Thursday, April 28, 2016

Supreme Court asks Attorney General whether Speaker's 'irregular' practice, or the veracity of a sting operation, can be considered constitutional grounds for invoking Article 356

Supreme Court Justice Dipak Misra asked Attorney General Mukul Rohatgi a couple of questions in the Uttarakhand President's Rule case in Court 4 on Wednesday afternoon. The other judge on the division bench was Justice Shivakirti Singh. Rohatgi argued that the Speaker did not allow the division for the vote on the Budget, and he went by the voice vote. He said that the Speaker was bound to press for division as demanded by 26 MLAs. As the Budget was passed illegally, it is to be taken that the Budget was not passed. Therefore there was a breakdown.

Justice Mishra wanted to know whether the court can decide on the legality of the Speaker's act, even if the decision can be debated on the issue of its legality.

Rohatgi said that the court can take up the issue because where else could it be taken up?

Justice Misra further wanted to know whether the President can invoke Article 356 based on the fact that what the Speaker did was wrong and deem it an emergency.

Rohatgi's argument was that if the Budget could not be passed legally then it would mean that no money could spent and therefore amount to breakdown.

The other issue that Rohatgi brought forward was with regard to horse-trading as established through the sting operation.

The Justice Misra wanted to know that even if the sting was taken to be true, can the President use it as a constitutional reason for invoking Article 356.

Rohatgi agreed that the sting operation cannot be used cannot be used as a reason for imposing President's Rule.

Rohatgi cited Article 100 of the Constitution where it says that "all questions...shall be determined by a majority of votes..." and contended that the vote on Budget failed the majority test

The judge referred to Article 212 of the Constitution, which lays down, "Courts not to inquire into proceedings of the Legislature..."

Abhishek Manu Singhvi arguing for Chief Minister Harish Rawat reiterated the issue that the procedural irregularity if there is one, and the sting operation if it was taken to be true, cannot be grounds for imposing President's Rule. He said, citing the nine-judge Bommai verdict and the five-judge bench in Rameshwar Singh case that the only way whether the government enjoyed majority or not was through the floor test.

Singhvi argued that the convention that a government losing the Budget vote did not necessarily mean that the government has fallen. He explained, quoting from the House of Commons website, that there was no such thing as voting on the budget, that it really was about voting on demand for grants under different heads, and that the opposition could introduce cut motions. If the cut motion was carried through, it did not imply the fall of the government. He said that the House of Commons precedent is that it triggered a trust vote, which had to be carried out separately.

Kapil Sibal argued that the President did not impose the President's Rule but it was the cabinet which decided because the President acted with the aid and advice of the council of ministers. He said that this meant that the Union cabinet will decide whether something took place in a state legislature would be judged by the Union executive. He said that this fundamental question was at the heart of the case.

Justice Misra posed the hypothetical question whether President's Rule could be lifted for a day or a few days, the trust vote carried out, and the President's Rule be imposed until the case is decided. Rohatgi said that either President's Rule has to stay or it has to be lifted. There is no other way. Singhvi concurred.

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