The trust vote drama in Karnataka has hit the national headlines. The incumbent chief minister, B.S. Yeddyurappa appears to have won the first round. It remains to be seen how the BJP responds to the governor’s direction that a second trust vote be held by the 14th of this month. In the 225-member Karnataka assembly, the ruling BJP had a wafer-thin majority since the 2008 assembly elections. And it was not surprising to find that some political forces in the state felt that there was an opportunity to unseat the government. But what has transpired over the past few days has once again reminded citizens of the ugly side of politics. Leading up to the trust vote, the governor of Karnataka wrote a letter to the speaker of the Karnataka assembly asking that no MLAs be disqualified before the trust vote was conducted on the floor of the assembly. Subsequently, there have been a number of allegations about the conduct of the trust vote itself. The governor openly called the trust vote “farcical”, and wrote to the Centre asking that President’s Rule be imposed in the state, before he directed the government to prove its majority again. This phenomenon of trust votes is not uncommon in our dynamic political culture. Just before the 2009 general elections, the BJD and the BJP had differences over seat-sharing in Orissa. The BJP decided to withdraw support to the Naveen Patnaik government. The BJD passed the floor test by a voice vote. While the opposition claims that the process was not fair, the BJD leadership has maintained that there was no request for a division, which would have required recorded voting. The relatively small Goa assembly has seen a number of similar occurrences in the recent past, with governments changing as a result. But there are some critical issues that merit examination. In some recent trust votes, there have been allegations that large amounts of money have been exchanged. Of course, following the 2008 trust vote in the Lok Sabha on the India-US nuclear agreement, the infamous cash-for-votes scam broke out, with wads of cash being shown on the floor of the House. In the Karnataka trust vote, too, there have been allegations that large amounts of money have changed hands. The second issue is how some of these trust votes are managed on the floor of the House. Both the recent Orissa episode and the ongoing Karnataka one have been very contentious about the procedure that has been used to prove the majority. In both cases, the opposition alleged that they asked for a division, which would require a physical count of votes rather than just a voice vote, and in both cases a division was not held. A parallel issue which needs to be kept in mind is the governor’s power to ensure compliance with procedure in the state legislatures. The third issue that needs some discussion is whether the decision on defections should be judged by the speaker, usually a member of the ruling party or coalition, or by a neutral external body, such as the Election Commission. In the latest episode in Karnataka, the speaker has disqualified MLAs on the ground that they have voluntarily exited the party under which they were elected. In a 1994 case (Ravi S. Naik v. Union of India), the Supreme Court ruled that the words “voluntarily giving up membership” have a wider meaning. An inference can also be drawn from the conduct of the member that he has voluntarily given up the membership of his party. There is a huge paradox in the anti-defection law that was passed 25 years ago. While MLAs and MPs vote along party lines on ordinary legislation, they do not appear to be daunted by the consequences in the case of trust votes. So, in effect, the anti-defection law appears to be effective in controlling members of all parties on policy-making — which could in fact benefit from more open input from across party lines — but ineffective in several cases with regard to trust votes. Clearly, there is much more at stake for all concerned in trust votes, and therefore the scope for greater negotiation. Politics in our large and complex democracy is fiercely competitive. Dissidence is to be expected because there are too many people vying for too few of the top positions. While there are no perfect solutions, the only sustainable and meaningful approach is to encourage inner-party democracy so as to enable a selection process for positions of responsibility that is accepted as free and fair by all concerned. While the political uncertainty continues, the only certainty for India’s citizens is a very unhealthy politics for some time to come. - CV Madhukar This article was published in Indian Express on October 13, 2010
As per news reports, the union government has filed a Presidential Reference in relation to the 2G judgment. In this judgment the Supreme Court had cancelled 122 2G licences granting access to spectrum and had ordered their re-allocation by means of an auction. It also held that use of first cum first serve policy (FCFS) to allocate natural resources was unconstitutional. It had held that natural resources should be allocated through auctions. As per the news report, the Presidential Reference seeks clarity on whether the Supreme Court could interfere with policy decisions. This issue has been discussed in a number of cases. For instance, the Supreme Court in Directorate of Film Festivals v. Gaurav Ashwin Jain[1] held that Courts cannot act as an appellate authority to examine the correctness, suitability and appropriateness of a policy. It further held that Courts cannot act as advisors to the executive on policy matters which the executive is entitled to formulate. It stated that the Court could review whether the policy violates fundamental rights, or is opposed to a Constitutional or any statutory provision, or is manifestly arbitrary. It further stated that legality of the policy, and not the wisdom or soundness of the policy, is the subject of judicial review. In Suresh Seth vs. Commissioner, Indore Municipal Corporation[2] a three judge bench of the Court observed that, “this Court cannot issue any direction to the Legislature to make any particular kind of enactment. Under our constitutional scheme Parliament and Legislative Assemblies exercise sovereign power or authority to enact laws and no outside power or authority can issue a direction to enact a particular piece of legislation.” In the present case it may be argued that whereas the Court was empowered to declare a policy such as FCFS as unconstitutional, it did not have the jurisdiction to direct auctioning of spectrum and other natural resources. The Presidential Reference may conclusively determine the Court’s jurisdiction in this regard. However, it has been urged by a few experts that this Presidential Reference amounts to an appeal against the decision of the Court. They have argued that this could be done only through a Review Petition (which has already been admitted by the Court). The advisory jurisdiction of the Court invoked through Presidential References, is governed by Article 143 of the Constitution. Under Article 143 of the Constitution of India, the President is empowered to refer to the Supreme Court any matter of law or fact. The opinion of the Court may be sought in relation to issues that have arisen or are likely to arise. A Presidential Reference may be made in matters that are of public importance and where it is expedient to obtain the opinion of the Supreme Court. The Court may refuse to answer all or any of the queries raised in the Reference. A Presidential Reference thus requires that the opinion of the Court on the issue should not have been already obtained or decided by the Court. In the Gujarat Election Case[3] the Supreme Court took note of Presidential References that were appellate in nature. Thus, a Presidential Reference cannot be adopted as a means to review or appeal the judgment of the Supreme Court. Against judgments of the Court the mechanisms of review is the only option. This position was also argued by Senior Advocate Fali S. Nariman in the Cauvery Water Case[4], where the Court refused to give an opinion. Whether the Court had the authority to determine a policy, such as FCFS, as unconstitutional is not disputed. However, there are conflicting judgments on the extent to which a Court can interfere with the executive domain. It would be interesting to see whether the Court would give its opinion on this issue. In the event it does, it may bring higher level of clarity to the relationship between the executive and the judiciary.
[1] AIR 2007 SC 1640
[2] AIR2006SC767
[3] (2002) 8 SCC 237
[4] (1993) Supp 1 SCC 96(II)
