Apologising to the Supreme Court bench of Justices A. K. Sikri, S. A. Bobde and Ashok Bhushan for seeking an urgent hearing of the Interim Application, Senior Counsel Kapil Sibal, appearing on behalf of JD (S) leader H. D. Kumaraswamy, contended that the appointment of the Pro Tem Speaker by the Karnataka Governor for the purpose of the floor test at 4 PM on Saturday is “inconsistent with judicial precedents” and that the “established principles have not been followed”.
He submitted, “the notification (dated May 18) reads that the Governor (of Karnataka; Vajubhai Vala) in exercise of his powers under Article 188 of the Constitution appoints K. G. Bopaiah as the person before whom a member of the Legislative Assembly before taking his seat shall make and subscribe an oath or affirmation...if it is solely for administering oath, then we have no issue...India, being a commonwealth nation, follows the noble practice where the seniomost member of the house is appointed as the Pro Tem Speaker...”
Stating that the appointment of the seniormost member is the established convention, he quoted from the 2016 constitution bench judgment of the apex court in Nabam Rebia v. Deputy Speaker, in so far as it deals with the power of the Governor under Article 180(1) to appoint a Pro Tem Speaker- “Over the years a convention has developed in most Legislatures in respect of filling up such vacancies and the ‘discretion’ of the Governor has been limited thereby”
To buttress his argument, he cited the examples of former Pro Tem Speakers, namely, Seth Govind Das (second, third, fourth and fifth Lok Sabhas), Jagjivan Ram (seventh and eighth Lok Sabhas) and N. G. Ranga (ninth Lok Sabha).
“I do not know how authoritative this practice is because in the Fourteenth Lok Sabha, while Sheesh Ram Ola was the Seniormost legislator, (Balasaheb) Vikhe Patil was appointed as the Pro Tem Speaker...You are both Parliamentarians (to Senior Counsel Abhishek Manu Singhvi and Mr. Sibal), you would know...”, noted Justice Bobde.
"The seniority is determined by the number of terms, Hukum Singh (First Lok Sabha) and D. N. Tiwari (Sixth Lok Sabha) are the only exceptions...”, intervened Dr. Singhvi, representing Karnataka INC Chief G. Parmeshwara.
“I am not saying that there have not been exceptions...we would not have pressed the prayers had it not been for his (Bopaiah’s) history”, advanced Mr. Sibal, drawing the attention of the bench to the 2012 judgment in D. Sudhakar v. D. N. Jeevanraju setting aside the order passed by Bopaiah, the thenSpeaker of the Karnataka Legislative Assembly, disqualifying certain MLAs under Paragraph 2(2) of Tenth Schedule of the Constitution of India on the ground that they had joined the Bharatiya Janata Party (BJP) after their election to the Legislative Assembly as Independent candidates.
In the said case, the Appellants were elected as independent candidates and were sworn in as Ministers in the Cabinet of the government headed by B.S. Yeddyurappa, the leader of the B.J.P. Legislature Party and sworn in as the Chief Minister of the State of Karnataka. The Appellants had submitted separate letters to the Governor of Karnataka stating that in view of the widespread corruption and nepotism in his government, Yeddyurappa had forfeited his right to continue as Chief Minister, having lost the confidence of the people and, in the interest of the State and the people of Karnataka, they were expressing their lack of confidence in the Government and withdrawing their support thereto.
Mr. Sibal recited from the said judgment of the Supreme Court- “We have no hesitation to hold that the Speaker's order was in violation of Rules 6 & 7 of the Disqualification Rules and the rules of natural justice and that such violation resulted in prejudice to the Appellants...It is obvious from the procedure adopted by the Speaker that he was trying to meet the time schedule set by the Governor for the trial of strength in the Assembly and to ensure that the Appellants and the 13 B.J.P. MLAs stood disqualified prior to the date on which the Floor test was to be held...”
“If you want us to consider the bonafides and the suitability of the Speaker, we must issue notice to him and hear him...”, observed Justice Bobde.
“I knew Your Lordships would suggest this...please let me explain what we intend...the notification only says that he shall administer oath...it does not say that he shall also take the trust vote...”, Mr. Sibal sought to submit.
“If you want us to review our yesterday’s order, we must postpone the floor test to hear him (Bopaiah)...”, ventured Justice Bobde.
“But the notification does not say anything about trust vote...I am not disputing that the Pro Tem Speaker possesses the powers of the Speaker...”, persisted Mr. Sibal. “Please read Article 180”, interjected Senior Counsel Mukul Rohatgi, appearing for the BJP.
“The legal argument is that because he is the Pro Tem Speaker, he can also act as the Speaker...We are not casting any aspersions on him, but notwithstanding his power to administer oath, Your Lordships can under Article 142 [unclear]...”, prayed Mr. Sibal.
“If we recall that order (of Friday)...if we agree that the notification is confined to the purpose of administering oath, then who will conduct the floor test? You are asking us to direct the appointment?”, inquired Justice Sikri.
“The Governor will (in accordance with the convention regarding the appointment of the seniormost member)”, responded Mr. Sibal.
“It is not a convention by virtue of the examples you have given...only when a convention is a legal norm can we issue a writ to enforce it...”, noted Justice Sikri.
“Please Ignore prayers (a) and (b) (for the removal of Bopaiah and the direction for appointment of the seniormost member as the Pro Tem Speaker)...”, conceded Mr. Sibal, drawing the attention of the bench to the third prayer in the Application seeking an appropriate writ/order/direction to the effect that the voting in the floor test has to be carried out by division, by segregating the MLAs supporting and opposing the Motion in different lobbies of the House.He elaborated on the procedure regarding Voting and Divisions in the House, as governed by Article 100(1) and Rules 367, 367A, 367AA and 367B of the Rules of Procedure and Conduct of Business in Lok Sabha.
“. “They cannot be permitted to make an application every day...”, objected Mr. Rohatgi.
“Videography and live telecast of the proceedings have already been permitted? What more transparency is needed?”, advanced Mr. Mehta, appearing for the state of Karnataka and Governor Vala.
“Please let the statements also be recorded”, pressed Dr. Singhvi.
“Thank you, Mr. Mehta...there cannot be any more transparency...”, remarked Justice Sikri, on a lighter note.
“Which channels will record?”, asked Justice Bobde. “All local channels”, replied the ASG. “Let it be all channels”, stated Justice Bobde.
“This is the hottest topic...if the channels do not show this what will they show”, said Mr. Rohatgi.
“Even the cameras will be the channels’ their own...”, added Mr. Mehta.
We may place on record that the statement of Mr. Mehta, learned Additional Solicitor General, is that there would be live telecast of the proceedings in the Karnataka Legislative Assembly in respect of Floor Test to be held at 4.00 P.M. today. It is also stated that the Secretary of the Karnataka Legislative Assembly will record the same. Mr. Mehta, learned Additional Solicitor General, also informed that several local news channels would be provided with the live feed of the proceedings to enable them to have live telecast of the proceedings on their respective channels.
Mr. Kapil Sibal and Dr. A.M. Singhvi, learned Senior Counsel appearing for the applicants, have not pressed their prayers made in the instant interlocutory application in view of the aforesaid statement made by Mr. Mehta, learned Additional Solicitor General.
We also clarify that there shall be no other item in the Agenda that shall be taken up during the Trust Vote today.
In view of the aforesaid, the instant application stands disposed of.
Read The Order Here