Constitution of India: Art.174 – Power of the Governor to call floor test – Scope of – Held: Power under Art.174 of the Constitution to summon the House and to prorogue is exercised by the Governor on the aid and advice of the Council of Ministers – But in a situation where the Governor has reasons to believe that the Council of Ministers headed by the Chief Minister have lost the confidence of the House, constitutional propriety requires that the issue be resolved by calling for a floor test – The Governor in calling for a floor test cannot be construed to have acted beyond the bounds of constitutional authority.
Administrative Law: Judicial review – Governor calling for a floor test – Scope of interference by Courts – Held: The powers which are entrusted to constitutional functionaries are not beyond the pale of judicial review – Where the exercise of the discretion by Governor to call a floor test is challenged before the court, it is not immune from judicial review – The court is entitled to determine whether in calling for the floor test, the Governor did so on the basis of objective material and reasons which were relevant and germane to the exercise of the power.
Constitution of India: Art.174 – Duty of the Governor while calling floor test – Held: In exercising the constitutional authority to demand a trust vote, the Governor must do so with circumspection 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 – Absent exigent and compelling circumstances, there is no reason for the Governor to prevent the ordinary legislative process of a no confidence motion from running its due course – The Governor is an appointee of the President but does not represent either a political ideology or a political view – The 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 subserves and does not detract from the strength and resilience of democratically elected legislatures and the governments in the states who are accountable to them.
Constitution of India: Art.174 – Exercise of power by Governor to convene floor test – In this case, the Budget Session of the Legislative Assembly was convened on the aid and advice of the Council of Ministers to commence from 16 March 2020 – The Governor was intimated that 22 Members owing allegiance to the INC had tendered their resignations to the Speaker of the Assembly – Copies of the resignation letters were forwarded to the Governor – At this stage, the validity of these resignations was not discerned and no decision was made by the Speaker as to whether the resignations were voluntary or genuine – The Chief Minister subsequently tendered advice to the Governor for the removal of six Members who were ministers in the State government – On 13 March 2020, the Speaker of the Legislative Assembly issued notices of disqualification – However, on 14 March 2020, the resignations of six Members who were ministers of the incumbent government were accepted by the Speaker acting in exercise of the constitutional authority under the proviso to Art.190(3)(b) – The Chief Minister addressed a communication to the Governor stating that the convening of the floor test would be a sure basis for resolving the conundrum – However, upon the convening of the Legislative Assembly, no floor test was conducted, and the House was adjourned till 26 March 2020 – Governor advised to conduct a floor test – Propriety of, challenged – Held: Based on the resignation of six ministers of the incumbent government (accepted by the Speaker), the purported resignation of sixteen more Members belonging to the INC, and the refusal of the Chief Minister to conduct a floor test despite the House having been convened on 16 March 2020, the exercise of power by the Governor to convene a floor test cannot be regarded as constitutionally improper – In order to obviate illegitimate and unseemly political bargaining in the quest for political power, the trust vote should be convened at the earliest date – It is a matter which can brook no delay since the authority of the government presided over by the Chief Minister depends on the Council of Ministers continuing to have the faith of the legislative body as a collective entity.
Constitution of India: Power of Governor to take decisions as to whether the resignations tendered by Members were genuine or a Member of the House has incurred a disqualification – Held: The Governor does not decide whether the resignations that were submitted by the Members were genuine and voluntary – That is squarely a matter which lies within the domain of the Speaker – Similarly, whether a Member of the House has incurred a disqualification under the Tenth Schedule is a matter where the Speaker is the designated authority – It is trite law that neither the Governor, nor for that matter this court, has the power to impinge upon the authority of the Speaker to take a decision on these issues.
