Wednesday, June 04, 2014

Killing the Suspense over the Delhi Assembly: Part II

Guest Bloggers: Shraddha Kulhari and Sujoy Chatterjee
In the previous post, we had discussed the unique position occupied by the Lt. Governor of Delhi in our national capital’s governance structure. This post seeks to understand some of the facts and circumstances which could have persuaded the Lt. Governor to disagree with his CoM’s recommendation to dissolve the Delhi Assembly. We also touch upon Article 239AB, the provision which provides the legal framework for President’s Rule in Delhi, and analyse how its nuanced difference with Article 356 has a bearing on the suspended animation episode.

Disagreement over dissolution

On February 14, 2014, when the erstwhile Chief Minister of Delhi ArvindKejriwal met Lt. Governor Najeeb Jung to submit his CoM’s recommendation for dissolving the Assembly, the Lt. Governor expressed his disagreement and referred the matter to the President. In order to understand whether the Lt. Governor’s disagreement was justified, it is necessary to understand what facts and circumstances could have persuaded the Lt. Governor to disagree with his CoM.  S.R. Bommai v. Union of India mandates such an exercise, albeit in the context of the Governor, by allowing scrutiny of the material which was considered while deciding the fate of an Assembly.

To our mind, three relevant considerations could have weighed on the Lt. Governor’s mind that evening – (i) the AamAadmiParty (“AAP”) government had lost the confidence of the Assembly and therefore he was not bound by their recommendation; (ii) there was a possibility of an alternate viable government being formed; and/or (iii) it was too early to hold fresh elections.

Confidence of the Assembly

On the first point, the recommendations of the Sarkaria Commission Report (1987-88) as endorsed by the Sarkaria Commission Report (2001), S.R. Bommai and Rameshwar Prasad v. Union of India have consistently opined that an Assembly’s confidence in the CoM can only be tested on the floor of the Assembly.  We believe that ‘confidence’ in this sense means a vote specifically on the point of whether the CoM should continue in office, i.e., a vote of confidence or no-confidence as the case may be. The defeat of a motion on whether to introduce a bill ought not to be considered a vote on ‘confidence’. In fact, the Sarkaria Commission Report (1987-88)  seems to suggest that the defeat of such a motion may at best be viewed as an indicator that the CoM is “likely to have lost majority support”, warranting a test of confidence on the floor of the Assembly to establish whether the CoM has actually lost confidence.

The defeat of a motion on whether to introduce the Jan Lokpal Bill (even if it was the cornerstone of the AAP government’s agenda) could not have been interpreted by the Lt. Governor to mean that the AAP government had lost the confidence of the Assembly and that therefore he was not bound by their recommendation (as suggestedhere). If the Lt. Governor was under such an impression, he should in an ideal situation have asked Kejriwal to prove his majority on the floor of the Assembly. However, since Kejriwal had resigned from the post of Chief Minister, the possibility of a floor-test was precluded. In such a situation, could the Lt. Governor have simply assumed that the AAP government had lost the confidence of the Assembly and that therefore he was not bound its recommendation? Legal precedents seem to answer this question in the negative.

Alternate Government

With regard to the possibility of an alternate government being formed, we believe there were only two possible ways by which this could have been achieved:

(i)             members of the legislative assembly (“MLAs”) from one political party individually joining/extending support to another political party; or

(ii)          MLAs from two or more parties coming together to form an alliance of sorts.

Point (i) prima facie reeks of “horse-trading”, although it does not strictly fall foul of the anti-defection laws under Schedule X of the Constitution (See here). Point (ii) has more to do with political opportunism than law. Both these points are questions of political realignment, which can neither be tested nor faulted on principles of law. In any case, the political landscape in Delhi has changed so much since February, 2014 that anydiscussion onpossible realignments is rendered superfluous. Therefore, we skipany discussion on theseaspectsand stick to the subsisting legal issues at hand.

Fresh elections

On the point of holding fresh elections within a short span of the previous elections, the Sarkaria Commission Report (1987-88) had recommended that if an assembly had not even run half its term, it would be too early to hold elections (See here). The Union, in its affidavit submitted to the Supreme Court (“SC”), has adopted a similar stance by asserting that the decision to keep the Delhi Assembly in suspended animation was taken in public interest (See here). In this context, ‘public interest’ could either mean (i) the possibility of a viable government being formed (as mentioned above), or (ii) avoiding the huge expenses involved in conducting fresh elections within a short span of the 2013 Assembly Elections. The SC is presently seized of a somewhat related issue in Voters Party v. Union of India[1], which relates to whether the huge expenses incurred in conducting by-elections can be a ground for barring politicians from contesting elections in two constituencies simultaneously.  It would be interesting to see the SC’s views regarding whether burden on the exchequer is a valid ground for determining how and when elections should be conducted.

Article 239AB

Whatever be the Lt. Governor’s reasons for disagreeing with the recommendation to dissolve the Delhi Assembly, the matter was referred to the President for the Union’s decision. The Union, in its wisdom, decided that this was a fit case to invoke Article 239AB and impose President’s Rule in Delhi. The legal issues surrounding whether inability to form a majority government is a “failure of Constitutional machinery” has been aptly dealt with on this Blog in the past (See here and here), albeit in the context of Article 356, and we shall not be reiterating the same in this post. However, there is a subtle difference in the language of Article 356 and Article 239AB which may reflect in how the dissolution, if at all, of the fifth Delhi Assembly plays out.

In a situation where President’s Rule is imposed under Article 356 and a State Assembly is kept in suspended animation, the Governor’s power to dissolve the Assembly under Article 174(2)(b) is typically assumed by the President through Article 356(1)(a) (for instance, when Bihar was brought under President’s Rule in 2005). Interestingly, the Lt. Governor’s power to dissolve the Delhi Assembly flows not from the Constitution, but from Section 6(2)(b) of the Government of National Capital Territory of Delhi Act, 1991 (“GNCTD Act”). We believe that the assumption of the power to dissolve the Assembly will not be available to the President in the context of Delhi. This is because (i) there is no provision in Article 239AB which allows the President to assume the Lt. Governor’s powers, and (ii) the Order imposing President’s Rule in Delhi can only suspend provisions of law, and does not envision arrogating the powers under those provisions of law to the President. Therefore, unless it is argued that an order dissolving the Assembly falls within the ambit of an “incidental and consequential” action which is “necessary or expedient” for administering Delhi, the Order under Article 239AB can at best suspend the Lt. Governor’s power and cannot usurp it.

In the context of the impasse surrounding the Delhi Assembly, this would mean that while the Union can revive the Assembly by revoking the Order under Article 239AB, dissolution is still the Lt. Governor’s prerogative. The Union may have suspended Section 6(2)(b) of the GNCTD Act (we are not aware of the exact contents of the Presidential Order issued in February, 2014), but any decision to dissolve the Assembly has to emanate from the Lt. Governor. Whether the Union invokes Section 49 of the GNCTD Act to issue directions to the Lt. Governor in this regard or leaves the Lt. Governor free to decide for himself is a political question. But if and when the fifth Delhi Assembly is dissolved, this post may assist in deciphering the legal symphony to which democracy will be dancing in our national capital in the coming days.

Back to the basics, hopefully

The electoral mileage which could be derived out of the Delhi Assembly issue for the 2014 General Elections undoubtedly contributed to dulling the legal questions at hand. However, we would be doing a great disservice to our constitutional fabric if we limit discussions on the functioning of our constitutional institutions to only partisan politics and electoral opportunities.

[1]W.P. (C) 205/2014
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