Madhya Pradesh Political Crisis: How does Court ensure that there is free exercise of choice by MLAs? SC adjourns matter to tomorrow

Madhya Pradesh Political Crisis: How does Court ensure that there is free exercise of choice by MLAs? SC adjourns matter to tomorrow

Shruti Mahajan

The Supreme Court continued hearing the petition filed by BJP leaders seeking a direction for a floor test in the background of the Madhya Pradesh political crisis.

After hearing the parties, the Bench of Justices DY Chandrachud and Hemant Gupta adjourned the matter till tomorrow.

During the morning session, Senior Advocate Dushyant Dave made his submissions for the Madhya Pradesh Congress. After taking the Court through the chain of events surrounding the Madhya Pradesh political crisis, he blamed the BJP for indulging in complete destruction of Constitutional Morality.

Senior Advocate Mukul Rohatgi, appearing for the BJP MLAs who filed the petition seeking a floor test, resumed his arguments during the post-lunch session.

At the outset, Rohatgi cited the various judgments to say that the Governor is required to give a report to the President if former finds that a state is not functioning in accordance with the Constitution. He said,

"If the Governor comes to a prima facie conclusion that there is no majority enjoyed, he may advise for floor test to be held."

Rohatgi submitted that the Court had to decide a very limited issue in the present case - the alternatives that the Governor should consider before proposing President's Rule under Article 356.

At this point, Justice Chandrachud raised a concern. He said,

"One concern that we have is that the Speaker hasn't decided for 16 MLAs. They say 16 have been taken away to Bengaluru. We can't compel MLAs to attend proceedings, but what we can do is to ensure they can take their own decision.That's the duty of a Constitutional Court."

Rohatgi argued that there are videos which show that these MLAs are in Bengaluru on their own volition.

"They are being portrayed as though they are kidnapped!"

Senior Counsel Mukul Rohatgi
Senior Counsel Mukul Rohatgi

Pointing out discrepancies in the affidavits filed by the MLAs with respect to their role in the case, Justice Chandrachud said,

"These are points that the Court needs to be alert about. These 16 either proceed to the floor or don't but surely they can't be held captive and how do we ensure this?

We aren't saying they are held captive, that would be to prejudge the issue. Our concern is to allay the apprehension."

Referring to the Governor's letter to the Chief Minister, Rohatgi submitted that the only question to be considered was whether the Governor's directive to hold the floor test should be followed or not.

Rohatgi then cited the Supreme Court's judgment in SR Bommai v. Union of India to say,

"Bommai judgment also held that a CM's refusal to test his strength on the floor of the Assembly can well be interpreted as prima facie proof of his no longer enjoying the confidence of the House."

Justice Chandrachud then posed some questions surrounding the will of the rebel MLAs.

"How does a court ensure that there is a free exercise of choice that these members can make? As a constitutional court, we also have to discharge our duties...

...We cannot say that we've seen TV coverage and are satisfied about the free will."

Justice DY Chandrachud
Justice DY Chandrachud

When Solicitor General Tushar Mehta, appearing for the Governor, stood up to make a submission, the Court asked him where the MLAs were. Mehta replied,

"I as Governor don't know that. But there are media videos, where these MLAs are being seen saying that they are not children... they have not been abducted and taken away against their own will."

Justice Gupta observed,

"If they (rebel MLAs) choose to come to the House, they should have free and uninterrupted access to the Assembly."

The Court then asked for assistance and suggestions on how to ensure that the rebel MLAs have free access. When Rohatgi offered to produce them before the Court, the Bench refused. The former AG then suggested that the MLAs be produced before the Registrar of the Karnataka High Court.

He went on to say,

"Why do they (Congress) want the MLAs to come to Bhopal? So that they can lure them, do horse trading...Why do you (Congress) want to meet them (rebel MLAs) when they don't want to meet you?"

Rohatgi concluded his arguments by citing the examples of Karnataka and Maharashtra, where members of the Congress approached the Supreme Court for immediate floor test to take place.

Senior Advocate Maninder Singh, representing the rebel MLAs, was next to argue. He said that all 22 MLAs have held a press conference and declared that their decisions were taken on their own free will, and that the same has been sworn in their affidavits.

Singh went on to argue,

"Right to resign is a Constitutional right, but what is the corresponding duty on the Speaker for accepting the resignation?

Can he sit on the resignation? Can he be choosy that he'll accept some, not accept others because political game is going on?"

After drawing a distinction between resignation and disqualification, Singh said that he supports the argument that the Congress government in Madhya Pradesh has lost the majority and must immediately go to a floor test.

Concluding his submissions, Singh said that rebel MLAs would face the consequences as per the Constitutional provisions, but they don't want to meet the Congress leaders.

Senior Counsel Abhishek Manu Singhvi, appearing for the Speaker of the Assembly, then began his submissions. He carved out the main issue in the case as being:

"Is the Court to direct the floor test short circuiting the discretion of the Speaker in the running assembly?"

He went on to point a fundamental fallacy in the argument that the Governor has the locus (to order floor test), when it is the Speaker who has the locus.

Senior Advocate AM Singhvi
Senior Advocate AM Singhvi

Singhvi went on to cite Article 212 of the Constitution of India, which bars Courts from taking cognisance of the actions that take place inside the House.

"It is in the fresh Assembly that a Floor Test can be held, in a running assembly it is a vote of confidence or no confidence."

On the resignation of the MLAs, he said,

"A resignation of the MLA has to be accepted, it can't be said to be accepted because the Governor saw something on TV, this is a new Article 190 jurisprudence."

Singhvi also expressed the apprehension that these MLAs will become ministers or chairpersons of some state bodies without having contested by-election.

He further asked,

"Will the Supreme Court then in every case say that the Governor has asked for the floor test, forget the Speaker and order it. This will be like asking Your Lordships to mandamus to commit Constitutional sin."

Justice Chandrachud interjected, saying,

"You (Speaker) can prevent this by accepting the resignation."

He went on to ask,

"If you accept the resignation, won't they be disqualified automatically?"

To this, both Singhvi and Kapil Sibal responded in negative. Singhvi said,

"Justice Ramana's judgment (in the Karnataka political crisis case) makes a clear distinction between Article 190 and disqualification. This is a petition to short circuit my discretion."

Chandrachud J then asked Singhvi if the Speaker would take a decision immediately after the rebel MLAs were brought before him. Singhvi replied that the same would be done in one or two days, after settling down.

At this point, Maninder Singh objected, saying,

"We (rebel MLAs) do not want to appear before the Speaker. It is a matter of our safety."

Justice Chandrachud said,

"In all these orders that the Supreme Court has passed, the only concern has been let there be no horse trading."

To this, Singhvi replied,

"The horse is already under captivity!"

Appearing for Madhya Pradesh Chief Minister Kamal Nath, Senior Advocate Kapil Sibal was next to make arguments. He said,

"I'm a member of the Congress, I'm the CM, they (rebel MLAs) are Congressmen, I want to meet them."

Maninder Singh once again reiterated,

"We don't want to meet you."

Chandrachud J said to Sibal,

"There is a problem with your plea for access, this is not like the custody of a child.

Singh once again pointed out that the rebel MLAs were willing to come to the Supreme Court. However, Chandrachud J replied,

"I see the reason why you're saying that, but it won't be appropriate."

Rohatgi suggested,

"I'm saying make it live! Whether it is MLAs meeting the Registrar General or someone else, make it live."

The Bench then rose for the day and adjourned the matter for 10:30 AM tomorrow.

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