29 Jun 2022 3:42 PM GMT
The Supreme Court has refused to stay the floor test in the Maharashtra Assembly tomorrow. The same will however be subject to the final outcome of the petition filed by Shiv Sena Chief Whip Sunil Prabhu challenging the Maharashtra Governor's direction to the Chief Minister to prove majority of Maha Vikas Aghadi Government.The order was pronounced at 9 PM after the Court held a special...
The Supreme Court has refused to stay the floor test in the Maharashtra Assembly tomorrow. The same will however be subject to the final outcome of the petition filed by Shiv Sena Chief Whip Sunil Prabhu challenging the Maharashtra Governor's direction to the Chief Minister to prove majority of Maha Vikas Aghadi Government.
The order was pronounced at 9 PM after the Court held a special sitting for over three hours from 5 PM.
The order passed in the case Sunil Prabhu versus Principal Secretary, Governor of Maharashtra and others stated :
"Having given our thoughtful consideration to the rival submissions:
(i) We do not find any ground to stay convening of the Special Session of the Maharashtra Vidhan Sabha on 3062022, i.e, tomorrow at 11.00 a.m. with the only agenda of a trust vote;
(ii) The proceedings of the trust vote to be convened on 3062022 shall be subject to the final outcome of the instant Writ Petition as well the Writ Petitions referred to above;
(iii) the Special Session of the Maharashtra Vidha Sabha shall be conducted in accordance with the directions as contained in the communication dated 2862022 of the Governor of Maharashtra".
The petition has been directed to be posted on July 11 along with the earlier petition filed by Eknath Shinde group challenging the disqualification proceeedings initiated by the Deputy Speaker.
The vacation bench of Justices Surya Kant and JB Pardiwala orally remaked during the hearing :
"We don't think the matter will become infructuous. Suppose if we find later that floor test was conducted without authority, we can annul it. It is not an irreversible situation."
Meanwhile, the Court has issued notice on Prabhu's petition and directed the Respondents to file their response.
The matter was listed for urgent hearing after a mentioning made by Senior Advocate Dr AM Singhvi earlier today. He argued that rebel MLAs who have defected cannot represent the will of the people and hence, unless the issue with respect to their disqualification is decided by the Speaker, the floor test cannot be conducted.
Senior Advocate Neeraj Kishan Kaul appearing for the rebel MLA Eknath Shinde argued that Deputy Speaker cannot proceed with the disqualification proceedings when the resolution seeking his removal is pending. He further argued that mere pendency of disqualification proceedings is no ground to interdict the floor test. Disqualification and floor test are two distinct fields he argued.
He claimed that 39 out of 55 MLAs are in the dissident group, supported by 9 independent MLAs. Of these, 16 were served disqualification notices. He added that the Chief Minister's reluctance to face the floor test will be prima facie construed that he lost majority in house; it is the hopeless minority of 14 who are opposing the floor test.
Senior Advocate Maninder Singh for the Respondents argued that the the aid of ministers is not required for the Governor to order floor test. Thus, the Petitioner's argument that the Governor acted without aid and advice of the council of ministers is not relevant.
Solicitor General Tushar Mehta appearing for the Governor argued that the parameters (malafide conduct) for challenging Governor's order are not met by the Petitioners. (Read Singhvi's arguments on Governor's conduct here)
Live updates here.
Why Is Shiv Sena opposing the Floor Test?
Firstly, Singhvi claimed that there is undue haste and hurry inasmuch as the notice for conducting a floor test tomorrow was given only this morning. Moreover, two NCP MLAs are down with Covid whereas two Congress MLAs are abroad. Thus, they cannot be expected to be available for the floor test by a one-day notice.
Secondly, he argued that the floor test is supposed to find out the true majority, which includes "eligible" MLAs. Singhvi submitted,
"The people who have changed sides and defected cannot represent the will of the people...It is akin to saying Election Commission holding election saying that the electorate will include dead people or people who have moved out. If it is done without determining if A,B, C D are disqualified, the pool in which the floor test will be held will change...The size of the pool will depend on whether people have committed the Constitutional sin of defection. If the Court is to dismiss the petition of Eknath Shinde, but everybody has voted tomorrow, and decision on who can vote is dependent on Court's decision on 11th, will it not amount to putting the cart before the horse, if voting is allowed to proceed without determining who all are eligible to vote?"
