Exclusive: ‘Confinement Of MLAs Constitutes Breach Of Privilege, And Contempt Of The Assembly’, Says P.D.T.Achary

P.D.T. Achary was the Secretary General of the Lok Sabha, from 2005 to 2010 and is an eminent expert on Parliamentary procedures and practices. He helped the Speaker of the 14^th Lok Sabha, Somnath Chatterjee, steer the Lok Sabha through some difficult times.

His book, Law & Practice Relating to Office of Profit, published by Bharat Law House Private Limited, in 2006, is a substantial contribution to the subject.

His other books include Law of Elections, Speaker Rules, and Resurgent India: Glimpses of Rajiv Gandhi’s vision of India.

In this interview with LiveLaw, Achary answers specific questions on the vote of confidence won by the Tamil Nadu chief minister, K. Palaniswami on Saturday.

LIVELAW: The Tamil Nadu Speaker, P.Dhanapal, has held that the assembly rules do not provide for secret voting on a motion of confidence. His decision led to the subsequent pandemonium in the assembly, and eviction of the Opposition DMK members from the House. Was the Speaker correct in his decision?

ACHARY: The rules of the assembly do not provide for secret voting of members. A legislative assembly or Parliament is an open forum. Everything in the House is done openly. Then, there is another dimension, namely, the Anti-Defection Law. If you allow secret voting, it would defeat the law.

The Speaker’s duty is to ensure compliance with Governor's mandate to have the floor test. He is not concerned with other issues. Here, the Speaker enjoys absolute Constitutional protection, to ensure that there are proper conditions in the House to conduct a floor test. He has the power to remove Members, who obstruct the proceedings of the House. That is what the Tamil Nadu Speaker has done. He can’t do anything else. We can’t fault the Speaker for what he did.

LIVELAW: The Supreme Court had permitted composite floor test in Uttar Pradesh in 1998.  Should the Governor have suggested this to the TN assembly?

ACHARY: The composite floor test in 1998 was an invention of the Supreme Court. There is no sanction in the Constitution or the Rules of Procedure for a composite floor test. Our Constitution does not give the power to the legislative assembly or Parliament to elect a Chief Minister or a Prime Minister.

A Chief Minister is appointed by the Governor alone, and only he has the power. As per the convention, the majority party chooses a person as the legislative party leader. That leader is invited by the Governor, to form the Government, and is sworn-in as the Chief Minister. The House does not come into the picture at this stage.

The Council of Ministers is wholly responsible to the legislature. In order to be responsible, the Council of Ministers must enjoy majority in the House.

The Supreme Court cannot create parallel rules of procedure, even under Article 142 of the Constitution.

LIVELAW: In your view, did the Governor take the right decision in Tamil Nadu?

ACHARY: Under the Constitution, the Governor enjoys large amount of discretion. Here, there are two views. One is that the legislature must follow a normal procedure, that is, have a discussion or debate, preceding the vote of confidence in the ministry. The second is the assembly can straightaway opt for the voting on the confidence motion, complying with the mandate of the Governor.

The Governor of Tamil Nadu did the right thing by waiting for the Supreme Court’s judgment, before swearing-in Sasikala, who was first elected the AIADMK legislature party leader.

LIVELAW: Is there a Constitutional remedy for the crisis in Tamil Nadu?

ACHARY: The problem in Tamil Nadu lies elsewhere. There is a general feeling that the people of Tamil Nadu are opposed to Sasikala, who is now in prison, following the Supreme Court’s verdict setting aside her acquittal by the Karnataka High Court. The question is what kind of legitimacy the present Government in Tamil Nadu will have, when it seeks her guidance and leadership.

LIVELAW: That takes us to the interpretation of Article 164(4) of the Constitution. Can a non-legislator be appointed as the Chief Minister?

ACHARY: Articles 164(4) and 75(5) only enable appointment of a non-legislator as a Minister, and not as a Chief Minister or a Prime Minister, respectively. But the courts have interpreted it to mean that a Chief Minister or a Prime Minister is also a Minister, takes the same oath and is first among the equals.

But our Constitution has referred to Minister, and a Chief Minister/Prime Minister separately, meaning they have distinct responsibilities and functions. A Minister can be appointed only with the advice of the Chief Minister. Therefore, how can a CM and a Minister be equal? A Chief Minister is the head of the Council of Ministers. There has to be a distinction between the Head of the Council of Ministers and the Ministers.

Ambedkar’s speech in the Constituent Assembly Debates is often cited in favour of the proposition that a non-legislator can be appointed as a Chief Minister, or even as Prime Minister. But Ambedkar had confined himself to the appointment of a Minister. According to him, if there is an expert, who is not a member of the state legislature or Parliament, a Chief Minister or a Prime Minister should not be handicapped from including that expert in his or her ministry.

LIVELAW: One criticism of the Tamil Nadu crisis is that the MLAs of the ruling party were held in captivity till the floor test took place in the assembly on Saturday. Do you think the Governor ought to have considered this, before inviting Palaniswamy to form the Government? Some would say that the fact that the MLAs didn’t have the freedom, vitiates the floor test. Would you agree?

ACHARY: Constitution says every MLA or MP must have the freedom to vote. If the MLAs are held in captivity till the vote, that freedom is taken away. It is obvious that taking them to a resort is part of the same transaction, and would severely restrict their freedom to freely exercise their vote in a particular way. Freedom of mind is a precondition to exercise freedom of speech and to vote. In substance, their freedom is taken away, and this would constitute serious breach of privilege of the House, and even contempt of the House.

Therefore, it was the duty of the Governor to have satisfied himself about the genuineness of support to Palaniswami by speaking to every MLA, whose support he claimed, individually.

LIVELAW: But the Supreme Court, in Bommai Judgment, clearly says that it is not for the Governor to verify the support of the rival factions himself, but let it be tested on the floor of the House.

ACHARY: The Bommai judgment applies to support claimed within the assembly. The Governor has the discretion to decide whether a leader enjoys support within the legislature party, so as to invite him or her to form the Government, especially, when there are rival claims.

Once he is satisfied with the majority support enjoyed by Palaniswamy, he need not have asked him to seek vote of confidence in the assembly within 15 days, as floor test applies only to those chief ministers whose majority support is in doubt.

This article has been made possible because of financial support from Independent and Public-Spirited Media Foundation.