The unruly blacked out trust vote in Tamil Nadu brings to the centre stage, the role of the speaker, the indefensible privilege that our legislators enjoy and the centrality of the Supreme Court as the interpreter of our legislative maladies.
The concept of a floor test has been the lasting legacy of the Bommai Judgement in 1993, when there was an allegation that the MLAs were held hostage in a hill resort and the Governor deigned it fit to judge majority of a party from the precincts of the Raj Bhavan and not on the floor of the assembly. With all its warts and messages, the Bommai judgement is both robust in basic logic and constitutionally classic. And the floor test in Tamil Nadu, even with the black out, does not block out the logic of floor test as a template of democratic transparency.
But the issue that continues to baffle constitutional experts is the distinction our founding fathers have made between the freedom of expression enjoyed by the citizens and our elected representatives. While the citizens are hemmed around by reasonable restrictions under Art 19(2), the elected representatives have unfettered rights, under Art105. The classic howler was when the JMM MPs voted in favour of PV Narasimha Rao in a no confidence motion after accepting bribe and PV was sentenced to jail by the CBI court. The Supreme Court pronounced that voting after taking bribe is part of freedom of expression guaranteed under Art 105. This judgement, by common consent remains the lowest point in judicial history, of what constitutes freedom of expression.
The other nadir in the history of Parliamentary privilege was when some MPs openly displayed wads of notes in the Lok Sabha, as an evidence of enticing them to vote in favour of the ruling party. In a surprising sleight of hand the then Speaker, Mr Somnath Chatterjee, instead of handing over the case to the police for criminal prosecution under the Prevention of Corruption Act 1988, asked a Parliamentary Privilege to look in into it. Expectedly, the internal committee, in the absence of any independent member, did a neat cover up job. And the nation was deprived of the real contours of mendacity that shrouded it. Interestingly, the proceedings of such committees are not subject to judicial review, which is a basic feature of our Constitution. Quite clearly, as George Orwell wrote in the Animal Farm:All men are equal, but some are more equal than others. Freedom of speech and expression of our legislators clearly has an Orwellian perverse air about it.
There is one silver lining in this tapestry of manifest discrimination between citizens and our elected representatives. Contrary to what the lay public believes, the power of the Speaker in the matter of anti defection law is not absolute, nor is he is the ultimate arbitrator of the legislative proceedings. The Supreme Court has clearly ruled that the power of the speaker under Schedule X of the Constitution is that of an arbitrator, and can be reviewed by the Supreme Court under Art32, if it is manifestly illegal and arbitrary. In the floor test taken in Arunachal Pradesh assembly last year, the Supreme Court had appointed independent observers to conduct the floor test, when the Speaker’s impartiality was considered suspect. On the face of it, the decision seemed to disturb the fine balance that the Constitution envisages between three arms of the government. But with Governors functioning as political appointees and Speakers brazenly partisan, a proactive Supreme Court is a preferred democratic option. As EM Foster once observed: “Two cheers for democracy, for being not perfect, but better than autocracy and monarchy”. The floor test in Tamil Nadu is a vindication that we do not live in a utopian world.
Prof SN Mishra teaches Constitutional law. The views expressed are personal.