B.R. Ambedkar, the President of the Constituent Assembly had said: “the Governor under the Constitution has no functions which he can discharge by himself; no functions at all. While he has no functions, he has certain duties to perform.”
Parliamentary democracy generally envisages (i) representation of the people, (ii) responsible Government, and (iii) accountability of the Council of Ministers to the Legislature. The essence of this is to draw a direct line of authority from the people through the legislature to the executive.
The Constitution of India is so drafted that the legislative powers have been distributed between the Centre and the States keeping in mind the objectives of the Indian Union. According to Articles 1-3 of the Constitution, the Union of India has been construed to be an indestructible union of destructible States unlike the Federal Constitution of the United States which according to Maxwell is; “destructible union of destructible States.” However, there occur several occasions wherein there is an overlapping of the powers so granted to different organs of the State (the legislature, the executive and the judiciary). Overlapping of powers is prevalent not only between the three organs of the State but also between each of the organs and its machineries and offices. However, such overlapping of powers and functions have been saved by the judicial activism till date, which otherwise would have led to anarchy and failure of constitutionalism.
The recent debacle and tussle for power between the Governor of the State of Madhya Pradesh and Speaker of the State Assembly with respect to the date of the floor test, gave rise to the question regarding the power of the Governor if any, under the Constitution to direct a floor test on a particular date or, overruling the Speaker of the Assembly and advancing the date of the floor test/no-confidence motion. The Governor’s order for the floor test was essentially challenged on the grounds:
- That the Governor had no power to order a trust vote in the course of an ongoing legislative assembly or while the legislative assembly was in session.
- Even if the Governor did possess such power, the exercise of the power is impinged upon the authority entrusted to the Speaker under the proviso to Article 190(3)(b) and the Tenth Schedule to the Constitution.
- The Governor had no objective basis or material to form the prima facie opinion that the incumbent Government had lost its majority in the MP Legislative Assembly.
In this article, we propose to deal with the powers of the Speaker and the Governor with respect to the floor test and the manner (including date and time) in which it is to be conducted as envisaged under the Constitution of India.
THE LEGAL POSITION
The Constitution of India enumerates the formation of legislatures in States under Article 168, comprising of the “Governor” and two Houses or one House as in maximum of the States. In the recent times, there have been several instances where the office of Governor has been stained by the resounding accusations of “arbitrariness”, “injustice”, “lenient”, “Central Government’s servant”. In this regard it is pertinent to dive into the constitutional provisions guiding the office of the Governor.
Article 163 mandates that there shall be a Governor in each State and such person must be a citizen of India and have completed thirty-five years of age, who under Article 154 shall be vested with the executive power of the State to be exercised by him directly or through officers subordinate to him in accordance with the Constitution. The term of the office of the Governor bridges on the pleasure of the President of India which shall be for a maximum period of five years at a stretch from the date of his entering upon his office.
Article 178 of the Constitution mandates that there shall be a Speaker and Deputy Speaker of the State Legislative Assembly. The office of the Speaker denotes the values on which parliamentary system of the Government is based. The Speaker is conferred with the powers and privileges of the State Legislature. The Constitution of India lays down the powers and duties of the Speaker under Articles 96(2), 120(1), 100(4), 189(4), 195(1) and 210(1) of the Constitution of India. The Speaker derives his power from the rules of procedure of respective houses framed under the powers enshrined under the Constitution upholding the concept of constitutional morality. Accordingly, he is responsible for the conduct of the proceedings of the assembly in the manner of a guardian. The Speaker of the House is in charge and command of the proceedings of the House and such exercise of powers are normally protected under the concept of parliamentary privileges under Articles 122 and 212 of the Constitution of India. It will not be wrong to state that he is a link between the House and the executive Government and the Governor, the three pillars of a State Legislature. The fundamental principle is that the House is sovereign in the matter to frame its own rules of procedure and the conduct of business.
The manner in which Governor can exercise his functions under the Constitution is enumerated under Article 163 of the Constitution of India. It provides that the Governor shall be advised by the Council of Minister with the Chief Minister as the head in the exercise of his functions save and except where the Governor is empowered to use his discretionary powers by or under the Constitution or, any law framed thereunder. Thus, where the Governor acts as the Head of the State, except in relation to areas which are earmarked under the Constitution as giving discretion to the Governor, the exercise of power by him, must only be upon the aid and advice of the Council of Ministers, for the reason that the Governor, being the custodian of all executive and other powers under various provisions of the Constitution, is required to exercise his formal constitutional powers, only upon, and in accordance with, the aid and advice of his Council of Ministers. He is, therefore, bound to act under the Rules of Business framed under Article 166(3) of the Constitution.
