Rajasthan developments: Getting ahead of constitutional practices

By, P.D.T. Achary is former Secretary General, Lok Sabha

Context

• The Rajasthan High Court’s order of July 24 staying the anti-defection proceedings initiated by the Assembly Speaker against the rebel Congress legislators raises important constitutional issues.
• A simple petition challenging the issuance of notices by the Speaker to the rebel MLAs was turned into a very complex one challenging the constitutionality of Para 2(1)(a) of the Tenth Schedule to the Constitution (anti-defection law).

Staying the Speaker’s action

• The simple plea initially brought before the court by the rebels was that the notice issued by the Speaker was bad in law and should be quashed.
• The Rules for defection were first framed by the Lok Sabha Speaker in 1985 and adopted by more or less all the State Legislatures.

Important rules to remember

• Rule 6 of the Lok Sabha rules deals with the filing of the petition and the forwarding of the same by the Speaker to the Member concerned and related matters.
• Rule 6 (4) says that before making a petition seeking the disqualification of a member, the petitioner shall satisfy himself that there are reasonable grounds for believing that the Member concerned has become subject to disqualification.
• Thus, the rule requires the petitioner, and not the Speaker, to satisfy himself about the reasonableness of the ground for disqualification.
• This responsibility is discharged by the petitioner by appending a brief statement to the petition stating clearly that he has so satisfied himself.
• This statement signifies the petitioner’s full compliance with Rule 6 (4).
• Rule 7 says that on receipt of the petition, the Speaker shall consider whether the petition complies with the requirements of Rule 6.
• If he finds that the petition does not meet all the requirements, he shall dismiss it.
• If it complies with all the requirements, he shall forward the copy of the petition and the annexure to the concerned Member and require him to submit his comments within seven days of the receipt of the copy of the petition.
• This is the so-called show cause notice which has been challenged.
• Rule 6(4) makes it abundantly clear that the onus of satisfying himself about the reasonableness of the ground for disqualification is on the petitioner.
• Once that is done, the Speaker’s job is merely to forward the petition to the concerned member and give him a date for submitting his comments.
• As is obvious, the Speaker cannot go into the reasonableness of the grounds cited in the petition at this stage because the comments of the respondent, evidence he may submit etc., are not before him.
• Only through a proper hearing will the Speaker be able to know whether reasonable grounds exist for disqualification.
• Then how a challenge can be brought against a ‘notice’ at this stage.
• It can thus be concluded that the Speaker’s act of forwarding the petition cannot be legally challenged under Rule 7 as he is acting in accordance with the rules.
• This point does not seem to have received any attention from the court as otherwise the petition would have been dismissed at the threshold.

Judicial overreach

• In Kihoto Hollohan v. Zachillhu (1992), while barring any interlocutory intervention by the court in the Tenth Schedule proceedings, the Supreme Court held that a challenge is not barred if there is an imminent threat of disqualification/ suspension before the Speaker takes a final decision on merit.
• In the Tenth Schedule proceedings, there is no disqualification/ suspension of a Member in the interim period.
• Therefore, the exception mentioned by the court does not become applicable here, which means no interim intervention by the court is contemplated in these proceedings.
• Staying the Speaker’s action is unprecedented and unheard of at the ‘notice’ stage.

Date of the Assembly session

• The second part of the political drama, about the date of the Assembly session, has just ended, with the Cabinet yielding to the Governor’s demand that there should be a 21-day gap between the summoning(U/A. 174) and commencement of the session.
• Summoning the Assembly is a routine constitutional function of the Governor.
• As per the normal procedure, once the Cabinet decides to call the session on a particular date, that decision is conveyed to the Governor who signs the summons order and sends it back the same day or the next day.
• Thereafter, the summons is issued to individual members by the Assembly Secretary.
• By not agreeing to the date decided by the Cabinet, the Governor has shown that he has the final say (against the Nabam Rebia case judgement).
• This is fraught with many disturbing possibilities in the relationship between the Governor and the State government.
• Under Article 174 of the Constitution, the Governor summons the Assembly. But the Governor can act only on the advice of the Council of Ministers.
• The Cabinet form of government presupposes that the executive power of the state vests in the elected government headed by the Chief Minister.
• The Governor, being a constitutional head, does not exercise any of the executive powers except where the Constitution assigns him certain functions to be performed in his discretion.
• Calling the session of the Assembly is a part of the executive functions of the government and the Governor can summon the Assembly only on the advice of the Cabinet.

Nabam Rebia and Baman Felix v. Deputy Speaker (2016) case

• In Nabam Rebia and Baman Felix v. Deputy Speaker (2016), the Supreme Court reaffirmed this position when it said, “In such view of the matter, we are satisfied in concluding that the Governor can summon and prorogue and dissolve the House only on the aid and advice of the Council of Ministers with the Chief Minister as the head. And not on his own”.
• The crucial question in Rajasthan is whether the Governor has any discretionary power in the matter of summoning the Assembly.
• The Governor asked the government to change the date of commencement recommended by the Cabinet and proposed a date after 21 days. Finally, he got the Cabinet to yield to his wishes.
• The decision to convene the Assembly session is taken by the Cabinet; the Governor has to merely sign the summons order.
• Further, the Governor has no role in the conduct of the business of the House, which is done under the control and supervision of the Speaker.
• Therefore, it is not open to the Governor to ask the government to clarify whether it wants to bring a confidence motion in the House.
• The government has no legal or constitutional duty to take the Governor into confidence about the agenda of the House.
• No rules of the House provide for such a course of action. This position has been amply clarified by the Supreme Court in a number of cases.

And what if the Governor does not sign the summons?

• In Shamsher Singh v. State of Punjab (1974), the Supreme Court said: “The Governor has no right to refuse to act on the advice of the Council of Ministries. Such a position is antithetical to the concept of ‘responsible government’.”

The 21-day period

• The last point is about the significance of the 21-day period suggested by the Governor.
• The Constitution does not provide for this. In 1969, the Rules Committee of the Lok Sabha recommended that the gap between the date of summons and of the commencement of the House should be 21 days.
• This was thought of as necessary as the collection, collation and scrutiny of information relating to Questions, at different levels of bureaucracy, before it was placed in the House, was a time-consuming job.
• Although Parliament changed it to 15 days later, many State Legislatures continue with the 21-day period.
• It is not an inflexible rule, and says “unless the Speaker otherwise decides”.
• This rule is generally followed but it has never constrained governments from convening the House at shorter notice.
• In fact, the Rajasthan House rule itself provides for a session at shorter notice.
• If the government feels the urgency, it is well within its power to convene the House at shorter notice.