Constitution of India: Holding of a trust vote – The holding of a trust vote operates in a distinct field from the issue as to whether one or more individual members of the Legislative Assembly have embarked upon a voluntary act of resignation or have incurred the wrath of the Tenth Schedule – Holding a trust vote is necessary to ascertain whether the Council of Ministers headed by the Chief Minister has the confidence of the House – The continuous existence of that confidence is crucial to the legitimacy and hence survival of the government – Particularly where the Members resigned in an expression of a lack of faith in the existing government, the convening of a floor test is the surest method of assessing the impact of the resignations on the collective will of the House – Thus, the convening of a trust vote is of crucial importance to affirm the fundamental values of the Constitution namely, abiding by the rules which govern a parliamentary democracy – Holding of a trust vote does not short-circuit the jurisdiction of the Speaker on a matter of resignation and disqualification – The court cannot issue a direction mandating that a trust vote cannot be convened if any one or more Members do not remain present in the House – Whether or not to remain present is for the individual Members to decide and they would, necessarily be accountable for the decisions which they take, both to their political party and to their constituents. Disposing of the writ petitions, the Court
HELD: 1.1 The Governor is appointed by the President and is the head of the executive branch in whom, under Article 154, the executive power of the state is vested. While holding office at the pleasure of the President, the Governor as a constitutional authority is not a Member of either House of Parliament or of the legislature of a State. The discretionary powers vested in the Governor under Article 163 of the Constitution represents 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. [Paras 32, 37][823-E; 827-E]
1.2 The legislative assembly is a democratically elected body and the government represented by the Council of Ministers with the Chief Minister at the head can continue in office only so long as it continues to have the confidence of the legislature. Integral to this concept is the ultimate authority of the state legislature to exercise supervisory control over the conduct, decisions and affairs of the government. The legislature does so through the debates which take place on the floor of the house as well as by exercising oversight over the departments of government. The relationship between the executive arm of the state and its legislative arm in the democratically elected legislative bodies of the states is not merely a matter of constitutional affliction. In making the Council of Ministers answerable to the legislative assembly and in entrusting to the legislative assembly the authority to exercise oversight over the affairs of the state, the Constitution weaves an intricate process that has been described as representing the checks and balances of democratic governance. [Para 37][828-C-E]
1.3 The Constitution employs distinct expressions in relation to the term of its legislative bodies, their convening, sittings and ultimate dissolution. The duration of the state legislature is prescribed as five years from the date appointed for the first meeting, unless the legislature is dissolved sooner. After the elections have been held for the purpose of constituting a legislative assembly, the legislature is summoned by the Governor to meet at such time and place as he thinks fit. Upon the legislature being summoned, the Governor is entrusted with the authority to prorogue the House. The concept of the House being prorogued is distinct from the dissolution of the legislative assembly. A decision to prorogue the Houses does not bring to an end the duration of the assembly. The duration of the assembly which is prescribed as five years by Article 172 is brought to an end either on the expiry of this period counted from the first date appointed for the meeting or an earlier dissolution. In summoning the House, and in taking a decision to prorogue or dissolve it, the Governor ordinarily acts on the aid and advice of the Council of Ministers. The primary basis on which the accountability of the Council of Ministers is exacted towards the legislature is through the relationship which the Constitution envisions between the government and the elected body of the legislature. The Council of Ministers is drawn from the legislative body, membership of the Council of Ministers being dependent (beyond a term of six months) on membership of the House. But apart from the principle that a member of the Council of Ministers must be a member of the legislature, accountability of the executive to the legislature is exacted by the ultimate authority which was conferred on the legislature to express a lack of confidence in the Council of Ministers. In envisioning the role of the Governor as a constitutional statesman, care must be taken in the course of interpretation to ensure that the balance of power which was envisaged by the Constitution between the executive and the legislature is maintained by the gubernatorial office. [Para 38][828-F-H; 829-A-D]
2. The issue of whether a Governor can call for a trust vote in an already constituted legislative assembly is not entirely res integra. Before a nine-judge Bench of this Court in SR Bommai, the individual cases which came up for consideration included the dispute emanating from the State of Karnataka. It was observed therein that the question of whether the Council of Ministers in an ongoing legislative assembly commands the confidence of the house is a matter which has to been determined only on the floor of the house and that it is not for the Governor to determine the issue within his subjective satisfaction. The only exception to this norm which the court drew was where a situation arises where members of the Legislative Assembly may not be able to express their opinions freely as a result of prevailing violence or for other extraordinary reasons.[Para 39][829-E; 831A-B] SR Bommai v. Union of India (1994) 3 SCC 1 : [1994]
2 SCR 644 – followed
