Ten Days to Prove a Majority

Ruling 1 - disqualification of the nine, partly right, poorly reasoned.

• Paragraph 2(1)(a) covers voluntarily giving up membership. The Supreme Court has held that this is not confined to formal resignation; conduct, including publicly declared withdrawal of support plus voting against the party line, can amount to giving it up. But the Speaker must point to actual conduct or declarations, not to the letter of withdrawal alone, and must give reasons.
• A whip binds members on a vote; it does not bind them to approve a merger or to stay silent about internal dissent. If the nine merely declared that they would not support the government in the House, the Speaker must show this amounts to giving up membership.

Ruling 2 - recognising the fourteen as a merger, clearly wrong.

• Paragraph 4 protects a 'merger' only where at least two-thirds of the members of the legislature party agree to it. Two-thirds of 58 is 39, and 14 is far short of it. Fourteen members cannot claim merger; at most they have defected.
• The 91st Amendment removed the old one-third 'split' shelter. The Speaker's recognition of a non-existent merger gives the fourteen immunity for conduct that is, on the face of it, defection.

Net result: one ruling needs a reasoned re-examination on evidence, the other is unsustainable.

Yes, but with a careful split.

• Kihoto Hollohan settled the main point: the Speaker, while adjudicating defection, acts as a tribunal and his decision is subject to judicial review under Articles 136, 226 and 227. The Tenth Schedule is not a lawless island.
• Timing. Courts are reluctant to interfere at the notice stage, before the Speaker has decided. Once a decision is given, review is available, but the court does not re-appreciate evidence like an appellate court; it examines whether the decision is vitiated by mala fides, perversity, violation of natural justice, or lack of jurisdiction.
• The two rulings here present different issues. Recognising a 'merger' of 14 out of 58 is a jurisdictional and legal error - the two-thirds figure is arithmetic, not appreciation of evidence - and is the kind of perversity courts will correct. Disqualifying the nine involves findings of fact and conduct; the court will ask whether reasons were given and whether the conclusion was reasonably open to the Speaker.
• Judicial review cannot, however, be used to delay the floor test indefinitely. Courts in Nabam Rebia warned against the use of office to manipulate numbers; the remedy is usually an expedited hearing, not an injunction that lets a minority government limp on.

Propriety of the direction.

• A Governor may ask a Chief Minister to demonstrate majority, but the power is constrained. After a no-confidence motion is admitted, the ordinary business of the House should proceed, and the floor of the House is the proper forum for a majority test - not the Governor's discretion about the clock.
• S.R. Bommai established that the majority is tested on the floor of the House, and that the Governor cannot rely on subjective satisfaction while the Assembly is in session. Nabam Rebia held that the Governor cannot advance the timing of a floor test where a no-confidence motion is already listed, since that interferes with the Speaker's control of the House agenda.
• Here the motion is already listed in ten days. A 72-hour deadline, cutting short the time to resolve the disqualification petitions whose outcomes change the numbers, is procedurally improper.

Sequencing to advise: (i) the Speaker decides the disqualification petitions with reasons; (ii) the resulting composition is known; (iii) the House takes up the no-confidence motion, and the majority is counted on that motion; (iv) only if the government refuses to face the House despite a direction can the Governor act, and then on material to be placed before the House.

Arithmetic check: with 9 disqualified and 14 wrongly counted as a merged group, the majority depends on how the 14 are treated. That is why the constitutionality of the Speaker's second ruling, not the Governor's deadline, is the decisive question.