Vote under a cloud

WHENEVER a government at the Centre or in a State appears to lose its majority in the Lok Sabha or the State Assembly, it comes under pressure to prove its majority on the floor of the House through a motion of confidence. A hung verdict in an election may also lead to demands that the government that is to be sworn in should seek a vote of confidence from the House at the earliest.

Motions to seek a vote of confidence have had a long history since Independence. The first vote of confidence in the legislative history of post-Independence India was taken up in 1952 in the then Madras Legislative Assembly. The then Chief Minister, C. Rajagopalachari, moved and won a confidence motion after a marathon debate spread over four days in which 71 members had taken part.

A study has shown that 99 confidence motions were admitted and discussed in various State Assemblies between 1952 and 2003. The number of confidence motions moved in the Assemblies must have only gone up since then.

In 1979, for the first time in Lok Sabha’s history, President Neelam Sanjeeva Reddy asked Prime Minister Charan Singh to seek a vote of confidence. Charan Singh tabled the motion but resigned before it could be taken up. Since then, 10 motions have been moved by successive Prime Ministers to seek the confidence of the Lok Sabha, including the last one which was won by Prime Minister Manmohan Singh in July 2008 following the withdrawal of support by the Left parties over India’s nuclear energy deal with the United States.

Anti-defection Act Motions to secure a confidence vote were won or lost by the governments seeking them depending on the numerical strength of the parties supporting them in the House. The Anti-Defection Act enacted in 1985 by Parliament introduced an additional element of uncertainty to this. Legislature parties issue whips or directions to their members to vote or oppose the confidence motions. If any member violates the direction, he or she is likely to be disqualified as a member of the House. Until 2003, if the number of such dissenting members was more than one-third of the strength of the legislative party, it was considered a split in the party.

In 2003, the Act was amended by Parliament to delete the provision for splits. But the provision permitting merger of one faction of a party with another party remained. If the strength of the faction violating the whip is two-thirds of the legislature party, the Act permits merger of that faction with another party.

The Speaker, or the presiding officer of the House, has all the powers under the Act to decide matters of disqualification, although the decisions can be challenged in a court of law. Cross-voting during the confidence motion, and disqualification on the grounds of violation of directions by the party’s whips in the House, thus made the results of the voting on the confidence motion vulnerable to future challenges.

In any event, inordinate delay in concluding the legal proceedings in a court of law makes such challenges infructuous if the term of the Assembly or the Lok Sabha comes to an end in the meantime.

Collective responsibility The obligation to seek a confidence vote emanates from Article 75(3), which mandates that, the “Council of Ministers shall be collectively responsible to the House of the People”. Article 164(2) imposes a similar requirement on the State Council of Ministers to the Legislative Assemblies.

The concept of “collective responsibility” is central to the parliamentary form of government, which was declared as a part of the basic structure of the Indian Constitution by the Supreme Court in the Kesavananda Bharati case in 1973.

The term “collective responsibility” has two dimensions: first, the Council of Ministers should act “collectively” by presenting a united front to Parliament or the State Assembly in defence of its policies and actions and the Council of Ministers should be “responsible” by securing the confidence of the House of the people.

Second, the concept of “collective responsibility” does not mean that the political party forming the government must necessarily have a majority in the legislature; rather, it should have the confidence of the House. This is a subtle but significant distinction. As the Supreme Court pointed out in S.R. Bommai vs Union of India (1994), “minority governments are not unknown. What is necessary is that the government should enjoy the confidence of the House.”

The P.V. Narasimha Rao government at the Centre in 1991 was a minority government, yet, it moved and won a confidence motion in the Lok Sabha in compliance with President R. Venkataraman’s advice.

The Supreme Court asserted in the Bommai case that “whether the Council of Ministers has lost the confidence of the House is not a matter to be decided by the Governor or for that matter anywhere else except on the floor of the House”.

