The Supreme Court order prescribing the three -hour long proceedings of Uttarakhand legislative assembly on 10 May to test whether unseated Congress government led by Harish Rawat enjoys confidence of majority votes on the floor of the House is unprecedented in more ways than one.

Firstly, the anti defection law would itself remain in abeyance when the Principal Secretary of the legislative assembly orders the House in order on Tuesday morning at 11 am.

There will not be any speaker or pro-tem speaker to conduct the proceedings but these would be monitored by the top court delegated key executive officer in the state.

The speaker who had earlier ordered disqualification of nine legislators belonging to the erstwhile ruling Congress would be sharing the “treasury” benches or along with the supporters of Rawat to demonstrate his support to him, he if he so desires.

Harish Rawat. PTI.Harish Rawat. PTI.

Harish Rawat. PTI

The disqualified legislators will not be allowed to enter the House.

Another crucial feature of the court-designed and monitored proceedings is that the law makers will raise their hands either against or in support of the confidence vote in the Rawat government that was dismissed by Modi government a few hours ahead of the deadline fixed by Governor K K Paul for the floor test.

On a law suit filed by union of India against the decision of Uttarakhand High Court on 21 April last quashing the imposition of President’s rule in Uttarakhand, a Supreme Court bench of Justices Dipak Misra and Shiva Kirti Singh passed an order on 6 May with the litigating parties — Union government and the aggrieved Congress — agreeing on its contents.

A battery of lawyers including Attorney General Mukul Rohatgi, Kapil Sibal, Rajeev Dhavan, Abhishek Manu Singhvi and C A Sundaram, appearing and the disqualified legislators, debated over the suggestions which were given by the Court. “Sometimes with appreciable amity and sometimes with some cavil, but, eventually, there has been an agreement”, the top court expressed its pleasure.

The three-hour special session will have only agenda and that “would be the Vote of Confidence sought by the respondent No 1 (Harish Singh Rawat).

“Nothing else shall be discussed in the Assembly. The proceedings in the Assembly are expected to be absolutely peaceful and without any disturbance. This Court expects that all the Members and all concerned with the affairs of the Assembly shall abide by the same in letter and spirit. The Chief Secretary and the Director General of Police, State of Uttarakhand, shall see that all the qualified Members of the Legislative Assembly, freely, safely and securely attend the Assembly and no interference or hindrance is caused by anyone therein”, judges noted in an unusual order.

“On the Confidence Motion having been put, a division of the House shall take place and the Members who are inclined to vote in favour of the Motion, shall sit on the one wing or side and the others who are against the Motion, shall sit on the other side.

“The Principal Secretary, Legislative Assembly of the State of Uttarakhand, shall see to it that the voting is appositely done and recorded. The Members voting in favour of the Motion shall singularly vote by raising their hands one by one and that will be counted by the Principal Secretary, Legislative Assembly. Similar procedure shall be adopted while the Members voting against the Motion”, the order adds.

Since there wouldn’t be a speaker to conduct the proceedings on that day, the Principal Secretary of the Assembly will act as eyes and ears of the Supreme Court. He will get the entire proceedings video-graphed and the video recording “shall be placed before the Court”.

He will personally place the result of the voting in a sealed cover before the judges of the Supreme Court on 11 May at 10.30 am sharp. Judges will declare the result; a job that court watchers feel had never been done by the apex court in the recent years.

“In a way it’s an unprecedented order” says constitutional lawyer Sanjay Hegde. He can’t recollect any other case with similar facts in which court had to intervene in the manner prescribed by it now in Uttarakhand crisis.

In the absence of a designated speaker and vote by raise of hands, the cross voting wouldn’t be difficult as the anti defection law will have been dysfunctional for the limited period of three years when the central rule is lifted in the State.

Thought the controversial court decision to hold the floor test in assembly by ‘raise of hands’ and not secret ballot, it may be recalled that that Bombay High Court in December 2014 upheld the order passed by the speaker of Maharashtra legislative assembly for conducting the voting by raising hands on a motion moved by newly appointed Chief Minister Devendra Fadnavis.

However, BJP had strongly opposed open voting when Chief Minister of Bihar, Jitan Ram Manjhi was asked to show his strength through show of hands by legislators.

BJP demanded secret voting during the vote of confidence sought by Manjhi government on the floor of the House two years ago. “We favour that the members of the state legislative assembly be allowed to cast secret ballot to decide the fate of the Manjhi government on the floor of the House,” senior BJP leader and former Deputy Chief Minister of Bihar Sushil Kumar Modi had said.

In the Maharashtra assembly case, however, state’s Advocate General Sunil Manohar had argued before HC that the “the first option for the Speaker is voice vote followed by a division of votes. If majority is proved by a voice vote then there is no need to go for a head count”.

Later, the High Court ruled that it did not have the jurisdiction to hear petitions challenging the decision of the Speaker who had ordered a ‘voice vote’ instead of a head count, enabling the newly-elected BJP government to prove its majority in the House. The PILs challenging the Speaker’s order contended that under the constitutional provisions, the respondents (Speaker and Chief Minister) are duty-bound to hold a secret ballot or head count to establish government’s majority in House”.

Noted constitutional lawyer Tehmtan R Andhyarujina, who was also the counsel for disqualified legislators of Uttarakhand, had challenged the order passed by Maharashtra speaker.

He had contended that “it is the mandate of the Constitution to have a vote of confidence and you cannot have it be a voice vote. This (passing the vote of confidence motion by voice vote) is completely contrary to the constitutional provisions, as the Constitution requires proper vote of confidence ie by division”.

He had also cited judgments of the Supreme Court in three different cases involving government in Uttar Pradesh, Jharkhand and Karnataka. He told the bench that in all the cases, the SC had not only entertained the petitions but also directed to hold a special session of Houses and conduct a ‘floor test’ to ascertain the majority of the ruling governments.

To this, Manohar had pointed out that in none of the judgments cited by Andhyarujina the top court said that the ‘floor test’ means “voice vote or vote by division”.

Division entails voting through secret ballot.

The possibility of raising a challenge to the Supreme Court order regarding Uttarakhand can’t be ruled out, particularly if cross voting evident on 10 May.

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Uttarakhand floor test order by Supreme Court raises serious issues