BJP leader Jyotiraditya Scindia with party leader Shivraj Singh Chouhan, Union Minister Narendra Singh Tomar, State BJP President VD Sharma at party headquarters in Bhopal, Thursday, March 12, 2020. Photo: PTI

Raipur: Smarting under constant criticism for the past three months that he may have left the Congress for nothing, Jyotiraditya Scindia roared, “Tiger abhi zinda hai” after fourteen of his acolytes were accommodated in the Shivraj Singh Chouhan cabinet last week. But it may all amount to nought if the Supreme Court decides to review its November 2019 judgment in the Karnataka MLAs resignation case.

Chouhan, under pressure from Scindia, seems to have decided to perform one of the most absurd acts in India’s constitutional history: 15 of his 34-member cabinet are unelected members, including nine defectors. Including somebody of high stature in social and cultural life directly into the cabinet was generally considered an exception to the rule that all cabinet members should be elected members of a house.

“To induct 15 members in a cabinet of dubious standing directly is not only undesirable but unconstitutional. It makes a mockery of our democracy,” says Vivek Tankha, a former additional solicitor general (ASG) of India.

To top this absurdity, all 22 members who had approached the Supreme Court on March 10 along with Chouhan to press for their resignation had told the court and all news media that they were not “under pressure or gratification and neither did they want any ministerial berth”. A notice of disqualification against them had been filed on March 12, but speaker N.P. Prajapati accepted their resignation on March 19. At the moment, there is no speaker in the MP assembly, which has not met since March 25, when it approved Chouhan’s government.

“A final decision on their disqualification has not been taken. Since speaker Prajapati resigned, the question of their disqualification remains,” says Kamal Nath.

MP Governor Lalji Tandon and Assembly Speaker N.P. Prajapati. Photo: PTI

The Karnataka episode

The defection of the MLAs brought to the minds of many the Karantaka episode, when several legislators from the ruling Congress and Janata Dal (Secular) coalition resigned and defected to the BJP in July 2019.

In November 2019, a Supreme Court bench comprising Justices N.V. Ramana, Sanjiv Khanna and Krishna Murari in its judgment in the Shrimanth Balasaheb Patil v Karnataka Speaker, did not have to pronounce on the validity of the rejection of the resignations of 17 MLAs by the former speaker of the Karnataka assembly. This was because it found that their acts of disqualification arose prior to their submission of resignation letters.

A report in The Wire said “As the constitution permits non-members, if not otherwise disqualified as members, to continue as ministers for six months, the period within which they should get re-elected, they chose to resign from the assembly, rather than from their parties, which could have resulted in their disqualification under the Act. But the bench missed an opportunity to lift the veil behind their resignation from the assembly, and instead considered it as an act with no bearing on defection.”

In the case of Madhya Pradesh’s defectors, the legislators came on camera to send in their resignation from the Congress party too, since their ring leader Scindia had done the same. They also said this in the court. So the court is now bound to take another look at its own decision wherein it also said that parliament should consider strengthening certain aspects of the Tenth Schedule. The order read:

“In any case, there is a growing trend of Speakers acting against the constitutional duty of being neutral. Additionally, political parties are indulging in horse trading and corrupt practices, due to which the citizens are denied of stable governments. In these circumstances, the Parliament is required to re­consider strengthening certain aspects of the Tenth Schedule, so that such undemocratic practices are discouraged.”

So it may be a good opportunity for the court to review its own recent decision.

Supreme Court of India in New Delhi. Photo: PTI

Grounds for disqualification

There are several other grounds on which the 22 MLAs who had resigned can be disqualified. The constitutional requirement of the number of ministers not exceeding 15% of the “members” of legislature has not been followed. There are presently only 206 members in the house, so Chouhan’s cabinet should not have exceeded 30. But he seems to have gone by the calculation of the number of “seats” (rather than members) which is 230. If that was the intention of parliament, the amendment would have said ‘seats’ not ‘members’.

Besides, most embarrassingly for Chouhan, 35% of his cabinet has criminal records: 12 of his ministers have criminal cases against them and two have been convicted! Scindia should be embarrassed more for recommending Rajyavardhan Singh, who is the only one in the cabinet charged under section 354 of the IPC for outraging the modesty of a woman.

Perhaps such morality is not to be expected of either Chouhan or Scindia, who have shown naked aggression and ambition for power when they pushed for the dissolution of the Kamal Nath government in the midst of one of the worst health crises in human history.

“It is an acknowledgement of his present status in his new party. From ‘Maharaj’ to ‘tiger’. We all know a tiger walks on four legs,” says a general secretary of the Madhya Pradesh Congress Committee who thinks the BJP has not succumbed to his pressure but put pressure on him to return all his defectors to the assembly in the bypolls. Thirteen of the defectors are from the Gwalior region, a Scindia stronghold. The appeal of the ‘tiger’ will first be tested before he is given a ministerial berth at the Centre, it seems.