- NL Sena
Excerpt from 'From The Trenches' by Abhishek Singhvi with Satyajit Sarna.
In 2016 there was a Congress government in place in Uttarakhand, although one with a thin majority, headed by Chief Minister Harish Chandra Rawat. Of seventy-one members of the Legislative Assembly, thirty-two belonged to the Congress, twenty-six to the BJP and the rest belonged to other parties.
The budget session for the year started on 9 March, and on the 18th the Appropriation Bill – which is the equivalent of a budget in a state – was taken up for consideration. The bill was passed with a voice vote with the understanding that the majority party had proposed it – and the Speaker noted it as so.
After the bill had been passed, the twenty-six BJP MLAs and nine defector MLAs from the Congress switched allegiances on the bill. These defectors, or rebel MLAs, sought a division of vote, which is a revote by a show of hands. The new BJP side was now apparently in the majority.
The Speaker denied the MLAs a division vote. The Speaker in a legislature has certain rights – he is the one who decides whether a bill has been passed. He is also the correct authority to determine whether a defection has taken place – which entitles him to disqualify defecting MLAs.
The twenty-six BJP MLAs and the nine rebel Congress MLAs went to the Governor’s House – Raj Bhavan – on the same day and submitted a signed joint memorandum on the letterhead of the leader of the opposition claiming that the government had been reduced to a minority. They criticized the manner in which the vote on the Appropriation Bill was carried out and pleaded that the Uttarakhand government should be dismissed. In effect they also said that the Appropriation Bill had never been passed.
That night, the thirty-three MLAs left for Delhi in a private plane accompanied by the state and national secretaries of the BJP. The rebel MLAs were then put up at the Leela Hotel in Delhi. The next day, the Speaker wrote to the Governor invoking the anti-defection law (which is in the Tenth Schedule to the Constitution) and asking the rebel MLAs why they should not be disqualified.
On the same day, that is, 19 March, the Governor ordered the Uttarakhand government to seek a vote of confidence on the floor of the legislature, no later than 28 March, which was the next scheduled day for the assembly to convene.
The Governor repeated his direction the next day to the chief minister. The chief minister wrote back saying that the session would be reconvened on 28 March and the vote of confidence would be held then.
Why was there all this back and forth on dates, one might ask. Why did the chief minister not request the Speaker to hold a special session immediately? Also, why was the Governor insistent on it being conducted at the earliest?
The answer lies in the status of the nine rebel MLAs. In short, would their votes count? If their votes counted after they had switched allegiance, were they betraying the voters who had elected them?
In multiparty democracies, citizens tend to vote for the party they prefer, and not so much for the candidate standing. In the late 1960s and early 1970s, a number of governments collapsed because of defections – an MLA who was promised office, or some other lure, would leave his party for another, and as a result the party in power would not have enough seats to continue and the government would fall. One legislator named Gaya Lal changed his party three times in one fortnight, and lent his name permanently to the common phrase about defectors – ‘Aaya Ram Gaya Ram’.
To curb this horse-trading, and to disincentivize this obvious corruption in politics, the Constitution was amended in 1985 to include anti-defection provisions, mostly contained in the Tenth Schedule. It essentially said that defections would lead to disqualifications, and the Speaker would be responsible for the decision regarding disqualification.
Parties in the British system and in ours – which is modelled on the Westminster parliamentary system – can direct their members in the house to vote a certain way. This is called a whip. The term historically comes from hunting, and refers to whipping the hounds into a pack, a task which fell to a man called the ‘whipper-in’. When a party issues a direction – or a whip – not voting in that way also amounts to defection.
But what about the mind and conscience of the MP/MLA? Suppose my party wants me to vote for something I am against, must I agree? From the perspective of our electoral system, do we vote for parties or persons? Do parties take positions or do persons? Does a legislator lose his freedom of speech and conscience when he takes his position in the house?
The Supreme Court had tested this area of law and had decided in Kihoto Hollohon’s case that voting in opposition to the whip should only be called defection where the matters were crucial to the existence of the government or to the electoral programme of the party. Of course, for genuine cases of conscience, the member in question had the right to take prior permission of the party to vote against the direction, and sometimes the party could condone their behaviour.
