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Stable governance should be considered as a basic structure of the Constitution so that nobody tends to work against the stability of an elected government, Dushyant Dave
The Supreme Court today began hearing the plea filed by BJP leaders from seeking a direction to conduct a floor test in the wake of the ongoing Madhya Pradesh political crisis.
The matter was heard by a Bench of Justices DY Chandrachud and Hemant Gupta.
Today's hearing got off to a false start, as Senior Advocate Mukul Rohtagi, who was slated to appear for the BJP MLA petitioners, was in another courtroom for the AGR case.
Dushyant Dave, miffed at waiting for Rohatgi to appear, told the Bench,
"Other counsels have been waiting for 45 minutes in the Court and the same is not safe during such a time of Coronavirus."
He went on to say that heavens were not going to fall if the matter is not heard today, and sought time to file a reply.
Dave, arguing for the Congress party, added that the government in Madhya Pradesh was formed with majority, and now their MLAs are being abducted.
Senior Advocate Maninder Singh, appearing for the rebel MLAs replied that nobody has been abducted.
Dave then began making submissions on behalf of the Madhya Pradesh Congress. He sad that MLAs are expected to serve their constituencies, and that they are not expected to get up one day and simply resign. He took the Court through the prayer seeking release of the MLAs, who were being kept by the BJP in Karnataka.
He told the Court that in 2018 elections, the Congress party had won 114 seats and the BJP had won 109 seats. A stable government had been functioning for the last 18 months, Dave submitted.
On the Governor's order to hold the floor test in the absence of the rebel MLAs, Dave argued,
"Congress mukt Bharat is what PM (Narendra Modi) has said openly. But can a floor test be ordered in the absence of MLAs in a parliamentary democracy. Is this the kind of responsibility we want?"
Dave further questioned the authenticity of the resignation letters submitted by the rebel MLAs, saying that they needed to be verified by the Speaker.
At the point, Justice Chandrachud said,
"The Supreme Court shouldn't thwart the collective responsibility of the Cabinet.. this is what we are also concerned about."
"The question today is about destroying the principles of democracy by using muscle and money power and Supreme Court will never allow it."
He went on to urge the Court not to hear the petition filed by the BJP leaders seeking a direction for the floor test to be conducted.
"BJP is a responsible party. Can this be expected from a responsible party? Tomorrow the party will abduct MLAs from states it does not have majority in and come to Supreme Court..."
Dave went on to question the role of the Governor of the state. Referring to the letters sent by the Governor to the Madhya Pradesh Chief Minister, Dave pointed out that the Governor said that he is confident that the Congress has lost majority.
"Governor does not represent the BJP and is required to be and expected to be neutral...
...Is this how the august office (of Governor) is supposed to function? How is he confident without hearing anyone?"
He went on to say,
"Speaker is the ultimate master, he (Governor) is overriding the Speaker also. Why have any authority in this country at all when everything is to be made redundant?"
Dave thus suggested that the matter be referred to a Constitution Bench and that the Court decide that such acts never happen again.
The Senior Advocate went on to make submissions on constitutional morality, saying that the BJP is indulging in complete destruction of the same.
Dave further argued,
"Stable governance should be considered as a basic structure of the Constitution so that nobody tends to work against the stability of an elected government... The Governor had no business issuing missives in the middle of the night."
At this juncture, the Bench asked about the resignation of the 22 MLAs. Senior Advocate Abhishek Manu Singhvi, appearing for the Speaker, said that 6 resignations have been accepted thus far.
Senior Advocate Kapil Sibal, appearing for Kamal Nath, told the Bench that the question pertaining to the role of Speaker in case of resignations has been clarified in the judgment delivered by the Supreme Court in the Karnataka Assembly case.
Solicitor General Tushar Mehta told the Court that the Governor first accepted the resignations of six persons as Ministers and thereafter their resignation as MLAs was accepted by the Speaker.
Dave interjected, saying,
"The most fundamental issue today is how can Governor direct for a floor test? He is nobody to decide this!"
He further argued that defection can also happen when you resign, not only when you join another party. In light of the circumstances surrounding this case, there needs to be a re-election, only then can a trust vote be asked for, Dave submitted.
He insisted that an MLA must go back and face the electorate to win election again, and cannot simply resign.
In response, Justice Hemant Gupta said,
"That's what they are doing. They are giving up on their membership and may go back again to the voters."
"Heavens aren't going to fall that Congress must go immediately and Shivraj Singh's government must be saddled on the people."
Dave concluded his arguments by urging the Court to issue the notice and hear the matter at length on some other day.
Mukul Rohatgi then began to make his submissions. He said,
"We have heard of Constitutional morality, democracy, Ambedkar, and lofty principles but look at the petitioner in Dave's petition. It is the party (Congress) which was responsible for the mass murder of democracy in 1975!"
He countered the argument made by Dave to hold by-election and then floor test, saying that this is not a case of defection.
"This is a case of resignation and here are people who have resigned and the duty of holding by-election is that of the Election Commission, not Supreme Court."
Rohatgi further argued that the Governor is the Constitutional Head of the State and that it is his primary and only duty to ensure that the functioning of the state is carried out in accordance with the Constitution.
He further said,
"It is an astounding argument that a person who has lost the majority is saying that he should continue to be in power for six months, it is nothing but lust for power."
Justice Chandrachud at this point observed,
"The Speaker has to accept the resignation first and satisfy himself. It is not like the resignation of a sitting judge where he has to resign in his own hands."
The Bench then rose for lunch.
The MP Congress had moved the Apex Court a day after BJP leaders sought a direction to hold a floor test in the state assembly. The Court today issued notice in the plea filed by BJP leaders including former Chief Minister Shivraj Singh Chouhan.
The petition filed by the MP Congress alleges a blatant abuse of power and subversion of democracy by the BJP-ruled Central government as well as the BJP-ruled Karnataka government in holding the 16 ex-Congress MLAs from the state captive in Bengaluru.
The allegedly unconstitutional acts of Madhya Pradesh Governor Lalji Tandon have also been in called into question. It has been contended that the act of the Governor directing Chief Minister Kamal Nath to hold a floor test in the absence of the 16 MLAs, is beyond the realm of the powers of the Governor.
The petitioners also questioned whether a trust vote can be held in the absence of representation of the electorate who had voted in support of the Congress government.
Thus, it is contended that the floor test should take place only after by-elections for the seats vacated by the MLAs in question are conducted.