The Rajasthan Imbroglio : Governor, Speaker and Cabinet

Context

The Rajasthan High Court’s order of July 24 staying the anti-defection proceedings initiated by the Assembly Speaker against the rebel Congress legislators raised important Constitutional issues. Now, Chief Whip of the Congress Legislature Party in Rajasthan Assembly Mahesh Joshi has moved the Supreme Court against the High Court’s order of asking the Speaker to maintain “status quo” on the question of disqualification of 19 rebel Congress MLAs. The second part of the political drama, about the date of the Assembly session, has just ended, with the Cabinet yielding to the Governor’s demand that there should be a 21-day gap between the summoning and commencement of the session.

What is happening in Rajasthan Government is a sad commentary on Indian Democracy which has witnessed near about dozens of such incidents in various States. Those examples are just a click away and can be accessed whenever and wherever required. Hence it would be pertinent to analyze the present case in toto and points of its intersection with our Constitutional provisions.

The Backdrop

The present imbroglio of Rajasthan is not an event which suddenly appeared on the screen. It took around eighteen months for these happenings to assume the final shape. As Deputy CM, Sachin Pilot had started feeling from the very beginning that his power and prestige were being undermined (by the CM) ever since he took over as Deputy CM. As his recent social media eruption clearly puts “ It would have been better if the works under my ministries were also showcased as part of the one-year celebrations of the government” . This came out as a fallout of what happened after completion of one year of the government. A three-day celebration was planned in December. A special booklet was launched recording the achievements of the government over the past year. However, Pilot was completely isolated from the celebrations. Not a single poster or photo of him was put out anywhere. The achievements of his ministries were also not even mentioned in the booklet.

Amid a power tussle in the Rajasthan Congress Government, a letter by the police's Special Operations Group (SOG) asking the Deputy CM Sachin Pilot to appear for questioning in a probe into alleged attempts to destabilize his own government has "crossed all limits" and made it "untenable" for those MLAs supporting Pilot to work under Chief Minister Ashok Gehlot.

A Volley of Pleas and What the Constitution says

Run up to the Anti-defection Law

Let us take the case of the High Court staying the anti-defection proceedings first. Aaya Ram Gaya Ram was a phrase that became popular in Indian politics after a Haryana MLA Gaya Lal changed his party thrice within the same day in 1967. The anti-defection law sought to prevent such political defections which may be due to reward of office or other similar considerations.

The Tenth Schedule was inserted in the Constitution in 1985 through the 52nd amendment to the Constitution. It lays down the process by which legislators may be disqualified on grounds of defection by the Presiding Officer of a legislature based on a petition by any other member of the House. A legislator is deemed to have defected if he either ‘voluntarily gives up the membership of his party or disobeys the directives of the party leadership on a vote.’ It is mentioned under “para 2(1)(A)” of the Tenth Schedule. This implies that a legislator defying (abstaining or voting against) the party whip on any issue can lose his membership of the House. The law applies to both Parliament and State Assemblies.

Disqualification Powers of the Speaker Vs. Intervention by the Court

The Constitution has assigned specific roles for the Governor, Council of Ministers and the Speaker. Rajasthan Assembly Speaker C P Joshi issued notices to 19 rebel Congress MLAs including Sachin Pilot on a petition seeking their disqualification by the Congress. The Rajasthan High Court issued orders on July 24 staying the anti-defection proceedings. Rajasthan Assembly Speaker, C.P. Joshi had already moved the Supreme Court.

The Supreme Court argued to look into the “larger question” as to whether a legislators’ “voice of dissent” could be “shut down” with the threat of disqualification. Can expressing dissent amount to “voluntarily giving up the party membership” under Paragraph 2 (1) (a) of the Tenth Schedule of the Constitution and invite anti-defection proceedings?

A fresh plea by the Speaker on July 29, claimed that the HC’s order is a direct interference in the proceedings of the House’ under the Tenth Schedule which is prohibited under Article 212 of the Constitution.