However, Article 163(2) empowers the Governor to act in his discretion, “except insofar as he is by or under this Constitution required to exercise his functions or any of them in his discretion.” This discretionary power has put the position of Governor at a much higher pedestal, thus sometimes leading to an arbitrary and lenient exercise of this power.
Article 163(2) of the Constitution further provides that it would be permissible for the Governor to act without ministerial advice in certain other situations, depending upon the circumstances therein, even though they may not specifically be mentioned in the Constitution as discretionary functions e.g. the exercise of power under Article 356(1), as no such advice will be available from the Council of Ministers, who are responsible for the breakdown of constitutional machinery, or where one Ministry has resigned, and the other alternative Ministry cannot be formed.
In this regard it is pertinent to cite the Constituent Assembly Debates. Mr Rohini Kumar Chaudhari calling upon the Assembly to divest the Governor of his discretionary powers said that, “I know also, and the House will remember too, that the exercise of his discretion by the Governor of the Province of Sindh led to the dismissal of one of the popular Ministers-Allah Baksh.”
Justifying the purpose as to why the role of Governor was introduced in the Constitution, G. Durgabai opined that “We wanted to introduce the Governor in our Constitution because we thought that an element of harmony would be there and that institution would bring about some sort of understanding and harmony between the conflicting groups of people, if really the Governor is conscious of his duties and he functions well.” The governing idea behind this aims to place Governor above party politics.
Dr P.K. Sen, during the Constituent Assembly Debates, on 31st May 1949 said that, “The function that the Governor has to fulfil, as it is now borne is upon the Members of the House, is that of a lubricator, if I may use the expression. He is not to interfere, but he has just to smoothen the matters. If there are factions, if the different sections of the community are at loggerheads with each other, it is for him to act more of less as a lubricator, a cementing factor.”
In order to understand the role of a Governor in a State Legislature, the landmark case of Hargovind Pant v. Raghukul Tilak is to be referred wherein the Supreme Court unequivocally in the widest term possible stated that the Governor is not an employee or servant of anyone. It stated that the Governor, constitutes an integral part of the legislature of the State though not in the fullest sense, and is also vested with the legislative power to promulgate Ordinances while the Houses of the Legislature are not in session. He also exercises the sovereign power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends. He is vested with the power to summon each House of the Legislature or to prorogue either House or to dissolve the legislative assembly and this power may be exercised by him from time to time. He is also entitled to address either House or both Houses of the Legislature assembled together and he may send messages to the House or Houses of the Legislature with respect to a Bill then pending in the legislature or otherwise.”
The Constitution Bench of the Supreme Court of India held in BP Singhal v. Union of India, which followed the judgment of S.R. Bommai also held, that the role of the Governor of a State is to function as a vital link or bridge between the Union Government and the State Government. He is required to discharge the functions related to his different roles harmoniously, assessing the scope and ambit of each role properly.
In the landmark case of S.R. Bommai, the Supreme Court, went on to lay down the following jurisprudence on floor test which still holds the field;
“395. The High Court, in our opinion, erred in holding that the floor test is not obligatory. If only one keeps in mind the democratic principle underlying the Constitution and the fact that it is the Legislative Assembly that represents the will of the people — and not the Governor — the position would be clear beyond any doubt….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.”
The Reports of Sarkaria Commission, Rajmannar Committee and the unanimous opinion expressed by the Committee of five Governors constituted by the President of India were perused. In the aforementioned judgment, B.P. Jeevan Reddy, J., speaking for the Bench quoted the observations of the Committee of Five Governors with approval, as below: (S.R. Bommai, SCC p. 277)
“393. …The five Governors unanimously recommended that “the test of confidence in the Ministry should normally be left to a vote in the assembly. Where the Governor is satisfied, by whatever process or means, that the Ministry no longer enjoys majority support, he should ask the Chief Minister to face the Assembly and prove his majority within the shortest possible time… A Chief Minister’s refusal to test his strength on the floor of the Assembly can well be interpreted as prima facie proof of his no longer enjoying confidence of the legislature….”
However, the very recent turmoil in the State of Madhya Pradesh again attracts the question on the ambit of power exercised by the Governor of the State. As to the moral question with respect to resignation of any elected MLA concerned herein, it is pertinent to emphasise that the member of the legislature is vested with the sole prerogative to determine whether or not to continue in office and if such member seeks to resign, cannot be compelled to continue in office. And ultimately it is for the Members to decide who they wish to associate with and to face the consequences of such a decision in accordance with the law and the Constitution. However, resignation has to be accepted by the Speaker on determining whether it is a voluntary or genuine resignation or not. For the purpose of the above, genuine means authenticity of the letter of resignation and voluntary means a resignation shouldn’t be a result of threat or force or coercion. The Speaker cannot exceed the terms of the mandate and conduct an overbroad inquiry into the underlying motives of the Member. It is sufficient that the Speaker is satisfied that the Member‘s resignation is voluntary and genuine. The observation of this Court in Shrimanth Balasaheb Patil v. Karnataka Legislative Assembly reflects the notion as to when can a resignation be cancelled: (SCC p. 630)
“83. In view of our above discussion we hold that the Speaker can reject a resignation only if the inquiry demonstrates that it is not ‘voluntary or genuine. The inquiry should be limited to ascertaining if the Member intends to relinquish his membership out of his free will. Once it is demonstrated that a Member is willing to resign out of his free will, the Speaker has no option but to accept the resignation. It is constitutionally impermissible for the Speaker to take into account any other extraneous factors while considering the resignation. The satisfaction of the Speaker is subject to judicial review.”