Returning to our defectors, the proceedings for the disqualification of the nine dissident MLAs were set in motion. Those rebel MLAs approached the Uttarakhand High Court with a writ petition on 25 March, a Friday, seeking postponement of the disqualification proceedings. The Court, however, did not give them the stay they were seeking – the disqualification proceedings were to take place now on the 27th, a Sunday. Having failed before the Court, the government at the Centre now decided to put into play an unusual plan.
A Cabinet meeting was held in New Delhi at 9.30 p.m. on the 26th, crucially scheduled a day before the disqualification hearing already fixed for the 27th, after the result of the Court hearing. A video emerged allegedly dated 26 March, which was apparently doctored. Based on a sting operation, it seemed to show that the chief minister of Uttarakhand was engaging in horse-trading of his own, and trying to buy seats.
These facts – the video, the division vote having been barred by the Speaker and the letter the BJP MLAs and the rebel MLAs had given to the Governor – led the Union Cabinet to conclude that Saturday, 26th night that the constitutional machinery in the state of Uttarakhand had failed.
The Union Cabinet recommended President’s rule under Article 356 and the President approved it on Sunday, 27 March. Thereafter, the entire state government was relieved of its powers. In the meantime, the nine rebel MLAs had been disqualified by the Speaker of the Uttarakhand Legislative Assembly. On Monday, 28 March, when the vote of confidence was to take place, there was no legislature in force.
This is where my part in the story truly begins. I appeared for Chief Minister Harish Chandra Rawat in the Uttarakhand High Court, challenging the Central government’s invocation of emergency powers under Article 356.
Nainital is one of the more difficult High Courts to get to. One has to fly to Jolly Grant Airport at Dehradun, and from there one can either take a helicopter or go on a very long drive, or do a combination of train and drive. Alternatively, one can take a Delhi–Pantnagar flight, followed by a Pantnagar–Nainital helicopter hop or a Pantnagar–Nainital drive. That road trip takes three hours, and the helicopter hop is only fifteen minutes long. I ended up trying all these combinations at some point or another during this matter.
It became clear that Mr Modi’s BJP government sensed an imminent change of government in Uttarakhand and felt that they should have that change at any cost, including by winning over a few more disgruntled MLAs.
Therefore, extraordinarily for a matter at the High Court level, they flew in their then Attorney General Mukul Rohatgi, then Additional Solicitor General Tushar Mehta, Additional Solicitor General Maninder Singh, counsels like C. Aryama Sundaram, Harish Salve and Nalin Kohli plus a battery of at least five juniors, all defending the same cause.
Of course, since one cannot have a dozen lawyers appear for one party, they were distributed – one appearing for the Centre, one for each rebel MLA, one for the leader of the opposition, etc. – but all essentially arguing the same set of points. All of them were opposing me in a small High Court like Nainital, which was very unusual to say the least – this would have been a star-studded cast for Court 1 of the Supreme Court on a Monday morning. The one good hotel at Nainital was overflowing.
Initially I thought the matter would not go on for long – it would either be decided against us or stayed in the interim, that is, put into a sort of limbo. I expected and packed for one or at most two days. As it turned out, I had underestimated the size of the battle – it went on for almost a dozen days over a month of frequent trips. I was never there for longer than a few days at a time, but it felt like I had been there for ages.
The experience was utterly chaotic but it was also exhilarating and intellectually satisfying. We had a big fight with high stakes on our hands, in an unusual arena. Thankfully, I also had the support of Devdutt Kamat, a very competent junior counsel, who has recently also been designated a senior.
Cases become interesting when you are sure that whether you lose or win, you are before an absolutely straight and honest bench in which you have faith. I realized very early on that the division bench hearing the matter at the High Court was ramrod straight, which given the stakes, and the legal firepower pointed at it, was critical. The Chief Justice of the Uttarakhand High Court, Justice K.M. Joseph, had a deep interest in the intellectual development of the law. He had even come to the matter having read the main judgements in advance – a rare thing.
