Questions of numbers

Questions of numbers

The key political question that has arisen in Tamil Nadu is whether Chief Minister Edappadi K. Palaniswami commands a majority in the State Assembly. There is a remarkable concordance (Agreement of opinions) among political and constitutional functionaries concerned in abdicating (Give up, such as power, as of monarchs and emperors, or duties and obligations) their core responsibility to find an answer to this question. The Governor is obviously averse to ordering a floor test. The Chief Minister is not keen on demonstrating his strength on the floor of the House. The Speaker is concentrating on ensuring that dissidents (A person who dissents from some established policy) are kept out of any possible confidence vote, if and when one takes place. The Leader of the Opposition has not moved a motion of no confidence, but, on the contrary, believes that the Governor should order a floor test.

Dissident legislators from the ruling All India Anna Dravida Munnetra Kazhagam (AIADMK), the group that has pulled back the ruling party’s strength below the half-way mark in the Assembly, have not asked for a meeting of the legislature party to replace Mr. Palaniswami with some other leader. And the Madras High Court, instead of grappling with the core question concerning the government’s legislative majority or lack of it, has passed two peculiar interim orders that are contrary to the doctrine of separation of powers and touch on matters outside the judicial domain.

Over to the courts
The High Court has become a battleground for the three-way political sparring going on between the rebel group, the ruling party, and the main opposition Dravida Munnetra Kazhagam (DMK), when it ought to be the legislative chamber. The first decisive move came from the 19 MLAs owing allegiance to T.T.V. Dhinakaran, nephew of jailed and deposed former AIADMK general secretary V.K. Sasikala. On August 22, the dissident legislators approached the Governor with a memorandum expressing lack of confidence in the Chief Minister, and, on September 18, Speaker P. Dhanapal ruled that this amounted to ‘voluntarily giving up their membership of the party’ and disqualified 18 of them. One dissociated himself from the dissenters and returned to the loyalist fold. The DMK leader, M.K. Stalin, who also heads the Opposition in the Assembly, also approached the Governor with a demand that he order a floor test as the ruling party has lost its majority. With the Governor not acting on it for weeks, he moved the Madras High Court for a direction to the Governor to direct the Chief Minister to seek a confidence vote.

Then came the disqualification, as a result of which the ousted legislators also approached the court. Thus, the two issues — the question whether the Governor ought to intervene (Take part in something so as to prevent or alter a result or course of events) and whether the Speaker was helping the ruling party by disqualifying rebels and thereby converting its minority into a majority — are both before the court.

The Governor’s role
The principal reason for the political impasse (A situation in which no progress can be made or no advancement is possible) is Governor Ch. Vidyasagar Rao’s silence. Is he justified in not acting on the request for a floor test? Going by the observations made by the Supreme Court last year, his inaction is possibly justified. While dealing with the Arunachal Pradesh crisis last year, a Constitution Bench said: “The activities within a political party, confirming turbulence, or unrest within its ranks, are beyond the concern of the Governor... Who should or should not be a leader of a political party, is a political question, to be dealt with and resolved privately by the political party itself. The Governor cannot, make such issues, a matter of his concern.” It said a breakaway group could be legitimate and recognisable only if it constituted two-thirds of a party, as stipulated in the Tenth Schedule, and the Governor could embark on a constitutional course of action only on the claims of such a group. However, does it necessarily mean that Governors should not act until a rebellion touches the two-thirds mark within the legislature party? No, for the Bench adds that such a recourse is available during a constitutional crisis “as when the government is seen to have lost the confidence of the House”. Therefore, the correct reading of the judgment is that the court bars Governors from political embroilment (An intricate and confusing interpersonal or political situation; involvement in fight) and has not restrained them from their constitutional duty to allay (Lessen the intensity of or calm) doubts that a particular regime has lost its majority.

As the Governor has not acted on a reasonable apprehension (Fearful expectation or anticipation) that the Palaniswami government has been reduced to a minority, should the DMK’s petition for a direction to the Governor to order a floor test be allowed by the Madras High Court? Given that it is a matter that falls under the Governor’s discretion, is such a petition maintainable? When the matter came up for admission, the court’s attention was drawn to the fear expressed by the counsel that the Speaker was planning to disqualify the dissenters in an effort to bring about a majority in a truncated House. As a result, it passed an order staying a possible floor test that may have taken place after the feared disqualification! This was said to be in the interests of justice, as otherwise the government would have sailed through the vote. In a couple of days, the disqualification did take place, and once again, on petitions challenging the Speaker’s order, the court did not grant a stay. Instead, it extended the stay on the floor test on a request from the Speaker’s advocate, and with the consent of all other parties.

It is not clear what provision in the Constitution empowers the court to stall a floor test, but there are precedents. The Supreme Court had ordered a ‘composite floor test’ in 1998 and 2005 in Uttar Pradesh and Jharkhand, but these directions attracted considerable criticism. Further, the only persons aggrieved by the possible adoption of a confidence vote in their absence will be the disqualified MLAs. Therefore, only a stay of their disqualification or an interim direction allowing them to vote during a floor test could have met the interests of justice. However, instead of adopting this constitutionally permissible course — disqualification under the anti-defection law is justiciable, whereas setting the legislative agenda is outside judicial purview — the court chose to stay the trust vote. Similarly, to address the fear that the 18 vacant seats could be filled up by holding by-elections, the court restrained the issue of a notification for bypolls (उपचुनाव). A stay of the disqualification would have addressed the fears of those disqualified as well as obviated the need for the questionable stay on the floor test to be extended. Thereafter, only the constitutionally relevant question on whether the Governor ought to be directed to order a trust vote would have remained for adjudication (The final judgment in a legal proceeding; the act of pronouncing judgment based on the evidence presented). While adjudicating constitutional questions, courts ought not to take recourse to the civil law principle of ‘balance of convenience’ and pass orders appearing to give some relief to all parties.

The main basis for the challenge to the disqualification of 18 legislators is the 2011 judgment in the Karnataka case when B.S. Yeddyurappa was Chief Minister. The Supreme Court had quashed the disqualification on the ground that the Speaker had given insufficient opportunity and time, but it had also noted that approaching the Governor to set in motion a constitutional process to replace the Chief Minister could not attract the drastic action of removal from the House. Speaker Dhanapal’s order has tried to address many such issues, but it will still have to be tested against the proposition that expressing lack of confidence in the Chief Minister may not amount to voluntarily giving up the party membership.

The disqualification trick
Taking up disqualification petitions for adjudication just ahead of a floor test has now become a pattern. Disqualifying rebellious MLAs seems to be a favoured way of ensuring the majority of a Chief Minister. The time may have come to amend the law conferring on the Speaker the authority to adjudicate questions of defection. When the floor test remains the sole and supreme means of ascertaining majority, the partisan element should be taken out of anti-defection law, and the adjudicatory power be transferred to an independent body such as the Election Commission.