Amidst the political imbroglio in Maharashtra, the Governor has directed the Maha Vikas Aghadi (MVA) Government to take a 'floor test' and demonstrate that it still enjoys the confidence of the Legislature on the floor of the Legislative Assembly on June 30.
In Shivraj Singh Chouhan v. Speaker, Legislative Assembly of Madhya Pradesh And Ors., the Supreme Court clarified that the Governor is empowered to issue a direction to an incumbent Chief Minister to hold a floor test and to demonstrate the Legislature's trust in their Government. In this regard it is pertinent to mention that the Governor is also entrusted with the constitutional authority to require the Council of Ministers to prove their majority on the floor of the House right after the general elections are held. In the said judgment the Apex Court had acknowledged that the largest number of precedent before it had dealt with floor tests called upon at the time of formation of the Government, but emphasised that the Governor is, nonetheless, empowered to direct 'floor test' of an incumbent Council. In case a floor test is required at the initial stage of formation of the Government; when the elected members of the legislature are yet to take oath and the Speaker is not elected, a Protem Speaker is appointed to conduct it. As per convention, the senior most member of the House is called upon by the Governor to assume the role of the Protem Speaker. In G. Parameshwara v. Union of India(Karnataka assembly case 2018), the Supreme Court directed the appointment of a Protem Speaker for the purpose of conducting the floor test. The procedure enumerated by the Court in the Karnataka assembly case(a case where the question was which coalition was in majority soon after elections) was as under -
"A). Pro-tem Speaker shall be appointed for the aforesaid purpose immediately.
B). All the elected members shall take oath tomorrow(19.05.2018) and this exercise shall be completed before 04.00 p.m.
C) The Pro-tem Speaker shall conduct the Floor Test on 19.05.2018 at 04.00 P.M. in order to ascertain the majority.
D) Adequate and sufficient security arrangements shall be made and Director General of Police, State of Karnataka will himself supervise the said arrangements so that there is no lapse on this count whatsoever."
A similar procedure was laid down by the Supreme Court for conducting the floor test in the Maharashtra Legislative Assembly for formation of the Government in 2019. Soon after the 2019 general elections, when uncertainty arose as to which coalition had majority, Shiv Sena had approached the Supreme Court, and acting on its petition, the Court directed the Governor to hold floor test and set a deadline for it(Shiv Sena vs Union of India).
Floor test to be conducted immediately to prevent "horse-trading"
The reason behind the insistence on conducting the floor test at the earliest, as elucidated in Shiv Sena (supra), is the possibility of horse trading. Therefore, the Supreme Court is of the view that an immediate floor test is the most effective mechanism to protect the democratic value.
"In a situation wherein, if the floor test is delayed, there is a possibility of horse trading, it becomes incumbent upon the Court to act to protect democratic values. An immediate floor test, in such a case, might be the most effective mechanism to do so", the bench of Justices NV Ramana, Ashok Bhushan and Sanjiv Khanna said in the order.
Court can ask for house to be summoned specifically for the purpose of floor test
On several occasions the Supreme Court had passed directions to conduct floor test. In Shiv Sena And Ors. v. Union of India And Ors, when the Solicitor General had argued that Article 212 bars the Courts from monitoring the proceedings of the House, the Apex Court referred to its earlier judgments to demonstrate that it had previously summoned the Assembly solely for the purpose of putting the vote of confidence to test. In Jagdambika Pal v. Union of India, the Supreme Court had directed the Uttar Pradesh Assembly to be summoned for having a composite floor-test. When there are more than one person claiming stake at Chief Ministership, a composite floor test between the contending parties is required to determine which one has a majority in the House. As a measure to maintain transparency, on occasions, the Supreme Court, while issuing directions to conduct a floor test had asked the entire proceeding to be video-graphed for its perusal. In Union of India v. Harish Chandra Singh Rawat And Anr., the Supreme Court had appointed the Principal Secretary, Legislative and Parliamentary Affairs as an observer to ensure neutrality and to see to it that absolute objectivity is maintained in the process of conducting the floor test. The Court explained the purpose of appointing an observer as -
"..to save the sanctity of democracy which is the basic feature of our Constitution. The Court, being the sentinel on the qui vive of the Constitution is under the obligation to see that the democracy prevails and not gets hollowed by individuals…The collective trust in the legislature is founded on the bedrock of the constitutional trust. This is a case where one side even in the floor test does not trust the other and the other claims that there is no reason not to have the trust. Hence, there is the need and there is the necessity to have a neutral perceptionist…" - Union of India v. Harish Chandra Singh Rawat (supra), order dated 9th May, 2016.
Court can't compel members to be present for floor test
In a floor test the Chief Minister has to establish a majority among those present and voting. The failure to prove majority is followed by the resignation of the Chief Minister and their Council of Ministers. The Courts are not empowered to issue directions that a floor test cannot be conducted if any one or more Members do not remain present in the Assembly.
