Power of Gubernatorial Office to call for a trust vote in running assembly, a legal conundrum: Supreme Court decides

The SC on April 13, 2020 {Shivraj Singh Chouhan & Ors. v. Speaker Madhya Pradesh Legislative Assembly & Ors.} held 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 Court held that where the Governor has reasons to believe that the incumbent government does not possess the support of the majority in the legislative assembly, the correct course of action would be for the Governor to call upon the Chief Minister to face the assembly and to establish the majority of the incumbent government within the shortest possible time; and an exception to the invariable rule of testing whether the government has the assembly's confidence on the floor of the house is envisaged only in extraordinary situations where because of the existence of "all pervasive violence," a free vote is not possible in the House.

It was further held by the SC Bench, comprising of Justice D Y Chandrachud & Justice Hemant Gupta, that as the ultimate arbiter of the constitutional text, the Supreme Court is tasked with ensuring that each branch of government operates within the limits placed upon it by the Constitution, including in the realm of democratic politics. It was held that the present controversy arises out of a dispute between the Governor, as the titular head of the executive within the State of Madhya Pradesh, the Chief Minister, the de-facto head of the executive within the state and the Speaker of the Madhya Pradesh Legislative Assembly, who has supervisory jurisdiction over the legislative branch of the state. 

Further held that merely because the prima facie determination made by the Governor was of the political support enjoyed by the incumbent government or the action demanded was a political process (the floor test) is not a reason for the Court not to hear the matter. The Court held that there is no doubt that the present case is suitable for judicial determination by the Court.  It was held that as a matter of constitutional principle, the state legislature comprises of the Governor and the legislative assembly (and in the case of a bicameral legislature, this also includes the legislative council).

The Court held that the discretionary powers ultimately vested in the Governor under Article 163 of the Constitution represent an exception to the general rule of aid and advice. It was held that 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. It was held that the Council of Ministers is collectively responsible to the legislative assembly of the state.

The present controversy raised before the SC two separate, but intertwined constitutional questions. First, whether the Governor is entrusted with the authority to call for a trust vote in the course of a running assembly, and second whether the Governor exercised this authority correctly. If the Governor does not possess the authority, the action of calling for an immediate floor test is ultra vires and unconstitutional. Alternatively, if the Governor does possess the authority to call for a floor test, it was held that the Court must determine the contours of such power and answer the question of whether the Governor acted within those contours.

It was held that 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. It was also held that 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. Further held,  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. It was held by the SC that 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.

The heart of the dispute in the present case before the SC was whether the Governor was acting within the bounds of his constitutional authority in ordering a trust vote to be conducted on the floor of the Madhya Pradesh Legislative Assembly on 16 March 2020. In the present case, twenty-two Members belonging to the INC tendered their 28 resignations on 10 March 2020. Alleging the complicity of the BJP in engineering these resignations, the Chief Minister of Madhya Pradesh in his letter to the Governor dated 13 March 2020 stated that as a responsible leader he would invite and would welcome a floor test of his government in the forthcoming Budget Session of the Legislative Assembly notified to commence on 16 March 2020. But there was no holding of floor test, rather house was adjourned.

It was held by the SC that the power under Article 174 of the Constitution to summon the House and to prorogue it is one which is exercised by the Governor on the aid and advice of the Council of Ministers. The Court held but in a situation where the Governor has reasons to believe that the Council of Ministers headed by the Chief Minister has lost the confidence of the House, constitutional propriety requires that the issue be resolved by calling for a floor test. It was held that the Governor in calling for a floor test cannot be construed to have acted beyond the bounds of constitutional authority.

It was held that the powers which are entrusted to constitutional functionaries are not beyond the pale of judicial review. It was held that 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 SC held that the Chief Minister, adverting to the turmoil in the state, addressed a communication to the Governor on 13 March 2020 stating that the convening of the floor test would be a sure basis for resolving the conundrum. It was held that this is a strong indication that the Chief Minister himself was of the opinion that the situation in the state had cast his government‘s majority in doubt. It was held, however, upon the convening of the Legislative Assembly, no floor test was conducted, and the House was adjourned till 26 March 2020. The Court held that these facts form the basis on which the Governor advised that a floor test be conducted. It was held that 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.

The SC held that 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. It was held that 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.

It was held by the SC that it is with a view to obviate illegitimate and unseemly political bargaining in the quest for political power that the Supreme Court has consistently insisted upon the convening of a trust vote at the earliest date. Some of those decisions were also summarized in a tabulated statement, in this judgment by the Court.

The Court observed that 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 was held that 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. It was held that political bargaining, or horse-trading, as it noticed, is now an oft repeated usage in legal precedents. It was held that Poaching is an expression which was bandied about on both sides of the debate in the present case. It was held that it is best that courts maintain an arm's length from the sordid tales of political life. It was also held that in defining constitutional principle, however, the Court must be conscious of the position on the ground and an effort has to be made to the extent possible to ensure that democratic values prevail.

The SC concluded that challenge to the communication of the Governor must fail for the reasons in view of aforesaid. Accordingly, the assail to power of the Governor to Call for Trust Vote in running assembly was negated by the SC.