After Supreme Court order on floor test in Maharashtra, what next?
A large group of Shiv Sena-NCP-Congress MLAs claiming to number 162 assembled at a Mumbai hotel on Monday evening in a show of strength on the eve of the Supreme Court’s decision on the parties’ petition seeking an immediate “floor test” in the Maharashtra Assembly.
The NCP MLAs were assured by party chief Sharad Pawar that the rebel Ajit Pawar was no longer the leader of the legislature party, and had no legal right to issue a “whip” to them to vote — upon pain of disqualification — for the government during the trust vote.
Early on Saturday, President’s Rule was lifted in the state, and Governor Bhagat Singh Koshyari administered the oath of office of Chief Minister to Devendra Fadnavis, and to Ajit Pawar as his deputy. The BJP and Ajit Pawar have claimed they have the support of enough MLAs from the NCP and other parties for a majority in the House — a claim that Sharad Pawar, the Sena, and Congress have rejected.
Once the Supreme Court passes its order on Tuesday, what will be the next steps in the formation of the government in Maharashtra?
To begin with, what is a “floor test”?
A floor test is the determination on the floor of the House (in this case, the Maharashtra Vidhan Sabha) whether the Chief Minister commands the support of the majority of the MLAs. This can be done by means of a voice vote, or by recording the vote of each MLA in the House. This determination of majority is done in a sitting of the legislature, for which the legislature has to be convened.
So, who will order the convening of the Legislative Assembly?
Under the Constitution, the Governor convenes the session of the legislature. But on multiple occasions in the past, the Supreme Court has ordered the convening of the Assembly to hold the floor test.
After the state elections of 2018 in Karnataka produced a hung Assembly, the Governor, on the basis of a letter of support provided by B S Yediyurappa, swore him in as Chief Minister and gave him 15 days to prove his majority. The Congress and JD(S) moved the Supreme Court, which ordered an immediate floor test. The Assembly was convened on a Saturday to determine whether Yediyurappa had majority support.
And who will conduct the floor test in the Legislative Assembly?
The proceedings of a legislature are presided over by the Speaker. The election of the Speaker is usually the first order of business that newly elected MLAs undertake after taking their oath of office.
Often, in cases where an immediate floor test is ordered, the election of the Speaker is taken up after the conclusion of the floor test. In the absence of a Speaker, the Governor appoints one of the MLAs to perform the duties of the Speaker. This MLA is referred to as the pro tem Speaker. He administers the oath of office to the other MLAs, and thereafter oversees the floor test in the legislature.
On what basis does the Governor make his choice of pro tem Speaker?
The Constitution gives the Governor discretion in the selection of pro tem speaker. On many occasions, Governors have appointed the most tenured MLA in the Assembly as the pro tem Speaker. However, this is only a convention, with which Governors have broken in the past.
For the 2018 Karnataka floor test, the Governor appointed BJP MLA K G Bopaiah as pro tem Speaker. While Bopaiah had been Speaker for two terms, he was not the most senior MLA. A challenge to his appointment failed in the Supreme Court, and he went on to preside over the proceedings of the Vidhan Sabha when the floor test was to take place.
Does the pro tem Speaker have complete discretion in conducting the floor test?
Not really. In the past when courts have ordered a floor test, they have also prescribed safeguards.
In the 2018 Karnataka case, the apex court ordered live telecast of proceedings. During the Jharkhand floor test in 2005, the court had directed the Chief Secretary and the DG of Police to ensure that all MLAs were able to attend the proceedings of the Assembly safely.
In both these cases, the court had also stopped the Governor from nominating an Anglo Indian MLA to the Vidhan Sabha (who might conceivably vote for the government).
In the 2016 Uttarakhand floor test, the court had prescribed that supporting and opposing MLAs should line up on two sides of the House, so that their numbers could be counted individually by a show of hands. The outcome of this floor test was then sent in a sealed cover to the apex court.
What is the apprehension about the role that Ajit Pawar might play?
The anti-defection provisions in the Constitution define the legislature party as a group consisting of all elected MLAs of a political party in the House. However, the Constitution does not define the leader of a legislature party.
Very often, the governing document of a political party provides for a leader of the party in the legislature. This leader is usually elected by the MLAs of the party from among themselves.
On occasion, the party authorises this leader to issue a whip to its MLAs to vote in a particular manner. MLAs who violate a whip issued by the leader of the legislature party on behalf of the political party, can be disqualified from the membership of the House.
On Saturday evening, the NCP, at a meeting attended by 42 of its 54 MLAs, used its discretion to sack Ajit Pawar as legislature party leader.
On Monday, Sharad Pawar told the MLAs of the “Maha Vikas Aghadi” alliance: “A misinformation is being spread that Ajit Pawar is the NCP’s legislature party leader who would issue a whip to all (NCP) MLAs to vote for the BJP (in the floor test). It is being said that whoever defies the whip would lose his membership of the House…
“Ajit Pawar, who has been removed from his position (as NCP legislature party leader), has no legal right to issue a whip to MLAs.”
So in the absence of a legislature party leader, can the NCP issue a whip to its MLAs for the vote?
The anti-defection provisions specify that a party can either itself issue a whip to its MLAs or authorise any person or authority for this purpose. The NCP meeting on Saturday delegated the powers of the leader of the legislature party to state party president Jayant Patil.
(Chakshu Roy is head of outreach at PRS Legislative Research)