Before going for a detailed discussion let us see Constitutional Provision related to the Governor in calling a Floor Test
Article 174:
- Sessions of the State Legislature, prorogation, and dissolution
(1) The Governor shall from time to time summon the House or each House of the Legislature of the State to meet at such time and place as he thinks fit, but six months shall not intervene between its last sitting in one session and the date appointed for its first sitting in the next session
(2) The Governor may from time to time
(a) Prorogue the House or either House;
(b) dissolve the Legislative Assembly
- Right of the Governor to address and send messages to the House or Houses
(1) The Governor may address the Legislative Assembly or, in the case of a State having a Legislative Council, either House of the Legislature of the State, or both Houses assembled together, and may for that purpose require the attendance of members
(2) The Governor may sent messages to the House or Houses of the Legislature of the State, whether with respect to a Bill then pending in the Legislature or otherwise, and a House to which any message is so sent shall with all convenient dispatch consider any matter required by the message to be taken into consideration
- Council of Ministers to aid and advise Governor
(1) There shall be a council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this constitution required to exercise his functions or any of them in his discretion
(2) If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion
(3) The question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired into in any court
Note :
Article 174 of the Constitution authorizes the Governor to summon, dissolve and prorogue the state legislative assembly. Article 174(2)(b) of the Constitution gives powers to the Governor to dissolve the Assembly on the aid and advice of the cabinet. The Governor can implement his own discretion when the advice comes from a Chief Minister whose majority could be in doubt. Under Article 175(2), the Governor can summon the House and call for a floor test to prove whether the government has the numbers. Though the Governor can exercise the above only as per Article 163 of the Constitution which says that the Governor acts on the aid and advice of the Council of Ministers headed by the Chief Minister.
When the House is in session, it is the Speaker who can call for a floor test. But when the Assembly is not in session, the Governor’s residuary powers under Article 163 allow him to call for a floor test.
Note: Maharashtra Assembly is not in session
Governor’s Discretionary Power: Article 163 (1) limits any discretionary power of the Governor only to cases where the Constitution expressly specifies that the Governor must act on his own and apply an independent mind.
The Governor can exercise his discretionary power under Article 174, when the chief minister has lost the support of the House and his strength is debatable. Generally, when doubts are cast on the Chief Minister that he has lost the majority, the opposition and the Governor would rally for a floor test. There are several occasions, the courts have also held that when the majority of the ruling party is in question, a floor test must be conducted at the earliest available opportunity.
Note: Majority MLA of the Chief Minister party has expressed distrust in him. They have left for Assam and are consolidating numbers.
What is the Supreme Court’s View on the Governor’s Power in Calling the Floor Test?
Obiter:
Can Court intervene? The answer is in affirmative :
In-State of Rajasthan v Union of India (1977) 3 SCC 592 it was contended that, whether the government of a state could continue to operate in accordance with the Constitution was a political question not justiciable in courts of law. Rejecting this submission at the outset, Justice Bhagwati (as the learned Chief Justice then was) speaking for himself and Justice A C Gupta held: [The Additional Solicitor General] urged that having regard to the political nature of the problem, it is not amenable to judicial determination and hence the Court must abstain from inquiring into it. We do not think we can accept this argument. Of course, it is true that if a question brought before the Court is purely a political question not involving the determination of any legal or constitutional right or obligation, the Court would not entertain it, since the Court is concerned only with adjudication of legal rights and liabilities. But merely because a question has a political complexion, that by itself is no ground why the Court should shrink from performing its duty under the Constitution if it raises an issue of constitutional determination. Every constitutional question concerns the allocation and exercise of governmental power and no constitutional question can, therefore, fail to be political. A constitution is a matter of purest politics, a structure of power and as pointed out by Charles Black in Perspectives in Constitutional Law‘ ―constitutional law symbolizes an intersection of law and politics, wherein issues of political power are acted on by persons trained in the legal tradition, working in judicial institutions, following the procedures of law thinking as lawyers think.
Court directed to hold Special Session:
Jagdambika Pal v. Union of India, (1999) 9 SCC 95, had passed an order, after hearing counsel for the petitioner and the caveators, directing that a special session of the Uttar Pradesh Assembly will be summoned/ convened after two days on 26.02.1998 with the following directions:
“1. … (ii) The only agenda in the Assembly would be to have a composite floor test between the contending parties in order to see which out of the two contesting claimants of Chief Ministership has a majority in the House.
(iii) It is pertinently emphasised that the proceedings in the Assembly shall be totally peaceful and disturbance, if any, caused therein would be viewed seriously.
(iv) The result of the composite floor test would be announced by the Speaker faithfully and truthfully.
- The result is expected to be laid before us on 2721998 at 10.30 a.m. when this Bench assembles again.
- Ancillary directions are that this order shall be treated to be a notice to all the MLAs, leaving apart the notices the Governor/Secretariat is supposed to issue. In the interregnum, no major decisions would be made by the functioning Government except attending to routine matters, not much of any consequence.”
