POWERS OF GOVERNOR - POLITY
News: Maharashtra Governor’s decision to call floor test wrong: Supreme
Court
What is in the news?
● In
a unanimous judgement, the Supreme Court held that then Maharashtra Governor Bhagat Singh Koshiyari’s call for
a trust vote, which led to the resignation of the Uddhav Thackeray-led Maha
Vikas Aghadi government last June, was illegal.
Background of the case:
● In
2022, the Uddhav Thackeray-led government was toppled and replaced by another
government, comprising a faction of the Shiv Sena. The leader of the breakaway
Sena faction, Eknath Shinde, became the new Chief Minister of Maharashtra.
● Thereafter,
petitions were filed by the Thackeray group challenging the then Maharashtra
Governor’s decision to call for a trust vote before his resignation.
Key takeaways from the Court's verdict:
1. Court could not reinstate Thackeray government:
● The
Shinde government will, however, continue in power for now. This is because,
according to the court, Mr. Thackeray resigned before the floor test and as
such it was right for Governor Koshyari
to invite Mr.Shinde and form the new government.
● The
court said that it could not quash Mr. Thackeray’s voluntary resignation a day
ahead of the floor test on June 30, thus being unable to reinstate his government.
2. No material for governor's call for floor test:
● The
Governor had no objective material on the basis of which he could doubt the
confidence of the incumbent government.
● Floor test cannot be used
as a means to settle differences within a political party.
The Governor erred in concluding that Mr. Thackeray had lost support. The
discretion to call for a floor test is not an unfettered discretion.
○ What is 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.
3. Appointment and recognition of whip:
● This
concept belongs to the colonial British rule era. It refers to both a written
order to members of a party in the House to abide by a certain direction and to
a designated official of the party who is authorised to issue such a direction.
● The Speaker must only
recognize the Whip duly authorised by the political party regarding the
provisions of the party constitution.
The appointment of both the whip and the leader of the party in the House
should only be done by the political parties and not by the legislature party.
4. Speaker and EC can adjudicate issues concurrently:
·
The court said it could
not accept the Thackeray group’s contention that the EC was barred from
deciding on the party symbol dispute until the Speaker decided the
disqualification pleas before him.
● The
court said this would amount to “indefinitely staying proceedings before the
ECI”, as the Speaker’s decision would attain finality only after the appeals
against his decision were disposed of.
5. Distinction between Political party and Legislature
party:
● The
court said that as per provisions of the Representation of the People Act, an
association of individuals calling itself a political party has to be
registered with the EC.
● The
court said that Parliament had recognised
the independent existence of a legislature party to the limited extent of
providing a defence to actions of legislators of the political party. For
instance, the freedom of expression of legislators in the House, or intra-party
dissent, cannot fall within the purview of anti-defection laws.
6.
Referral of Nabam Rebia case to larger
bench:
● The
five-judge Bench referred certain issues related to its 2016 judgement in the
Nabam Rebia case to a larger Bench.
● One
of the issues is whether a notice for removal
of a speaker would restrict the powers of the Speaker to issue disqualification
notices to MLAs.
Previous rulings of the Supreme Court:
● Nabam Rebia and Bamang
Felix vs Deputy Speaker case (2016):
○ The
SC 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.
● Shivraj Singh Chouhan
& ORS vs Speaker (2020):
○ The
SC 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.
Significance of Supreme court verdict:
1. Provide greater protection to political parties
over legislature party:
● The
court held that the whip on voting represents the will of the party and not its
legislators. It’s the party that appoints its whip and the house leader. This
means political parties now have a greater degree of protection against
defection by legislators.
2.
Clearly defined the boundaries of state
machinery:
● The
judgement marked the boundaries of the three constitutional arms of the state
machinery, namely governors, the Election Commission and presiding officers of
legislatures.
3.
Clear demarcation of powers of Governor
and Speaker in floor test:
● The
role played by Governor and Speaker proved decisive in the power game. The
court said that the Governor is not
empowered to enter the political arena and play a role in inter or
intra-party disputes and also clarified that the floor test is not the platform
to resolve intraparty disputes.
● Similarly,
the court said that the Speaker must
recognise only the whip and leader who are duly recognised by the political
party. This will make the hostile takeover of state governments with active
gubernatorial support difficult in future.
4.
Utilised the constitutional principles
effectively:
● The
SC has used the Constitution’s tenth schedule – meant to prevent opportunistic
defections – as the reference point to reach its conclusions. The most
important conclusion is that a political
party is superior to its legislative wing.
Constitutional provision of Governors role in floor
test:
● Article 174
of the Constitution authorises the Governor to summon, dissolve and prorogue
the state legislative assembly.
● 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 assembly is not in session).
● However,
when the House is in session, it is the
Speaker of the Assembly who can call for a floor test.
Impartiality of the Role of Governor:
1. Develop a code of conduct for the office of the Governor:
● With
prior consultation and agreement of the union and state governments along with
the Supreme Court, high courts, and other constitutional experts in the field.
2.
Develop a sound procedure for
appointment and removal of the governors:
● As
suggested by Puchhi and Sarkaria Commissions, governors should be selected
based on impeccable character and quality and should be provided with a fixed
tenure.
3.
Implementing the S.R Bommai judgement in
the letter and spirit:
● which
allows the Supreme Court to investigate the imposition of emergency in the
state on the grounds of being mala-fide and unreasonable.
4.
Strengthening of Federalism:
● In
order to check misuse of the office of governor, there is a need to strengthen
federal setup in India. In this regard, the Inter-State council and the role of
Rajya Sabha as the chamber of federalism must be strengthened.
Back to the basics:
Tenth schedule of the constitution:
● The
Tenth Schedule was introduced into the Constitution through the 52nd Amendment
in 1985.
● It
was made necessary as frequent defections of elected representatives from one
party to another had made good governance elusive and compromised the proper
functioning of the Union and state governments.
● As
per the Schedule, a member of the House belonging to any party is disqualified
if;
○ he
voluntarily surrenders his membership in the political party;
○ he
votes or abstains from voting contrary to any direction issued by his political
party without obtaining prior permission from the party and the act has not
been condoned by the party within 15 days.
○ Independent
members are disqualified if they join any political party.
○ Nominated
members are disqualified if they join any party after six months from the day
they took up their position as a Member of the House.
● All decisions on disqualification petitions are made by the Speaker or Chairman of the House, whose decision is final.
● Exceptions:
○ One
exception made by the Schedule is when two-thirds of the members of a party
decide to merge with another party, then neither the members who left nor the
one who stayed with the original party attracts disqualification proceedings
under the Act.
○ The
Speaker is permitted to resign from his party when elected and rejoin when he
has left the post.
● The
91st Amendment in 2003 deleted the provision that defection would not apply in
case of a split in the party.
● In
the Kihoto Hollohan vs Zachillu and
others Case of 1992, the Supreme Court ruled that judicial review would not
be available prior to the decision of the Speaker/Chairman in disqualification
proceedings under the 10th Schedule.