Coronavirus and the Constitution – XX: Parliamentary Accountability

We have already discussed on this blog how the government’s measures to contain the coronavirus outbreak at both the state and union levels have bypassed legislative accountability (here). In this post, I want to expand the discussion on legislative accountability by exploring three points: (1) the legislature’s role in placing temporal limits on the executive’s emergency powers; (2) how involving the legislature incentivises policy scrutiny and increases transparency; and (3) understanding whether Indian legislatures could have continued to function. I use the term ‘parliamentary’ accountability, but the argument is equally applicable to legislative assemblies in the states. The goal of this discussion is not to suggest that parliament continuing to function would have served as a silver bullet to bad policy or governmental overreach. Rather, the idea is to explore how the democratic structures of our Constitution can act as a restraint on government power – making it imperative that we demand more from our elected officials.

The legal sources of the government’s measures are the Disaster Management Act 2005 (“DMA”) and the Epidemic Disease Act 1897 (“EDA”). Under these two laws, the government has issued several ‘guidelines’ that form the legal framework of India’s ongoing ‘lockdown’. We often think that legislatures, with their lengthy debates, committee procedures, and voting are cumbersome bodies not suited to the decisive action required in an emergency. The truth of this is debatable. For example, the numerous clarifications and addendums to the Ministry of Home Affairs’ circulars demonstrate the value of debate and committee scrutiny. However, the choice of the DMA and the EDA become especially significant when we consider the two courses of action the Constitution itself provides for dealing with extreme situations calling for immediate action: (1) declare a constitutional emergency; or (2) pass an ordinance. Both a constitutional emergency and the passing an ordinance require that the legislature (at some future point) ratify the government’s actions. Therefore, we can conclude that even the most extreme situations contemplated by the Constitution involve some legislative oversight. The DMA and the EDA however bypass the legislative branch altogether resulting in a “rule by executive decree”. This has some important consequences.

The temporary nature of emergencies

Emergency powers are fundamentally temporary. The term ‘derogation’ is often used to explain the relaxing of some legal requirements during periods of crisis – but such relaxations are essential exceptions to the ordinary rule of law and all derogations have a recognised beginning and most importantly an end. When the crisis subsides, the political and legal system must return to normal. When a constitutional emergency is proclaimed under Article 352 of the Constitution, the emergency automatically ceases after one month if not placed before Parliament and (if approved) again automatically ceases after six months unless re-approved by Parliament. Even ordinary legislation granting wide emergency powers such as the U.S. PATRIOT Act (enacted in 2001 to fight terrorism post the 11 September attacks) contained a ‘sunset’ clause providing that large parts of the Act would cease to operate in 2005 unless renewed. An even more poignant example is the U.K.’s Coronavirus Act. Before it was passed, the (then) Coronavirus Bill granted the government emergency powers for two years. After the opposition objected, the government agreed to amend the Bill – providing that the House of Commons must debate and renew emergency powers granted by the Bill every six months. In evaluating the Coronavirus Bill, the House of Lords’ Constitution Committee noted: “Two years would have been too long for these powers to have operated without reapproval by Parliament and we welcome the cross-party agreement to reduce the period to six months” (here). The rationale behind granting the executive sweeping emergency powers is therefore always contingent on (1) the existence of a crisis; and (2) a return to normalcy at the earliest possible instance.

The following questions now become relevant. Who declares the start of an emergency? How long will the emergency last? Does it need to be renewed? Who is responsible for its renewal? Can the legality of the declaration be challenged in a court?

Precisely because an emergency vests significant powers in the executive, it makes sense that another body should be responsible for the declaration of an emergency. Otherwise what stops the executive from invoking an emergency in manner that is at best frivolous, and at worst self-serving. For example, a government could declare an emergency and use its emergency powers to silence political dissidents. In the U.S. even though the executive is tasked with all operational aspects of fighting a war, the executive cannot take any action unless the legislature (Congress) first passes a declaration of war. The U.K.’s unwritten constitution contains no notion of emergency powers and the executive is entirely reliant on the legislature first passing a legislation enabling the executive to exercise any additional powers. The same principle applies to renewals, it makes sense that a body other than the executive is responsible for renewing the executive’s emergency powers. Requiring another body to determine whether a situation is truly exigent and how long it will likely last for is an essential check against the abuse of emergency powers by the executive. This is a significantly stronger check than having courts adjudicate on the legality of the emergency proclamation after it is made as the damage may already be done by the time the court delivers a verdict (especially at the pace the Indian Supreme Court currently hears politically sensitive cases).

The Indian Constitution does envision Parliament playing a crucial role in the declaration of constitutional emergencies by requiring that all emergency proclamations be placed before Parliament within one month. Admittedly Parliament’s record of acting as a check on the executive with respect to emergency proclamations is a poor one – in July 1974 Parliament ratified the Indira Gandhi government’s emergency proclamation leading to three years of systemic governmental overreach. One may assume given India’s model of parliamentary democracy (where the executive’s party commands a majority in the legislature), legislative ratification is a forgone conclusion. While the individual judgement of parliamentarians has been severely curtailed by the anti-defection law, there still exists the chance (especially in coalition governments) that the government will have to work harder to appease the various factions of its own support base. Moreover, having even a token debate in parliament is a significant improvement on the current situation.

It is important to understand that the DMA requires no formal declaration of emergency (even under the Act’s own framework). Therefore, the ground reality is that the executive has been granted sweeping emergency powers, the courts are virtually at a standstill and public gathers have been outlawed – all without an emergency being ‘declared’ or any justification for when exactly the coronavirus became an emergency or any indication of when the emergency will end. (The use of the term ‘notified disaster’ was used widely in the media but has no relation to the beginning or ending of the government’s emergency powers and only concerns the use of disaster relief funds.) It is particularly important to recognise that the coronavirus outbreak may be with us for a while. The nationwide ‘lockdown’ has already been extended twice. Much like the ‘war on terror’, what seemed necessary as an immediate response can perpetuate a permanent derogation from the rule of law. In a Parliament approved emergency, ratification by Parliament may have been (and with good reason) a foregone conclusion in March, but three, six or nine months later the government may have faced some pressure to justify a renewal of its emergency powers. Under the DMA however, they face no such pressure to justify a continued resort to emergency powers. Therefore, it is crucial to create temporal boundaries on the invocation of emergency powers and it is submitted that ratification by parliament is one method to do so.

Incentivising parliamentary scrutiny

The ratification of emergency proclamations and ordinances by Members of Parliament creates a powerful incentive for them to scrutinise government action and can require the government to moderate its position. During the coronavirus outbreak Italy used ‘Decree-Laws’ – a decree issued by the government which must be placed before the Italian Parliament within sixty days (here). Similarly, in India, an ordinance cannot be enacted unless Parliament is not in session and must be placed before Parliament upon its reassembly. The ordinance expires unless expressly passed as a piece of legislation by Parliament within six weeks of Parliament reassembling. What this means is that parliamentarians are on the hook for the legal content of these measures. While this may be less of an incentive for members of the ruling party, it creates an incentive for members of the opposition to scrutinise the legislation. Parliamentarians are held electorally accountable for their votes for or against a legislation and draconian measures by a government are unlikely to pass without some form of debate and scrutiny when brought before Parliament. For example, recently the opposition forced multiple adjournments in the Lok Sabha until the government agreed to discuss the communal violence in Delhi (here).

This brings us neatly to the point of parliamentary questions and debate – where members of the opposition have unfettered access to government ministers. Although the actual mechanisms of questions and the debate (or ‘zero-hour’) in Parliament are worth an independent exposition a few key points may be made here. The first is the nature of the threat we are currently facing. Unlike a war with another nation or the fight against ‘terrorism’ where increased transparency may hamper the government’s efforts to defeat the threat – in a public health crisis more transparency is always better. The government should disclose the scientific data on which it bases its decisions. This will not hamper the fight against the coronavirus but will expose bad decision making. Second, unlike questions asked in a newsroom or addressed on social media, questions asked in Parliament form part of the official record of the House and can be used to hold ministers accountable (here). Third, unlike the news media, Members of the legislature cannot be silenced by the courts (see Articles 105 and 194 of the Constitution under which Members enjoy legislative privileges). The Supreme Court’s recent efforts to silence ‘fake news’ and instead mandate reliance on information produced by the government and the statements of the Solicitor General of India make this particularly relevant. Lastly, parliamentary proceedings are broadcast live on national television and on the internet.