He relied on Supreme Court's judgment in Rajendra Singh Rana v. Swami Prasad Maurya.
SG Mehta on the other hand submitted that the impugned decision was taken by the Governor in view of various letters sent to him. "The Governor in totality is satisfied, based on relevant materials, that you have to immediately go to the floor of the house. In the absence of anything pointed out that the #Governor decided based on extraneous circumstances or irrelevant material, your lordships will not intervene," he said.
How does the Floor Test depend upon Disqualification issue?
Since the issue with respect to disqualification is sub-judice, Singhvi contended that the Governor cannot "short circuit" and render irrelevant the Court's proceedings and the eventual proceedings of the Speaker. "Suppose the writ petition is dismissed, and Speaker holds them disqualified, how will the Court reverse tomorrow's floor test?" he argued.
At this juncture, Justice Kant asked if there is a constitutional bar in holding a fresh floor test before elapsing of a minimum time period?
Singhvi responded that floor test cannot be normally held without an interval of 6 months.
Justice Kant then asked as to how does the floor test depend upon the qualification or disqualification issue?
"It is directly interrelated. Court has held that disqualification once found by Speaker relates back to the date of disqualification. These MLAs would stand disqualified on 21st when they complained to Speaker. So they cannot be treated as members from that date."
On a pointed query by the Court, Singhvi submitted that in a situation where the Speaker has initiated the disqualification process and some one has approached the Court questioning the competence of Speaker, in such case disqualification is deemed to have happened. "The fact that the Court has interdicted the process, then the persons who sought the stop cannot have it both ways. 10th schedule represents a Constitutional Sin."
Kaul on the other hand argued that the resolution seeking Speaker's removal is pending. He submitted that it is not a question of Court interdicting but rather that the Speaker cannot deal with the matter since his competence is questioned. He added,
"It is well settled that a floor test should not be delayed. Merely because of pendency of proceedings relating to whether MLA has resigned or 10th schedule is no ground to interdict floor test. Supreme Court has held both are distinct issues."
Can Floor Test be held when Disqualification issue is pending?
Singhvi cited the MP Assembly case (Shivraj Singh Chouhan & Ors. v. Speaker Madhya Pradesh Legislative Assembly & Ors.) where the Supreme Court held floor test can be held before disqualifications are decided. However, he emphasized, that the significant difference is that in this case, the Court has interdicted the proceedings. "Unlike the Madhya Pradesh case, Speaker is not a free agent now as your lordships have stopped him...Justice can be done either if the fetter on the Speaker is lifted or if the floor test is deferred," he argued.
Kaul, relying on the same judgment, cited,
"The holding of a trust vote operates in a distinct field from the issue as to whether one or more members of the Legislative Assembly have embarked upon a voluntary act of resignation or have incurred the wrath of 10th Schedule...The continuous existence of that confidence is crucial to the legitimacy and hence survival of the government. It is a matter which can brook no delay...The pendency of the proceedings before the Speaker cannot be a valid basis to not have the confidence of the House in the government determined by the convening of a floor test."
He argued that the Supreme Court has held that disqualification proceedings have no bearing on the floor test, which is the "healthiest thing" that can happen in a democracy. "The moment a Chief Minister shows reluctance, it prima facie gives the view that he has lost the confidence of the house...The more you delay a floor test, the more damage and violence you do to the Constitution," he said.
At this juncture, Justice Kant asked as to who can be said to be competent to participate in the floor test?
Kaul responded that as per Supreme Court decisions, disqualification has no bearing on the competency, there cannot be correlation between disqualification and floor test. "Normally parties rush to Court to say hold the floor test because someone else is hijacking the party. Here, the opposite is sought, the party wants no floor test. Where does the natural dance of democracy take place? At the floor of the house. I have seldom seen a party so afraid to conduct a floor test," he added.
He cited Nabam Rebia v. Dy Speaker, Arunachal Pradesh Assembly, where it was held that the words "passed by a majority of all the then members of the Assembly", would prohibit the Speaker from going ahead with the disqualification proceedings under the 10th Schedule, as it would negate the effect of the said words after the disqualification.
