In the matter concerning the imposition of president’s rule in Uttarakhand, the division bench of the Supreme Court, while emphasising that the speaker is the master of the assembly, posed seven very pertinent questions to the Centre on April 27. Although the landmark judgments in the SR Bommai and Rameshwar Prasad cases leave no one in doubt vis-a-vis the indispensability of a floor test in such matters, these seven questions from the apex court call for revisiting the matter of the supremacy of the legislature in its own sphere. The questions include “Whether the governor could have sent the message in the present manner under Article 175 (2) for conducting floor test?” and “Whether the governor can ask the assembly speaker for division of votes as both are constitutional authorities?”
The governor’s message of March 23 to the speaker, inter alia, directs that “the results of the voting by division shall be declared soon thereafter. Proceedings of the House during the course of vote of confidence shall be videographed.” The interim order of March 29 passed by Justice UC Dhyani of Uttarakhand High Court also contained similar directions to the legislature. Notably, the subsequent judgment of April 21 by Chief Justice KM Joseph and Justice VK Bist, while quashing the imposition of president’s rule, refrained from issuing similar specific instructions on procedures to be followed for the floor test.
The governor’s message and Justice Dhyani’s interim order have only reinforced the apprehension of noted jurist Fali S. Nariman, expressed over a decade ago, in relation to an interim order passed by a division bench of the apex court concerning Jharkhand. His prophetic words were: “To me, the order of March 9 [2005] serves as a disturbing precedent for courts — in the future — not only the Supreme Court but also any high court — to direct how proceedings of the
Lok Sabha or Rajya Sabha or state assemblies should or should not be conducted by its Presiding Officers”. The Jharkhand order drew its substance largely from the first-ever order of this kind passed by the SC in the Jagdambika Pal vs Union Of India case on February 28, 1998. A novel tool called a “composite floor test”, non-existent in the Rules of Legislature framed under Articles 118 and 208 of the Constitution, was enforced by the apex court in the Jagdambika Pal case. A slightly altered but similar order passed in the Jharkhand matter was, however, not honoured by the Jharkhand Assembly on March 11, 2005.
Both the Jharkhand and the Jagdambika Pal orders were widely viewed in legislative circles as an affront to the supremacy of the legislature in its own sphere guaranteed under the Constitution. On March 20, 2005, addressing the Emergent Conference of Presiding Officers of Legislative Bodies in India on this subject, Somnath Chatterjee, speaker of the 14th Lok Sabha, observed, “The issues arising out of the interim order of the Supreme Court in the case are of such far-reaching ambit that if not reconsidered and if followed in future, it will upset the constitutional balance and the democratic functioning of the state as a whole”.
Chatterjee’s suggestion for a presidential reference under Article 143 did not make much headway as the government of the day was not sufficiently enthused. Subsequently, a division bench of the SC in its judgment dated December 6, 2007 in the Aravali Golf Club case, referred to these matters where it had said: “The Jagdambika Pal case of 1998, involving the UP legislative assembly, and the Jharkhand Assembly case of 2005, are two glaring examples of deviations from the clearly provided constitutional scheme of separation of powers. The interim orders of this court, as is widely accepted, upset the delicate constitutional balance among the judiciary, legislature and the executive.”