There is a deeper point to be made here. Government transparency, and ministerial accountability is fundamentally tied to the broader question of electoral accountability. During proceedings in parliament, it is government ministers who answer questions. This allows voters to evaluate the performance of the government first-hand in an unfiltered manner. To date, a Joint Secretary from the Ministry of Health has given almost all the coronavirus press briefings. The Joint Secretary is an unelected official and making such an official the face of the crisis disassociates ministerial responsibility from the actions of the government in combatting the crisis. Even in the U.S. where the President is not politically accountable to the legislature (outside the extreme case of impeachment), as the head of the executive the President has continued to deliver daily press conferences and answer questions – in stark contrast to the head of the executive in India. Neither the Health Minister not the Prime Minister is legally obligated to give press briefings, but their refusal to do so makes Parliament one of the last forums where the government can be asked hard questions.

Could Parliament have continued to function?

This post would not be complete without addressing the elephant in the room. On 23 March 2020 Parliament was adjourned over fears that the gathering of Members would act as a vector for transmission. Two questions must be answered: (1) can Parliament legally meet outside its official seat; and (2) what the alternative options that Parliament can adopt are. Article 85 of the Constitution permits the President to summon Parliament “at such time and place as he thinks fit” and Rule 11 of the ‘Rules of Procedure and Conduct of Business in the Lok Sabha’ states that “A sitting of the House is duly constituted when it is presided over by the Speaker or any other member competent to preside over a sitting of the House under the Constitution or these rules.” (Rule 10 of the Rajya Sabha rules contains an analogous provision.) Therefore, the short answer is that the place of meeting does not matter so long the President summons Parliament and the Speaker, or other competent person, presides over Parliament. (Interested readers may refer to Shubhankar Dam’s article on precisely this point. He cites historical instances where the ‘place’ of meeting has been in dispute.)

Therefore theoretically, Parliament can meet at an alternative location that is more conducive to social distancing norms or even potentially online. Some comparative context is useful here. Several countries, Australia, New Zealand and Germany amongst them, have struggled to keep their legislature’s open and have adjourned them during the present outbreak. However, Congress in the U.S. has met several times to pass emergency economic legislation. The House of Commons in the U.K. has met virtually, with Members asking questions from remote locations. Similarly, the Canadian Parliament has managed to meet virtually. Perhaps most tellingly, the Indian Supreme Court and various High Courts have managed to implement protocols to allow virtual hearings for thousands of litigants since the beginning of the ‘lockdown’. There would certainly be some teething troubles, but it would not be beyond the realm of possibility to assume that the Indian Parliament could continue to function during the ‘lockdown’. I will end this discussion with two points. As I noted earlier, Parliament sitting is not a silver bullet to all the country’s ailments – given the legislative frameworks which already exist under the DMA and the EDA and the ever present anti-defection law Parliament’s role would certainly be limited. However, eliminating Parliament from governance during an emergency is neither contemplated by the Constitution nor is should it be condoned by the voters who elected this Parliament. At the very least, the limited benefits of Parliament sitting highlighted here could be secured.

Concluding thoughts

Notions of accountability flowing from a separation of powers model focus on preventing the centralisation of power in one body. For example, the body making the law should be distinct from the body implementing or interpreting the law. However, this model fails to incentivise those in power to listen to citizens. Legislators in the minority can blame those in the majority, the government can blame the judiciary for curbing its measures, and the judiciary can blame an overzealous legislature or the executive (see the eternal dispute over judicial appointments).

Competition for power through democratic structures creates a vital link between citizens and their agents in government. It forces the three wings to look beyond horizontal competition inter-se the executive, the legislature and the judiciary and consider a vertical balance of power where rival power seekers must convince citizens of their ability to effectively govern. This is particularly effective in a plural society such as India where there exists a multiplicity of groups with cross-cutting interests and membership, forcing those in power to cater to a wide range of interests. Parliamentary accountability is one of the best examples of how competition for power can further the interests of citizens. ‘Politicking’ during a crisis may be frowned upon but is also an excellent method to ensure that the citizen’s preferences are accounted for in governance. It forces those in power to accommodate the needs of more diverse interests or risk losing the mandate to govern. A healthy legislative body should ensure this robust competition for power. The strength of the Indian parliament as a deliberative body which can hold the government accountable has been in decline for some time, but the present crisis should not be its death knell.

The Supreme Court’s Madhya Pradesh Government Formation Judgment – IV: A Response to Anmol Jain (2) [Guest Post]

[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.]

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[This is the fourth post in the series examining the Supreme Court’s judgment in Shivraj Singh Chouhan v Speaker, Legislative Assembly of Madhya Pradesh and Ors. This is a guest post by Nivedhitha K.]

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In this essay, I respond to Anmol Jain’s post on the recently delivered judgment in Shivraj Singh Chouhan & Ors. v. Speaker, Madhya Pradesh Legislative Assembly & Ors. The facts of the case were summarised in the previous post. The crux of the case was: whether the 14^th March 2020 communication of the Governor directing a floor test on 16^th March was constitutional. Thus, the question that needed to be answered was whether the Governor had the power under the Constitution to direct a floor test to be conducted.

I will divide the post into two sections. In the first section, I will rebut the argument that the discretionary power of the Governor under Article 163 can only be exercised concerning those functions that are expressly within his discretion, under the Constitution. I will argue, invoking the doctrine of necessary implications, that the Governor can exercise his discretionary powers even when such powers have not been expressly conferred under the Constitution. In the second section, I will argue that the submission of the author that the bench’s reliance on Bommai and Rebia is misplaced is erroneous. I will argue that Bommai is a precedent for the exercise of guided discretion by the Governor, when he is met with a situation of political uncertainty such as in this case. I will then argue that in the subsequent reliance on Rebia, the author in contravention to his earlier stand, admits an exception for the exercise of discretionary power when the situation is unworkable. I will conclude by referring to the observation in Shivraj on the importance of the due process of no-confidence motion, as opposed to conducting a floor test through the direction of the Court/Governor.

Power to Direct a Floor Test under Article 174 r/w 175(2)

Anmol’s preliminary point of argument is that the Court holds that the power to direct a floor test falls under Article 163 of the Indian Constitution. I rebut this point. The Governor’s power to direct a floor test is inherent under Article 174 r/w 175(2) and not Article 163.

An excerpt from the communication of the Governor to the Chief Minister is below:

“………, it is necessary for you to gain the trust vote in Vidhan Sabha immediately after my speech on 16.03.2020. In this regard, I by exercising the powers conferred by Article 174 r/w 175(2) of the Constitution and other Constitutional powers vested in me…..”

When the Court held that the communication of the Governor was not ultra vires the Constitution, it accepted the plea that Article 174 r/w 175(2) is the repository of power to direct a floor test.

Article 174 gives the Governor the power to summon, prorogue, or dissolve the Assembly. He used this power to direct that the ‘Session of Madhya Pradesh Vidhan Sabha will begin on 16th March 2020 w.e.f. 11 a.m. in the morning.’ Article 175(2) states that the Governor may send messages to the Assembly with ‘respect to a Bill then pending in the Legislature or otherwise and the house shall with all convenient dispatch consider any matter required by the message to be taken into consideration.’ The Governor relied on this provision to direct that ‘after my speech, only one work will be done i.e. trust vote.’

My argument is that the Governor has the power to direct a floor test under Article 174 r/w 175(2) and that Article 163 does not provide the power to the Governor but merely guides the exercise of power. Article 163(1) states that “There shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion.” A plain reading of Article 163 is sufficient to conclude that the Governor must exercise his power usually at the aid and advice of the Council of Ministers unless ‘he is by or under this Constitution required to exercise his functions ….in his discretion’. Therefore, aid and advice is the rule and discretionary exercise of power is the exception. To identify the ambit of discretionary exercise of power, it is necessary to interpret the words ‘except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion.’

