The rationale for the Madras High Court’s interim order that there be no floor test in the Tamil Nadu Assembly until September 20 is hard to fathom. The order stalling a trust vote came on a writ petition seeking an early test on the floor of the House to ascertain whether Chief Minister Edappadi K. Palaniswami enjoys its confidence. The introduction of a motion in the Assembly is essentially an internal matter of the legislature, and is ordinarily outside the jurisdiction of the courts. The ostensible reason for the interim order is the apprehension voiced by the petitioner, the Dravida Munnetra Kazhagam, that 19 MLAs in the rebel AIADMK camp headed by T.T.V. Dhinakaran may be disqualified just ahead of a trust vote so that the ruling party can convert its minority into a majority. Two different issues appear to be conflated here. One is the Governor’s unexplained delay in ordering a vote of confidence even after it has become clear that Mr. Palaniswami is short of a majority in the House; the other is the possible disqualification, under the anti-defection law, of dissident MLAs. The stay has been imposed mainly because the Advocate General declined to give an undertaking that they would not be disqualified before the floor test. It is a moot question whether delaying the trust vote itself is the correct way of protecting a dissenter’s right to vote against a government. After all, if some MLAs are indeed barred from voting, and the regime clears a floor test as a result, the courts can still set aside the disqualification and, thereby, necessitate a fresh test on the basis of the original strength.
Between preventing a regime-saving disqualification and delaying an urgently required floor test, the High Court has preferred the less reasonable option. The court chose to be restrained on the issue of disqualification, over which judicial review is available, but proactive on the timing of the floor test, an issue on which courts are normally reticent. It must be conceded that in the event of flagrant violations of the Constitution or complete disregard for constitutional norms, a superior court has a right to intervene. For instance, it may be lawful for the court to even question the Governor’s silence when it becomes glaringly obvious that the incumbent regime does not have a majority. It is also empowered to ensure that no member is disqualified solely to alter the outcome of a trust vote. Last year, the Supreme Court did stay a floor test in Uttarakhand . But in this case, a direction that none should be disqualified before a floor test could have taken care of the petitioner’s fears without interfering with its timing. A stay on the vote, in fact, would only give more time for horse-trading and further scope for a regime to remain in office without an apparent majority.
