[Editor’s Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against a former Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances (e.g., the introduction of structural mechanisms to ensure accountability)].
Late last month, this blog hosted an extensive debate on the Supreme Court’s judgment in the Madhya Pradesh government formation case (see Rishav Ambastha’s initial post on jurisdiction; Anmol Jain’s post questioning the correctness of the judgment; Amlan Mishra and Nivedhitha K.’s posts responding to Amlan; and Amlan’s rejoinder). The judgment is a particularly important one, because it is the first reasoned verdict by the Supreme Court, after many years of interim orders that were passed every time a government formation crisis arose.
In this post, I want to offer a few brief concluding remarks, drawing from the debate. Recall once again that the key question before the Supreme Court was whether the Governor of a state had the power to direct a convening of the legislative assembly, for the purposes of holding a floor test. The Supreme Court held that the Governor did indeed have that power. The key constitutional question was whether this power fell under the “discretion” of the Governor – i.e., whether it was an exception to the general principle that the Governor could only act upon the “aid and advice” of the Council of Ministers. The Supreme Court held that it did.
As the debate between Anmol, Amlan, and Niveditha on this blog demonstrates, a close reading of the Constituent Assembly Debates does not yield a definitive answer to this question. This is why the answer lies in a structural and purposive reading of the Constitution: which interpretation better fits with the Constitution’s overall structure and guiding principles? According to the Court, the argument goes something like this: in the ordinary course of things, when you have an existing government and a functioning house, the accepted way of challenging that government’s legitimacy is through a no-confidence motion, which then culminates in a floor test ordered by the Speaker. However, there may arise situations where a government that has lost the confidence of the legislature impedes or prevents the holding of a floor test, and continues in office de facto. This would be a violation of the principle of collective responsibility, and undermine executive/legislature relationship within a parliamentary structure. It is therefore justified for the Governor to step in, and direct a floor test, for the limited purpose of determining whether or not the government continues to enjoy the confidence of the house. The power of the Governor is thus derived from a structural reading of the Constitution, and the principles of parliamentary democracy.
The problem with the argument, however, is this: the protection of one principle of parliamentary democracy (executive accountability to the legislature) comes at the cost of another: the sovereignty of the legislature to determine the proceedings within the house, and the supremacy of the Speaker. This, indeed, is the key distinction between a government formation dispute after elections but before the formation of the government (which is what happened, for example in the first Karnataka case in 2018), and a government formation dispute when the composition of a functioning house is altered because of the resignation of sitting MLAs. This distinction was drawn by Dr. Singhvi during oral arguments, but was rejected by the Court. The distinction, however, is crucial, for the reasons pointed out above.
Now, the argument made by the Court – and in Amlan’s piece – is that vesting the discretion with the Governor is required because the standard method of bringing down a government that has lost the confidence of the house – i.e., a no-confidence motion – can be circumvented either by an adjournment of legislative proceedings, or by the Speaker simply sitting on the no-confidence motion (indeed, readers will recall that during the previous NDA government at the centre, the Speaker – quite literally – did not allow a no-confidence motion tabled by the Opposition to be voted upon). However – and this came out in Anmol’s rejoinder piece – both these attempts have a straightforward solution: judicial review. The UK Supreme Court has recently taught us exactly how and when a Court may declare a prorogation unlawful: when it is clear that the effect of that prorogation is to defeat the constitutional principle of executive accountability to the legislature. And our own Supreme Court, last November, while considering the issue of money bill, provided strong and persuasive reasons when the discretion of the Speaker can be challenged in Court. If mala fide certification of bills as money bills attracts judicial review, there is no reason why mala fide refusal to hold a no-confidence vote cannot.
The question, therefore, boils down to this: structurally, which is the better option to ensure executive accountability: the Governor or the Court? It is, to my mind, obvious that it is the latter, for the very straightforward reason that the Governor is a central government appointee, and judges are not. Given a choice, further accretion to the powers of the Governor infringes the federal structure in a way expanded judicial power does not.