A no-confidence motion is presented by the opposition and is governed by the Rules of Procedure and Conduct of Business of the House. It can only be presented if the Speaker is of the opinion that the motion is in order.

Deferring a constitutional obligation of the government to seek the confidence of the House until a no-confidence motion is presented would undermine the constitutional scheme by subjugating a constitutional responsibility to a procedural rule. It could also lead to a situation where a government, which no longer commands the confidence of the House, continues in power until the opposition presents a no-confidence motion when Parliament or Assembly is convened as per its normal schedule.

It is precisely for these reasons that the Constitution-makers have specifically conferred the power to summon the Lok Sabha on the President “at such time and place as he thinks fit” under Article 85(1). Article 174(1) confers similar power on the Governor of a State to summon the State Assembly. These provisions would prove to be useful to either the President or the Governor, if the government in power, seemingly reduced to a minority, refuses to seek a confidence vote.

Composite floor test and secret ballot The situation in Tamil Nadu, when both O. Panneerselvam and Edappadi K. Palaniswami staked their claims to form the government, on the basis of majority support in the Assembly, appeared to be yielding only limited options to the Governor, Ch. Vidyasagar Rao. One such was the composite floor test, an innovation by the Supreme Court in 1998.

In 1998, Chief Minister Jagdambika Pal sought the Supreme Court’s intervention when the Allahabad High Court unseated him and restored his rival, Kalyan Singh, as Chief Minister. Earlier, Governor Romesh Bhandari had dismissed Kalyan Singh without giving him an opportunity for a floor test, and appointed Jagdambika Pal, who claimed majority support, as Chief Minister.

Although the Governor, in the meantime, decided to implement the High Court order, the Supreme Court summoned a special session of the Uttar Pradesh Assembly on February 26, 1998, with the sole agenda of holding a composite floor test between the two contending parties in order to see which of the two claimants to chief ministership had a majority in the House.

The Supreme Court warned: “It is pertinently emphasised that the proceedings in the Assembly shall be totally peaceful and disturbance, if any, caused therein would be viewed seriously.” The court also asked the Assembly Speaker to announce the result of the floor test faithfully and truthfully. It directed that its order be treated as a notice to all the MLAs, leaving apart the notices the Governor/Secretariat was supposed to issue. The court also restrained the “functioning government” from taking any major decisions, except attending to routine matters, which were not of any consequence.

Although the court did not use the words “secret ballot” in its order directing a composite floor test, the Assembly distributed ballot papers to all the MLAs and kept a ballot box for depositing the same after they exercised their franchise. As a newspaper report on the outcome put it: “In the end, it was 225 ticks for Kalyan Singh, 196 for Jagdambika Pal, and no damage to the Assembly furniture.”

On February 27, 1998, the Supreme Court took note of the criticism that the Speaker of the Uttar Pradesh Assembly withheld his verdict in the disqualification case of 12 members belonging to the Bahujan Samaj Party (BSP) under the Anti-Defection Act, although he had concluded his hearing in the case on February 25. Had these MLAs been disqualified before the composite floor test, Kalyan Singh’s tally would have come down from 225 to 213. But the court did not pursue this aspect because in its view even if the 12 MLAs had been disqualified, the result would have been the same.

The Supreme Court justified its direction to hold a composite floor test thus: “Kalyan Singh had offered to the Governor to face floor test, which was declined. On his dismissal, his rival on being sworn in as the Chief Minister was required to undergo the floor test in a time frame. We have facilitated both in one go. Both have had their measure of strength. In these circumstances, keeping any attendant issues alive in the form of the writ petition before the High Court would not be conducive to political peace and tranquility, as also overall harmony.”

The Supreme Court drew its powers to direct a composite floor test under Article 142 of the Constitution. Under its jurisdiction, the Supreme Court may pass such a decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India.

