Sixteen rebel Congress MLAS cannot be held "hostage" and should be allowed "free and unrestrained" exercise of their choice during the ongoing political crisis in Madhya Pradesh, the Supreme Court said on Wednesday.
The top court, hearing cross-pleas of former Madhya Pradesh Chief Minister Shivraj Singh Chouhan and state Congress party, made clear that it will not come in the way of the legislative process which will decide the fate of the 18-month-old Kamal Nath government.
"The MLAs cannot be held hostage and captive. They should have the access. They should be allowed to do what they want. Let there be free and unrestrained exercise of their choice.
"We are not going to come in the way of the legislature to decide who enjoys the trust of the legislature. We do know that these 16 (MLAs) tilt the balance in one way or the other... If they choose to come, they should have free, unhindered and uninterrupted access to the assembly," said the bench comprising Justices D Y Chandrachud and Hemant Gupta.
The bench, however, was apparently not in agreement with the submission of senior advocate Dushyant Dave, appearing for the MP Congress Legislature Party (MPCLP), that the fixed five year term of the Assembly was part of the basic structure of the Constitution.
Dave had said that heavens are not going to fall if the Kamal Nath government is allowed to remain in office till the bye-elections are held on 22 seats, to be vacated due to the resignations of rebel MLAs.
"We know that Dave made submissions on the fixed term of the House for five years but we are aware that it is not exactly how the Constitution works. We just want your (lawyers) assistance in how to ensure that the legislature decides as to who has the majority," the bench observed.
During the day-long hearing, Dave commenced the submissions on behalf of MPCLP and said that no interim order be passed on the plea of Chouhan and the floor test be held after the bye-election is conducted to fill the vacancy.
Citing principle of constitutional morality, he said BJP has been using "force and might" to destroy democratic principles and some Gujarat MLAs were shifted to Bangalore, the party had used CRPF and the IT department to carry out raids on Congress leaders.
He also questioned the actions of Governor Lalji Tandon and said the august office has been saying that the government has lost the majority and questioned as to how such an opinion can be formed without hearing anyone.
"Any trust vote should be held only in the presence of the 16 MLAs. If 22 MLAs belonging to Congress have resigned and if seats fell vacant, a trust vote cannot be held without representation of the electorate of the said 22 constituencies which can only be secured by holding by elections," Dave said.
He quoted B R Ambedkar and referred to the Constituent assembly debates and said that he had then said: "Democracy in India is only a top dressing of Indian soil which is essentially undemocratic".
"Stable governance should be considered as a basic structure of the Constitution so that nobody tends to work against the stability of an elected government," he said.
Senior advocates Mukul Rohatgi and Maninder Singh, appearing for three-time CM Chouhan and rebel Congress MLAs respectively, vehemently opposed the submissions of Dave and said after resignations of 22 MLAs, the government has lost majority and cannot be allowed to remain in power for even a day and strangely it wanted to hold office for next six months till bye elections are held.
"The petitioner herein (Congress) is the same party that killed democracy in 1975 by invoking emergency. Because of this party, B R Ambedkar left the ministry," Rohatgi said.
"This party is interested only in holding on to powers. It is the lust of power because of which all these lofty arguments are being made...It is unheard of that a person who has lost majority and cannot continue even for a day, says he wants to continue for 6 months, there should be re-election and then a trust vote," he alleged.
Congress party was trying to stay in power "by hook or crook" and they do not have any legal, moral or constitutional right to stay in power, he said.
Referring to apex court's judgement in SR Bommai case, Rohatgi said the Governor is required to ensure that state is functioning in accordance with the Constitution and if he has a prima-facie view that the government has lost majority, then floor test can be ordered to held.
The bench then said when the Congress party formed the government, it had 121 MLAs and "now Governor is saying you have lost majority is the basis of the resignations of 16 MLAs. The question is whether they have resigned".
Rohatgi said they have resigned on March 10 itself.
"One concern that we have is the Speaker has not decided for these 16. They say 16 have been whisked away to Bengaluru. We cannot compel MLAs to attend the proceeding but what we can do is to ensure they can take their own decision. That is the duty of a constitutional court," the bench said.
Rohatgi said these MLAs have filed their affidavits which are sufficient to infer that they are not held captive and if the court wanted to allay any kind apprehension, then these MLAs can be produced here.
He also suggested that alrenatively, the Registrar of the Karnataka High Court can be asked to meet the MLAs in Bengaluru and a report can be filed in the court on this.
The bench did not agree to the proposals.
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