitution cannot be introduced or imputed by an interpretative process. If the Constitution enacts something as an express bar or a prohibition, then and then alone is there an opportunity to consider the arguments canvassed by Mr Talekar, Thorat said.
The very foundation of the edifice of Mr Talekar's argument is flawed simply because there is no express prohibition in appointing or inducting a non-legislator as a minister merely because the term of the House is coming to an end in less than six months, Thorat argued.
Court dealt with Talekar's contention that Respondents Nos. 5 and 6 are disqualified on account of their defections and held that decision of Speaker of the House in this regard is final-
"This is not the law, for a person stands disqualified only on being so adjudged. No such adjudication has taken place in the case of Respondents Nos. 5 and 6, for the applications seeking their disqualification are admittedly pending. One cannot presume that they are disqualified merely because there is an allegation of disqualification made against them. That allegation will have to be inquired into by a process known to law."
Further, the bench examined the apprehensions expressed by Advocate Talekar regarding this trend of defections on the eve of elections-
Referring to the apex court's judgement in Manoj Narula v Union of India, Justice Dharmadhikari observed-
"The judgment of the Hon'ble Mr Justice Madan B. Lokur, as His Lordship then was, shows us the path in holding that the Constitution cannot be interpreted in the manner suggested in that case as well as in the present case. We cannot rewrite a Constitutional provision."
While lamenting the fact that there is a gross criminalisation of politics and that is an anathema to the sacredness of democracy, the Hon'ble Supreme Court laid down a principle of interpretation of Constitution, one we find to be vital and salutary. The Hon'ble Supreme Court outlined the concept that because a constitutional provision does not encompass every possible situation including of the nature brought before us does not mean its silence is not telling or it is not speaking at all.
A constitutional silence is also important and equally salutary. The Hon'ble Supreme Court held that what is not constitutionally prohibited cannot be held to be permitted and that is not how the Constitution must be read and interpreted."
After examining constituent assembly debates, various impugned judgements and relevant provisions, Court dismissed the petitions. But asserted the importance of a democratic system and had a word of advice for the voters-
"When we say 'defections', we are careful not to express any opinion on the facts and circumstances of the present case. However, it is, understood by the common man as a switching of loyalties and shifting of one's position frequently and for political gains.
It is abandoning a cause and embracing some other. That we are noticing such a trend in Maharashtra on the eve of the elections may be unfortunate. But that will not allow us to read into an Article something that is not there, and is wholly left out. Where political leaders and parties betray the constitutional trust, then such matters are best left to the judgment of the people. It is eventually the voters who have to take responsibility. The Constitution reposes equal trust in civil society. After all, it is a Constitution given by the people to themselves. It is their bounden duty to uphold the cherished values of democracy.
The world over, democracy comes at a price; and achieving it as a form of governance has required a monumental sacrifice. When we take pride in Indian democracy, we should note that we as Indians are equally observed world over for our responses and reactions to acts subversive of democracy. When we call ourselves a "civil society" it is our duty to ensure that there is probity in public life and the purity of the electoral process is maintained at all costs. Our votes are not on sale. The right to vote must be exercised in a manner befitting the trust and faith reposed in us. That has to be preserved at all costs.
If for pure political gains people are crossing over, then it is the bounden duty of the voters to take care of such a situation and teach these leaders or defectors a lesson. Ultimately, in every democracy real power rests with the people. Merely because one is in majority does not mean there is a license to strangulate the minority. In democracy there is an equal place, respect and regard for an opposition. It guides the majority in carrying out administrative and governmental affairs properly and smoothly."
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