In a bind after the Uttarakhand High Court ordered a floor test in the assembly on March 31, the Centre decided Tuesday to rush its top law officer, Attorney General (AG) Mukul Rohatgi, to Nainital.
The Cabinet Committee on Parliamentary Affairs (CCPA) also recommended proroguing the Budget session of Parliament which is in recess until April 24.
The recommendation was immediately sent to the President for his assent with Parliamentary Affairs Minister M Venkaiah Naidu meeting President Pranab Mukherjee to brief him on the decision. This, sources said, was done to allow the Centre to issue an ordinance regarding the Appropriation Bill for Uttarakhand since, according to the Centre, the state assembly did not pass the Finance Bill for 2016-17 on the day of its last sitting.
On Wednesday, when the High Court begins its sitting, the AG and other senior law officers, including Additional Solicitors General Maninder Singh and Tushar Mehta, are likely to seek a stay on the single-judge order.
The Congress is also likely to challenge the order before a division bench on the “limited question” of disqualified MLAs being allowed to participate in proceedings of the House on March 31. BJP MLAs will also move to be impleaded in the matter, opposing the trust vote.
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Immediately after the High Court order Tuesday, senior functionaries of the Central government went into a huddle, with Finance Minister Arun Jaitley giving inputs on the phone from Sydney where he is on a four-day tour.
After the AG gave the opinion that the order was erroneous since it went against the law settled by the Constitution Bench of the Supreme Court in the S R Bommai versus Union of India and Rameshwar Prasad and Others versus Union of India, it was decided to challenge the order before a division bench.
Sources privy to government deliberations told The Indian Express: “In the Bommai judgment, the Supreme Court held that while the court could go into the issue of validity and legality of the Presidential proclamation, even restore the status quo ante to the issuance of the proclamation if it found it illegal, it would not interfere in the issuance of the proclamation or the exercise of any other power under the proclamation. By its order, the Uttarakhand High Court has effectively stayed the Presidential proclamation. This is wrong.”
Incidentally, in his 26-page order, Justice U C Dhyani, while turning down former Chief Minister Harish Rawat’s plea for interim relief, said “…there is no question of staying the effect of Proclamation under Article 356 of the Constitution of India at this stage.” He also pointed to the landmark judgments of the Supreme Court to say that floor test is the best test.
According to a central government functionary, when the AG appears before the division bench Wednesday, he will tell the court that the judge erred in passing an order without affording an opportunity to the Centre to present material, including the report of Uttarakhand Governor K K Paul, on the basis of which the decision to impose President’s rule was taken.
“Once the assembly is in suspended animation, the powers of the Speaker are also suspended and no business can be transacted in the House. The Speaker can neither call the House nor preside over its session. That is why the order is wrong,” the functionary said.
The Congress, on the other hand, is equally unsure about what Tuesday’s order means for it. While it is happy that the court has ordered a floor test, it is unsure what the court’s stance will be on the votes of the nine rebel MLAs, all of who were disqualified by the Speaker under the anti-defection law.
“The court has only ordered a floor test. It has not passed a final order so far,” a Congress leader said. He also said that the party was “fully prepared” to rebut all arguments of the Centre government’s lawyers in court “if they file a petition tomorrow”.
Explaining the rationale behind proroguing the Parliament, a senior official said it was done since under Article 357, the President can authorise expenditure from the Consolidated Fund of the State pending the sanction of such expenditure by Parliament when the Lok Sabha is not in session.
While in recess, the Lok sabha is considered to be in session and the Speaker can convene it any time. Once the President prorogues Parliament, a fresh session will have to be called.
The CCPA meet also gave its nod for prorogation of Rajya Sabha to enable re-issuing the ordinance bringing changes in the Enemy Property Act, 1968, which is pending in the Upper House after being passed by Lok Sabha.
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