The Drafting History of Article 163

Anmol refers to the Constituent Assembly debates where the members observed that the Governor shall exercise discretion only when specific functions are expressly stated to be exercised through discretion. Indeed, an amendment was introduced by Mr. Kamath to remove ‘except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion’ from Article 163 (Article 143 in the draft Constitution). Mr. Krishnamachari, Mr. Alladi Krishnaswamy Iyer, and Dr. Ambedkar argued that it was only a question of drafting and that Article 163 was a general provision for the exercise of discretionary powers by the Governor which have been specifically provided under other provisions of the Constitution. Alladi Krishnaswamy Iyer observed:

Sir, there is really no difference between those who oppose and those who approve the Amendment. In the first place, the general principle is laid down in Article 143 namely, the principle of ministerial responsibility that the Governor in the various spheres of executive activity should act on the advice of his ministers. Then the Article goes on to provide: ‘except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion.’ So long as there are Articles in the Constitution which enable the Governor to act in his discretion and in certain circumstances, it may be, to over-ride the cabinet or to refer to the President, this Article as it is framed is perfectly in order.

In this context, there was repeated reference to Articles 175 and 188 of the draft Constitution. Dr. Ambedkar stated that if the House decided to divest the Governor of his discretionary power when provisions that specifically provided discretionary power to the Governor with regard to certain functions such as Articles 175 and 188 were taken up for debate, the general discretionary clause under Article 143 (now Article 163) could be deleted:

I personally myself would be quite willing to amend the last portion of clause (1) of Article 143 if I knew at this stage what are the provisions that this Constituent Assembly proposes to make with regard to the vesting of the Governor with discretionary power. My difficulty is that we have not yet come either to Article 175 or 188 nor have we exhausted all the possibilities of other provisions being made, vesting the Governor with discretionary power. If I knew, I would very readily agree to amend Article 143 and to mention the specific Article, but cannot be done now.

The proviso to Article 175 of the draft Constitution (now Article 200) stated that the ‘Governor may, in his discretion, return the Bill together with a message requesting that the House will reconsider the Bill or any specified provisions thereof … and that if the Bill is passed again with or without the amendment, the bill will have to be assented to by the Governor.’ Dr. Ambedkar introduced an amendment to remove the phrase ‘discretion’ from the provision. Commenting on the introduction of the amendment, he stated that ‘in a responsible government there can be no room for the Governor acting on discretion’. The amendment was accepted, and it led to the present form of Article 200 without the phrase ‘discretion’. Similarly, Article 188 specifically provided the Governor with the discretionary power to exercise his functions without the aid and advice of the Council of Ministers for two weeks if a grave emergency that threatened the peace and tranquillity of the State had arisen. Then, the President might – if he was satisfied – assume to himself the functions of the State. Dr. Ambedkar moved an amendment to delete Article 188 of the draft Constitution. He was of the view that the discretionary power for a short period was ‘futile’ if the President was going to take over after two weeks. This amendment was also accepted. The Governor was also – earlier – expressly provided discretion in the appointment and dismissal of his ministers (Art 144(6)), summoning and dissolution of the legislature (Art 153), the appointment of the Provincial Auditor –in- chief (Art 210) and members of the Public Service Commission (Art 285). Discretionary clauses in all these provisions were deleted.

Mr. Kamath brought to the notice of the House the reassurances of Dr. Ambedkar that Article 163 would be appropriately amended if the specific discretionary powers in the subsequent provisions were removed. However, Article 163 was intact in its entirety in the final text of the Constitution. The only matter in which the Governor was expressly required to act in his discretion was with regard to the administration of tribal areas in Assam for a transitional period. Therefore, the final text of the Constitution provided for complete ministerial responsibility. It is thus clear that the debates and the final text of Article 163 have no nexus between them.

The interpretation of the phrase ‘by or under the Constitution’ solely relying on the Constituent Assembly debates is erroneous for the following reasons. Firstly, though through a period, the Constituent Assembly debates have been accepted as an aid for interpretation, it cannot override the text of the Constitution. In this case, the debates on Article 163 and the final text of the provision share no nexus. And secondly, an interpretation that makes the Constitution workable will have to be used. If Anmol’s interpretation is accepted, it would render the clause providing general discretionary power in Article 163 redundant since the unamended Constitution did not specifically provide for discretionary exercise of power concerning any of the Governor’s functions.

Reports of Sarkaria Commission and Punchhi Commission

The Sarkaria Commission had interpreted the discretion exercisable by the Governor by the Constitution to include two classifications: (1) through express provisions; (2) through necessary implication. According to the Commission, the phrase under the Constitution means the discretion exercisable by virtue of the rules made under the Constitution. By the amended Constitution, the Governors have been required to expressly act in their discretion with respect to the administration of Arunachal Pradesh, Assam, Meghalaya, Mizoram, Nagaland and Sikkim. The Commission, echoing the words of Pandit Das Bhargava in the Constituent Assembly, observed that there might be situations in which it would not be possible or practicable for the Governor to receive the advice of the Council of Ministers. In such cases, the Governor’s discretionary power can be interpreted through necessary implication. A few of the examples mentioned in the Commission’s report are the appointment of the Chief Minister after an election under Article 164(1), submission of report under Article 356 on the breakdown of the constitutional machinery in the State, and recommendation of a bill for the consideration of the President under Article 200. These views have been accepted by the Punchhi Commission as well.

Power to Exercise Discretion through Necessary Implication

Let us now look at the text of the Constitution independent of the Commission’s report to ascertain as to whether the discretionary power exercisable by the Governor can be read through necessary implications. Article 163(2) states that ‘if any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion.’ If the discretion was only purported to be restricted to express discretionary provisions, the question of the ambiguity of exercisable discretion itself would not arise.

Let us examine two factual situations to identify if excluding the reading of the discretionary power of the Governor through necessary implication would lead to an unworkable Constitution. For the first situation, let us take the example of the latest political crisis in Maharashtra in December 2019. None of the parties had the majority to form the Government, and the coalition among the parties was in the nascent stage in the first week after the election. In that case, there was no council of ministers to aid and advise the Governor on whether there was a breakdown of the Constitutional machinery for him to send a report to the President under Article 356 of the Indian Constitution. For the second situation, let us take the example of the political crisis in Madhya Pradesh in March, 2020. It seemed that the Government no more exercised a majority after twenty-two MLAs submitted their resignations, of which only six were accepted. The numbers were enough for the Governor to form a prima facie objective opinion that the Government might not be enjoying a majority. Let us assume that the Assembly was not in session for another month – unlike the instant case where the Assembly was already summoned for 16 March 2020. In that case, if interpreted to mean only expressly provided discretionary power, the Governor would not hold the power to summon the House unless he was advised by the Council of Ministers – which might be too far-fetched to expect, since it was their majority that would have to be tested in the house. Pandit Das Bhargava brought these contingent situations to the knowledge of the House when he observed: ‘It is quite right that so far as our conception of a constitutional Governor goes he will have to accept the advice of his ministers in many matters but there are many other matters in which the advice will neither be available nor will he be bound to accept that advice.’

The majority in Rebia recognised the fallacy of restricting the discretionary power of the Governor to express provisions and observed that there might arise a situation when the Chief Minister no more enjoyed the majority in the House. If the Governor could arrive at an objective opinion that a doubt was cast on the numbers of the ruling party, the Council of Ministers would lose their legitimacy to advice the Governor. In this context, it was observed:

The above position (of aid and advice) would stand altered if the Government in power has lost the confidence of the House. …….. However, where there is reason to believe, that the Government in power no longer enjoys majority support, it is open to the Governor, to take steps to determine the issue of majority by a floor test……….. We find no justification in taking a different view, than the one expressed by the Justice Sarkaria Commission report, conclusions whereof were reiterated by the Justice M.M. Punchhi Commission report. We endorse and adopt the same, as a correct expression of the constitutional interpretation, insofar as the present issue is concerned.

Reliance on Bommai and Rebia

Anmol argues that reliance on Bommai and Rebia by the Court was misplaced. With regard to Bommai, he argues that it is not a precedent for the direction of the floor test by the Governor. He argues that the decision leaves open the question of the process through which the Chief Minister is to prove his majority. Even if assuming for the sake of argument that Bommai did not support a Governor-directed floor test as the only means of testing if the Chief Minister enjoyed the confidence of the House, Bommai would not be immaterial for the adjudication of a factual situation such as Shivraj. According to Bommai, the Governor through his discretionary power could send a report to the President under Article 356 only after he fulfilled his duty of summoning the House and calling the Chief Minister to prove his majority- except when he was faced with a violent situation in the House. Therefore, in Bommai it was observed that the Governor could summon the house even without the aid and advice of the Council of Ministers. If anything, Bommai is a validation of interpreting the discretionary power of the Governor through necessary implications.

