Uttarakhand floor test: Supreme Court's Bommai 2.0 moment

On Wednesday, the Supreme Court asked the Centre to revoke President’s Rule and allowed Harish Rawat to assume the chief minister’s office once proclamation is revoked. The Congress government won the trust vote in the Uttarakhand Assembly on the same day with 33 votes to BJP’s 28. Union minister Venkaiah Naidu said that the Cabinet has decided to recommend revocation of President’s Rule in Uttarakhand. The attorney general also told the apex court that they are likely to complete proceedings to revoke President’s Rule in Uttarakhand on Wednesday. But all this could have been avoided if the BJP government had seriously read the observations in the Supreme Court judgement of the 1994 case SR Bommai vs Union of India. A proper reading would have convinced the central government against this misadventure. [caption id=“attachment_2769002” align=“alignleft” width=“380”]  Representational image. AFP[/caption] On 6 May, the apex court while directing Harish Rawat to take a ‘vote of confidence’ on the floor of the assembly, reiterated the message conveyed in the case, where it held, “In all cases where the support of the Ministry is claimed to have been withdrawn by some legislators, the proper course for testing the strength of the Ministry is holding the test on the floor of the House." The 1994 judgement made some very serious and clear observations against the use of ‘private opinion’ and any sort of subjective analysis, of anyone, in deciding the fate of the government. The judgement held, “The assessment of the strength of the Ministry is not a matter of private opinion of any individual be he the governor or the President. It is capable of being demonstrated and ascertained publicly in the House. Hence when such a demonstration is possible, it is not open to bypass it and instead depend upon the subjective satisfaction of the Governor or the President. Such private assessment is an anathema to the democratic principle, apart from being open to serious objections of personal mala fides”. In the Bommai judgement the apex court also made it clear the circumstances under which the decision to impose President’s Rule can be made without going for a floor test. The court held, “The sole exception to this will be a situation of all-pervasive violence where the governor comes to the conclusion — and records the same in his report — that for the reasons mentioned by him, a free vote is not possible." Sharing his views on whether such exceptional circumstances existed in Uttarakhand, Constitutional expert, Professor Upendra Baxi had told Firstpost in April, “In the Bommai case it was made very clear that there should be a floor test. Nobody can say Supreme Court judgment was unreasoned. If the question is whether Uttarakhand warranted that exception, my answer would be that I don’t see any exceptional situation." Speaker Govind Singh Kunjwal, on 27 March, disqualified the nine Congress rebels from the legislative assembly under the anti-defection law. This decision was interpreted by both parties as it suited them. With the disqualification, the strength of the 70-member Uttarakhand Assembly was reduced to 61. The Congress contended that as the nine legislators were disqualified by the speaker, they cease to be members, and hence are not qualified to vote. The counter argument, highlighting the fact that the Speaker disqualified the members after President’s Rule was imposed, raised the question as to whether the Speaker had the Constitutional authority to do so. However, the apex court on 9 May refused to stay the disqualification of nine rebel Uttarakhand Congress MLAs and ruled that they won’t be allowed to participate in the trust vote on Tuesday. Baxi while talking about floor test had said, “Here we have to understand that whether the Presidential proclamation was reasonable or not is for the court to decide. But Bommai led to a major development as it introduced what is known as the floor test. In essence this idea of floor test was a key aspect of the judgment. It was the central idea of the judgment”. Here is where the Modi government erred big time. By ignoring the most important directive of the judgement, it created a constitutional quagmire from which even though it might have escaped, it still made a serious dent on its image.