Power of Governor under Article 163 : Dictum:
If no floor test is conducted due to violence what Governor can do ? The landmark Judgment is of 9 Judges Bench verdict in S.R.Bommai’s case. Reference in Shivraj Singh Chauhan vs Deputy Speaker’s Case by Supreme Court:
There could be no question of the Governor making an assessment of his own. The loss of confidence of the House was an objective fact, which could have been demonstrated, one way or the other, on the floor of the House. In our opinion, wherever a doubt arises whether the Council of Ministers has lost the confidence of the House, the only way of testing it is on the floor of the House except in an extraordinary situation where because of all-pervasive violence, the Governor comes to the Conclusion – and records the same in his report – that for the reasons mentioned by him, a free vote is not possible in the House. (Emphasis supplied) In analyzing the observations made by the nine-judge Bench in SR Bommai it is pertinent to remember that the Governor, in that case, did not call for a floor test. Rather, the Governor of Karnataka sent a report to the President, based on which a proclamation was issued under Article 356. The observations in SR Bommai can be relied on in determining whether the Governor possesses the power to call for a floor test. Discerning the subsequent question of when the exercise of such power is appropriate is a distinct issue. On a perusal of the above observations in SR Bommai, it is evident that:
(i) Whether or not the Council of Ministers has lost the confidence of the House must be determined only on the floor of the house and not by the Governor conducting an independent verification; (ii) Where the Governor has reasons to believe that the incumbent government does not possess the support of the majority in the legislative assembly, the correct course of action would be for the Governor to call upon the Chief Minister to face the assembly and to establish the majority of the incumbent government within the shortest possible time; and
(iii) An exception to the invariable rule of testing whether the government has the assembly‘s confidence on the floor of the house is envisaged only in extraordinary situations where because of the existence of ―all-pervasive violence‖, a free vote is not possible in the House.
Note: An open threat is issued of violence. Governor’s call for a floor test is within his right. But if violence outside and within Assembly occurs then the only option available to the Governor of Maharashtra is to send the report of breaking down of law and order situation and imposition of President Rule.
The discretionary powers ultimately vested in the Governor under Article 163 of the Constitution represent an exception to the general rule of aid and advice.
The Constitution embodies the principle of aid and advice and in doing so, emphasizes that the Governor is a titular head of state, while the real authority and power vests in the Council of Ministers headed by the Chief Minister. The Council of Ministers is collectively responsible to the legislative assembly of the state. In discussing the principle of collective responsibility, a Constitution Bench of Supreme Court in State (NCT of Delhi) v Union of India observed: Para 321. “Collective responsibility of Ministers to Parliament is comprehended in two aspects: (i) collective responsibility of Ministers for the policies of the Government; and (ii) individual responsibility of Ministers for the work of their governments.”
In 2016, the Supreme Court in Nabam Rebia and Bamang Felix vs Deputy Speaker case aid that the power to summon the House is not solely vested in the Governor and should be exercised with aid and advice of the Council of Ministers and not at his own. However, this case is different than the case on hand in Maharashtra. Here Governor had by passed Speaker. While in case of Maharashtra there is no Speaker appointed. The election of Deputy Speaker is challenged and is sub-judice.
In 2020, the Supreme Court, in Shivraj Singh Chouhan & Ors versus Speaker, Madhya Pradesh Legislative Assembly & Ors, upheld the powers of the Speaker to call for a floor test if there is a prima facie view that the government has lost its majority.
“The Governor is not denuded of the power to order a floor test where on the basis of the material available to the Governor it becomes evident that the issue as to whether the government commands the confidence of the House requires to be assessed on the basis of a floor test.
It was held that:
- From the submissions made by learned counsel for the respondents, it would seem that the functions of the Governor in his relations with the Executive are completely hedged in but in his relations with the Legislature and the elected representatives, his discretion is virtually unlimited and not subject to judicial review as well. Surely, this is not what the Constitution framers had in mind nor do the decisions of this Court lead to such an intention or interpretation.
- Rather than provide so-called untrammeled power and authority to the Governor, the Constitution makers gave him an escape route in the event the Legislature is recalcitrant. This is by way of the resort to Article 356 of the Constitution through which the Governor can make a report to the President in the event there is a failure of constitutional machinery in the State. This escape route is available in a case where the Governor dismisses a Government but the Government refuses to recognize the dismissal order.
- Additionally, to ensure that the Governor is not unaccountable in his relations with the Legislature, the Constitution provides for the Legislature to frame its rules of procedure under Article 208 of the Constitution. The Legislature in Arunachal Pradesh has framed such rules and these are considered below.
Conclusion:
Maharashtra Government has challenged the floor test. The Chief Minister has lost trust. There is no Speaker appointed and the appointment of a Deputy Speaker is under challenge. Today at 6 pm when the matter is heard by the Hon’ble Supreme Court may be a time period extended by one day but Governor has the right to call for a floor test in the given circumstance. As the matter is sub-judice we have to wait for outcome.
Shruti Desai
29th June,2022
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