GOVERNOR'S POWER TO CALL FOR A FLOOR TEST
In Maharashtra's political crisis, the Governor's decision to call for the floor test has been in the spotlight once again.
What are the Constitutional Provisions related to the Governor in calling for a Floor Test?
Article 174 of the Constitution authorizes the Governor to summon, dissolve and prorogue the state legislative assembly. Article 174(2) (b) of the Constitution gives powers to the Governor to dissolve the Assembly on the aid and advice of the cabinet. However, the Governor can apply his mind when the advice comes from a Chief Minister whose majority could be in doubt. According to Article 175(2), the Governor can summon the House and call for a floor test to prove whether the government has the numbers. However, the Governor can exercise the above only as per Article 163 of the Constitution which says that the Governor acts on the aid and advice of the Council of Ministers headed by the Chief Minister. When the House is in session, it is the Speaker who can call for a floor test. But when the Assembly is not in session, the Governor’s residuary powers under Article 163 allow him to call for a floor test.
GOVERNOR'S DISCRETIONARY POWERS
Article 163 (1) essentially limits any discretionary power of the Governor only to cases where the Constitution expressly specifies that the Governor must act on his own and apply an independent mind. The Governor can exercise his discretionary power under Article 174, when the chief minister has lost the support of the House and his strength is debatable. Generally, when doubts are cast on the chief minister that he has lost the majority, the opposition and the Governor would rally for a floor test. On numerous occasions, the courts have also clarified that when the majority of the ruling party is in question, a floor test must be conducted at the earliest available opportunity.
SC VIEW ON THE GOVERNOR'S POWER IN CALLING THE FLOOR TEST
In 2016, the Supreme Court in Nabam Rebia and Bamang Felix vs Deputy Speaker case (the Arunachal Pradesh Assembly case) said that the power to summon the House is not solely vested in the Governor and should be exercised with aid and advice of the Council of Ministers and not at his own. The Court highlighted the facts that the Governor is not an elected authority and is a mere nominee of the President, such a nominee cannot have an overriding authority over the representatives of the people, who constitute the House or Houses of the State Legislature. Allowing the Governor to overrule the State Legislature or the State executive would not harmoniously augur with the strong democratic principles enshrined in the provisions of the Constitution. Especially so, because the Constitution is founded on the principle of ministerial responsibility. In 2020, the Supreme Court, in Shivraj Singh Chouhan & Ors versus Speaker, Madhya Pradesh Legislative Assembly & Ors, upheld the powers of the Speaker to call for a floor test if there is a prima facie view that the government has lost its majority. “The Governor is not denied 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 it to be assessed on the basis of a floor test.
WHAT IS A FLOOR TEST?
It is a term used for the test of the majority. If there are doubts against the Chief Minister (CM) of a State, he/she can be asked to prove the majority in the House. In case of a coalition government, the CM may be asked to move a vote of confidence and win a majority. In the absence of a clear majority, when there is more than one individual stake claiming to form the government, the Governor may call for a special session to see who has the majority to form the government. Some legislators may be absent or choose not to vote. The numbers are then considered based only on those MLAs who were present to vote.
RELATED: WHAT IS THE ANTI-DEFECTION LAW
The anti-defection law punishes individual Members of Parliament (MPs)/MLAs for leaving one party for another. Parliament added it to the Constitution as the Tenth Schedule in 1985. Its purpose was to bring stability to governments by discouraging legislators from changing parties. The Tenth Schedule - popularly known as the Anti-Defection Act - was included in the Constitution via the 52nd Amendment Act, 1985. It sets the provisions for disqualification of elected members on the grounds of defection to another political party. It was a response to the toppling of multiple state governments by party-hopping MLAs after the general elections of 1967. However, it allows a group of MP/MLAs to join (i.e., merge with) another political party without inviting the penalty for defection. And it does not penalize political parties for encouraging or accepting defecting legislators. As per the 1985 Act, a 'defection' by one-third of the elected members of a political party was considered a 'merger'. But the 91st Constitutional Amendment Act, 2003, changed this and now at least two-thirds of the members of a party must be in Favour of a "merger" for it to have validity in the eyes of the law. The members disqualified under the law can stand for elections from any political party for a seat in the same House. The decision on questions as to disqualification on ground of defection is referred to the Chairman or the Speaker of such House, which is subject to ‘Judicial review’. However, the law does not provide a timeframe within which the presiding officer has to decide a defection case.
What are the Grounds of Disqualification?
If an elected member voluntarily gives up his membership of a political party. If he votes or abstains from voting in such House contrary to any direction issued by his political party or anyone authorized to do so, without obtaining prior permission. As a pre-condition for his disqualification, his abstention from voting should not be condoned by his party or the authorized person within 15 days of such incident. If any independently elected member joins any political party. If any nominated member joins any political party after the expiry of six months.
