More than a numbers game: moving beyond the floor test

Dr. B.R. Ambedkar believed that Article 356 of the Constitution, which provides for imposition of President’s rule in the States and dissolution of State Assemblies, would, in reality, be only a ‘dead letter’. However, by the time a Constitution Bench ruled in the S.R. Bommai v. Union of India case (1994) that a presidential proclamation under Article 356 is subject to judicial review, that it is not an absolute but a conditional power, and that no Assembly can be dissolved before both Houses of Parliament ratify the proclamation, the provision originally meant to be used sparingly had been invoked over 90 times. After the verdict, however, one would have thought that the provision has been somewhat neutralised. That the casual resort to imposition of President’s rule or dissolution of State Assemblies at the whim of the ruling party at the Centre has ended and the potential for further misuse removed. Arunachal Pradesh has now demonstrated that the ‘dead letter’ is quite alive and kicking Chief Ministers out of power.

Many grounds have been cited in support of bringing the sensitive border State under Central rule: from “breakdown of the constitutional machinery” to “collapse of law and order” to other sinister charges such as a threat to the life and security of the Governor and alleged links between the Chief Minister and an extremist group. The context, of course, is something that the Congress is familiar with, as it had used similar circumstances to topple many a regime in the past: dissidence within the ruling party and the Opposition colluding with the rebels to bring down the regime. In Arunachal Pradesh, the party is at the receiving end. It had 47 MLAs in a 60-member House, and the BJP 11, and yet its Chief Minister has been deposed by dissidents acting in concert with the Opposition and helped by the Governor.

Spotlight on the Governor

The manner in which Arunachal Pradesh was brought under President’s rule highlights a significant strand of political behaviour in the country. Even constitutional authorities believe less in law and propriety than in their ability to work around them to achieve their desired results. And one is not merely talking about Governor J.P. Rajkhowa while saying this. It is equally applicable to the deposed Chief Minister, Nabam Tuki. It is quite obvious that the Governor was more concerned about removing the Speaker and installing a rival faction leader as Chief Minister than giving an opportunity to Mr. Tuki to demonstrate his majority on the floor of the House. As for Mr. Tuki, he appears to have done nothing to ascertain his support within the Congress legislature party in the face of brewing dissidence within its ranks. Nor did he convene the Assembly until it became a constitutional necessity as it was nearly six months since the House had last met.

The Gauhati High Court has categorically ruled in favour of the Governor’s decisions in the present crisis. It has upheld his power to summon or prorogue the Assembly under Article 174(1) and his power to send messages, even fixing a specific item on the agenda of the legislature, under Article 175(2). The court saw nothing wrong in the Governor advancing a sitting of the House from January 14, 2016 to December 16, 2015. Nor did it find anything illegal in his specifying that a motion to remove the Speaker should be taken up immediately after the House convenes. In effect, a controversial ‘sitting’ of 33 members of the Assembly in a makeshift venue has been upheld by the high court. It is somewhat ironical that at a time when even a presidential proclamation is subject to judicial review, case law on the role of the Governor still favours gubernatorial privilege and discretion.

A crucial question before the Supreme Court is whether the Governor can, in his discretion and without the aid and advice of the Council of Ministers, summon the legislature or advance a scheduled sitting; and whether he can fix the agenda for such a session on his own. Interestingly, the Gauhati High Court extensively quotes from a Madras High Court Full Bench verdict of 1973 favouring the Governor’s action in somewhat similar circumstances in the Tamil Nadu Assembly. There, too, the ruling party had split, the Speaker and the Deputy Speaker were in different factions, and the dissidents wanted to remove the Chief Minister through a censure motion. However, in the Tamil Nadu precedent — where also there was a parallel ‘Assembly session’ — the Governor was acting on the advice of the ministry of M. Karunanidhi while sending a message to the House that it should first take up a motion to remove the Speaker, whose loyalty lay with the dissidents. On the crucial question of the Governor’s discretion, the high courts have gone by the principle in Article 163: that the question whether any advice, and if so what advice, had been given to the Governor shall not be gone into by any court; and when a question arises whether the matter on which the Governor had acted was actually one on which he can use his discretion, the decision made by the Governor in his discretion will be final.

Options ahead of the floor test

The validity of President’s rule in Arunachal Pradesh will be decided on established constitutional principles, but the time may have come to go beyond even the floor test requirement in ascertaining whether a particular regime commands a majority. Just as unscrupulous defections are legally discouraged, opportunistic cooperation between ruling party dissidents and Opposition legislators just to bring down a Chief Minister may also have to be prevented. This can be achieved if the Governor asks the Chief Minister to submit proof of his support within his own legislature party or alliance partners before ordering a floor test. In the event of some factions withdrawing their support to the government, the Governor can always turn them away and ask them to move a no-confidence motion instead of coming to him. If there is any attempt by the Speaker or the Chief Minister to block such a motion, or if the Assembly is not convened, the Governor should not hesitate to write to the party’s leadership seeking proof of its legislature party still having only one leader. This may force the hand of parties that seek to avoid convening legislature party meetings and hoping that in the Assembly, a floor test can be managed by a partisan Speaker and by selective expulsions to change the composition of the House. In other words, those arguing for the primacy of the floor test will need to have their house in order before the matter is decided in the legislature.

An incumbent government’s reluctance to follow this process may lead to the Governor recommending that the Centre give a suitable direction to the State. For, under Article 365, it shall be lawful for the President to then hold that because of any non-compliance with the direction, the State can no more be run in accordance with the Constitution. This sequence — proof of subsisting support within the ruling party, a floor test, and in the event of these efforts being blocked, a formal direction from the Union, followed by a determination on the constitutionality of the continuance of the regime — may address concerns of partisan behaviour.

Even in times when the incumbent regime swears by “co-operative federalism”, Raj Bhavans are seen as sinecures for friends of the ruling party and its formerly active members and associates. New norms will have to guide both the appointment of Governors and their functioning. The recommendations of the Sarkaria Commission on Centre-State relations are readily available with regard to choosing the occupants of Raj Bhavan.

It had said a Governor should be someone eminent in some walk of life, and should not be one “who has taken too great a part in politics generally, and particularly in the recent past”. Only a few eminent personalities outside the domain of politics and civil or military service have been made Governors. As long as parties pursue their own political interests rather than abide by the Constitution, it will be left to the courts to uphold federal norms.