Now that the Supreme Court has declared the result of the trust vote in Uttarakhand, it is time for sober analysis. The imposition of President’s Rule (PR) in Uttarakhand on March 27 had many firsts.
In independent India, this was the first time when PR was declared to frustrate a floor test whose date (March 28) was declared by a governor and a Speaker’s disqualification adjudication under the 10th Schedule of the Constitution (March 26/27).
Never has this been done when the governor, Speaker and the chief minister are ad idem (agreement to the same things) in writing that the floor test be held on March 28; never when the time given for the floor test is barely 10 days.
Never has PR been imposed despite the governor sending eight reports (between March 19 and 26) with none recommending PR and containing the condition precedent finding for PR viz that the governor finds that “governance cannot be carried on in accordance with constitutional provisions” in accordance with Article 356.
Never before has the attorney general been forced to admit “a mistake of fact” in court by the central government in relying upon some factually non-existent grounds for PR.
Never before has a live operational PR notification been quashed and never before has the triple hierarchical adjudication process from a single judge to the Supreme Court along with a floor test been over in less than six weeks!
The solitary sting on Chief Minister Harish Rawat on March 25 became one of the only two reasons to declare PR less than 18 hours before a pre-notified floor test was to start, as if Bommai (1994, nine judges) and Rameshwar (2005, five judges) had never been written and not read by the central government. Copious paragraphs in both assert that the floor test is the “only” method of resolving allegations of horsetrading (unnecessarily giving the noble horse a bad name for human frailties); that PR is not the panacea either for corruption or allegations of misgovernance. PR is an emergency power to be used only when governance as per the Constitution is rendered impossible. In this scheme, the central government is neither a mega policeman nor an arbiter of state governments’ fates.
The second basis for imposing PR was equally bizarre. Just because the BJP and the nine rebel Congress MLAs claimed that they had voted against the Uttarakhand Appropriation Bill on March 18, the Centre treated it as a defeat of a money Bill, amounting to a fall of the government on March 18, justifying PR on March 27 despite the floor test having been scheduled for the next day. The denial of a division by the Speaker on March 18 and his certification of passage of the Bill by voice vote on the same day were treated as a failure of constitutional machinery. First, this ignored the fact that voting by 35 MLAs was a disputed jurisdictional fact. Admittedly, the first time the nine dissidents claimed voting against the Bill in writing was four hours after the voting, at 11.30 pm. Not even a single written line to the Speaker seeking a division was ever signed by the nine dissentients.
Second, the Centre also ignored the established constitutional principle that the Speaker is the master of the assembly and even judicial scrutiny (even by the Supreme Court) of assembly proceedings is constitutionally barred. His certification regarding the conduct of proceedings and voice vote is final and binding.
In any event, the lack or otherwise of a majority on the Appropriation Bill on March 18 would have been decided either way within 10 days by the floor test. The Uttarakhand High Court underlines the point that if the Centre’s plea were accepted it would mean that the Centre could act on a highly disputed intra-House factual dispute by way of PR and it could sit with binoculars in New Delhi and upon the slightest alleged infraction by any Speaker in any ‘hostile’ state across India, could take over that state’s democratically elected government. Five Supreme Court judges in Dang’s case (1969) have also castigated PR in similar circumstances.
Third, the only established and fair manner of settling disputed votes on the floor of the House is to have a confidence vote. Unprecedentedly, this is the first time that the agreed date for this (March 28) was superseded by PR 18 hours earlier! Fourthly, the sagacity and far-sightedness of our founding fathers in propounding the principle of reciprocal respect and comity between different organs disentitled the governor from sending purported messages to the Speaker regarding intra-House conduct as much as it disentitled the Centre to cure alleged irregularities within the House through PR.
Last, a comprehensive judicial review of all aspects of PR is here to stay since Bommai (1994). Federalism and respect for democratically elected governments, howsoever inept, is a part of our basic structure.
Egregious PR is certainly not the monopoly of this ruling dispensation. Earlier political misadventures have met with a similar fate. But now that we have all been educated, especially after Rameshwar (2005), such trigger happy episodes should have been avoided. It may even be necessary to recognise that after these decisions, PR has been reduced to a vanishing point for exceptional reasons and for very short focused duration to restore democratic governance.
Abhishek Singhvi is an MP, national spokesperson of the Congress and former ASG
The views expressed are personal