According to Article 21 of the Universal Declaration of Human Rights 1948, covenanted by the United Nations at the end of World War-II, the contracting nations including India committed at the United Nations that ?the will of the people shall be the basis of authority of a government. This shall be expressed in periodic and genuine elections which shall be held by universal and equal suffrage and shall be held by secret vote or equivalent procedure?.
Quintessence of democracy can not be better spelt out in 2008, when out of 192 member countries in the United Nations, 122 are democracies, including the latest being Bhutan and Nepal, out of which 54 are Presidential and 68 are Parliamentary. This is age of democracy, which means howsoever high a person is, the country and the people are above him and the voter is sovereign and chooses the future of his nation.
Democracy demands transparency, credibility, accountability and rule of law in the every segment of nation'sgovernance whether Executive, Legislature, Judiciary or Election Commission or any legitimate authority in the service of the country. Dicey, who is a renowned authority on constitutional law, defined ?rule of law? to be one where men are ruled by laws and not men.
In India like any other constitutional democracy, the Constitution is supreme and President, Vice-President, Executive, Legislature and Judiciary and even states in the Union of India and their organs are the creatures of the Constitution.
And those who control them take the oath to adhere to it in discharge of their functions in the service of the welfare of the people of this country.
The primary and first function of the Legislature i.e. Parliament or Legislative Assembly is to make laws for governance with the final object of securing the welfare of the people.
Parliament must make laws and be role model in following laws in force and gain total confidence in the country to concretise the trust of the people.
Article 118 of the Constitution empowers the Rajya Sabha to legislate its conduct of Business Rules so is the case with the Lok Sabha. The Lok Sabha Rule 198 provides for moving no-confidence motion against the ruling party in power.
There is no provision or express rule for the ruling party or any Member to move a vote of confidence.
From the beginning of Constitution in 1950 to 1979 not even once confidence motion was moved during the years when Jawaharlal Nehru, Lal Bahadur Shastri, Indira Gandhi were Prime Ministers, that is 29 years after the Constitution and conduct of the Lok Sabha rules came into force.
Needless to say it could not be done or nor was proposed to be done by the ruling party on any issue, not agreed by the Opposition, since there was no express rule available. Second reason is if the no-confidence motion fails there is obviously confidence or trust of the Parliament and the nation in the ruling party or coalition.
The Parliament must follow rules and rules are law. ?Under Article 13 of the Constitution, ?law? includes any ordinance, order, bye-law, rule, regulation, etc.?
Rule 184 is for any member to move a motion on any matter of national or current importance. It does not expressly provide for moving a trust or confidence by the ruling party on any issue. Interpretation for centuries in England and other democracies is loud and clear.
Two Latin maxims which authoritatively interpret British Parliament, which we follow as model parliamentary democratic body. So is the case with similar democracies.
1. Expressium facit? cessare tacitum (What is expressed makes what is silent to cease.)
2. Expression unis excuses alteris (The express mention of one thing is exclusion of another.)
Motion for no-confidence in the ruling party is expressly stated in Rule 198 of Conduct of Business Rules of the Lok Sabha. Motion for confidence is not. From 1979 so many times Prime Ministers moved confidence resolutions, either won or lost, why were not amended, which could have been done easily.
In the absence of express rule providing for moving of confidence by the ruling party, what is available as a remedy for the Opposition is to move a no-confidence motion under Rule 198.
If the no-confidence motion is defeated on the floor of the House obviously the House and therefore the country has confidence in ruling party or alliance.
In 1979, the then President Sanjeeva Reddy sworn Charan Singh as Prime Minister subject to the condition that he should prove his majority in Parliament in the fixed time, which means he would cease to be Prime Minister if he fails to do so and another person would be appointed. This was cited later as a precedent and followed by later Presidents and Governors.
Under law any action can be subject to a condition precedent or condition subsequent. It is not Governed by rules.
President Sanjeeva Reddy'saction was followed by a condition subsequent. Once this condition is fulfilled the Prime Minister enjoys the confidence of the Parliament till a no-confidence motion is passed under Rule 198 of the Conduct of Business Rules of the Parliament.
Once the appointment of Prime Minister gets the seal of majority, there is no provision in the Conduct of Business Rules of the Parliament providing for any motion of confidence by the ruling party and then they are governed by the rules.
To the extent of fixing a condition subsequent to the appointment of Prime Minister it is a valid precedent.
But later anytime moving a confidence motion by the ruling party on any matter is not according to business rules which is ?law? under Article 118 of the Constitution and is therefore totally irregular unless and until business rules are amended by the Parliament or Assemblies as the case may be.
An ab initio irregular precedent cannot be a justification for circumventing the conduct of business rules in force in the Lok Sabha and that leads the people of this nation to conclude for the sake of their own interest that the Parliament failed to follow rules and thus the law of the land. A confidence motion cannot be moved by the ruling party and cannot be put to vote under the present conduct of Business Rules of the Lok Sabha. Winning or losing such an irregular motion is not binding on the Parliament or the country since it remains to be irregular not being in the rules.
To give an example the Marriage Acts provide for the registration of a man and a woman in the presence of witnesses and issuance of a certificate and if the couple goes to the registrar to again marry and affirm their mutual confidence, the registrar says you can come for divorce under the Marriage Acts and if you don'tthe marriage is valid and presumes your confidence till you are granted divorce.
Lok Sabha Members must follow the conduct of Business Rules made under 118 of the Constitution of India for which they were sworn to uphold before assuming their duties, to make laws for the welfare of the country.
A person howsoever high he or she is, constitutional institutions which defend the parameters of their functions are above them.
When Parliament does not follow the rules strictly it presumes the gravity of adverse impact on public, which is supreme in our country, which is the largest practicing democracy of the world.
Democracy is no respecter of personalities but of values and long range and larger interest of the nation and its people who remain supreme agitator and audit the actions of its adherants. Rule of law is a must not rule of men or women.
(The author is former Secretary, Union Ministry of Law, Member, National Law Commission and former Election Commissioner of India.)