Scholars of the Constitution wonder whether the Supreme Court’s innovation in the Jagdambika Pal case has any value as a precedent. They say so because the court issued the order confining itself to the facts of the case before it without any reasoning or laying down principles for the future. Their criticism of the Supreme Court’s intervention in the affairs of the State legislature is also prompted by concern for the doctrine of separation of powers and checks and balances.

Despite such disagreement, the court did not feel inhibited in following the Jagdambika Pal precedent twice later. In 2005, elections in Jharkhand resulted in a hung Assembly, and the newly elected members were yet to take oath as members. The Governor, Syed Sibtey Razi, appointed the Jharkhand Mukti Morcha (JMM) leader Shibu Soren as the Chief Minister and a junior member of the Assembly as Protem Speaker against the convention of appointing the senior-most member. The Governor was also about to nominate one member of the Anglo-Indian community to the Assembly. Arjun Munda of the National Democratic Alliance (NDA) claimed majority support in the Assembly and sought the Supreme Court’s intervention.

On March 9, 2005, the Supreme Court advanced the date of the Assembly session to March 11, whereas the vote of confidence was to take place from March 15, the date chosen by the Governor.

The Supreme Court said in its order:

“The only agenda in the Assembly on 11th March, 2005 would be to have a floor test between the contending political alliances in order to see which of the political party or alliance has a majority in the House and hence a claim for chief ministership.”

The Supreme Court restricted the Governor from nominating anyone to represent the Anglo-Indian community, and held that the floor test should be confined to the 81 elected members only. The NDA’s strength in the Assembly was 41. More important, it directed the Chief Secretary and the Director General of Police, Jharkhand, to see that all the elected members attended the Assembly freely, safely and with security and no interference or hindrance was caused by anyone therein.

It also directed the Protem Speaker to video-record the proceedings of the Assembly on March 11, 2005, and send a copy of the same to the court.

However, the court-directed session did not take place on March 11 as Soren resigned without facing the floor test. Munda, who was sworn in as Chief Minister, won the vote of confidence subsequently.

The then Lok Sabha Speaker, Somnath Chatterjee, called for a presidential reference under Article 143 on the correctness of the Supreme Court’s order in Jharkhand. The then United Progressive Alliance (UPA) government, however, disagreed, and paved the way for the swearing in of Munda as Chief Minister.

Uttarakhand crisis The Supreme Court relied on the Jagdambika Pal precedent in the Uttarakhand case also in 2016.

In Union of India vs Harish Chandra Singh Rawat , the Centre appealed against the Uttarakhand High Court’s judgment quashing the imposition of President’s Rule in the State after dismissing the Congress government led by Rawat. The court said in its order on May 9, 2016: “It was conceded [by both the parties] that the floor test should be conducted under the supervision of this court.”

On May 6, the Supreme Court explained the procedure to be adopted during the floor test:

“On the Confidence Motion having been put, a division of the House shall take place and the members who are inclined to vote in favour of the motion, shall sit on the one wing/side and the others who are against the motion, shall sit on the other wing/side. The Principal Secretary, Legislative Assembly of the State of Uttarakhand, shall see to it that the voting is appositely done and recorded. The members voting in favour of the motion shall singularly vote by raising their hands one by one and that will be counted by the Principal Secretary, Legislative Assembly. Similar procedure shall be adopted while the members [are] voting against the motion.”

On May 9, it modified this order to correct the neutral officer’s designation as Principal Secretary, Legislative and Parliamentary Affairs.

It gave a retrospective justification for Jagdambika Pal saying: “Be it noted, in the case of Jagdambika Pal vs Union of India , the court was under the constitutional obligation to innovate the method.”

The Supreme Court reiterated its ruling in the Jharkhand case: “This court, being the sentinel on the qui vive of the Constitution, is under the obligation to see that the democracy prevails and not gets hollowed by individuals. The directions given on the last occasion were singularly for the purpose of strengthening democratic values and the constitutional norms. The collective trust in the legislature is founded on the bedrock of the constitutional trust.