I pressed my arguments. First, I went through the facts in great detail, and laid out the events that had occurred between 25 and 27 March 2016, in essence, the span of just one weekend. My narrative showed clearly that the decision to impose President’s rule did not come from any of the facts on the ground in Uttarakhand, but was part of a larger pattern of manipulation from the government at the Centre. Something similar had been attempted in Arunachal Pradesh a little earlier. The very basis of the imposition of President’s rule, I argued, arose from an ulterior motive.
Second, the decision of the President is fully judicially reviewable. Since the landmark case of S.R. Bommai in 1994, the President needed to have information that would allow him to conclude that the state government could not be carried on in accordance with the Constitution. But did the facts on the ground allow for such a conclusion? What was the basis of his decision?
Both the decisions to hold a vote, and how, and the potential disqualification of the rebel MLAs were the Speaker’s decisions to take. The Speaker had already guaranteed a floor test – a vote as to whether the government enjoyed confidence or not. Once the Speaker has put a date for that vote, the regular legislative process is under way.
The only instability was that the rebel MLAs were disqualified before the floor test. That too was a decision in the domain of the Speaker – and the subject of very specific constitutional provisions. In short, while the politics in Uttarakhand appeared shaky, the crisis was being dealt with adequately using the powers vested in the Parliament and with the Speaker. Emergency powers were not needed.
I also stressed that this video – which conveniently appeared before the Cabinet exactly on the night of 26 March, after the High Court had refused to grant a stay, and shortly before material was to be placed before the President – was obviously doctored and had not been forensically tested.
Often when I am arguing, I turn the perspective around for the Court. Even if, I argued, the Speaker had erred about the division vote on 18 March, could that amount to a trigger for President’s rule, particularly when the remedy of a floor test had already been put in motion? Could not the matter have waited ten more days to be determined finally and certainly on the floor of the house and not by Central intervention?
Federalism – the autonomy of state governments, the will of the people to decide in their local and state units how they will be governed – and consequently democracy would be weakened by a decision such as this. I put it that the Governor had acted as a mere postbox instead of applying his mind to the matter before him. How else could a proclamation of President’s rule have been made on the flimsy pretext of one mistaken decision?
Third, the Governor had sent eight reports in the preceding week and none of the eight reports of the Governor had recommended President’s rule. He reported all the facts, but not once did he state there was a breakdown of the constitutional machinery. If he had not, what was the motivation for the Cabinet to do so, apart from bias?
Mukul Rohatgi, who was leading the arguments for the government, as Attorney General for India, argued two points. One that it was not for the Court to look at the sufficiency, that is, the merits of the material put before the President, but its existence. He argued that usually the Court does not sit in appeal over minutiae of the President’s decisions.
He also argued that the power of the Court was confined to examining whether there was any basis for the decision and whether it was broadly relevant. If there is no material or it is wholly irrelevant, the Court might interfere, he conceded, but not otherwise.
But if there were at least some relevant points, the fact that some other material was irrelevant would not justify the Court invalidating the action under Article 356. The President has to have the freedom to make up his own mind.
The hair’s breadth distinction between existence of relevant material and sufficiency of relevant material was the government’s defence, and the point in law. It is not for nothing that constitutional law is such a Talmudic exercise.
Rohatgi also argued that if any member of the house had made the demand, the division of votes, that is, a show of hands, would be mandatory. To deny that, in his words, would be ‘a murder of democracy’. By failing to pass the Appropriation Bill on the 18th, the government had already fallen – and so President’s rule had become necessary.
He also pointed to the fact that one BJP MLA was undergoing disqualification proceedings for an earlier action, but his case was going slowly, whereas those against the rebel MLAs had gone at a blazing pace and had resulted in disqualification in less than ten days. His claim was that the Speaker had not been acting impartially and had rushed the proceedings that had favoured the Congress government.
Finally, Rohatgi dealt with my argument on the reports of the Governor, arguing that it was not necessary for the President to be told that the machinery had broken down – he had to make that determination himself on the basis of the facts before him. Therefore, it didn’t matter that the Governor had never made that statement in his reports.
