The Maharashtra Speaker’s decision to adopt the motion expressing confidence in the Devendra Fadnavis government by a voice vote has created a precedent that can be more controversial in situations in which the numbers are not as clear as in this case, even as the validity of the action itself remains a point of debate.
“Had I been the Speaker, I would have called for a division of votes. It was the question of deciding whether the government has a majority or not,” said Somnath Chatterjee, former Lok Sabha Speaker.
Voice vote, which is provided for in the rules and procedures of legislative functioning, and widely used in parliaments around the world, is based on the presumption that the government has a majority in the House, said a former Secretary General of the Lok Sabha, who did not want to be named.
“But here the question is on the majority of the government itself. The Governor has appointed a government that needs to prove its majority in the legislature. If that is tested by a voice vote, the constitutional requirement that ‘all questions at any sitting... shall be determined by a majority of votes of the members present and voting,’ may not have been met.”
The voice vote is valid only when nobody questions it, pointed out Prithviraj Chavan, former Maharashtra Chief Minister and former Parliamentary Affairs Minister.
“The Congress and the Shiv Sena demanded a division. The Speaker did not heed (the demand),” he said, adding that the majority of the Fadnavis government has not been established.
“Motions testing the majority of the government must have recorded voting as in the case of constitutional amendments which require voting even if there is no challenge.” The Speaker has maintained that nobody demanded a division.
Though trust and no-trust motions are like any other motion under legislative rules, whether clearer modalities must be laid down for these, remains an open legal question.
The Supreme Court’s attempt in 2005 to prescribe the modalities of a trust vote in Jharkhand created a conflict between the judiciary and legislature. Mr. Chatterjee, who was then the Speaker, wanted a presidential reference to the SC, protesting that the apex court had encroached upon an exclusive domain of the legislature, which has its own procedures.
The SC had directed that the Jharkhand Speaker take the trust vote on a particular date, video record the proceedings and submit the footage to the court. Moreover, the court also directed the Director General of Police and Chief Secretary to ensure that every member of the legislature was facilitated in the exercise of his vote. Even as the order of the SC created a controversy, on the appointed day, the Speaker ruled that voting was not possible due to commotion, effectively defying the judiciary.
The Congress-led Central government avoided a presidential reference, but the SC examined in detail the question of legislative privileges in the ‘cash for query’ scam, when Parliament’s right to expel members was questioned by those affected. The court upheld the expulsions, but rejected the Union government’s contention that the legislature procedures had absolute immunity from judicial review.
The Constitutional Bench of the SC said in its judgment: “The Rules which the legislature has to make for regulating its procedure and the conduct of its business have to be subject to the provisions of the Constitution. Mere availability of the Rules of Procedure and Conduct of Business is never a guarantee that they have been duly followed. The proceedings which may be tainted on account of substantive or gross illegality or unconstitutionality are not protected from judicial scrutiny.”
Mr. Chatterjee, who had refused to respond to SC summons on the issue, told The Hindu that actions such as that of the Maharashtra Speaker open up the possibility of judicial intervention again. “I would not like the judiciary to interfere in the matters of legislature.”
The confidence vote won by Mr. Fadnavis is not immune to judicial review, though procedural irregularities are not sufficient grounds to challenge it. The question of the constitutionality of the government could well be.
