- Apprentice Lawyer
The political drama that erupted in Madhya Pradesh was finally put to rest last week after Chief Minister Kamal Nath submitted his resignation.
In the run-up to this entire crisis, two constitutional institutions played key roles — the Governor of Madhya Pradesh and the Supreme Court of India.
During the two-day marathon hearings that took place in the Apex Court, where the petitioners demanded a floor test, the Chief Minister and the Speaker of the House demanded that if at all there will be any show of strength, it will be through the vote of confidence.
While both these mechanisms produce similar results, i.e. they decide whether a political party enjoys majority support to form the government, there is no clarity on when legislatures should resort to these methods.
Since there is no explanation on the exact difference between the two parliamentary procedures, and the BJP and Congress harped on the floor-test and no-confidence motion respectively to defend their positions, there is a pressing need to examine the legal subtleties that distinguish them.
The other important question that was argued before the Apex Court was the constitutional role of the Governor. In particular, the Court was faced with a very complex issue relating to the powers of the Governor to order a trust vote by invoking the provisions of Articles 174 and 175(2) of the Constitution.
Even though the gubernatorial power to order a trust vote has not been expressly stipulated in the Constitution, the petitioners had argued that the Governor enjoys such powers when the purpose is preservation of democratic values and stable governance.
With political parties being voted into power by wafer-thin majorities, and the emergence of legislators with divided loyalties before the term of the legislature expires (five years), it is now imperative that the power and role of the Governor in matters relating to continuation of the government are clearly defined and demarcated.
In delimiting these powers, principles relating to democratic ethos and stable governance, in addition to the intrinsic nature of a government with a slim majority, will have to be duly respected.
Floor Test versus Motion of No-Confidence: Two sides of the same coin?
As per the Rules of Procedure & Conduct of Business of the Madhya Pradesh Vidhan Sabha, a motion of no confidence can be introduced against the council of ministers (See Rule 143). A reading of the rule suggests that a motion for no confidence against the council of ministers can be ‘brought’ by a member of the house.
Sub-rule (1) and (2) prescribe the procedure for introducing the motion of no confidence; leave is to be taken from the Speaker by the member. Under sub-rule (2) of Rule 143, the Speaker is required to examine whether the motion is in order and once he opines that it is so, he shall grant leave if one-tenth of the total number of members are in favour of granting it.
Once leave is granted, the motion has to be taken up on a day within a period of not more than 10 days on which the leave is asked, as the Speaker may appoint. What might look like ordinary procedure, the 10 days stipulated often becomes a breather for the incumbent government when it is faced with a precarious situation of losing the support of its own legislators. It leaves governments, especially ones with a paper-thin majority, ample time to deliberate and negotiate a political compromise to stay in power.
That perhaps offers the explanation for the argument made by the Chief Minister before the Court that a motion of no confidence instead of a floor-test is the only recourse for proving majority in case of sitting governments.
This challenge was made on the basis of the orders of the Supreme Court when a political crisis emerged in Karnataka (2018) and Maharashtra (2019). It was argued that a floor test is applicable only when – (a) fresh elections have been conducted in the state; (b) no session of the assembly has been convened by the Governor; and (c) no political party has achieved a majority of its own.
Although the Court had resorted to order floor tests in these situations, the same is attributable more to the situations that have recently emerged and litigated after assembly elections and not to a ‘standard’ principle that applies exclusively to situations mentioned in (a) to (c) above.
Against the no-confidence motion, there is no mention of any procedure for conducting a floor test, so to say. As a concept, floor test is a procedure that has become entrenched in the constitutional parliamentary convention through judicial pronouncements.
An examination of a few rulings suggest that the power to order a floor test can be ordered by the Governor not only in situations covered by (a) to (c) above, but also when the Governor has reason to believe that the incumbent government no longer enjoys the majority support (See Nabam Rebia & Anr. v. Deputy Speaker and Others).
However, incumbent governments are generally not readily inclined to undergo a floor test on the instructions of the Governor. Therefore, it is the Court more often than not that steps in to order the floor test. Despite the disinclination to follow the floor test, it remains beyond doubt that a floor test can be ordered to check whether the incumbent government still retains majority support.
With this basic idea behind the two procedures, there are some important differences that should not be forgotten. A motion of no confidence is usually governed by the Rules of Procedure and Conduct of Business with procedural limitations on its introduction such as leave of the Speaker with the support of one-tenth of the total membership.
As mentioned above, there is every possibility that the period of 10 days might be used for corrupt practices such as horse-trading. On the other hand, a floor test, subject to the proper exercise of power, can be ordered immediately depending on the discretion of the Governor.
Given the differences, it is quite likely that the Speaker, having political allegiance to the ruling government, might influence or stifle the process of introduction of the no-confidence motion on frivolous grounds. Such a possibility is, however, obviated where it is the Governor who orders a floor-test once he opines that the incumbent cabinet does not command the confidence of the House.