3. 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. The court is entitled to determine whether in calling for the floor test, the Governor did so on the basis of objective material and reasons which were relevant and germane to the exercise of the power. The exercise of such a power is not intended to destabilise or displace a democratically elected government accountable to the legislative assembly and collectively responsible to it. 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. While the Constitution recognises that the Governor does possess a power inhering in the office to monitor that the elected government continues to possess the confidence of the Legislative Assembly, this entrustment ought not to overide or displace the basic responsibility of the executive to the legislature or the ability of the legislature to demand accountability of the executive arm of the state. [Paras 43, 44][836-H; 837-A-D]
4.1 In exercising the constitutional authority to demand a trust vote, the Governor must do so with circumspection 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. Absent exigent and compelling circumstances, there is no reason for the Governor to prevent the ordinary legislative process of a no confidence motion from running its due course. The Governor is an appointee of the President but does not represent either a political ideology or a political view. 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. [Para 45][838-A-D]
4.2 In discharging this crucial role, it is necessary that the Governor bears 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 maintained at all times and must be exercised with caution. The circumstances on the basis of which the Governor forms a prima facie opinion leading up to a communication requiring a trust vote in the legislative assembly must be of an objective nature. [Para 46][838-F-G]
5. Based on the resignation of six ministers of the incumbent government (accepted by the Speaker), the purported resignation of sixteen more Members belonging to the INC, and the refusal of the Chief Minister to conduct a floor test despite the House having been convened on 16 March 2020, the exercise of power by the Governor to convene a floor test cannot be regarded as constitutionally improper. [Para 47][839-E-F]
6. The Governor has in fact not intervened in the authority which is entrusted to the Speaker to either decide upon the voluntary and genuine character of the resignations or any issue of disqualification within the meaning of the Tenth Schedule. Faced with the communication of the Governor for convening a trust vote immediately after the Governor’s address, the session of the Legislative Assembly was adjourned till 26 March 2020 despite the House having already convened. This would have allowed the state of political uncertainty in Madhya Pradesh to continue and furnish avenues for political bargaining on terms which cannot be regarded as legitimate. It is with a view to obviate illegitimate and unseemly political bargaining in the quest for political power that this Court has consistently insisted upon the convening of a trust vote at the earliest date. [Para 48][839-G-H; 840-A-B]
7. The idea underlying the trust vote is to uphold the political accountability of the elected government to the state legislature. Assertion of accountability is a mirror image of the collective responsibility of the government to the legislature. The requirement of the trust vote fulfils that purpose in the present case. The present controversy has shone a light on the oftenfluid allegiances of democratically elected representatives. This is a matter for their conscience and the court expresses no opinion on the matter. However, in directing a trust vote, the Governor does not favour a particular political party. It is inevitable that the specific timing of a trust vote may tilt the balance towards the party possessing a majority at the time the trust vote is directed. All political parties are equally at risk of losing the support of their elected legislators, just as the legislators are at risk of losing the vote of the electorate. This is how the system of parliamentary governance operates and admittedly the outcome of the trust vote is the ultimate litmus test for the legitimacy to govern. However, where the evidence indicates that circumstances of violence and coercion exist that would undermine a free and fair vote in the assembly, the Governor and the court must take measures to ensure that the sanctity of the trust vote is maintained. In the circumstances as they have emerged in this case, the exercise of authority by the Governor was based on circumstances which were legitimate to the purpose of ensuring that the norm of collective responsibility is duly preserved. There existed no extraordinary circumstances for the Governor to determine that a trust vote was not the appropriate course of action on 16 March 2020. [Para 49][843G-H; 844-A]
8. The Governor does not decide whether the resignations that were submitted by the Members were genuine and voluntary. That is squarely a matter which lies within the domain of the Speaker. Similarly, whether a Member of the House has incurred a disqualification under the Tenth Schedule is a matter where the Speaker is the designated authority. It is trite law that neither the Governor, nor for that matter this Court, has the power to impinge upon the authority of the Speaker to take a decision on these issues. The issue however is whether the convening of a trust vote has to be deferred until such time as the Speaker has taken a decision on whether or not to accept the resignations and if so, the consequence of the Members departing from the fold of the party on whose ticket they were elected under the Tenth Schedule. The holding of a trust vote operates in a distinct field from the issue as to whether one or more individual members of the Legislative Assembly have embarked upon a voluntary act of resignation or have incurred the wrath of the Tenth Schedule. Holding a trust vote is necessary to ascertain whether the Council of Ministers headed by the Chief Minister has the confidence of the House. The continuous existence of that confidence is crucial to the legitimacy and hence survival of the government. It is a matter which can brook no delay since the authority of the government presided over by the Chief Minister