SC: Pendency of proceedings before Speaker no ground to delay floor test

The Hon’ble Supreme Court, on 13th April 2020, in the matter of Shivraj Singh Chouhan & Ors. v. Speaker Madhya Pradesh Legislative Assembly & Ors. pronounced that 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.

The Hon’ble Supreme Court observed that:

The provisions of sub-clause (b) of clause (3) of Article 190 were amended by the Constitution (Thirty-Third Amendment) Act 1974 to incorporate a specific provision for the acceptance of the resignation of a Member by the Speaker. The expression “shall thereupon become vacant” indicates that a vacancy arises only upon the acceptance of the resignation by the Speaker, or as the case may be, the Chairman of the House. The proviso to clause (3) of Article 190 indicates that a resignation shall not be accepted if the Speaker or Chairman is not satisfied that the resignation is “voluntary or genuine”. Before this satisfaction is arrived at, the proviso requires the Speaker or the Chairman (as the case may be) to make an enquiry as is thought to be fit. (Para 23)

The Court cannot fetter the discretion of the Speaker to conduct an inquiry into whether a resignation is “voluntary” or “genuine”. However, neither can the Speaker exceed the terms of the mandate and conduct an overbroad inquiry into the underlying motives of the Member. It is sufficient that the Speaker is satisfied that the Member‘s resignation is “voluntary” and “genuine”. (Para 24)

Merely because the present dispute concerns the conduct of elected representatives, or the remedy sought is a democratic process, does not mean that the court will refuse to consider it. (Para 31)

In granting the Governor a supervisory jurisdiction over the legislative assemblies of the states, there exists a risk that the unelected office of the Governor can alter democratically achieved electoral outcomes. (Para 35)

In interpreting the Constitution, it would be not be correct to rely on the speeches made by individual members of the Constituent Assembly. Each speech represents the view of one individual in the Assembly which taken as a whole formed a kaleidoscope of competing political ideologies. There may arise instances where the court is of the independent opinion that the views raised by individual Members of the Constituent Assembly in their speeches lay down considerations that warrant examination and approval by the Court. The general rule however, would be to examine the decisions taken by Constituent Assembly taken by majority vote. (Para 36)

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. 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. The Council of Ministers is collectively responsible to the legislative assembly of the state. (Para 37)

Whether or not the Council of Ministers has lost the confidence of the House must be determined only on the floor of the house and not by the Governor conducting an independent verification. (Para 40[i])

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 (Para 40[ii])

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. (Para 40[iii])

As a matter of constitutional law, it would not be correct to proceed on the basis that the constitutional authority entrusted to the Governor to require the Council of Ministers to prove their majority on the floor of the House can only be exercised at the very inception after general elections are held and not when the Governor has objective reasons to believe that the incumbent government does not command the confidence of the house. (Para 41)

The Governor is not denuded of the power to order a floor test where on the basis of the material available to the Governor it becomes evident that the issue as to whether the government commands the confidence of the house requires to be assessed on the basis of a floor test. Undoubtedly, the purpose of entrusting such a function to the Governor is not to destabilise an existing government. (Para 41)

When the satisfaction on the basis of which the Governor has ordered a floor test is called into question, the decision of the Governor is not immune from judicial review. The court would be justified in scrutinizing whether the Governor prima facie had relevant and germane material to order a floor test to be conducted. It must be noted that the Governor does not decide whether the incumbent government commands the confidence of the house. (Para 41)

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. 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. The Governor in calling for a floor test cannot be construed to have acted beyond the bounds of constitutional authority. (Para 42)

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. (Para 45)

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. (Para 45)

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 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. (Para 51)

Copy of judgement: Judgement_13-Apr-2020

-Adv. Tushar Kaushik

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