This is a case where one side even in the floor test does not trust the other and the other claims that there is no reason not to have the trust. Hence, there is the need and there is the necessity to have a neutral perceptionist to see that absolute objectivity is maintained when the voting takes place. Solely for the aforesaid purpose, we intend to modify the order by directing that the Principal Secretary, Legislative and Parliamentary Affairs who belongs to the cadre of the District Judge shall remain present to conduct the affairs with perceptible objectivity and singularity of purpose of neutrality along with the Secretary Legislative Assembly. …We ingeminate it that we have so directed so that no party can raise a cavil with regard to the process of voting.”

The voting on the confidence motion in the Uttarakhand Assembly took place peacefully on May 10, 2016, and Rawat won the floor test by securing 33 votes in the 61-member Assembly. The Supreme Court did not allow nine Congress rebel MLAs, who were earlier disqualified by the Speaker, to vote. The Uttarakhand High Court had upheld their disqualification under the Anti-Defection Act, and their appeals were pending in the Supreme Court. Meanwhile, all the rebel MLAs have joined the BJP.

Manjhi-Nitish Kumar contest As the Chief Minister of Bihar, Jitan Ram Manjhi, demanded a secret ballot when he was asked by the Governor, Keshari Nath Tripathi, to seek a vote of confidence after Nitish Kumar staked his claim in 2015. Nitish Kumar chose Manjhi to succeed him when he resigned owning moral responsibility for the ruling Janata Dal’s reverses in the 2014 Lok Sabha elections but later changed his mind.

Importantly, the Governor gave Manjhi the first opportunity to face the floor test. When the Governor refused to concede Manjhi’s request for a secret ballot during the voting on the confidence motion, Manjhi resigned, alleging threats and monetary enticements to the MLAs from the Nitish Kumar faction.

Fadnavis’ trust vote In December 2014, the Bombay High Court upheld the order passed by the Speaker of the Maharashtra Legislative Assembly for conducting the vote on the motion of confidence moved by newly appointed Chief Minister Devendra Fadnavis by raising hands.

The High Court ruled that it did not have the jurisdiction to hear petitions challenging the decision of the Speaker who had ordered a voice vote instead of a head count, enabling the newly elected BJP government to prove its majority in the House. The public interest litigation petitions challenging the Speaker’s order contended that under the constitutional provisions, the respondents (Speaker and Chief Minister) were duty-bound to hold a secret ballot or a head count to establish the government’s majority in the House.

Question of procedure The Supreme Court has held in many cases that Article 212 prohibited the validity of any proceedings in a State legislature from being called into question on the grounds of any alleged irregularity of procedure.

The Bombay High court, relying on the Supreme Court’s rulings in those cases, held that the Speaker’s failure to ensure a debate on the motion before voting could at best be a procedural irregularity.

Relying on the Supreme Court’s previous rulings, the High Court held that the onus of establishing that illegality was committed by the Speaker was squarely on the person who made that assertion.

The High Court held that the Speaker did not commit any illegality by adopting the mode of voice test for proving the majority in the House, which is an accepted procedure under Rule 41 of the Maharashtra Legislative Assembly Rules. This rule prescribes voice test as one of the ways of proving the majority in the House and the discretion is vested in the Speaker to decide which mode has to be adopted, namely, voice test or division, the High Court held.

Considering these legal precedents, the decision of the Tamil Nadu Assembly Speaker P. Dhanapal against having a secret ballot during the vote on the confidence motion may be less assailable than the other aberrations that marked the trust vote. Among these are, keeping the All India Anna Dravida Munnetra Kazhagam (AIADMK) MLAs in captivity for days together until the trust vote took place and the forcible eviction from the Assembly of all Dravida Munnetra Kazhagam MLAs on the grounds that some of them indulged in unruly behaviour in the House, may justify judicial intervention as evident from the Supreme Court’s orders in the Uttar Pradesh, Jharkhand and Uttarakhand cases.