Sumitra Mahajan should have taken no-confidence motion in Lok Sabha despite disruption; rules of procedure allow it

“Where there is no vision, the people perish.” In the second half of the Budget session, a motion of no-confidence has successfully been evaded day after day, till the House was finally adjourned sine die on Friday. The script was the same everyday. The Speaker would announce that she has received notices of motions of no-confidence from several MPs, for which she needs to take the leave of the House. AIADMK MPs, already sloganeering in the Well, would intensify their protest calls. The Speaker would then declare that since the House is not in order, she would not be able to count the heads in favor of the motion. After an apology, she would adjourn the House to reconvene the next day. On a couple of occasions, MPs in favour of the motion innovated ways to be seen despite the sloganeering in the Well. They stood up with placards numbered from one to 80, to show their support for the motion. On other days, they stood up with their hands raised. Yet, the Speaker was unable to count the heads, we were told. [caption id=“attachment_3806225” align=“alignleft” width=“380”] File image of Sumitra Mahajan. PTI[/caption] Implied in the Speaker’s statement that she needs the House in order, to take its leave, is the assumption that the Speaker has the powers to decide the circumstances in which the motion of no-confidence is introduced before the House. Ordinarily, the discretion of the Speaker in matters of Parliamentary procedure is high. However, this was no question of mere procedure, and there appears to be no basis in the Constitution for her to assume such a discretionary power. What is a question of mere procedure anyway? One way to know is to understand what it is not. Article 118(1) of the Constitution states: “Each House of Parliament may make rules for regulating, subject to the provisions of this Constitution, its procedure and the conduct of its business.” Being subject to the provisions of the Constitution, Parliament’s freedom to devise these rules is limited by the Constitution’s norms. In other words, the rules of procedure can comprise only those details about Parliament’s functioning that are not already stipulated in the Constitution, and must always be in line with the rules of the Constitution. Necessarily then, any flexibility and discretion that the Speaker might have in conducting Parliament cannot extend to issues that might override the provisions of the Constitution. The basis of this principle is best understood through cricket. The rules of cricket require that players play in teams, with one team batting to the other team’s bowling and fielding. It would be perfectly alright for a bowler to choose when to bowl leg-spin and off-spin, and for batsmen to decide when to hit cover drives and reverse sweeps. What would not be alright is if the teams decided to bat along four sides of square pitch to a football kicked around by the other team. This absurd alternate game would not even be cricket, even though the players profess to be playing cricket and have all the trappings of being a cricket team. Born as they are from the rules of the game, cricket teams lack the discretion to alter the rules of the game itself. That they are the ones playing the game does not allow them any more discretion on what the rules can be, even if it allows them the freedom to decide whether to bowl or bat in a certain way. Likewise, the Parliament was brought into existence by the Constitution of India. Since the Parliament’s power finds its origin in the Constitution of India, and since a power conferred by an instrument cannot possibly be larger than the instrument creating it, even at its widest exercise, the Parliament’s power is inherently limited. These inherent limits are also the reason that even laws made by the Parliament during the exercise of its legislative powers must not violate the provisions of Constitution. The Council of Ministers is collectively responsible to the House of the People, according to Article 75(3) of the Constitution of India. The vision behind committing to this form of government was the deliberate preference of a responsible government over a stable government, as stated by BR Ambedkar in the Constituent Assembly on 4 November 1948: “A democratic executive must satisfy two conditions - (1) It must be a stable executive and (2) it must be a responsible executive. … The American and the Swiss systems give more stability but less responsibility. The British system on the other hand gives you more responsibility but less stability. The reason for this is obvious. The American Executive is a non-Parliamentary Executive which means that it is not dependent for its existence upon a majority in the Congress, while the British system is a Parliamentary Executive which means that it is dependent upon a majority in Parliament. Being a non-Parliamentary Executive, the Congress of the United States cannot dismiss the Executive. A Parliamentary Government must resign the moment it loses the confidence of a majority of the members of Parliament. Looking at it from the point of view of responsibility, a non-Parliamentary Executive being independent of Parliament tends to be less responsible to the Legislature, while a Parliamentary Executive being more dependent upon a majority in Parliament become more responsible. … Under the non-Parliamentary system, such as the one that exists in the U.S.A., the assessment of the responsibility of the Executive is periodic. It takes place once in two years. It is done by the electorate. In England, where the Parliamentary system prevails, the assessment of responsibility of the Executive is both daily and periodic. The daily assessment is done by members of Parliament, through questions, Resolutions, No-confidence motions, Adjournment motions and Debates on Addresses. Periodic assessment is done by the electorate at the time of the election which may take place every five years or earlier. The daily assessment of responsibility which is not available under the American system it is felt far more effective than the periodic assessment and far more necessary in a country like India. The Draft Constitution in recommending the Parliamentary system of Executive has preferred more responsibility to more stability.” In other words, this was a deliberate commitment to a form of government whose responsibility to the electorate could be assessed daily, through the mechanisms of Parliament. In times when the obligation of collective responsibility is fulfilled by the Council of Ministers, they have the confidence of the House. It is when they fail to discharge their collective responsibility to the House, that MPs move motions of no-confidence. In short, a motion of no-confidence inherently concerns the fulfillment of a condition required by the Constitution itself, and goes to the very core of the vision behind a parliamentary democracy. It is for this reason that the Lok Sabha Rules of Procedure state that the “… Speaker shall read the motion to the House and shall request those members who are in favour of leave being granted to rise in their places, and if not less than fifty members rise accordingly, the Speaker shall declare that leave is granted…” That the Speaker shall introduce a duly made motion of no-confidence before the House, and count the number of MPs in favour of leave being granted are required by provisions of the Constitution. They are not mere details of parliamentary procedure over which the Speaker enjoys discretionary power. The rules of procedure flesh out details on the no-confidence motion, but the foundational rule that necessitates such rules of procedure is in the Constitution. One such detail – that the Speaker shall count the MPs in favour of leave by requesting them to rise in their places – is a mere procedural requirement, there being no Constitutional provision mandating the exact manner in which the heads of MPs may be counted. The Speaker would have been well within her powers to count the MPs standing in support of the motion through a show of hands or even a show of placards numbered 1 to eighty. Procedural requirements can be modified in the discretion of the Speaker, so long as even the modified procedure is in line with the Constitution’s underlying norms. Evidence of this lies in the rule that proceedings of Parliament cannot be challenged in court on the ground of any alleged procedural irregularity in the conduct of Parliament

One such detail — that the Speaker shall count the MPs in favour of leave by requesting them to rise in their places – is a mere procedural requirement, there being no Constitutional provision mandating the exact manner in which the heads of MPs may be counted.

The Speaker would have been well within her powers to count the MPs standing in support of the motion through a show of hands or even a show of placards numbered one to 80. Procedural requirements can be modified in the discretion of the Speaker, so long as even the modified procedure is in line with the Constitution’s underlying norms. Evidence of this lies in the rule that proceedings of the Parliament cannot be challenged in court on the ground of any alleged procedural irregularity in the conduct of the Parliament. In short, the question whether cricket can be played with a football on a square pitch, like the question whether to bring a no-confidence motion before the House, is not open to decision by anyone. The rules of the game have already answered this question, for better or for worse, for the sake of the vision behind the game. The author is a Bangalore-based lawyer currently working on citizenship education for children, and can be reached at @malawdy.