No-confidence Motion and Floor Test

Anmol argues – based on Rebia – that even when the Assembly is not in session, ‘no-confidence motion remains significant for initiating the process, and based on this motion, the Governor is empowered to act even against the aid and advice of the Council of Ministers.’ His argument here is two-fold: one, the initiation of the process to prove the confidence of the House must only be through the no-confidence motion, both when the Assembly is in session and is not in session. Second, when the Assembly is not in session, the initiation of the process should be through a no-confidence motion, but the Governor can act against the aid and advice of the Council of Ministers, if through the advice, the Council of Ministers attempts to by-pass proving the majority. In this argument, the author concedes that there may arise situations in which the advice of the Council of Ministers cannot be accepted. Accepting the advice in these situations would abrogate the principle of ministerial responsibility. Therefore, the author has himself carved out an exception for exercise of discretionary power if the situation is unworkable. This is the basis of deducing discretionary power through necessary implications.

His argument that even if the Assembly is not in session, the process of proving the majority has to be initiated through a no-confidence motion is erroneous. According to Rule 143 of the MP Assembly Rules, to introduce a no-confidence motion a member shall seek leave from the Speaker to introduce the motion and on the very same day give a written notice to the Secretary General. For grant of leave for motion, atleast 1/10^th of the total number of members must vote in favour of the motion. On grant of leave, the Speaker shall allot a date within 10 days from the date on which the leave is sought. Therefore, it is evident that the no-confidence motion can be initiated only when the Assembly is in session. Thus, if there is a surge of political uncertainty when the Assembly is not in session, the first step is not to initiate a no-confidence motion but rather to summon the Assembly. If the interpretation of the author on the express discretionary power of the Governor is accepted, then neither can a no-confidence motion be initiated by the member nor can a floor test be directed by the Governor.

The bench in Shivraj seemed to be wary of the possible misuse of the discretionary power of the Governor to direct a floor test. It stated that the usual mode of proving the majority is only through a no-confidence motion:

In exercising the constitutional authority to demand a trust vote, the Governor must do so with circumspection in a manner that ensures that the authority of the House to determine the existence or loss of confidence in the government is not undermined. Absent exigent and compelling circumstances, there is no reason for the Governor to prevent the ordinary legislative process of a no confidence motion from running its due course. (paragraph 45)

 

However, the bench did not expound the meaning of the phrase ‘exigent and compelling circumstance’. It was ultimately held that the communication of the Governor was intra vires the Constitution. Therefore, it can be presumed that the Court regarded the instant factual situation to fall within the ambit of ‘exigent and compelling circumstance’. If the Governor had not directed for a floor test, then by virtue of the procedure under the MP Assembly Rules, even if leave was granted for no-confidence motion (since the session was in anyway to begin on 16^th March), a 10 day cap for the no-confidence motion would be too long a period for the Assembly to function during the COVID-19 pandemic. In the instant case, the Assembly was also adjourned on 16^th May, preventing the possibility of granting a leave for no confidence motion. Though there is no such reasoning in the judgment that the ‘exigent circumstance’ in the instant case was the surge of the COVID-19 pandemic, one can merely presume that these were the factors that guided the court.

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[Disclaimer: The author is an intern in the office of Dr. DY Chandrachud J. Views are personal, and she did not substantially assist in the case.]

Guest Post: Engineering a Constitutional Crisis in Maharashtra

[This is a guest post by Ziauddin Sherkar (ziawain@yahoo.co.in)]

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To avoid the large-scale political arrests of the time, the late Bal Thackeray supported the Emergency declared by Mrs. Indira Gandhi in 1975. He even refrained from fielding any candidates against Mrs. Gandhi in her bid to regain supremacy over the Janata Party in the General Elections of 1980. Little did he know then that the legislative travails of a well-respected Janata leader Somappa Rayappa Bommai would come to his party’s aid in their bid to assume power in Maharashtra after 39 years.

Somappa Rayappa Bommai (1924-2007) belonged to that rare crop of Janata politicians who were known for their idealist convictions in political life. He was instrumental in forming the first non-Congress government in Karnataka in 1983 with Ramakrishna Hegde as the Chief Minister. The second Hegde government that returned in 1985 was accused of tapping the phones of opposition leaders that eventually resulted in the landmark Supreme Court decision of Dr. Subramanian Swamy v. Ramakrishna Hegde [1990 AIR 113]. Ramkrishna Hegde resigned over the uproar that followed, paving the way for S.R. Bommai to assume the Chief Ministership of Karnataka on 13 August 1988. Owing to internal numerical turmoil à la every Janata government ever, the then Governor P. Venkatasubbaiah sent a report to the President on 20 April 1989 that Bommai had lost confidence of the majority in the house. He advised the President to exercise his powers under Article 356(1) and issue a proclamation to impose President’s rule in the state; a request President R. Venkataraman acceded to on that very day. The Parliament subsequently approved the President’s proclamation under Article 356(3) and Bommai’s government was dismissed. A 3-judge bench of the Karnataka High Court dismissed Bommai’s writ petition filed against his government’s dismissal. Along with similar cases from Meghalaya, Rajasthan Nagaland, Himachal Pradesh and Madhya Pradesh, Bommai’s case travelled right up to the Supreme Court in the winter of 1993 and on 11 March 1994, the Supreme Court laid down its chef d’oeuvre, the judgment of S.R. Bommai v. Union of India [(1994) 3 SCC 1] (“Bommai”).

There is no clear scheme in the Constitution that lays down the procedure a Governor may follow in the post-election process. This is where two judgments Jagdambika Pal v. Union of India [(1999) 9 SCC 95] (“Jagdambika Pal”) and Rameshwar Prasad (6) v. Union of India [(2006) 2 SCC 1] (“Rameshwar Prasad”) become important. In Jagdambika Pal’s case, where there were two rival claimant’s to the Chief Minister’s post, the court ordered the assembly to be convened for one day while expressly directing, “The only Agenda in the Assembly would be to have a composite floor-test between the contending parties in order to see which out of the two contesting claimants of Chief Ministership has a majority in the House.” As of 12 November 2019, there are 4 probable contenders vying to form the government in Maharashtra out of which 1 i.e. Shiv Sena has clearly stated in a petition filed before the SC that it has the in-principle support of 2 others, the Nationalist Congress Party (“NCP”) and the Indian National Congress (“INC”). Previously, Governor Bhagat Singh Koshyari gave the Bhartiya Janata Party (“BJP”) 48 hours beginning from 9 November 2019 to demonstrate its majority. If the SC could issue extraordinary directions to convene the house for a single day in order to give a chance to rival claimants to prove their majority, surely the Governor could have followed the same route. Additionally, Articles 163 and 164 read with Jagdambika Pal’s case would have provided the Governor necessary legal cover to convene the assembly.

A case more on point is Rameshwar Prasad’s where the President had dissolved the Bihar State Assembly on the Governor’s recommendation even before the first session of the Assembly could have been convened. Although the Ministry of Home Affairs Notification dated 12 November, 2019 doesn’t dissolve the Assembly itself, the Governor of Maharashtra has clearly refused to allow any claimant prove their majority on the floor of the house. In Rameshwar Prasad’s case, the court struck down the notification dissolving the state assembly. However, Y.K. Sabharwal J. in the majority judgment held against the petitioner that the assembly can indeed be dissolved before it is convened for the first time. The Governor Koshiyari seems to have found common ground with this observation. Owing to the BJP’s electoral superiority in both the houses of Parliament, confirmation of the President’s proclamation under Article 356(3) is a mere formality; a formality compulsory for the subsequent dissolution of the state assembly.

According to the Sarkaria Commission’s recommendations, a Governor must follow the following order of precedence in invitations to break a logjam in government formation:

1. An alliance of parties that was formed prior to the Elections.
2. The largest single party staking a claim to form the government with the support of others, including “independents.”
3. A post-electoral coalition of parties, with all the partners in the coalition joining the Government.
4. A post-electoral alliance of parties, with some of the parties in the alliance forming a Government and the remaining parties, including “independents” supporting the Government from outside.