As noted above, Article 175 empowers the Governor to issue instructions or send message to the State Assembly. By virtue of this power the Governor of State of Madhya Pradesh sent messages to the then Chief Minister of Madhya Pradesh, Shri Kamal Nath, upon submission of resignation of 22 Members of Legislative Assembly to the Speaker, to hold floor test over the weekend to prove majority/rather the fact, that his Government enjoys the confidence of the House. However, the Speaker posted the agenda for floor test on 26.03.2020 which was still about 10-12 days away.
Then the opposition petitioned before the Supreme Court of India by relying on the order of the Supreme Court in Maharashtra Assembly case and S.R. Bommai judgment, to advance the floor test, as according to them, allowing more time to a minority to run the show would be an anti-thesis to the constitutional morality and would lead to horse-trading.
Reliance on the judgment of Shiv Sena v. Union of India , was made by the petitioners before the Court as they relied on the following finding of the Supreme Court, wherein it held the following with respect to the floor test and the application of Article 212 of the Constitution of India: (SCC p. 812)
“1. There is no gainsaying that the boundaries between the jurisdiction of Courts and parliamentary independence have been contested for a long time. However, there is a need and requirement for recognising institutional comity and separation of powers so as to tailor judicial interference in the democratic processes only as a last resort.”
The Court said that it was necessary and expedient to conduct the floor test as soon as possible to determine whether the Chief Minister, who was administered the oath of office, has the support of the majority or not and hence directed immediate floor test and held that such directions were necessary to ensure the smooth running of democracy by ensuring a stable Government and also to wipe out the unconstitutional practices of horse trading.
However, Chief Minister Kamal Nath challenged the Governor’s direction for conducting floor test based on the judgment and order of the Supreme Court in Nabam Rebia and Bamang Felix v. Deputy Speaker Arunachal Pradesh Legislative Assembly wherein the Supreme Court had ruled that “the Governor’s connectivity to the House in the matter of sending messages, must be deemed to be limited to the extent considered appropriate by the Council of Ministers, messages addressed by the Governor to the House must be consonance with the aid and advice tendered to him.”
Hence, the question which was before the Supreme Court was, whether the Governor’s message under Article 175(2) is binding on the Speaker or, the act of the Governor to order for immediate floor test was an act beyond his power?
The Supreme Court, vide order dated 19.3.2020, directed an immediate floor test by 5 p.m. on 20.03.2020. However, by the judgment dated 13.04.2020 in Shivraj Singh Chouhan v. Speaker, Madhya Pradesh Legislative Assembly , the Court has provided a conclusive answer to the powers and limitations of the Governor and Speaker in regard to calling for a trust vote in the Assembly in an ongoing Government, which has been in power for the past fifteen months, which we would like to enunciate in the following paragraphs.
ANALYSIS OF THE JUDGMENT
In its final judgment the Court has taken a view so imperative yet convincing that in discharging the crucial role that is encumbered upon the Governor, it is necessary that the Governor bear in mind the purpose underlying the entrustment of the authority to require a trust vote is not to displace duly elected Governments but to intervene with caution when the circumstances which are drawn to the attention of the Governor indicate a loss of majority. In discharging this crucial role, it is necessary that the Governor bear in mind that the purpose underlying the entrustment of the authority to require a trust vote is not to displace duly elected Governments but to intervene with caution when the circumstances which are drawn to the attention of the Governor indicate a loss of majority. This power is granted to the Governor to ensure that the principle of collective responsibility is always maintained and must be exercised with caution. The following principle was reiterated by the Supreme Court in the recent judgment dated 13.04.2020: (SCC Online para 43)
“43. …The exercise of the power to call for a trust vote must be guided by the over-arching consideration that the formation of satisfaction by the Governor is not based on extraneous considerations.”
The Court in this judgment has summarily rejected the notion that there is a dichotomy of the Governor’s power in an assembly formed out of a fresh election and an assembly in session and answers the first question in positive, holding that the Governor does indeed under Article 174 have the authority to call for a trust vote when he has reasons to believe that the Council of Ministers headed by the Chief Minister has lost the confidence of the House.
