While the action of the Maharashtra Governor Bhagat Singh Koshyari in directing Chief Minister Uddhav Thackeray to face a floor test on June 30 has been put to a legal test in the Supreme Court, especially since the apex court is still to decide the pending issue of the legality of the disqualification proceedings against 16 rebel Shiv Sena MLAs, here’s what the settled law on the issue is.
First of all, as per the March 1994-landmark judgment of the Supreme Court in SR Bommai versus Union of India, it was held that the floor of the Assembly is the only place where the issue of whether the Chief Minister enjoys the support of the majority of the MLAs or not can be decided.
As per settled law and various judgments with regard to Article 175(2) of the Constitution, which deals with the right of the Governor to “address and send messages to the House”, the Governor, if he is so satisfied that a Chief Minister has lost the confidence of the majority of the MLAs, can ask the Chief Minister to go through a floor test to prove whether the government has the numbers or not.
However, the settled law is that the Governor, while exercising this power, can’t be seen as playing partisan politics.
In the case of Maharashtra, the MVA government’s claim that the Governor acted in undue haste will have to be seen in the light of the fact that none of the 39 Shiv Sena MLAs, who are supposed to be part of the rebel group headed by Eknath Shinde, has formally written to the Governor or the Speaker informing about his or her decision not to support the government.
The Governor’s action, they can contend, has followed on the “aid and advice of the Leader of Opposition”, and not the state council of ministers as the Constitution provides for.
In Shivraj Singh Chouhan versus Speaker, Madhya Pradesh Legislative Assembly, the Supreme Court bench headed by Justice DY Chandrachud, on April 13, 2020, noted that 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 the 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,” the bench underlined.
The bench also held that, while the Governor has the authority to ask the Chief Minister to face a trust vote, this decision is open to judicial review.
“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 scrutinising whether the Governor prima facie had relevant and germane material to order a floor test to be conducted,” the judgment said.
At the same time – and this is something that could eventually come to the aid of the Shiv Sena-led Maha Vikas Agadi (MVA) government, the bench unequivocally upheld the power of the Speaker in deciding the issue of “whether a Member of the House has incurred a disqualification under the Tenth Schedule”.
The Supreme Court has held, “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 the above, “issues(disqualification of MLA under anti-defection law).