Of the 4 press releases issued by the Governor since 9 November 2019, none specify if the pre-poll alliance of BJP and Shiv Sena were jointly invited in order to satisfy the First stage. The individual invitations to the BJP, Shiv Sena and the NCP would constitute adequate fulfilment of the Second stage, albeit that yielded no result. Since there is no definite existence of any formal ‘post-electoral coalition’, the Third stage is automatically ruled out. The Fourth stage is where the smokescreen thickens. It seems that Governor Koshiyari has chosen to not resort to the last option available to him and has requested the President to declare that “…a situation has arisen in which the Government of that State cannot be carried on in accordance with the provisions of the Constitution of India.” The Sarkaria Commission report has a clear view on this. It states that a political crisis may arise when:

“… after a General Election no party or coalition of parties or groups is able to secure an absolute majority in the Legislative Assembly, and, despite exploration of all possible alternatives by the Governor, a situation emerges in which there is complete demonstrated inability to form a government commanding confidence of the Legislative Assembly.”

‘Complete, demonstrated inability’, being the key-phrase does not pass muster when tested against the widely available reports of not just the INC and NCP, but also certain Independent MLAs extending support to the current claimant. The ‘inability’, if at all has not fully been ‘demonstrated’ and is certainly not ‘complete’. The majority in Rameshwar Prasad’s case did not rule against the Governor because of his taking into account media reports and private intelligence inputs on horse-trading. It ruled against the Governor despite his taking into account such inputs. It was irrelevant what the inputs indicated if a dispensation was willing to demonstrate majority. Even if the Governor of Maharashtra seems intent on heading in the direction of Arijit Pasayat J.’s dissenting opinion that such inputs could very well dictate his decisions under Article 356, in the present case the available inputs themselves point towards a highly probable ‘post-electoral coalition’.

Apart from reiterating the paramount importance of the Sarkaria Commission report Bommai’s case is unequivocally clear on certain propositions. These propositions have found favourable ground in all subsequent, related cases.

“…the proper course for testing the strength of the Ministry is holding the test on the floor of the House. That alone is the constitutionally ordained forum for seeking openly and objectively the claims and counterclaims in that behalf. The assessment of the strength of the Ministry is not a matter of private opinion of any individual, be he the Governor or the President. It is capable of being demonstrated and ascertained publicly in the House. Hence when such demonstration is possible, it is not open to bypass it and instead depend upon the subjective satisfaction of the Governor or the President. Such private assessment is an anathema to the democratic principle, apart from being open to serious objections of personal mala fides.”

 

Unfortunately, the physical manifestation of Shiv Sena’s claim was never allowed to materialize on the floor of the house.

The most obvious critique of the above criticisms of the Governor is that he is under no obligation to provide the exact time as requested by a claimant. The Shiv Sena requested for three more days i.e. 72 hours on 11 November 2019 in order to prove majority. This request was declined by the Governor. Time-bound and time-tested constitutional conventions are the hallmark of any Westminster-style democracy. Are they followed in our country in a manner that the actors involved consider such conventions to be binding on themselves? This question is simply answered by the fact that the entire elaborate procedure followed by the Governor in inviting a political party to form a government is not supported by the set letter of the law but by time-honoured conventions. If such constitutional conventions were held to be non-existent, formation of most coalition-era state and national governments after the 1980s would be questionable. Even the SC in S.P. Gupta v. President of India [AIR 1982 SC 149] spoke extensively about such conventions. A single precedent with a good reason may be enough to establish a convention. In the present case, the Governor himself set the precedent by giving the BJP 48 hours to prove majority. If not 72 hours as demanded, the Governor could have extended the same magnanimity towards the current claimants as he did towards the BJP. Nonetheless, if time-limits of 24 hours for proving majority become precedent, the era of post-poll alliance making in India would come to a thankful end.

Guest Post: Resigning MLAs, Constitutional Silences and a “Fraud on the Constitution”?: A Response to Mihir Naniwadekar

(This is a Guest Post by Goutham Shivashankar.)

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This post is a response to Mihir Naniwadekar’s excellent and thought-provoking posts on the Bombay High Court’s decision in Vijay Namdeorao Wadettiwar v State of Maharashtra. Naniwadekar’s posts are available here and here. Naniwadekar argues that the High Court erred in failing to hold the recent induction of Radhakrushna Vikhe Patil (“RVP”) as a Cabinet Minister in Maharashtra’s BJP-led government to be a fraud on the constitution. As I understand it, his analysis is based on certain suspect premises. I hope to set out these shaky premises, and in the process, defend the High Court’s eventual ruling from Naniwadekar’s principal line of attack, i.e., fraud on the constitution.

Naniwadekar’s analysis stands on a misreading of the text of Article 164 of the Constitution: most critically, he fails to properly distinguish between the terms “Legislature of the State” and “Legislative Assembly of the State”, both of which find mention in Article 164. This distinction is crucial, especially in bicameral states like Maharashtra, which have Legislatures consisting of a Legislative Assembly and a Legislative Council and where the Council’s membership is not entirely elected. This primary error leads to a secondary suspect assumption. He assumes, arguably incorrectly, that Article 164(4) mandates that a Minister must necessarily be “elected” as a member of the Legislature of the State. The text of Article 164(4) does not seem to prohibit a “nominated” member. But some discussion in the Constituent Assembly debates and previous decisions of the Supreme Court do lend some support to his assumption that Article 164(4) does require a Minister to be an “elected” member of the State Legislature. Finally, his analysis also proceeds on a potentially incorrect reading of the Representation of People Act, 1951 (the “ROPA, 1951”). Naniwadekar assumes that the Petitioner’s contention in the case is correct, i.e., that the ROPA, 1951 prohibits by-polls being conducted to fill in casual vacancies that arise in the fag-end of an Assembly’s term.The ROPA, 1951 however, contains is no such prohibition. At least, I was unable to find any.

The Facts Restated (with one significant correction)

Naniwadekar’s posts capture the facts of the case with precision, except for one significant error. I do not propose to reinvent the wheel, but simply extract his summary. I also indicate in bold the erroneous factual assumption which he makes, and explain its significance. Naniwadekar summarises the facts as follows:

Mr. Radhakrushna Vikhe Patil (“RVP”) was elected as a Member of the Maharashtra Legislative Assembly in the 2014 state elections, as a candidate of the Indian National Congress. He was Leader of the Opposition in the Assembly.

In early June 2019, he resigned from the Assembly; and ceased being Leader of the Opposition. Disqualification proceedings before the Speaker remain pending, where one of the issues would be whether the provisions of the Anti-Defection law can be avoided by resigning from the Assembly before being declared as a defector. Under the Representation of the People Act, 1951, it was not possible to hold a by-poll for RVP’s assembly seat (or any other by-poll). This was because the term of the Assembly itself was to get over in less than six months.

However, on 16th June 2019, RVP was appointed as a Cabinet Minister by the ruling alliance. There was no possibility that RVP would become a member of the Assembly for the remainder of the term of the Assembly, as there was no question of any by-election being held.

RVP’s appointment as a Minister (along with some other appointments) was challenged before the Bombay High Court in Civil Writ Petition 6996 of 2019 (Vijay Namdeorao Wadettiwar v State of Maharashtra).

Naniwadekar’s summation is correct except in stating that the Representation of the People Act, 1951 (the “ROPA”) precluded the possibility of holding a by-poll for RVP’s “Assembly Seat (or any other by-poll).” This is incorrect on two counts.

Firstly, the ROPA, 1951, on a plain reading, does not contain any bar on holding a by-poll in the last six months/one-year of a Legislative Assembly’s term. Secondly, the ROPA, 1951 also certainly does not enact any such bar on by-polls to casual vacancies that may arise in the State’s Legislative Council.

Subject to this significant correction, the Naniwadekar’s account of the facts is entirely apposite. I will back my correction up in my analysis below. I will also indicate how this correction is crucial to the proper analysis of the case at hand.

Summarizing Naniwadekar’s Argument for Constitutional Fraud

Naniwadekar’s line of argument, broadly, appears to be this:

(i) A person appointed as a Minister in a State Government’s Council of Ministers must become a member of the State’s Legislative Assembly within a period of 6-months. This is a facet of the underlying constitutional value of ministerial responsibility to the legislature contained in Article 164 of the Constitution.

(ii) To appoint a person as Minister, where there exists no possibility at all that she could comply with the requirement in (i) above, would be constitutional fraud, since it would undermine ministerial responsibility.

(iii) There was “no possibility at all” of RVP being elected as a member of Maharashtra’s Legislative Assembly within 6 months of his induction as a Minister. This was because the Legislative Assembly was in the last six-months of its term and the ROPA, 1951 precluded by-polls to casual vacancies at this stage.

