Showing posts with label High Court. Show all posts
Showing posts with label High Court. Show all posts

Wednesday, May 11, 2016

Justice in Uttarakhand? Yes

Justice in Uttarakhand? Yes
But how much, till when?

By Amba Charan Vashishth

No gainsaying the fact that the Supreme Court of India has dispensed justice in Uttarakhand by restoring the Harish Rawat led Congress government supported by other splinter groups after defection by its 9 MLAs. But how much and for how long? That remains the question.
The origin of the trouble lay in the failure of the Uttarakhand CM, state and Central Congress leadership to stem the rot. Opposition party in the State or at the Centre whichever it may be, is the easiest whipping boy in such situations. When a group in any political party fails to be assuaged of its grievances, it is but natural for it to look for the opposition party to take its revenge. That is what happened in Uttarakhand. The disgruntled 9 MLAs sought succour with the opposition BJP, ruling at the Centre.
The second irritant was the refusal of the Speaker to accede to the demand of the dissident MLAs for a division after he announced passage of the Budget with a voice vote, knowing full well that these MLAs besides the opposition BJP were opposing it. Even in the normal course, it is a tradition with Speakers to allow division whenever a member or group demands. To cite one instance, during the consideration of the amendments to the Vote of Thanks to the President in the Lok Sabha in March this year, a member refused to withdraw his amendment. It was put to vote. The Speaker after seeking Ayes and Noes, announced that the amendment stood rejected. But the mover of the amendment wanted a division which the Speaker instantly granted. Everybody knows that the ruling party at the Centre enjoys unquestioned majority. Yet the Speaker generously consented. But in Uttarakhand, when the majority of the Government was in question, it was but desirable that the division should have been allowed. That precipitated the matter. The matter is before the court.

The Governor had fixed April 28 as the date for the CM to seek a vote of confidence on the floor of the House. In the meantime, CM sought disqualification of the 9 MLAs. On the eve of vote of confidence, the Speaker on April 27 — according to some media reports — after the promulgation of President's rule by the Centre on that very day — disqualified them putting the CM in a win-win situation. Two days earlier had appeared a sting operation which clearly showed CM Rawat telling that he is willing to pay a hefty sum the next day after MLAs vote in his favour. How could this sting be brushed aside as of now consequence without investigation? Was the government — and for that matter, even law and judiciary — allow corruption to take place and not take preventive action?

There was a great drama on the judiciary level too. First, the High Court set aside the promulgation of the President's rule and fixed date for vote of confidence. The CM instantly took charge again, held a cabinet meeting where some policy decisions were taken even without getting a copy of the High Court order. How could a CM who had to prove his majority in the House after three days take policy decisions? But nobody took offence to it.
The Central government knocked the door of the Supreme Court which immediately stayed the operation of the High Court order and cancelled the date fixed for vote of confidence. The President's rule stood imposed again within 24 hours and Harish Rawat was no longer the CM. After hearing both the parties during which Centre agreed for a vote of confidence, the Supreme Court directed that the President's rule shall stand lifted for two hours between 11 AM to 1 PM on May 10 during which the assembly will meet for a vote of confidence. In other words Harish Rawat was again CM for two hours.Then came the announcement that the SC will hear the petition of the 9 MLAs against their disqualification on May 9, a day before the vote of confidence. That added suspense to the whole drama. But on that day it refused to stay the disqualification and directed that the concerned MLAs will not be allowed to vote. But SC fixed a regular hearing of the case after summer vacations in July. Obviously, this tilted the balance in favour of the CM, unless there was another bout of defections and re-alignment of political forces in between.

(It is worth recalling that in 2011 the Karnataka High Court had allowed 16  disqualified MLAs to vote in the confidence sought by the then chief minister.)

After the count was over, a report was sent to the Supreme Court which on May 11 accepted that Rawat commanded a majority.

But the Sword of Damocles continues to hang and torment the Harish Rawat government. What will happen in July if the SC sets aside the disqualification of the 9 MLAs?  Then the result of the vote of confidence in the Assembly on May 10 will become a nullity. The absence of a final decision in the matter is responsible for injecting this element of uncertainty. What will be the legal position of the Rawat government and the decisions taken by it in the interregnum?

The whole situation in Uttarakhand seems to be emerging like a circus. Nobody knows what will happen next. Leave aside the difficulties Harish Rawat will encounter because of re-alignment of political forces and his total dependence for subsistence on the support of independents and other splinter groups which are sure to demand their pound of flesh. The State is due for general elections after about 7 months. And nobody knows what will happen in between after two months. If political forces are responsible for the present mess in the State, the judiciary too has failed to clear the clouds by having not given its final verdict.***   

Tuesday, December 10, 2013



By Amba Charan Vashishth

Three years ago the then BJP government of Mr. B. S. Yeddyurappa was rocked by defection by 16 MLAs. The rebels brought the fact of withdrawal of support to the government to the notice of the Governor H. R. Bhardwaj.

