The Supreme Court on Thursday ordered that floor test should be held tomorrow in the Madhya Pradesh Legislative Assembly for proving the majority of Kamal Nath Government.
The test should be by show of hands, and should be videographed.
A bench comprising Justices D Y Chandrachud and Hemant Gupta passed the order in the petition filed by former CM Shivraj Singh Chouhan and other BJP leaders seeking immediate floor test in Madhya Pradesh assembly for proving the majority of Kamal Nath Government.
The Court ordered that the session, which was adjourned till March 26 on March 16, should be reconvened on March 20 and that the same should be confined to a single agenda -"whether the government of the incumbent Chief Minister continues to enjoy the confidence of the House".
The proceedings should be concluded by 5 PM.
If the 16 rebel MLAs want to be a part of the test, then the Karnataka DGP and MP DGP must ensure their security, ordered the bench.
The bench passed the order at around 6.15 PM, after a day long hearing.
"The state of uncertainty in the State of Madhya Pradesh must be effectively resolved by issuing a direction for convening a floor test, bearing in mind the principles which have been enunciated in the decision of the nine-Judge Bench of this Court in S R Bommai v Union of India and in the decision of the Constitution Bench in Nabam Rebia v Deputy Speaker, Arunachal Pradesh Legislative Assembly", the bench said in the order.
On Thursday, the second day of hearing, the bench started hearing the submissions of Senior Advocates Dr A M Singhvi and Kapil Sibal for the MP Speaker and Chief Minister Kamal Nath respectively.
The main plank of their submissions was that the Court cannot direct the conduct of floor test when the Assembly is in session. The Court has never ordered so in any of the previous cases, they submitted.
"When the house is not in session, Governor has the power to convene the same. If Government has lost majority, there has to be a constitutional mandate to call the house. Where to go if the house is prorogued? Never has this happened that the Governor has called for a floor test during a running session", Sibal submitted.
Lets not intertwine powers of the Governor with summoning a house with the power to call on the house during a running session. This is sure to result in Constitutional anarchy : Sibal.#MadhyaPradeshPoliticalCrisis— Live Law (@LiveLawIndia) March 19, 2020
It was also submitted that the floor test in the present case was sought to "topple down an elected government", which was termed a "constitutional sin".
Sibal submitted that even in the Jagdamnba Pal case, SC ordered floor test after both sides were agreeable to it.
During the hearing Justice Chandrachud asked Singhvi "Is your argument that a floor test can only be conducted in a running assembly if a no confidence motion has been passed?"
Singhvi replied, "Yes, I am so obliged. The other way is, if a money bill stands failed".
They further submitted that it was not within the powers of the Governor to ask the Speaker to hold a floor test, when the session is alive. Referring to the letter sent by Governor to the Speaker, Singhvi submitted that the Governor has already pre-judged in his mind that the government has lost majority.
Singhvi also pointed out that assemblies of many states such as Kerala, Rajasthan, Chhattisgarh and Odisha suspended in view of COVID19. Even Parliament is considering to adjourn , he said
So, can the MP Speaker's decision to adjourn house be called perverse, he asked.
Senior Advocate Vivek Tankha, appearing for MP Government, said that the Governor cannot get into the "political thicket".
"How can the governor form an opinion that the Government is in minority when the resignations of rebel MLAs have not been accepted by the Speaker?, Tankha asked.
In reply submissions, Senior Advocate Mukul Rohatgi, appearing for the petitioners, rebutted the argument that Governor cannot order floor test while the house is in session.
He said that in SR Bommai case, floor test was ordered to be held while the Karnataka assembly was in session.
Rohatgi termed the arguments of Singhvi and Sibal "misplaced" and said that Governor was duty-bound to order floor test if he has reasons to feel that government has lost majority, whether the house is in session or not.
"Everyday is important, invitation to horse-trading. Every minute that this (Kamal nath's) government is there is unconstitutional", Rohatgi said.
Senior Advocate Maninder Singh, appearing for the rebel MLAs, submitted that the Speaker cannot keep a decision on the resignations pending and seek to invoke 10th Schedule against them at the same time.
"To resign and to abstain, that is our right. We cannot be compelled to do anything", Singh said.
Solicitor General Tushar Mehta, endorsing the arguments of Rohathi, urged the bench to pass an order for floor test immdiately.
The Court had heard Senior Advocate Mukul Rohatgi for the petitioners, and Senior Advocate Maninder Singh for the rebel MLAs on Wednesday, the first day of hearing.
Court suggests video conferencing, independent observer
Shortly after the hearing had begun on Thursday, the bench had suggested the appointment of an independent observer at a neutral venue to ascertain if the rebel MLAs are acting on their own.
Though Senior Adv Maninder Singh, MLAs' counsel, was agreeable to this proposal, Singhvi did not accept it.
The Court also suggested that the Speaker N P Prajapathi could interact with the MLAs through video conferencing. This suggestion was also turned down by Singhvi.
Singhvi said that the it will be "constitutionally problematic" if the Court starts giving directions to the Speaker as to how to conduct house proceedings.
The plea was moved in the wake of recent migration of former Congress MLA Jyotiraditya Scindia to BJP last week.
On Monday, the Madhya Pradesh Speaker adjourned the assembly meeting till March 26 citing Corona scare, without holding floor test. The Madhya Pradesh Congress has also filed a writ petition in the SC seeking access to 16 'rebel MLAs' who are allegedly held captive by the BJP.
In the house having 230 seats, the Congress has 114 seats and BJP has 107 seats. Government was formed by Congress after the elections in December 2018 with the support of 7 other MLAs. The petitioners claim that 22 Congress MLAs have tendered their resignations to the Speaker on March 10, "on account of dissatisfaction with the Hon'ble Chief Minister for non-fulfilment of promises made prior to elections".
It is also stated that BJP submitted a letter to the Governor on March 14 seeking urgent floor on the ground that the government has been reduced to a minority. Though the Governor had agreed to order floor test on March 16, the business of the house was adjourned on Monday till March 26, without holding the same..
"It is submitted that on account of lack of confidence and resignation of 22 MLAs of Congress party, out of which the resignation of 6 MLAs having been already accepted by Hon'ble Speaker, the government led by Hon'ble Chief Minister has been reduced to minority. It has no moral, legal, democratic or constitutional right to remain in power even for a single day. All possible attempts are being made by the Hon'ble Chief Minister to convert his minority government into majority by giving all possible threats, allurements to the members of the Madhya Pradesh Vidhan Sabha. The horse-trading is at its peak", the plea stated.
Citing the decision of 9 judge constitution bench in S.R. Bommai v. Union of India, (1994) 3 SCC 1,it is argued that if the support to a government is withdrawn by some legislators and the government appears to have lost the confidence of the house, it is the duty of the Governor to direct the government to prove the majority by floor test.
It is pleaded that "any deferment of the floor test will further encourage horse trading and would be in utter violation of the directions issued by the Hon'ble Governor; law laid down by the Supreme Court and the spirit and basic structure of the constitution of India".
The petitioners asserted that the refusal of the Chief Minister to conduct floor test is clear manifestation of the loss of majority in the house.