However, as per Singhvi, Nabam Rebia (supra) is not a case of floor test and does not apply to the present case. "If Nabam Rabia is applied literally, then 10th schedule is ended. Because a defector can always send a resolution to remove Speaker and get away," he said.
MLAs complaining about their own party to the Governor is an act of voluntarily giving up membership: Singhvi
Singhvi submitted that 34 rebel MLAs had sent letters to the Governor, complaining about their own party. This, Singhvi submitted, as per various Supreme Court judgments amounts to an act of voluntarily giving up membership.
He referred to Ravi S. Naik vs Union of India where it was held a person to give up membership does not need to say it expressly. "The act of giving a letter requesting the Governor to call upon the leader of the other side to form a Government, itself would amount to an act of voluntarily giving up the membership of the party," it was held therein.
During the hearing, Justice Kant asked Kaul can there be a situation against democratic morality that the Govt, knowing that it has lost majority, is using the office of the Speaker to issue disqualification notices?
Kaul referred to Nabam Rebia (supra) where it was held that it would be constitutionally impermissible for a Speaker to adjudicate upon disqualification petitions under the Tenth Schedule, while a notice of resolution for his own removal from the office of Speaker, is pending.
"How can you rule out political considerations from this? This is the exact words used by Rabia case. So a pecking order is laid. First removal of Speaker. Then disqualification proceedings...You are talking about an order which the Speaker simply cannot pass. Nabam Rebia is clear on that. So there is no question of arguments of my learned friend like pool getting smaller not arising...The unfolding situation requires a floor test and the Governor in his discretion has decided."
Can court review Governor's decision?
Singhvi argued that Court can exercise its power of judicial review to determine Governor's satisfaction while ordering floor test. "The personal immunity from answerability under Article 361 does not bar the examination of mala fides," he argued. Reliance was placed on Rameshwar Prasad v Union of India.
He also referred to Harish Chandra Singh Rawat vs Union Of India, where the question for consideration was whether the disqualified MLAs should be permitted to participate in the motion seeking confidence or not. Therein, an interim order was passed directing the Speaker to permit all the MLAs to participate in the floor test, with, without or despite their disqualifications. However, the result of such floor test was to be kept in a sealed cover and the issue was to be same evaluated by the Court at the time of final adjudication.
Kaul on the other hand submitted that to determine whether the Chief Minister has lost majority is an area carved out for the discretion of the Governor. "Unless the decision of the Governor is held to be grossly irrational or malafide, there can be no interference...Governor can act on his discretion. Floor test is his discretion. Is the action of Governor in this matter so irrational?...No one is saying Governor's decision is immune from judicial review. But is it that kind of a case where the Governor's decision can be substituted with your lordships?" he argued.
He referred to Shiv Sena v. Union of India & Ors. (Maharashtra assembly case 2019) and Dr. G Parameshwara v. Union of India (Karnataka assembly cases 2018) where the Supreme Court ordered immediate floor test while deferring the larger questions relating to extent of judicial review and validity of the Governor's satisfaction to be heard on a later date.
Kaul also cited SR Bommai v. Union of India to argue that Chief Minister's refusal to take the test could be construed to, prima facie, indicate that they do not enjoy the confidence of the Legislature.
Amidst the political imbroglio in Maharashtra, the Governor has directed the Maha Vikas Aghadi (MVA) Government to take a 'floor test' and demonstrate that it still enjoys the confidence of the Legislature on the floor of the Legislative Assembly on June 30.
On Monday (June 27), Senior Advocate Devadatt Kamat had made an oral plea for an interim order against holding floor test in the house till July 11, the next date of hearing of the petition filed by Eknath Shinde and his rebel MLAs challenging the disqualification proceedings initiated by the Deputy Speaker against them.
However, the same bench turned down Kamat's plea, saying that it cannot pass orders merely on the basis of presumptions. The bench said that the respondents can approach the Court if anything unlawful happens. Kamat urged the bench to record in the order his oral plea and to make a specific observation that the liberty has been granted to approach the Court.
Expressing disinclination to make any such observation, Justice Kant had said, "Do you need our liberty to approach us? Let us not create any complications on basis of apprehensions not founded now..."
Click here to read/download the order