Whether the Governor has a power to call for a floor test when the assembly is
in the session?

Mar 19, 2021

In this post, We analyse the issue of jurisdiction that was raised in Shivraj Singh Chauhan v. Speaker Madhya Pradesh Legislative Assembly (Shivraj Singh Chauhan case). This case follows and mentions a series of cases involving the formation of governments with uncertain majorities in the legislative assembly, and consequent constitutional challenges to the direction of either the Speaker or the Governor.

Issue – Whether the Governor has a power to call for a floor test when the assembly is in the session; Issue a declaration that the communications of Governor of MP to the CM under Art. 174 and 175(2) of the CoI are unconstitutional

2. Bench – Justices D Y Chandrachud and Hemant Gupta

Facts

1. Resignation by 22 members
2. Governor called for the Floor test as government was in minority
3. Petition u/a 32 founded on the need to maintain
a. Constitutional morality
b. Constitutional ethos
c. Constitutional principles
4. Governor and the speaker did not get back the whisked away members
5. The governor could not have addressed a communication to the CM without
ascertaining the voluntary nature of the resignation and this needs to be done by
the speaker
6. Even if the resignations are to be accepted, the holding of the trust vote must
await by-elections being held for the purpose of filing up the vacancies
7. 168, 172, 175, 188 (read with 3rd schedule), 190, 191, FD – 51A
8. Resignation by 6 members accepted by the Speaker and 16 members did not
accept
9. Resignation and disqualification are two different concepts
10. Elected member of a legislative assembly has an absoluite right to resign by the
virtue of A190 of the constitution
11. Judicial review isn’t warranted in regard to the advice tendered by the governor to
the CM to convene a Trust vote

Cases Referred –
1. Nebam Rebia – governor has no constitutionally assigned role in relation to a disqualification under the 10th schedule. Any message by the Governor to the LA can only be on the aid and advice of the CoM;

2. State of Rajasthan v UoI – Whether the government of the state could continue to operate in accordance with the constitution was a political question not justiciable in courts of law. Bhagwati J said – Merely because a question has a political complexion, that by itself is no ground why the court should shrink its responsibility to determine the constitutional question.

3. Shrimanth Balasaheb Patil v Speaker Karnataka LA (2020) - 3 judge bench –
a. An elected Member of a legislative assembly has an absolute right to resign by virtue of the provisions of Article 190 of the Constitution;
b. Resignation and disqualification are distinct concepts; and
c. The exercise of judicial review in regard to the advice tendered by the Governor to the Chief Minister to convene a trust vote is not warranted.

4. Jagdambika Pal v Union of India (1999) 9 SCC 95 –
-- Dispute over Chief Ministership and majority in the house in the state of Uttar Pradesh.
-- Conduct of the Speaker, Uttar Pradesh Legislative Assembly was challenged as he withheld the verdict on disqualification of 12 Members despite conducting a hearing.
-- Court heard the matter on 24 February 1998. This Court directed that a special session
of Uttar Pradesh Legislative Assembly be convened for 26 February 1998 and a composite floor test was ordered.
-- The results of the floor test were to be submitted to the court on 27 February 1998.
-- The government was barred from taking any major decisions except routine matters until floor test.
5. Anil Kumar Jha v Union of India (2005) 3 SCC 150
-- Dispute over formation of government in the state of Jharkhand.
-- The Governor had appointed a proterm Speaker who was a comparatively junior member of the Jharkhand Legislative Assembly.
-- There existed apprehensions that the Governor would tilt the electoral balance between the parties by appointing an Anglo- Indian member under Article 333 of the Constitution.
-- A session of the Jharkhand Legislative Assembly had already been convened for 10 March 2005. This Court heard the matter on 7 March 2005 and directed a vote of confidence on 11 March 2005.
-- The only agenda for the day was to be the floor test. The result of the floor test would be announced by the proterm Speaker.
-- Till the floor test, the Governor was barred from nominating Members. The floor test was to be confined to the 81 elected members.
-- The Directorate General of Police, Jharkhand was to see that all elected Members can freely, safely and securely attend the Assembly and no interference or hinderance is caused by anyone therein.
-- Proceedings were to be video recorded and a copy sent to the court

6. Chandrakant Kavlekar v Union of India (2017) 3 SCC 758
-- Dispute over the formation of government in the state of Goa.
-- Shri Manohar Parrikar belonging to the BJP was appointed as the Chief Minister of Goa on the claim of 21 supporting legislators in a house of 40.
-- This number was challenged by the Congress Party in a letter addressed to the Governor.
-- The election results were declared on 11 March 2017. This Court heard the matter on 14 March 2017 and directed a vote of confidence on 16 March 2017.
--The only agenda for the day was to be the floor test.
-- The Election Commission was directed to ensure all formalities were completed by 15 March 2017.


The main contention in this case was that the governor cannot call for the floor test during the assembly that is when the assembly is in the session and he can call for it only during the formation of the government. However, the court referred S R Bommai followed by Nebam Rebia and held the following:-

1. The governor can call for the floor test during the session when he has reason to believe that the government has lost the majority support in the assembly (174). This power of government is constitutional under Art. 163, 173 and 175. Call upon the government to establish the majority with shortest possible time

2. Even when the resignation of 6 members is accepted by the speaker and if the speaker has not decided upon the remaining 16 resignations, Governors power is independent of the speakers’ power (190(3)(b)) to decide upon the resignations and disqualifications.

3. When the government has lost the majority support then it not mandatory for the governor to rely upon the aid and advice of the council of ministers and the chief minister

4. It is necessary that speaker to enquire if the resignation was voluntary and genuine, however its upto speaker to give the decision on those matters and hence convening a trust vote operates in a different field irrespective of the decision of the Speaker.

5. Holding the trust vote is necessary to ascertain whether the council of ministers headed by the CM has the confidence of the house. The continuance existence of that confidence is crucial to the legitimacy of the survival of the government.

6. Trust vote is the ultimate litmus test for the legitimacy to govern

7. Principle of collective responsibility, objective nature, circumspection, exigent and compelling nature

8. Governor does not decide whether the incumbent government commands the confidence of the house, however the purpose of the floor test is to enable the elected representative to determine whether the CoM commands the confidence of the house.

9. Therefore, the issue whether a governor can call for a trust vote in an already
constituted legislative assembly is not entirely res integra.