The Court went through the arguments and the documents in exhaustive detail. After many hearing days, Justice Joseph asked some pointed questions in Court, and within a day the Central government knew it was turning against them. Then, and I am sorry to say it of such an eminent set of counsel, the next two days saw a host of delaying tactics, with the Attorney General himself asking time for instructions.
The Chief Justice said he would not adjourn the case, but if the government could revoke the proclamation, the matter could be put to an end – in short, an honourable path was open at that point to the BJP government to not have an order against them. But admission of defeat would have been too embarrassing at the point, and so the dictation of the judgement was completed. It took three days in open court for Chief Justice Joseph to dictate the judgement.
It concluded that President’s rule must be tested on the legitimacy of the decision made by the President. The Court held that a ‘legitimate inference must be drawn from the material placed before him which is relevant for the purpose’.
The Court also very wisely and courageously stated that the Constitution is essentially a political document and provisions such as Article 356 have the potential to unsettle the entire constitutional scheme. The exercise of those powers needs to be controlled.
Democracy and federalism are essential features of our Constitution. The power given to the President but which is actually in the hands of the Union Cabinet under Article 356 can alter the federal balance, and suspend the choices made by millions of voters.
The power to declare President’s rule has the ability ‘to emasculate the two basic features of the Constitution and hence it is necessary to scrutinise the material on the basis of which the advice is given and the President forms his satisfaction more closely and circumspectly’.
The Court found that the evidence before the President was irrelevant to the decision he was to take, and none of it could be taken at face value. Further, if it looked like the government was losing support, the only true remedy was the floor test. The only exception to this is if there was a collapse of law and order, and it became impossible to hold a fair floor test.
The Court came down heavily on the government for short-circuiting this process. The Central government had shown bias in favour of its own party and the Court did not hesitate to state as much.
The High Court then made its meaning absolutely clear:
This means that, what was hotly contested before us by the Attorney General on the basis of there being laxity on the part of the Speaker reflecting double standards and also opening the doors to action under Article 356, was without any basis at all. It was a completely non-existent material. There was, in other words, no material. We are, in fact, shocked that the decision taken at the highest level and the matter, which, apparently, influenced the decision, and which engaged the counsel and the Court in this litigation, has been done without due care and without any basis. It was totally without any factual foundation. It was, in fact, a blatant falsehood.
We are of the view that this is a case where all cannons of propriety were thrown to wind and the undue haste made by the Governor in inviting the President to issue the Proclamation under Article 356(1) clearly smacked of mala fides. The Proclamation issued by the President on the basis of the said report of the Governor and in the circumstances so obtaining, therefore, equally suffered from mala fides. A duly constituted Ministry was dismissed on the basis of material which was neither tested nor allowed to be tested and was no more than the ipse dixit of the Governor. The action of the Governor was more objectionable since as a high constitutional functionary, he was expected to conduct himself more fairly, cautiously and circumspectly. Instead, it appears that the Governor was in a hurry to dismiss the Ministry and dissolve the Assembly. The Proclamation having been based on the said report and so-called other information which is not disclosed, was therefore liable to be struck down.
The Court then quashed the proclamation of President’s rule, revived the Congress government, and directed that there would be a floor test at the earliest, on 29 April 2016.
The matter went up to the Supreme Court, and the Supreme Court reaffirmed the direction of the High Court. The Centre’s legal team managed to delay the matter somewhat, but ultimately the High Court order was upheld by the Apex Court. At that stage, the proclamation was revoked by the Centre.
The Congress government had won a clear majority and continued for the next three years completing its term. It was a matter of great personal satisfaction that I played a role in this. There was, however, one unhappy outcome. When the Chief Justice of Uttarakhand was to be elevated to the Supreme Court, the Central government raised objections and sat on the recommendation, causing considerable delay and adversely affecting his relative seniority at the Court. That was a petty act of revenge, but as befits a great judge, he is now at the Apex Court.
Excerpted with permission from From The Trenches by Abhishek Singhvi with Satyajit Sarna; Juggernaut Books.