In India, like in any other constitutional democracy, the Constitution is supreme. The President, Vice President, Executive, Legislature, Judiciary and even States in the Union of India, and their organs, are the creatures of the Constitution. And those who man these offices have taken the oath to adhere to it in the discharge of their functions in the service of the people of this country.
The primary function of the legislature, i.e. Parliament, is to make laws for governance, aimed at the welfare of the people. It must lead by example by following the laws in force , to gain confidence and concretise the trust of the people. Article 118 of the Constitution empowers the Rajya Sabha to legislate its Conduct of Business rules, and so is the case with the Lok Sabha. Lok Sabha Rule 198 provides for moving a no-confidence motion against the ruling party in power. There is no provision or express rule for the ruling party or any member to move a vote of confidence.
Whether a matter of national or current importance, the Rule does not expressly provide for a trust or confidence motion by the ruling party on any issue. This is how it has been interpreted for centuries in England and other democracies.
Two Latin maxims that have authoritatively been used to interpret the rules in the British parliament, which we follow as a model parliamentary democratic body, are:
Expressum facit cessare tacitum ( what is expressed renders what is implied silent).
Expressio unuis exclusio alterius (the express mention of one thing is the exclusion of another).
The Lok Sabha’s Conduct of Business Rule 198 expressly provides for a Motion of no- confidence, but not for a confidence motion. Since 1979, so many PMs have moved, and either won or lost, confidence motions or resolutions. But why were the rules not amended accordingly, when this could have easily been done?
In the absence of an express rule providing for a confidence motion by the ruling party, Rule 198 provides for a no-confidence motion as a remedy for the Opposition. If the no-confidence motion is defeated on the floor of the House, then obviously the House, and thus the country, has confidence in the ruling party or alliance.
An ab initio, irregular precedent cannot be a justification for circumventing the Lok Sabha’s existing Conduct of Business rules. This can lead to the people of this nation to conclude that, for the sake of its own interest, the Parliament has failed to follow the law of the land.
To give an example, if a married couple goes to a registrar, asking him to reaffirm their marriage, the registrar can only offer them the option of a divorce under the existing laws. If they do not choose this option, then he declares the marriage as valid, presuming their confidence, till they are granted a divorce.
The parliamentarians must follow the law as laid down by the Constitution, and to which they were sworn, before assuming their legislative duties. Constitutional institutions which define the parameters of their functions are above them. Anyone breaching the rules should keep in mind the gravity of their actions’ adverse impact on the citizens of the world’s largest democracy. Democracy respects values and not personalities. Rule of law is a must, and not the rule of men or women.
G.V.G. Krishnamurty is former secretary, Union Ministry of Law, Member of National Law Commission and Election Commissioner of India.