As opposed to a motion of no confidence, a floor test might, therefore, be a more preferred method to ascertain the government’s support in the legislature. The objective behind the same is to ensure restoration of stability in the government as expediently as possible, failing which the Governor would be compelled to trigger the process under Article 356 for imposition of President’s Rule.
Powers of the Governor: Just a titular head or the watchdog of democracy?
Under Article 163(1) of the Constitution, the Governor is obliged to act on the “aid and advise” of the Council of Ministers. The concept of “aid and advise” underscores the principle of cabinet system of responsibility adopted by the Indian Constitution from constitutional practice in Britain. Under this system, the Governor is a formal or titular head aided and advised by the cabinet in the performance of executive functions of the State.
In crude terms, the decision of the Governor is the decision of the Council of Ministers (See Shamsher Singh v. State of Punjab).
However, in some narrowly tailored circumstances, an exception has been engrafted in the latter part of Article 163(1), where the Governor has been endowed with a discretionary power in performing his functions. The expression “except in so far as he is by or under this Constitution…in his discretion” entails that the Governor can perform functions unfettered by the aid and advise of the cabinet where the Constitution expressly or by necessary implication vests such discretion.
Now, decidedly, the power of the Governor to ask the incumbent cabinet to prove majority on the floor of the house is a discretionary power covered by the latter part of Article 163(1) whenever it appears to the Governor that the government no longer enjoys confidence of the House.
In invoking these powers, the Governor can instruct the Chief Minister to prove that the party/alliance he leads retains majority on the floor of the house.
In a series of judgments handed down by the Apex Court, the gubernatorial powers (just discussed) to order a floor test to an incumbent government have been upheld.
SR Bommai’s Case is the oldest and the most reliable testament to these powers. In a separate and concurring opinion delivered by Jeevan Reddy, J. in Bommai, he has observed that the decision to resort to the floor test is the sole discretion of the Governor. According to him, the only manner to test whether the cabinet has lost the confidence of the house is testing it on the floor of the house, except in a situation where pervasive violence makes it impossible.
The decision in Nabam Rebia (supra) has even more emphatically expounded on these powers. In Paragraph 175 of the judgment, the Court says,
“[…] in a situation where the Governor has reasons to believe that the Chief Minister and his Council of Ministers have lost the confidence of the House, it is open to the Governor, to require the Chief Minister and his Council of Ministers to prove their majority in the House, by a floor test. Only in a situation, where the Government in power on the holding of such floor test is seen to have lost the confidence of the majority, it would be open to the Governor to exercise the powers vested with him under Article 174 at his own, and without any aid and advice.”
Against these well-settled observations, the lawyers defending the Chief Minister made a very novel argument before the Court. They argued that the Governor has no powers except those enumerated in Article 174 of the Constitution i.e. the power to summon, prorogue and dissolve the house. With due respect, the said proposition is without merit and support in judicial opinions just cited above.
The powers of the Governor to direct the Chief Minister to establish that his government retains majority support in the House once there is doubt about its support are indisputable. Representative democracy and stability in governance are peremptory norms that should guide the Governor in exercising his powers, more particularly when some legislators have made their intention palpably clear to withdraw their support to the government.
In such a situation, it would be antithetical to the Constitution for the Governor to sit back with folded hands to only allow political turmoil and instability.
Put simply, the Governor acts like an amphibian where his powers undergo a gradual transformation - from a mere titular head controlled by the Council of Ministers to an independent constitutional head fettered only by the foundational constitutional precepts.
Exercise of powers by the Governor in the latter sense can be described an embodiment of the doctrine of “constitutional governance” and “constitutional trust”. According to Justice DY Chandarchud, J., these two doctrines imply that,
“when [constitutional] functionaries exercise their power under the Constitution, the sustenance of the values that usher in the foundation of constitutional governance should remain as the principal motto.”
In sum, one can safely say that the argument relating to limiting the powers of the Governor to those enumerated textually in the Constitution has not been accepted by the Court over the years.
Conclusion: The Way Forward
Political instability has always been at the fulcrum of the Indian democracy. That also includes the ability of the members of the House to join the parties of their choice, even if that comes at the cost of putting the future of the incumbent government in peril.
In these times, the tussle and the struggle for power between the Governor and the Speaker of the assembly has emerged as one of the most interesting topics for the scholars of constitutional law. The increasing role of the writ courts in all such crises has lately become a source of attraction.
The law with regard to the remedies and mechanisms applicable needs to be clarified, so that the path for the future courts and legislatures is clear and definite. The judicial fiat must now bury every controversy so that in the future, approaching the courts is more about formal validation than about uncertainty.
Sarthak Raizada is an advocate practising before the Supreme Court of India. Anant Sangal is an undergraduate student at National Law University, Delhi.