depends on the Council of Ministers continuing to have the faith of the legislative body as a collective entity. Particularly where the Members resigned in an expression of a lack of faith in the existing government, the convening of a floor test is the surest method of assessing the impact of the resignations on the collective will of the house. The consequence of the acceptance of a resignation is to reduce the numerical strength of the House. Until the resignations are accepted, the Members who have resigned continue to be reflected in the strength of the house having regard to the language which has been employed in Article 190(3)(b) (-shall thereupon fall vacant). Whether in a situation such as the present an elected government is entitled to continue despite the resignations of twenty-two of its Members has a significant bearing on the issue of confidence. Neither the Governor nor for that matter the Court can entrench upon the power of the Speaker, but the pendency of the proceedings before the Speaker cannot be a valid basis to not have the confidence of the House in the government determined by the convening of a floor test. Added to it is a factual circumstance in the present case that the Speaker accepted the resignations tendered by six of the twenty-two Members on 14 March 2020. All of the Members sailed together. No explanation was forthcoming in the submission of Dr. Singhvi on what, if any, was the distinction between the six Members whose resignations were accepted with alacrity and the remaining sixteen on whose resignations, no decision has been taken. None of the Members who resigned (neither the six nor the sixteen) appeared before the Speaker. Therefore, non-appearance before the Speaker is evidently not a ground of distinction. Thus, the convening of a trust vote is of crucial importance to affirm the fundamental values of the Constitution namely, abiding by the rules which govern a parliamentary democracy. The fundamental precept of parliamentary democracy is that the government owes collective responsibility to the legislative assembly and as a collective body, the legislative assembly is entitled to hold the government to account. The ultimate expression of accountability is the existence of or the lack of confidence in the Council of Ministers. The submission that the holding of a trust vote would short-circuit the jurisdiction of the Speaker on a matter of resignation and disqualification is not accepted. [Paras 50, 51][844-D-G; 845-AH; 846-A]
9. The spectacle of rival political parties whisking away their political flock to safe destinations does little credit to the state of our democratic politics. It is an unfortunate reflection on the confidence which political parties hold in their own constituents and a reflection of what happens in the real world of politics. Political bargaining, or horse-trading is now an oft repeated usage in legal precedents. ‘Poaching’ is an expression which was bandied about on both sides of the debate in the present case. It is best that courts maintain an arm’s length from the sordid tales of political life. In order to facilitate a trust vote for which the twentytwo Members should be free to participate in the house should they opt to do so, directions in that regard should be issued both to the Director General of Police of Karnataka as well as to the Director General of Police of Madhya Pradesh. These directions are intended to sub-serve the purpose of ensuring that none of the Members are restrained in the exercise of their rights and liberties as citizens and that if any of them opt to attend the proceedings of the Legislative Assembly, they should not be prevented from doing so. [Para 54][847-B-C; 848-A-B]
10. The reliefs which have been sought in the writ petition instituted by the MP Congress Party are manifestly misconceived. A direction to the Union of India (through the Secretary, Ministry of Home Affairs) and to the State of Karnataka (through its Chief Secretary) has been sought to grant access to the office bearers of the MP Congress Party to communicate with respondents five to nineteen (the Members who have tendered their resignations). The petition has not been framed as one seeking a writ of habeas corpus. The Members who have appeared in these proceedings submitted that they do not wish to interact with any of the member of the MP Congress Party. 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. Among the reliefs which have been sought is a direction that the vote of confidence should be held only in the presence of all the duly elected Members and that a trust vote cannot be held in the absence of representatives of twenty-two constituencies, whose presence could be secured by holding by-elections for the vacant seats in accordance with law. These reliefs are patently misconceived. The court cannot issue a direction mandating that a trust vote cannot be convened if any one or more Members do not remain present in the House. Whether or not to remain present is for the individual Members to decide and they would, necessarily be accountable for the decisions which they take, both to their political party and to their constituents. Similarly, the relief to the effect that no trust vote should be conducted until by-elections are held for the twenty-two seats is again misconceived. One of the prayers in the second writ petition seeks an anticipatory direction of this Court based on the assumption that a disqualification would stand attracted upon which the seat would fall vacant and an election would have been held. In any event, the convening of a trust vote cannot be postponed to a future date until by-elections take place. The challenge to the communication of the Governor must fail. [Paras 55-57][848-C-H; 849-A-B]
Nebam Rebia and Bamang Felix v. Deputy Speaker, Arunachal Pradesh Legislative Assembly (2016) 8 SCC
1 : [2016] 6 SCR 1 – relied on.
Kihoto Hollohan v. Zachillhu (1992) 2 Suppl. 2 SCC
651 : [1992] 1 SCR 686; Shrimanth Balasaheb Patil v. Speaker, Karnataka Legislative Assembly (2020) 2 SCC 595; State of Rajasthan v. Union of India (1977) 3 SCC
592 : [1978] 1 SCR 1; State (NCT of Delhi) v. Union of India (2018) 8 SCC 501 : [2018] 7 SCR 1 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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