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It is high time courts revisited use of a ‘floor test’ to prove a majority in a legislature

Let us hope the judiciary re-calibrates itself in this direction because they are the last and only hope. Political parties and their leaders have clearly sounded the bugle: Constitution aside, we want power.

Written by Dushyant Dave |
Updated: July 23, 2020 8:57:36 am
Protocol for Parliamentary panel meetings: 6-foot distance, only 2 witnesses at a time Attempts to circumvent the Tenth Schedule through engineered defections cannot be allowed to succeed through the judicial process.

While a billion-plus people in India are engaged in the struggle against COVID-19, elected representatives in some parts of the country, visibly in Rajasthan, are busy proving B R Ambedkar right. Ambedkar had said: “I feel, however great a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot.”

Former Congress deputy chief minister of Rajasthan, Sachin Pilot and his companions, who are revolting with the possible objective to bring down the government of the political party that had set them up as candidates in the last legislative election, stand automatically disqualified as such by virtue of Article 191(2), read with the Tenth Schedule. This is the mandate of the Constitution and no one can hold otherwise.

It is time to revisit the issue. In fact, it is crucial to do so.

Article 191(2) declares unequivocally that a person shall be disqualified from being a member of the legislative assembly or legislative council of a state if he is so disqualified under the Tenth Schedule. The Tenth Schedule to the Constitution contains “provisions as to disqualification on ground of defection”. It states in explanation to para 2(1): “An elected member of the House shall be deemed to belong to the political party, if any, by which he was set up as a candidate for election as such member”.

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This provision fixes the relationship between a member and a political party which selected him as a candidate. Paragraph 2 provides one of the grounds for disqualification: “If he voluntarily gives up his membership of such political party”.

There are many ways in which a member can give up his membership. He can do so expressly or by implication. He can do so by his action or inaction. He can do so by his conduct. But the decision as to disqualification is left to the absolute discretion of the Speaker and para 6 says that “his decision shall be final”. Sub-para 2 thereof says that proceedings as to disqualification shall be deemed to be proceedings in the legislative assembly within the meaning of Article 212. The limits set by the Article is clear from its title, “Courts not to inquire into the proceedings of the legislature”.

This brings to the fore the need to emphasise “constitutional morality”, which means “strict adherence to the core principles of constitutional democracy”. Ambedkar had laid great emphasis on “strong adherence to the morality of the Constitution and judicial values”. He had warned that “it is quite possible to pervert the Constitution without changing its form”.

Constitutional transgressions by MLAs, after having come through a “party platform” to serve the people for five years (Article 172), cannot be countenanced. In so doing, these MLAs forget the oath, taken under Article 188 of the Constitution read with Form VII B of the Third Schedule, through which they affirm: “I will bear true faith and allegiance to the Constitution of India as established by law …and that I will faithfully discharge the duty upon which I am about to enter.”

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Legislators do not have absolute freedom to behave in any way they like. They must bear true faith and allegiance to the Constitution and, therefore, to the political party which set them up for the elections. Their conscience is dictated by these limitations.

If members of a ruling party are lured with rewards, political or otherwise, then the “floor test” becomes constitutionally immoral and unjust. Attempts to circumvent the Tenth Schedule through engineered defections cannot be allowed to succeed through the judicial process.

It is high time the judiciary revisited the use of a “floor test” to prove a majority in a legislature. If a party without a clear majority wins over members of the majority party to reduce it into a minority and then claims the right to form a government, the latter’s “majority” does not stand the test of constitutional morality.

Let us hope the judiciary re-calibrates itself in this direction because they are the last and only hope. Political parties and their leaders have clearly sounded the bugle: Constitution aside, we want power.

For the ruling party — which has massive support and power at the Centre and in most states — seeming to encourage defections, directly or indirectly, does not look good. How can it explain the events in Madhya Pradesh and Gujarat — the manner in which it came to power in the former and won an extra seat in the Rajya Sabha in the latter? Equally, for the country, the slow demise of the Congress sounds the death knell of democracy. But then, what can be said when so-called leaders who till the other day were being talked of as possible replacements for Rahul Gandhi have proven themselves to be clay-footed.

This article first appeared in the print edition on July 23, 2020 under the title ‘Cheating the floor test’. The writer is a senior advocate and the president of the Supreme Court Bar Association. Views are personal

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