(iv) An implicit assumption in (i) – (iii) above, is that Article 164(4) requires that an inducted Minister must be “elected” as a member of the Legislature (if he is not already one at the time of his appointment as a Minister) within the prescribed six-month period. The mode of entry into the Legislature must be election, and not nomination.

A couple of extracts from Naniwadekar’s posts would be appropriate in culling out the above arguments. For instance, when distinguishing the Supreme Court’s judgment in Manoj Narula in his first post, Naniwadekar, presumably alluding to Article 164(4) of the Constitution, asserts that:

The point ultimately is that there is an express provision in the Constitution which provides that a minister must become a member of the Assembly within six months in order to continue. The question is whether one can be appointed as Minister when there is no possibility whatsoever of that condition being complied with… …But in the case of RVP, the Constitution does indicate that there is to be ministerial responsibility to the legislature and there is indeed a requirement that within six months, a minister must become a member of the Assembly. In that scenario, is it or is it not a fraud on the Constitution to appoint someone who has no chance whatsoever of complying with the mandate? That question is, with great respect, not concluded by Manoj Narula.” (emphasis supplied)

In his second post, Naniwadekar states:

“In a situation of a vacancy shortly before the expiry of the term of the legislature, when no by-election at all is possible, then that vacancy should be filled up only by an existing member of the assembly: not because the Constitution requires this in express terms, but because not doing so will in every case have the effect of negating an underlying constitutional value. True, the Constitution permits a non-member to be a minister: but that permission is circumscribed by the underlying values which mandate that the person so appointed must necessarily be one who is capable of becoming a minister.”(emphasis supplied)

As I understand it, each of these premises are erroneous. But before I set out why, it is necessary for me to extract the relevant legal provisions.

The Relevant Provision of Law

Constitutional Provisions

Article 164 (2) and (4) of the Constitution are relevant. They state as follows:

164. (2) The Council of Ministers shall be collectively responsible to the Legislative Assembly of the State.

(4) A Minister who for any period of six consecutive months is not a member of the Legislature of the State shall at the expiration of that period cease to be a Minister.

Additionally, Articles 168 and 171 are important. Article 168 provides that for Maharashtra, the Legislature shall consist of the Governor, and two Houses, i.e., Legislative Assembly and the Legislative Council. Article 171 prescribes the composition of the Legislative Council. Articles 171(3) (a)-(d) envisage that a total 5/6th of the Council’s membership shall be filled through elections by different electorates. Article 171(3)(e) envisages that the remaining 1/6th of the Council’s membership is to be “nominated” by the Governor. Lastly, Article 171(2) provides that: “the Legislative Council of a State shall not be subject to dissolution, but as nearly as possible one-third of the members thereof shall retire as soon as may be on the expiration of every second year in accordance with the provisions of law made by Parliament by law.”

Provisions of the ROPA, 1951

Sections 15, 150- 151A of the ROPA, 1951 are relevant. Section 15 states as follows:

Notification for general election to a State Legislative Assembly. —(1) A general election shall be held for the purpose of constituting a new Legislative Assembly on the expiration of the duration of the existing Assembly or on its dissolution.

(2) For the said purpose, the Governor or Administrator, as the case may be shall by one or more notifications published in the Official Gazette of the State on such date or dates as may be recommended by the Election Commission, call upon all Assembly constituencies in the State to elect members in accordance with the provisions of this Act and of the rules and orders made thereunder:

Provided that where a general election is held otherwise than on the dissolution of the existing Legislative Assembly, no such notification shall be issued at any time earlier than six months prior to the date on which the duration of that Assembly would expire under the provisions of clause (1), of article 172 or under the provisions of section 5 of the Government of Union Territories Act, 1963 (20 of 1963), as the case may be.

Section 150 of the ROPA provides for by-polls to casual vacancies in State Legislative Assemblies. Section 151 provides for by-polls to casual vacancies in State Legislative Councils. Section 151A, which allegedly contains the “bar” precluding by-polls in the fag-end of a Legislative Assembly’s term actually states as follows:

“151A. Time limit for filling vacancies referred to in sections 147, 149, 150 and 151.— Notwithstanding anything contained in section 147, section 149, section 150 and section 151, a bye-election for filling any vacancy referred to in any of the said sections shall be held within a period of six months from the date of the occurrence of the vacancy:

Provided that nothing contained in this section shall apply if— (a) the remainder of the term of a member in relation to a vacancy is less than one year; or (b) the Election Commission in consultation with the Central Government certifies that it is difficult to hold the bye-election within the said period.”

 

Section 151A is the only provision of the ROPA, 1951 cited by the Petitioner before the High Court to substantiate his contention regarding a bar.

Four points are crucial to note here.

Firstly, Article 164(2) of the Constitution provides for “collective responsibility” of the Council of Ministers to the “Legislative Assembly”. In contrast, Article 164(4) requires that a Minister shall be a member of the “Legislature” of the State. The two terms are not synonymous. In a bicameral state, the “Legislature” of the State will include the Legislative Council as well.

Secondly, membership of the State Legislature can be achieved in at least 4 ways. One can become: (i) a Governor; (ii) a member of the Legislative Assembly chosen by “direct elections from the territorial constituencies of the State (Art. 170(1)); (iii) an “elected” member of the Legislative Council (Arts 171 (3) (a)-(d)); (iv) a “nominated” Member of the Legislative Council (Arts 171 (3)(e)). Textually, Article 164(4) does not seem to preclude a Minister securing membership of the State Legislature through any of these modes, though membership by becoming a Governor can safely be ruled out on grounds of the absurdity of a person being both Governor and Minister.

Thirdly, a Legislative Assembly has a fixed term subject to dissolution. In contrast, the Legislative Council of a State is a permanent body that is not subject to dissolution, and usually subject to biennial elections. To speak of the last 6-months of the term of the Legislative Council is erroneous.

Fourthly, neither Section 15 nor Section 151A bar the conduct of by-polls to casual vacancies arising in the fag-end of the Legislative Assembly’s term. Section 15(2) proviso merely prohibits the Election Commission from notifying the general elections too early, i.e, even before six month prior to the expiry of the Assembly’s term. The main portion of Section 151A mandates a time limit of six-months to hold by-polls in relation to casual vacancies that may arise either in the Legislative Assembly or the Legislative Council. The proviso to the section only carves out an exception to the six-month time limit in the event that the remainder of the “term of a member” in relation to a vacancy is less than one year. It does not preclude a by-poll at that stage, it merely exempts the Election Commission from adhering to the six-month limit.

The Errors in Naniwadekar’s Analysis

From my analysis of the provisions of law above, the following points emerge in relation to the Naniwadekar’s argument.

Firstly, proposition (i) of his argument as stated above is incorrect. There is no constitutional requirement that a minister must become a “member of the Assembly” within six-months in order to continue as a Minister. Article 164(4) says nothing of the kind. It states that a minister must become a “member of the Legislature”. Naniwadekar fails to distinguish between the terms “Legislature of the State” and “Legislative Assembly of the State”. Both terms appear in Article 164 of the Constitution, the former in Article 164(4) and the latter in Article 164(2). He has not considered that Maharashtra has a Legislative Council that is a part of the State’s Legislature. It is a permanent House, with biennial elections, one-third of whose members retire approximately every two years. There always existed the possibility of by-polls to fill up casual vacancies due to resignation or death of other Council members that may arise in the Legislative Council within 6-months of RVP’s appointment as a Cabinet Minister.

If I am correct, proposition (i) of Naniwadekar’s argument must be corrected to state: “A person appointed as a minister in a State Government’s cabinet must become a member of the State’s Legislature within a period of 6-months. This is a facet of the underlying constitutional value of ministerial responsibility to the legislature contained in Article 164 of the Constitution.”

If proposition (i) is restated as above, proposition (ii) would still be valid. If this restatement is not made, however, proposition (ii) would manifestly become incorrect. Put simply, it would be wrong to assert that appointing a person as Minister amounts to constitutional fraud merely because he is incapable of being elected to the Legislative Assembly within six-months of his appointment. It may, however, be correct to argue that it would amount to constitutional fraud to appoint a person as Minister if he in incapable of becoming a member of the State Legislature.

Proposition (iii) is incorrect because, as explained above, the ROPA contains no bar on conduct of by-polls in the last six-months of a Legislative Assembly’s term.

Proposition (iv) is unsubstantiated by the text of Article 164(4). The plain text does not require “election” to the State Legislature to continue holding the post of a Minister. Even “nomination” to the Legislative Council would suffice as per the plain text. However, the Constituent Assembly’s debates and many decisions of the Supreme Court do seem to proceed on the assumption that a Minister would be an elected member of the Legislature.