I think this issue is particularly important, because in deciding these cases, the Court must necessarily navigate through three sets of facts that it cannot turn a blind eye to (and indeed, all three are flagged in the judgment). First: Governors should be neutral, but they are not. They act effectively act as agents of the central government. Second: Speakers should be neutral, but they are not. They effectively act as agents of their parties. And third: horse-trading happens. Legislators are paid staggering amounts of money to switch sides and bring down the government, and the technique of resignations is used to circumvent the rigours of the anti-defection law. A judgment that proceeds on the assumption that any one of these three things does not exist essentially operates in a parallel reality, where constitutional principles have come entirely unmoored from the factual situation that they are meant to apply to.
Now given these facts, how should the Court decide? In a previous post, I argued that the judicial doctrine should evolve in a manner such that the Court does not determine substantive outcomes (such as installing or replacing a government); but also, that the Court needs to ensure that the impact of the three issues highlighted above, upon the democratic process, is minimised. So, for example, in cases involving government formation immediately after a closely-run election: the Court cannot stop horse-trading from happening, but it can – by ordering an immediate floor test – minimise the time open to parties to engage in horse-trading, and curtail gubernatorial abuse (as happened in the Karnataka case). Once again, if in the case of a sitting government, a host of MLAs resign in a coordinated fashion to alter the composition of the house, this is not something the Court can stop; what it can do, however, is prevent the emergence of collusive situations involving the governor and the political party that appointed the governor, by eliminating him from the power equations at play. In addition, the Court’s approach should be informed by the fact that coordinated resignations suggest that horse-trading is going on. Thus, just as there is an overriding need in post-election government formation cases to prevent horse-trading through an immediate floor test, when the horse-trading has already happened (through resignations), an immediate floor test that does not allow the Speaker at least a reasonable amount of time to decide upon the resignations (the extent of the Speaker’s discretion here is a debate for another day) will have the effect of entrenching horse trading.
Some of these factors, I suggest, were bracketed by the Court, as it did not believe it could go into such issues. That, however, is a mistake: the Court is already making (correct) assumptions about the lack of neutrality of the Speaker, when it gives to the Governor the power to direct a floor test. What is sauce for the goose is sauce for the gander: in an ideal world, Speakers and Governors are neutral, and horse-trading does not happen. But we cannot recognise one departure from the ideal – the politicisation of the office of the Speaker – without recognising the other – i.e., bringing down governments through horse-trading. A holistic recognition of the structural problems involved, I would submit, would lead one to Anmol’s answer as the preferable one: the no-confidence motion remains the sole means of testing the continued legitimacy of an elected and functioning government, with the possibility of judicial review in case of an impediment is thrown up.
A final, somewhat unrelated point: as I have noted above, the Court acknowledges, towards the end of its judgment, that horse-trading is a feature of the polity. But here’s the thing: horse-trading is enabled and facilitated by vast amounts of money sloshing through politics, and for the last two years, the sloshing of unimaginable sums has been enabled by the mechanism of electoral bonds, which allow opaque and limitless corporate donations to political parties. Constitutional challenges to the electoral bond schemes have been pending in the Supreme Court for more than two years, and successive Chief Justices have dodged, ducked, and evaded hearing the case. For this reason, one can only read judicial lamentations about horse-trading with a wry smile: the institution that actually has the power to do something about it (even if is a little bit) is the institution that is refusing to act. Of course, the decision to hear the case lies with the Chief Justice; therefore, it is not that the two judges who authored this judgment are responsible for the delay. But that, unfortunately, is becoming an enduring issue with the poly-vocal character of the Supreme Court: the same institution, speaking through different judges, criticises horse-trading, while refraining from hearing a case that would have a non-trivial impact upon that same horse-trading. If the Supreme Court is to retain its character as a constitutional Court, this problem desperately requires a solution.