Realising that he cannot expect Mr. Bhardwaj to be "friend and guide" of his government, Mr. Yedyurappa voluntarily fixed the date for trial of strength in the house at the earliest opportunity. A day before the House was to vote on the confidence motion Mr. Bhardwaj went out of his way to write a letter to the Assembly Speaker: “In the interest of a free and fair floor test, it is required that no attempt should be made to change the character/configuration of the House after the House has been summoned for this purpose.” In a veiled warning to the Speaker he went out: “Any attempt to change the character/configuration of the House in the run up to the vote of confidence motion “is bound to vitiate the proceedings” and further that any result “obtained by such vitiated proceedings will not be acceptable”.  Clearly, Mr. Bhardwaj wanted the government to fall under the weight of defections and Speaker take action against defectors only after that.

Till the MLAs gave to the governor their letter of withdrawal of support, the Yeddyurappa government was in majority. Doubts arose with the change of loyalty by MLAs. So what is the first — the act of defection? The government losing or not losing the majority in the house is secondary and consequential. Therefore, in all fairness the first thing should come first and addressed first. The moment the governor took cognizance of the act of defection and notified the same to the chief minister to seek a vote of confidence on the floor of the house, he threw the ball in speaker's court. The Supreme Court has repeatedly stressed that the test of majority of any government is on the floor of the house and nowhere else. It, therefore, becomes incumbent on the part of the Speaker to first determine and decide whether it is an act of split in the ruling party or an act of defection punishable with disqualification from the house as per the provisions of what now is known as the Anti-defection law. It is only after this issue is settled that everything else can follow.

The intention of law and objective of a governor is to ensure stability and continuity of a government and not to destabilize it. While it is all right if a government falls on the floor of the house because of a split in the ruling party but, at the same time, it is equally incumbent on the part of a speaker and a governor to frustrate all attempts at destabilizing a government with the back stab of defections as per the spirit of the anti-defection law. The law has been enacted with the noble objective of defeating the designs of defectors and not be aid and abet their crime. We need to distinguish between a split and defection — first, a normal process and the other, a curse in a parliamentary democracy.

In the instant case the Karnataka High Court upheld the disqualification of the 16 MLAs but later, on appeal, the Supreme Court set aside the Karnataka Speaker's action of disqualifying them  on the eve of the floor test as "illegal" as the Speaker's action on the chief minister's complaint failed to adhere to principles of natural justice and constitutional provisions.
Authoring the twin judgments, Justice Kabir said the MLAs were disqualified without giving them adequate opportunity to defend themselves as Yeddyurappa's affidavit setting out charges against them was served minutes before the hearing before the Speaker.
Criticising the Speaker for not respecting the cardinal principles for a fair trial, the bench said, "Extraneous consideration is writ large in the face of the Speaker's order disqualifying the MLAs. In the result, we dismiss Yeddyurappa's complaint against the MLAs, set aside the Speaker's order as well as the Karnataka High Court order upholding disqualification of the MLAs."
The bench said a Speaker must rise above party affiliations while adjudicating applications seeking disqualification of MLAs. The HC had upheld the Speaker's order disqualifying MLAs and said, "We are of the view that the impugned order passed by the Speaker (on October 29, 2010) is not in violation of constitutional mandate nor is there any infirmity based on malafides or perversity." (
Setting aside of the speaker's order "for not adhering to te principle of natural justice" was understandable but how could Mr. Yeddyurappa's complaint against MLAs be "dismissed" as their act under the law was sheer defection and nothing else as they lacked to command the support of one-third of the membership of BJP legislature party.
Despite the court decision, the cradle of Yeddyurappa government could not be shaken.  
Regrettably, during the last 28 years since the Anti-defection law was enacted in 1985, our government and the presiding officers in the State assemblies and Central legislatures have failed to iron out a uniform code that should be adopted in such situations like the one that erupted in Karnataka. Some speakers have taken instant and summary decisions while others have dragged the consideration of action against recalcitrant legislators for years together. Sometimes the motions have lapsed with the tenure of the legislature coming to an end.
On technical grounds of non-adherence to the "principles of natural justice" the Supreme Court may be right in setting aside the Speaker's order yet it does not absolve the defectors of the charge committed by them.
What amounts to a split in a party and what constitutes the abominable act of defection is clearly spelt out in the statute. A split is caused when at least one-third of the party's membership part company on any excuse or ground. Similarly defection takes place when less than one-third of the members commit murder — and in this case, of parliamentary democracy — which cannot be condoned for any noble or ignoble cause whatsoever under any circumstances. All that a speaker has to consider is whether it is a split or defection as defined in the law. Explanation of the individual or a group is of no consequence in such a situation.
Unfortunately, during the last 61 years of the functioning of parliamentary democracy in the country, we have failed to evolve a healthy and ethical tradition to be followed whenever the majority of an incumbent government is challenged. Different governors have adopted different yardsticks. Some have demanded the chief minister to go in for a vote of confidence in the house within 48 hours and others as long as three weeks.

In all fairness, to meet the ends of justice in keeping with the spirit of the Anti-defection law, whenever a split or defection takes place the Speaker should take a decision pretty soon and any vote of confidence should be taken up only after that. First allowing the recalcitrant defectors to bring down a government and then taking action against them is just putting horse before the cart.                                                                           ***
This article was published in SOUTH ASIA POLITICS monthly in its December 2013 issue.