The upshot is this. The Bombay High Court was correct in rejecting an argument that RVP’s appointment was a fraud on the constitution. To that limited extent, Naniwadekar’s analysis is suspect. Otherwise, his analysis is brilliant. If you haven’t read his posts, please do so immediately.

 

Notes from a Foreign Field: The EU Withdrawal Act 2018, Henry VIII Powers & The threat to Representative Democracy in England (Guest Post)

(This is a guest post by Preetika Mathur.)

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Whilst the judgment of the Supreme Court in NCT Delhi v Union of India is undoubtedly a step forwards for representative parliamentary democracy and the separation of powers in India, England is facing grave threats to both. It seems that the internationally celebrated judgment of the UK Supreme Court in R (Miller) v Secretary of State for Exiting the European Union will not be enough to protect the UK Parliament’s status as the primary law making body vis a vis the executive Government. The EU Withdrawal Act 2018 (the primary piece of legislation designed to implement Brexit) effects a significant transfer of legislative powers from the British Parliament to the executive in a manner that disturbs the established constitutional relationship between the legislature and executive. This is through the use of Henry VIII powers. The Act relies heavily on Henry VIII powers to preserve legal continuity and legal certainty after Brexit.

The Issue:

Article 50 of the Lisbon Treaty governs withdrawal from the European Union. Article 50 provides that the EU Treaties which are the source of all EU laws and institutions shall cease to apply to the exiting State two years after it notifies the European Council of its intention to leave the EU. On the expiry of the two year period, EU laws simply cease to apply to the UK and the UK is no longer subject to the jurisdiction of the European Court of Justice. Article 50 was triggered on 29^th March 2019, after Parliamentary approval. This means that the UK has until 29^th March 2019 to agree the terms of its departure from the EU. On 29^th March 2019, all existing EU laws will simply cease to apply to the UK and it will also no longer be subject to the jurisdiction of the European Court of Justice.

EU law radiates into almost every UK legislative and governmental sphere. To further complicate matters, the extent of its influence also varies from sphere to sphere. For example, in certain areas such as agriculture, fisheries, external trade and environmental regulation it is the dominant or determinative body of law. In other areas such as crime, social security and health it has a marginal impact. In addition, there are a variety of legal mechanisms which are deployed to make EU law have national effect – from Regulations which are immediately enforceable in domestic law to Directives which require national legislation to implement as well as soft law measures.

As a result of these factors, the relationship between EU law and national law is so complicated, interwoven and entangled that in almost every instance it is impossible to determine end of the national and the start of the European. It follows that the consequences of EU law simply ceasing to apply to the UK are likely to lead to a level of chaos and uncertaintanty that poses a serious threat to the Rule of Law. To deal with this problem, the Government has proposed that EU law that is in force before “exit day” should simply continue to remain in force after “exit day”. Indeed, it is difficult to think of any more obvious solution to the lacuna created when the two year period expires. However, the solution of retaining EU law as it existed before “exit day” is far from simple. This is because much of the retained legislation will be unworkable or simply nonsensical after the UK leaves the EU. For example if the law makes reference to EU procedures, EU guidelines, EU decision makers or EU institutions by which the UK is no longer bound and to which the UK no longer has access after “exit day”.

The Government’s Solution:

To deal with the problem of making retained EU law workable, the Government has proposed the widespread use of Henry VIII powers.

Henry VIII powers are powers of delegated legislation. These are conferred on the executive government through primary legislation. Henry VIII powers empower the executive government to amend or repeal existing primary legislation. Delegated legislation is not scrutinised by Parliament in the same way as primary legislation. The Government’s justification for reliance on Henry VIII powers is practical necessity. They take the position that given the tight timetables for departure from the EU and thousands of instances of potential unworkability that are likely to arise in retained EU law, it will simply be infeasible for Parliament to deal with every one itself.

Nevertheless, in spite of the logic of these practical arguments it is clear that the Act elevates powers intended to be exceptional into the norm. It is not the case that the Act merely allows formalities and technical matters to be resolved through the use of Henry VIII powers. Instead, the scope of the powers conferred is such as to enable sweeping substantive changes to policy and to the constitution without proper democratic scrutiny. This is clear from Clauses 8, 9 and 23 in the Act and the lack of corresponding safeguards.

Problems:

Once triggered clause 8 provides Ministers with the same legislative power as Parliament. Clause 8 (5) empowers Ministers to ‘make any provision that could be made by an Act of Parliament’. Since the reach of the powers is so broad, the circumstances in which such powers may be triggered ought to be strictly curtailed but this is not the case. Clause 8 provides for an exceptionally wide set of circumstances in which executive power to amend or repeal primary legislation may be triggered.

Clause 8 sets the following threshold for the triggering of Henry VIII powers:

“A Minister may by regulations make such provisions as the Minister considers appropriate to prevent, remedy or mitigate – (a) any failure of retained EU law to operate effectively, or (b) any other deficiency in retained EU law”.

Clause 8 makes the decision of when to exercise Henry VIII powers the subjective decision of the Minister. The level of subjective satisfaction required before the Minister can decide to use these powers is low. This is because a Minister is only required to consider it “appropriate” to use Henry VIII powers as opposed to “necessary”. The House of Lords Constitution Committee had previously recommended setting the threshold at “necessary” as opposed to “appropriate” in order to establish stricter internal constraints on the decision making of the executive. By setting the trigger at “appropriate” as opposed to “necessary”, resort to Henry VIII powers is not made a matter of last resort and there is nothing indicating that these powers should be used with extreme reserve or indeed even cautiously. This also enables the executive to decide to use these powers based on subjective policy preferences alone.

The drafting of Clause 8 to favour “appropriate” as opposed to “necessary” also has important consequences when it comes to judicial review of the exercise of a Henry VIII power by a Minister. The exercise of Henry VIII powers is judicially reviewable on the basis that the exercise of the power is ultra vires the parent act and outside of the scope of the power that was conferred by the parent act. Therefore, setting the threshold at “necessary” as opposed to “appropriate” would also have given the judiciary greater opportunity for stricter scrutiny of these powers through judicial review.

The executive discretion with respect to when Henry VIII powers may be used is also widened by the definition of ‘deficiency in EU law’ for the purposes of interpreting clause 8. Clause 8 (2) provides that the existence of a deficiency in EU law is also a matter for the subjective determination of the relevant Minister as opposed to being an objective standard.

Further Clause 8 (2) contains a list of situations that amount to a deficiency in EU law that are drafted so broadly that virtually any situation could be said to fall within this list. The first of the specified situations, Clause 8 (2) (a) illustrates this breadth. Clause 8 (2) (a) provides that:

“Deficiencies in retained EU law are where the Minister considers that retained EU law – contains anything which has no practical application in relation to the United Kingdom or any part of it or is otherwise redundant or substantially redundant…”.

It follows from this that if a minister considers it appropriate to amend or repeal primary legislation on the basis that in their opinion the legislation is no longer of practical application they can do so. There is no further definition of “practical application” and this easily lets in the subjective policy preferences of the individual minister. For example, this would enable a minister who considers that work place safety or anti discrimination regulations no longer have practical application on the basis of their political ideology to amend or repeal such laws on the basis that they consider it appropriate to do so.

Further, the situations specified in Clause 8 (2) are not exhaustive because of Clause 8 (3). Clause 8 (3) further widens the net by providing that anything of a similar kind to that contained in clause 8 (2) but not actually listed in clause 8 (2) would also count as “a deficiency in retained EU law”. “Of a similar kind” is also not further defined and given the wide range of disparate situations included in Clause 8 (2) – the combined effects of Clause 8 (2) and Clause 8 (3) is to ensure that the amending or repealing of primary legislation is justifiable in almost every situation on the basis of ‘a deficiency in retained EU law’.

Clause 8 includes some restrictions on the delegated powers, such as the stipulations in Clause 8 (7) that the Henry VIII powers cannot be used to impose or increase taxation or fees; make retrospective provisions; create certain types of criminal offence; establish a public authority; amend, repeal or revoke the Human Rights Act 1998 or subordinate legislation made under it; or amend or repeal the Scotland Act 1998, the Government of Wales Act 2006, the Northern Ireland Act 1998.

