The division bench of the court repeatedly maintained that irrespective of allegations of horse-trading and corruption, the only constitutional way to test majority was to hold a floor test, which “you still have to go for".
The Centre also faced searching questions from the court which observed that if the reasons for imposition of Article 356 in the instant case, where ruling parties are different at the Centre and in the state, are accepted then it may lead to the central government “watching with a magnifying glass where there is an opportunity for President’s rule".
“It (President’s rule) has to be applied in exceptional cases only," the bench of chief justice K.M. Joseph and Justice V.K. Bist said adding that the President could have waited for events to unfold on 28 March when a floor test was to take place.
The bench was hearing arguments on the petition challenging imposition of President’s rule filed by the ousted chief minister Harish Rawat and related pleas.
By imposing President’s rule, “you (Centre) are taking away power of an elected government. You are introducing chaos", it said adding the governor had not recommended imposing of Article 356. The bench went on to say that the governor’s action of 23 March calling for a floor test “cannot be deprived of its sanctity". “After (the decision on) 23 March what has happened for imposition of Article 356?" the court asked.
It said that irrespective of allegations of horse-trading or a sting operation pointing towards corruption in the government, “the only Constitutional way to test majority was to hold the floor test. You still have to go for floor test". “The sting operation and conclusions derived from it are totally irrelevant.
The Union cabinet could not have known that the speaker would on 26 March disqualify the nine MLAs. “Even if it (Cabinet) did know, it was irrelevant for the Centre to take it (disqualification) into consideration. If it (Centre) does take it into consideration, then it would stand accused of being partisan and playing politics in the state," the bench said.
The court also said that the government cannot say that the chief minister was trying to buy back his rebel MLAs while at the same time he was trying to get them disqualified. “Both can’t go hand in hand," it observed.
Senior advocate Harish Salve, appearing for state of Uttarakhand, asked the bench if the Centre has “clinching proof of corruption" should it allow floor test to happen and a corrupt and illegal government to go on by remaining a “mute spectator".
The Centre cannot be “hapless" in such a situation, he said and added that the Centre “cannot be a mute spectator to blatant slaughter of democracy". “The Centre is in the business of Constitutional morality and not head counting," Salve said.
Senior advocate Abhishek Manu Singhvi, appearing for the former CM, objected to Salve presenting arguments saying “the state has no role since currently the President is the state".
The bench, however, said that since the Governor cannot be made a party, he would speak through the state. The court asked the Centre whether events like governor asking for a floor test, would “eclipse what happened on 18 March"? (Assembly proceedings relating to Appropriation Bill). “Wouldn’t the event of 18 March pale into insignificance in view of subsequent events?" it asked.
The court observed that irrespective of whether a division of votes occurred on 18 March, the composition of the state’s assembly was bound to change as the nine rebel Congress MLAs had to “pay the price" of being ousted as per Constitutional provisions under the 10th schedule.
“The composition did not change because of a unilateral action of the petitioner (Rawat). Composition was bound to change and it changed subsequently because of Constitutional provisions under the 10th schedule. They (rebel MLAs) will have to pay the price," the bench said.
To the court’s queries and observations, Attorney General (AG) Mukul Rohatgi said in the instant case the speaker’s action of 18 March had allowed an “illegal and minority" government “to stay afloat" even though it had fallen as the appropriation bill had failed. “These circumstances show that the government of the state cannot be run as per Constitution. So a freeze for a few months," he said.
The AG also said that a solitary instance was sufficient to impose Article 356. “Merely because the governor has allowed a floor test, the President need not give a second chance. When a money bill fails, then there cannot be another chance. Therefore, President was not bound to wait," he said.
The AG also said that there can be a floor test after President’s rule, which he termed as a “temporary freeze", gets over in two months. He said that subsequent events would not eclipse what happened on 18 March when 35 MLAs had sought division of votes. “We can’t shut our eyes to what happened on March 18," he added.
The AG also raised a question whether it would be “fair" to give a second chance to a government “which was dead and gone on day one (March 18)". He said if the nine rebel Congress MLAs had to “suffer or pay the price" for what they did, then for what happened on 18 March, the government and speaker should also suffer. “They (government and Speaker) too should suffer," he said.
He said if the court holds that what happened on 18 March was not material enough to impose President’s rule, “then it would mean the court has pardoned or condoned the illegal action of speaker on 18 March". “This would not be a fair position," he said to which the court humorously remarked “all is fair in love and war".
The court then asked “how can it be said that the 35 MLAs would have voted against the government unless and until it is actually done?". To this, the AG replied that since 35 MLAs sought division of votes it was clear that they would vote against the government. “Else why would they demand for division of votes," he said.
The court also asked whether the Centre “was aware that if it did not act urgently, the nine rebel MLAs would have been left in the lurch". It asked the Centre whether there was any “urgency" of this sort or whether any “collateral purpose" was sought to be achieved. The bench said that from the “hasty manner" in which the Union cabinet took a decision to impose President’s rule in the state, it appeared that a “purpose foreign to provisions of Article 356" was sought to be achieved.
Salve said the President’s rule was imposed without any collateral purpose in mind. He said the Centre was mainly concerned with the fact that the money bill had failed and horse-trading was going in the state.
The court also asked the Centre whether a letter of 26 March to the President by the BJP of Uttarakhand asking for imposition of article 356 in view of alleged instances of horse-trading, would have “tipped the scales"? With regard to the 26 March letter of BJP to the President, Salve said it cannot be found out whether it would have tipped the scales.
Salve said that the President took a decision based on various factors like allegations of horse-trading, governor’s apprehension that some violence might occur on 28 March and allegations of corruptions on both sides.
To this the court said “hardly any government in India would last five minutes" if allegations of corruption against it are sufficient for dissolving it. Towards the fag end of the day, additional solicitor general Tushar Mehta said as per Constitutional conventions, if a government cannot pass a money bill it is obliged to resign.
To this the court said, “obliged to resign does not mean government has fallen". “If they do not resign, then as per procedure either a motion of no-confidence is moved against them (state government) or the Governor asks them to show that they enjoy confidence," the bench said.
It also said that “all over the country, it is happening where governments, which are obliged to resign, are shamelessly continuing". Arguments will continue tomorrow.