Now, Chief Whip Mahesh Joshi has moved the Supreme Court against the High Court’s July 24 order. He said the HC order is challenging the constitutionality of Para 2(1)(a) of the Tenth Schedule to the Constitution (Anti-defection Law) and “is ex facie unconstitutional, illegal and in the teeth of the law laid down” by a Constitution Bench of the Supreme Court in 1992 in the case Kihoto Hollohan vs. Zachillhu.

Powers of Governor Vs. Council of Ministers regarding summoning Session

The second important issue in Rajasthan imbroglio is the tussle between the Governor and the Council of Ministers regarding summoning Session. Article 174 of the Constitution gives the Governor the power to summon from time to time “the House or each House of the Legislature of the State to meet at such time and place as he thinks fit…”

The phrase “as he thinks fit” is read as per Article 163 of the Constitution which says the Governor acts on the aid and advice of the Cabinet. Article 163 (1) essentially limits any discretionary power of the Governor only to cases where the Constitution expressly specifies that the Governor must act on his own and apply an independent mind.
When the Chief Minister has lost the support of the House and his strength is debatable, the Governor need not wait for the advice of the council of ministers to hold a floor test. Generally, when such doubts are cast, the Opposition and the Governor would rally for a floor test and the ruling party would attempt to stall the process to buy time. In Rajasthan’s case, despite requests from Chief Minister Ashok Gehlot, the Governor has returned such requests to call for a session. The 19 rebel MLAs have not defected from the Congress and have stated before the Rajasthan High Court that they are merely expressing their dissent and have not shifted to the BJP. In the Arunachal Pradesh ruling, the Court clarified this question as well. “In ordinary circumstances during the period when the CM and his Council of Ministers enjoy the confidence of the majority of the house, the power vested with the Governor under Article 174 to summon, prorogue and dissolve the house(s) must be exercised in consonance with the aid and advice of the Chief Minister and his CoM. In the present case, the Governor is precluded (from taking) an individual call on the issue as his own will, or at his own discretion. Only in a situation where the government in power—on holding such a floor test — is seen to have lost the confidence of the majority, would it be open to the Governor to exercise the powers vested with him under Article 174 at his own, and without any aid ,”the Court had said.

The crucial question in Rajasthan is whether the Governor has any discretionary power in the matter of summoning the Assembly. The Governor asked the government to change the date of commencement recommended by the Cabinet and proposed a date after 21 days. Finally, he got the Cabinet to yield to his wishes.

Serious constitutional questions arise here. The Nabam Rebia case makes it clear that so long as the Chief Minister enjoys majority support in the Assembly, the Governor has no discretionary powers and is bound to accept the decisions of the Cabinet in regard to the date of commencement of the session.

Concluding Remarks

More often than not the Governors in India have acted in favour of the party ruling at the Centre. Once a person is appointed as a Chief Minister he has the advantage to win over the required strength in the Assembly by virtue of his powers and patronage.

In the opinion of the Governor if no person is in a position to form the Ministry then the Governor can advise the President to invoke Article 356 and impose President’s Rule. This is done in order to give some time for the polarisation of different political groups, so that a ministry may be formed with majority support. Such an act of the Governor may also favour one group against the other.

Thus the discretionary power of the Governor in appointing a Chief Minister depends upon the political context. Where a person enjoys the support of the majority members of the Legislative Assembly, the Governor is left with no option. In Rajasthan case, none of the faction can claim a clear majority to form the Government. However, this case may not be compared with the ones where post election, no single party or alliance gets a clear majority. With 19 MLAs withdrawing support from the Government, the Gehlot Government cannot claim clear majority nor can Anti-Defection Law be applied to the rebel group pending a final verdict on the issue. Our Judiciary should explore new avenues to tackle such situations in future.

Scaling the Heights

Preliminary Examination

Consider the following statements:

(A) The Constitution of India has provided similar provisions both for President and Governor of a State.
(R) The President has more powers than Governors in respect of using his discretion.

Choose the correct answer from the options given below:

(a) (A) and (R) both are true and (R) correctly explains (A)
(b) (A) and (R) both are true but (R) does not correctly explain (A)
(c) (A) is true but (R) is false
(d) (A) is false but (R) is true

Main Examination

“In the backdrop of the events that took place in Rajasthan, the relationship between the Governor and the Cabinet needs to be reviewed by our Lawmakers”. Comment