Nevertheless, these restrictions do not protect the wide range of rights contained in domestic law which originate from EU law as opposed to from The European Convention of Human Rights through The Human Rights Act. For example, the majority of labour, anti discrimination, environmental, health and safety, social security and data privacy protections arise from EU law. This creates the potential for the removal of hard-won EU fundamental rights protections by the executive through the backdoor.

In the Third Report of the Delegated Powers and Regulatory Reform Committee of the House of Lords from its 2017 – 2019 session, the Committee has given numerous examples of instances where Henry VIII powers could be used to undermine EU fundamental rights protections through the backdoor. The Committee gives the example of the EU Data Protection Regulation which will become retained EU law. Referring to Clause 7 of the Bill, now Clause 8 of the final Act, it states:

“Clause 7 allows Ministers to amend it if they think it “appropriate” to remedy any failure of the law to operate effectively arising from the UK’s withdrawal from the EU. Under the Regulation, individuals have rights of access to personal data subject to exceptions such as national security, defence and public security. Ministers might take the view that, once we no longer have to recognise the supremacy of EU law when we have left the EU, the exceptions to data access rights do not operate effectively as regards EU citizens resident in this country and should be widened under clause 7 to prevent them, say, from having a right of access to immigration information held about them by the Home Office”.

Clause 9 of the Act is also similarly broad both with respect to the circumstances in which the powers to amend, modify or repeal primary legislation may be triggered and the scope of the powers once triggered. Clause 9 allows the executive to amend, repeal or modify primary legislation if the Minister considers it to be appropriate to implement the withdrawal agreement. Further, the Act also confers a range of other Henry VIII powers on ministers i.e. through Clause 23 which empowers Ministers to use Henry VIII powers to make “such provisions as the minister considers appropriate in consequence of the Act”. Clause 9 also contains similar restrictions to Clause 8 on the circumstances when the Henry VIII powers may not be exercised – and are subject to the same fundamental rights concerns.

Lack of Safeguards:

Given the sweeping nature of the transfer of legislative powers to the executive it is necessary that the Act should contain important safeguards to mitigate for the breadth of the powers that are conferred. Sadly, this is not the case either.

The Act includes sunset clauses that provide a time limit on the use of the Henry VIII powers. Clause 8 (8) sets a two year time limit after “exit day” on the Henry VIII powers to deal with deficiencies in retained EU law. Clause 9 (4) also provides that Henry VIII powers cannot be used to implement the withdrawal agreement after exit day. Nevertheless, the time period in which the powers may be exercised is still sufficient for widespread use of the powers that are conferred. The government has indicated that it envisages reliance on these powers thousands of times in the run up to and immediately following “exit day”.

Leading NGOs in the UK such as LIBERTY had previously proposed that the Act should contain a “non-retrogression clause” that would state that Henry VIII powers could not be used to worsen human rights protections. This was not included in the final Act. Similarly, Tarunabh Khaitan had previously proposed that the Act should contain a clause expressly stating that amendments to the constitutional scheme could not be carried out through the use of Henry VIII powers. This was also not included in the final Act.

The need for a “non retrogression” or a “no constitutional amendment” clause is all the more pressing in the context of English Constitutional law because of the paucity of implied limitations on the use of such powers. On the contrary, given the supremacy of Parliament in English constitutional law which entails that Parliament can make or unmake any law – the conferral on Ministers of the same power as Parliament can be said to expressly indicate the lack of limitations on these powers. Clause 8 (5) says that regulations made through use of Henry VIII powers may make any provision that may be made by an Act of Parliament.

Tarunabh Khaitan has previously suggested that the exercise of these powers may be subject to the implied limitation of the principle of legality. As Lord Pannick argued in his submissions before the UK Supreme Court in Miller, the common law principle of legality requires Parliament to expressly provide for any abrogation of rights considered fundamental at common law. However, for our purposes there are at least four problems with this argument. Firstly, it can be argued that EU law derived rights are no longer fundamental at common law after Parliament has expressly approved Brexit and after the repeal of The European Communities Act 1972. It was The European Communities Act 1972 that made EU fundamental rights part of domestic law. Secondly, it can in any case be argued that since Parliament has expressly conferred such broad Henry VIII powers on ministers through primary legislation that it envisages these powers could be used to amend or repeal rights protections. Thirdly, the use of the common law principle of legality as a sword remains contentious. There is insufficient precedent to suggest that the Courts would take such an approach when reviewing the exercise of Henry VIII powers. On the contrary, in the case of R (Public Law Project) v Sectrary of State for Justice, the Supreme Court explained that when it comes to review of Henry VIII powers it would consider the narrower question of whether the exercise of a Henry VII power exceeds the statutory purpose for that power that was set out in the parent act that confers the power. Fourthly, when it comes to guiding the actions of ministers who are using such powers – an explicit non retrogression clause or an explicit no constitutional amendment clause contained within the statute itself would have had greater action guiding force than the common law principle of legality. For all these reasons the principle of legality is of itself not sufficient to do the work of an explicit “non retrogression clause” or a “no constitutional amendments” clause.

The Government has also failed to propose any bespoke and adequate system of scrutiny over the powers conferred. It proposes mainly to rely on pre-existing processes, which include ‘Affirmative Resolution’ and ‘Negative Resolution’ processes. The former requires Parliamentary approval of Government draft changes; in the latter the onus is on Parliament to veto Government drafts. Nevertheless, even in the former, the proposals are not subject to the same kinds of debate and discussion as primary legislation. There is a risk of these procedures being merely rubber stamps.

Constitutional Impact:

It is clear that delegated legislation powers sit uncomfortably with principles of settled common law.

From as early as 1610, the English judiciary has sought to curtail the use of Henry VIII powers. In The Case of Proclamations, Sir Edward Coke CJ held that:

“No man not even a king, should have such power to make, amend or repeal primary legislation without Parliament”.

In the 1920s Lord Chief Justice Hewart published a book titled ‘The New Despotism’, in which Henry VIII powers were described as arbitrary bureaucratic powers.

The Donoughmore Committee had expressed serious concerns about the increasing resort to Henry VIII powers in its 1932 report, The Report of the Committee on Ministers’ Powers. The Committee stated that in spite of the quantatively insignificant number of times these were relied upon over the period studied by the Committee these powers were a cause for concern. The frequency of reliance on Henry VIII powers envisaged by The EU Withdrawal Act is clearly far greater than anything that could be considered legitimate by The Donoughmore Committee report.

In McKiernon v Secretary of State for Social Security, Lord Donaldson emphasised that Henry VIII powers should be a highly restricted exceptional measure and not the norm. He stated:

“Whether subject to the negative or affirmative resolution procedure, [subordinate legislation] is subject to much briefer, if any, examination by Parliament and cannot be amended. The duty of the courts being to give effect to the will of Parliament, it is, in my judgment, legitimate to take account of the fact that a delegation to the Executive of power to modify primary legislation must be an exceptional course and that, if there is any doubt about the scope of the power conferred upon the Executive or upon whether it has been exercised, it should be resolved by a restrictive approach.’

The House of Lords Constitution Committee in its 6^th report of Session 2010 – 11 on ‘Public Bodies Bill [HL]’, has expressed strong criticism on widespread use of Henry VIII powers. At paragraph 4 it has stated that Henry VIII powers “remain a constitutional oddity” and that “they are pushing at the boundaries of constitutional principle that only Parliament may amend or repeal primary legislation”. At paragraph 6, the Committee goes on to say that: “The use of Henry VIII powers whilst accepted in certain limited circumstances remains a departure from constitutional principle. Departures from constitutional principle should be contemplated only where a full and clear explanation and justification is provided’. ‘a constitutional oddity’ and ‘pushing at the boundaries of the Constitutional principle that only Parliament may amend or repeal primary legislation’.

The practical benefits of the delegated legislation powers conferred come at immense cost to the constitutional settlement. Representative parliamentary democracy became entrenched in the English Constitution through The 1688 Bill of Rights and has been sacrosanct ever since. By making exceptional powers the norm the soon to be EU (Withdrawal) Act undermines representative parliamentary democracy itself. The erosion of Parliamentary power is all the more problematic given that it is driven by a Government which failed to win a majority in the Commons in support of its legislative agenda for Brexit. Even more so because of the undemocratic nature of the referendum which led to Brexit in the first place. The referendum failed to take into account that the British constitutional settlement is founded on representative Parliamentary democracy. The EU Withdawal Act 2018 has same fundamental misassumptions at its core.