"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."- Justice D.Y. Chandrachud in Shivraj Singh Chouhan v. Speaker (supra)
However, to ensure presence/voting in the Assembly, political parties can issue whip, the non-compliance of which might lead to disqualification.
It needs to be made plain that the Governor does not enjoy the power to decide whether the Government commands confidence of the House by way of an independent verification without directing a floor test to be conducted. Where the Governor is satisfied that the incumbent Government does not possess the support of the majority in the legislative assembly, they would call upon the Chief Minister to 'face the Assembly and prove his majority within the shortest possible time'.
Chief Minister's refusal to take floor test can be construed as lack of majority
As per an unanimous report submitted by a committee of Governors appointed by the President of India, which was referred to in the judgment of Justice BP Jeevan Reddy in S.R. Bommai v. Union of India, if the Chief Ministers fails to comply with the order to take a vote of confidence, the Governor would be duty bound to take steps to form an alternative Ministry. The Chief Minister's refusal to take the test could be construed to, prima facie, indicate that they do not enjoy the confidence of the Legislature.
It has been recognized by the Apex Court that the Governor, being the titular head of the executive, is entrusted with the authority to ensure that the elected government continues to possess the confidence of the Legislative Assembly, but the accountability of the executive to the legislature should not be compromised with.
"However, it is important to note that 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." - Justice D.Y. Chandrachud in Shivraj Singh Chouhan v. Speaker (supra)
Governor's satisfaction not immune from judicial review
It ought to be borne in mind that the basis of the satisfaction of the Governor is not immune from judicial scrutiny. Whether the Governor, prima facie, had 'relevant and germane material' to direct a floor test can be examined by the Constitutional Courts.
"The decision of the Governor to do so is not immune from judicial review and must therefore withstand the ability of being scrutinised on the touchstone of the circumstances being relevant, germane and not extraneous to the exercise of an exceptional power which is vested in the Governor." - Justice D.Y. Chandrachud in Shivraj Singh Chouhan v. Speaker (supra)
Governor can summon house without the aid and advice of the Council of Ministers if there are reasons to believe that Government has lost confidence of house
The Sarkaria Commission, set up in 1983 by the Central Government to study the centre-state relationship and suggest changes within the Constitutional framework, in its report opined that the Governor should not dismiss a Council without putting it to test on the floor of the Assembly. The Chief Minister is to be advised to summon the House at the earliest. However, if the Chief Minister refuses to do so, the Governor can summon the Assembly for the purpose of floor test, within a reasonable time. The said view was reaffirmed by the MM Punchhi Commission, set up in 2007 for the same purpose. Article 174 of the Constitution vests the power to summon, prorogue or dissolve the State Legislature with the Governor. So long as the Chief Minister enjoys the confidence of the House, power under Article 174 can be exercised only on the aid and advice of the Council of Ministers as enumerated in Article 163. The decision of the Council binds the Governor, who is precluded from exercising their own discretion. Referring to the treatise of MN Kaul and SL Shakdher, Practice and Procedure of Parliament, Justice J.S. Kehar in his judgment in Nabam Rebia v. Dy. Speaker, Arunachal Pradesh Legislative Assembly noted that if the Governor has reasons to believe that the Chief Minister and their Council of Ministers have lost the confidence of the House, the Governor can exercise powers under Article 174 on his own, without any aid and advice.
Floor test need not be deferred due to pending disqualification proceedings
In Shivraj Singh Chouhan v. Speaker (supra), the Supreme Court had also clarified that floor test need not be deferred because the Speaker has not taken a decision on the issue of resignation of members of the Assembly and the consequent issue of defection in terms of the Tenth Schedule of the Constitution, as both operate in distinct realms. To explain the urgency in conducting the floor test, the Court noted -
"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." - Justice D.Y. Chandrachud in Shivraj Singh Chouhan v. Speaker (supra)
Court allowed rebel MLAs to skip floor test in Karnataka assembly case 2019
A similar view was taken in Pratap Gouda Patil And Ors. v. State of Karnataka And Ors(Karnataka assembly case of 2019).The Apex Court permitted the Karnataka Legislative Assembly to go ahead with the impending floor test, refusing to fix a time frame for the speaker to take a decision with respect to the resignation of the dissident MLAs. While passing the order, the Bench noted -
"The imperative necessity, at this stage, is to maintain the constitutional balance and the conflicting and competing rights that have been canvassed before us." - Pratap Gouda Patil And Ors. (supra), order dated 17th July, 2019.
The Court also said in that case that the rebel MLAs are at liberty to remain out of the floor test proceedings.
"We also make it clear that until further orders, the 15 members of Assembly ought not to be compelled to participate in the proceedings of the ongoing session of the House and an option should be given to them that they can take part in the said proceedings or to opt to remain out of the same", ordered the Court.