Irrelevance of floor test

Babasaheb Ambedkar famously said that Indian society is “essentially undemocratic” and that, for us, “constitutional morality” is something to be “cultivated”. Karnataka, before and after the election, told us a lot about our political, ethical and legal ethos. The developments in the state pose serious constitutional and legal issues that the whole nation may have to address, sooner or later.

Chief Minister H D Kumaraswamy won the confidence of the House. Fortunately, the floor test ended without further embarrassment, though it ran the risk of betrayals in the number game.

The apex court in the S R Bommai case (1994) said that the floor test is the ultimate test for determining the question of majority of a government in the assembly and thus its legitimacy. It is a condition precedent before imposition of President’s Rule under Article 356 of the Constitution on the ground of loss of confidence in the assembly.

Re-reading Bommai in Karnataka’s contemporary political context would be immensely profitable for the whole nation. Very many scholars have, in the wake of the post-poll events in the state, said that Bommairequired the governor to invite the political party commanding the largest number of seats. This is wrong.

In Bommai, the Supreme Court said: “We make it clear that what we have said above (regarding the requirement of floor test) is confined to a situation where the incumbent chief minister is alleged to have lost the majority support or the confidence of the house. It is not relevant to a situation arising after a general election where the governor has to invite the leader of the party commanding majority in the house or the single largest party/group to form the government”.

Thus, Bommaiindica ted that when there is no party commanding majority in the House, the only alternative is to call the single largest party or group. Even that is not a law laid down. In the Karnataka situation, the single largest group outnumbered the single largest party. Therefore the governor’s earlier invitation to the single largest party would have apparently acted as instigation for defection, which is prohibited under the Tenth Schedule of the Constitution. It was, therefore, widely criticised.

The Bommaiverdict also needed to be conjointly read with the subsequent verdict in Rameswar Prasad(2006). In the matter of invitation to form the government, the Supreme Court referred to the Justice Sarkaria Commission Report (1988) that indicated an order of preference.

In the Karnataka case, the option to call the single largest party was not legally available, for that pre-supposed the requirement of defections for the BJP to prove its majority. Had there been at least eight independent members supporting the BJP so as to enable it to reach the magic number of 112, the governor could have exercised that option. This, however, was not the situation in Karnataka.

Rameswar Prasad also said that the “governor cannot refuse formation of the government and override the majority claim because of his subjective assessment that the majority was cobbled by illegal and unethical means.”

The court said that such a power, if vested with the governor, would lead to “horrendous consequences.” “The governor is not an autocratic political ombudsman”, the court said. The implication in the judgement that a floor test may carry the risk of legitimising such unethical acts is also notable.

Significant questions

The Karnataka situation posed unique questions of great legal significance. Is the proposition in Bommaithat the floor test is the ultimate test, a safe or even a legal method to determine the majority in situations occurring immediately after the elections?

Floor test essentially means testing for majority. The BJP had only 104 seats and the Congress-Janata Dal coalition had 117 seats. It was clear as to who had the majority. Changing one’s political party after election is prohibited by the anti-defection law. Therefore, if a floor test contains the possibility for defection and since defection is per se illegal and unconstitutional, is it not prudent to straight away determine the number of supporters to a party/group by relying on the certificates of their election issued by the competent body, the Election Commission?

In that case, is it not just enough to test the views of the independents and single member of the political parties who are not covered by the anti-defection law? If a member is legally prohibited from changing allegiance or violating the whip, why should there be a floor test at all, especially when that can only facilitate an illegality that destabilises a government, either existing or in the making?

There are also other issues. An anti-defection law has ethical content. If so, there is no reason for not bringing the post-poll alliance of parties that contested against each other in the election also within the ambit of defection because, that too has the effect of betraying the voters. There is no qualitative difference between the two categories of ‘defection’. Likewise, the wilful absence of a member of the assembly during the floor test should also be treated as an instance of defection.

M N Roy quite reasonably and justifiably pleaded for party-less democracy for the country. This may sound too romantic a notion in contemporary India. But it is high time to re-think the legal rhetoric that “floor test is the last test”, by revisiting Bommaiand even Rameswar Prasad, at least with respect to the principles relating to the determination of majority. Necessarily, that process has to negate the so-called “right to defection”, now implied in the very idea of the floor test.

(The writer is a Supreme Court lawyer)