The answer in affirmative however, comes with numerous caveats from the Court. It enters into a detailed analysis of the Constituent Assembly Debates and notes that while historical compulsions caused the Constituent Assembly to retain the discretionary powers of the Governor from Article 50 of the Government of India Act, 1935 in Article 163, such powers were an exception to the general rule of acting on the aid and advise of the Council of Ministers and it was required that such powers be executed by the office of the Governor in the capacity of a constitutional guardian preserving the democratic mandate and not as a facilitator of the political goals of either party.
In answering the second question, the Court restricted the exercise of discretion and made it immensely clear that the Governor has ordinarily no independent authority to determine the majority in the House and that such determination would have to mandatorily be made by the floor test. In a push for legislative accountability, the Court reiterates, as it has in S.R. Bommai and Nabam Rebia that the satisfaction of the Governor in calling for a floor test must be based on objective, material evidence that is subject to judicial review.
The Court affirmed the view taken by Khehar, J. (as he was then) in Nabam Rebia which discusses the scope and ambit of Article 174 of the Constitution of India along with the powers of the Governor with respect to Article 174.
Finally, the Court opines that the Speaker’s powers under the Tenth Schedule and Article 190(3)(b) pertaining to defection and resignation respectively are entirely distinct and do not affect the power of a Governor to call for a trust vote. Whether, the Speaker is yet to decide on a member’s resignation or not, will not be a valid ground for the deferment of a trust vote.
However, it is equally important from the point of view of democracy and that it is a part of the basic structure of the Constitution, the Speaker should have acted responsibly in view of the settled precedents and held the floor test immediately. The Governor by any stretch of power in the Constitution cannot direct or fix the timing of floor test at the very first instance itself without requesting the Speaker. He can recommend and it is the Speaker’s duty to conduct the floor test as per the wish of the Speaker, which must be reasonable and shall be in consonance with the Constitution. The Speaker must keep in mind that the Constitution does not allow a minority Government to continue, hence the floor test must be immediate, whenever, there is an issue with respect to the numbers or confidence of the members of the house on the ruling party. However, when the Speaker does not act in accordance with the Constitution, then the Governor does have the power to step in on the basis of an objective opinion regarding the majority and can definitely ask the Chief Minister to prove his majority in the house without any further delay. The Supreme Court was right in laying down, rather reiterating that delay in conducting the floor test might give rise to unconstitutional measures like horse-trading which has no place in a democracy.
Finally, the Supreme Court laid down the following with respect to the position of the Governor as enshrined in our Constitution: (Shivraj Singh Chouhan case, SCC Online para 45)
“45….The Governor is expected to discharge the role of a constitutional statesman. The authority of the Governor is not one to be exercised in aid of a political dispensation which considers an elected government of the day to be a political opponent. The precise reason underlying the entrustment of the authority to the Governor is the ability to stand above political conflicts and with the experience of statesmanship, to wheel the authority in a manner which sub-serves and does not detract from the strength and resilience of democratically elected legislatures and the Governments in the States who are accountable to them.”
The judgments of the Supreme Court in Shivraj Singh Chouhan, Nabam Rebia and S.R. Bommai are very clear on this aspect. The contemporary position remains that while the Governor has an extraordinary power of discretion in very limited circumstances under Article 163(1), this extraordinary power itself is subject to rigorous judicial scrutiny and must satisfy objective, material considerations that are not politically coloured.
“The powers which are entrusted to constitutional functionaries are not beyond the pale of judicial review. Where the exercise of the discretion by the Governor to call a floor test is challenged before the court, it is not immune from judicial review.”
Now that the Supreme Court has settled the ambit of power exercised by the Governor in light of MP turmoil, the question with respect to the tussle of power to conduct the floor test and whether the Governor enjoys his discretion over the decision of the Speaker, still floats in the dark, ambiguous and dubious seas. In the situation where the House has been summoned following the aid and advice of the Council of Ministers, the position would be more understood that in exercising the constitutional authority to demand a trust vote, the Governor is equipped and required to do so in a manner that ensures that the authority of the House to determine the existence or loss of confidence in the Government is not undermined. This is in line with the constitutional morality rather the constitutionalism, but the judgment will act as a double-edged sword, if the Governor acts contrary to the Constitution and his powers, it would result in the realisation of the worst fears of the constitutional framers who were cognizant that, the misuse of office of the Governor could potentially derail democratically elected Governments.
*Advocate-On-Record, Supreme Court of India and Advocate L&L Partners, New Delhi. (Research Credits: Ms. Nandani Anand, 4th Year Law Student- UPES, Dehradun and Ms. Sohini Banerjee, 3rd year Law Student, School of Law, NMIMS, Mumbai)