The Bharatiya Janata Party (BJP) government in Maharashtra on Tuesday defended before the Bombay high court (HC) that the passing of the motion for vote of confidence in the assembly was in accordance with the rules of the legislature.
Advocate general Sunil Manohar argued before the division bench of justice VM Kanade and justice Anuja Prabhudesai that voice vote is a rule and division of votes is exception and added that all the motions are generally decided by a voice vote.
Manohar submitted that the makers of the Constitution of India have kept the legislative proceedings beyond the purview of judicial review deliberately, as there is remedy available within the house, if any of the members of the house is aggrieved by any proceeding.
If any member of the House feels that the Devendra Fadnavis-led BJP government is in minority, he has the option of bringing a motion of no confident against the government. He can also pass a no confidence motion against the Speaker of the assembly if he feels that proper procedure was not followed during the trust motion on November 12.
The newly appointed advocate general was replying to petitions challenging validity of the trust vote won by the government.
Congress MLA Naseem Khan and two others have filed petitions challenging the Speaker's decision to allow voice vote on BJP government's trust motion.
Khan's lawyer TR Andhyarujina, a senior counsel and former solicitor general, cited that in the parliamentary system a government can be formed by only the group or party which enjoys confidence of the House.
It is the mandate of the Constitution to have a vote of confidence and you cannot have it be a voice vote, the senior counsel said. "This ((passing the vote of confidence motion by voice vote) is completely contrary to the constitutional provisions, as the Constitution requires proper vote of confidence i.e. by division," Andhyarujina submitted.
To support his contentions, Andhyarujina cited judgments of the Supreme Court in three different cases involving government in Uttar Pradesh, Jharkhand and Karnataka. He told the bench that in all the cases, the SC had not only entertained the petitions but also directed to hold a special session of Houses and conduct a 'floor test' to ascertain the majority of the ruling governments.
Advocate general Sunil Manohar, however, pointed out that in none of the judgments had the SC said that the 'floor test' means voice vote or vote by division.
He said that the rules of legislation in Maharashtra empowers the Speaker to put a question for motion and he also has the power to call for voice vote on any of such motions, wherein those who support the motion say 'aye' and those who do not sayd 'nay'. The majority is then ascertained by the Speaker by finding out which ones are 'ayes' or 'nays'
The bench has now posted the matter for further hearing on Wednesday.