This article is written by Ridhi Mittal, from Symbiosis law school, Noida. The following article talks about who is a governor, the powers of a state governor, and his authority to issue a floor test. It also talks about the legal case law involving the controversy of the same.
A Governor is a person who acts as the Executive Head of the state just like the President, who acts as the executive head of India. Similar to having a governor for every state in India (Article 153 of the India Constitution), there is a Lieutenant Governor for Union Territories of India. The governor is the nominal head of the state. He/she is appointed for a term of 5 years by the President of India. The Governor of the State has several powers namely executive, legislative, financial, and discretionary powers. His primary function is to preserve, protect and defend the Constitution and also the laws that are incorporated in the administration of state affairs. He may have similar functions as that of a President but not all the functions are the same like powers of the President in a contingency situation is something that a Governor does not have. Various emoluments, allowances, and privileges available to a governor are determined by the Governors (Emoluments, Allowances, and Privileges) Act, 1982. He is a vital link between the union government and the state government. Recently, in the case of Shivraj Singh Chouhan v. Speaker, 2020, Madhya Pradesh Legislative Assembly, the Supreme Court has said that the Governor can order a floor test. A floor test is a test ordered by the governor of the state to the Chief Minister in the legislative assembly of the same state when he feels that the Chief Minister has lost the confidence of motion. There takes place a vote of confidence or we can say a trust vote, if the decision comes in favor of the Chief Minister then he continues to be in the office but in case the votes come against the Minister then he has to leave his office immediately.
The concept of governor has existed in India from the time when India was colonized by the Britishers. The then East India Company, to have more control and power over India made presidencies that were governed or headed by a Governor. The first governor of Bengal was Robert Clive, George Oxenden was the first governor of Bombay and George Macartney was that of Madras. Soon the governor of Bengal was transferred to Governor-General of India, the rest of the governors being in the same position. Warren Hastings was appointed as the Governor-General of India. He had the power to declare war or make peace with any Indian prince, he could appoint the Governors for the states/presidencies and he took care of matters of defense and foreign affairs. All the governors were answerable to him. After India’s independence, a similar system was established where the Governor-General became the President (Governor of India) and governors of presidencies became the governor of the state. The powers of the Governor-General were transferred to the President and the power of Governors of Presidencies transferred to the Governor of States. For instance, even today, the governor is appointed and answerable to the President of India only and not by any Member of Parliament (MP)
Article 153 to 162 of the Indian Constitution, 1949 talks about the Governor. According to Article 153 of the Constitution, there shall be a Governor for each state and one Governor can act for more than one state.
Appointment and tenure of a Governor
According to Article 157 of the Indian Constitution, no person shall be eligible for appointment as a Governor unless:
- He is a citizen of India
- He has completed the age of 35 years
- He is not a member of Parliament or House of the State Legislature
Article 156 of the Indian Constitution talks about the term of the Governor. According to this Article, a Governor shall hold the office at the pleasure of the President. The President of India appoints him and also the Governor hands in his resignation to the President itself. His office is of the term of 5 years which starts from the day he enters in the office.
Powers of a Governor
- Article 161 of the Constitution gives the Governor power to grant pardons and to suspend, remit or commute sentences of a person convicted of any offense in terms of the law within the jurisdiction of the executive power of the state. The executive power of a state is limited to the jurisdiction of subjects on which the state legislature can make laws.
- Article 163 of the Indian Constitution talks about the discretionary power of the Governor.
- Article 356 of the Indian Constitution mentions that in case a State Government is unable to function according to the constitutional provisions then the union government can take direct control over it. This proclamation is issued by the state’s Governor on consent by the President of India. The Governor has executive, legislative, financial, and discretionary powers.
- Executive powers of the Governor can be seen in terms of administration, appointments, and removals of the chief minister and other members of the council of ministers. He also appoints an advocate general, chairman, and members of the state public service commission.
- The Governor holds legislative powers which are related to law-making and the state legislature (state legislative assembly or state legislative council). His powers are similar to that of the President of India in terms of Parliament. He can even dissolve the state legislative assembly.
- The Governor causes to be laid before the State Legislature the annual financial statement which is the State Budget. Without the Governor’s recommendation, no demand for grants can be made. The Governor constitutes the finance commission of the state. Last, he can use certain discretionary powers when there isn’t any party with a clear majority, he can choose a discretionary candidate for chief minister.
A floor test is a confidence motion for or against the government in-house. This is done to ensure whether the government in position enjoys the support of the majority legislature. This test requires the appointed Chief Minister to prove the majority on the legislative assembly’s floor. When a floor test is called upon in the assembly of the state, the Chief Minister moves a vote of confidence and proves that he has the majority support. But in case he doesn’t have the vote of confidence of the majority, he fails in his test and, as a consequence, is now supposed to hand in his resignation. The reason to have a floor test is to ensure transparency of the constitutional process as the whole idea of the Indian constitution is the same. The majority is counted based on the number of people present and voting and it does not include the people who are absent and not voting. In case more than one person is claiming to form the government and the majority is not clear, the Governor may call for a special session to see who has the majority. In case of a tie, the Speaker casts his vote. Broadly there are 3 kinds of voting systems that are involved in a floor test:
- Ballot vote – It is secret voting in a ballot box. This system is similar to voting in elections of the Parliament.
- Voice vote – In this method, oral votes are taken by the present legislatures.
- Division vote – Voting in this method is done through electronic gadgets or slips.
Shivraj Singh Chouhan v. Speaker, Madhya Pradesh Legislative Assembly, 2020 is one of the most prominent and recent case laws regarding a Governor ordering a floor test.
- On 28th November 2018, the fifteenth elections of the legislative assembly were held in Madhya Pradesh.
- On 11th December 2018 results of these elections were declared and with the support of four independent members, two members of the Bahujan Samaj Party, and one member of the Samajwadi Party, the INC placed a claim to form the government.
- On 10 March 2020, leaders of BJP handed the letters of resignation of 22 members of INC to the speaker of the MP legislative assembly. The leaders were then taken away to Bengaluru and the letter adverted to the fact that the resignations of these members had not been handed over by the members themselves but rather by leaders of the BJP.
- On 13th March 2020 the Chief Minister addressed a communication to the Governor alleging that following a foiled attempt on 3/4 March 2020 to allure Members owing allegiance to the INC, the BJP had on 8 March 2020 arranged three chartered aircraft “to whisk away” nineteen Members to Bengaluru.
- On 14th March 2020 INC issued a three-line whip for ensuring that all its members will be present in the upcoming budget session and will vote in favor of the government. Seeing the situation, the Governor issued a letter mentioning that since the government was not in majority, they had to gain the trust of the people sitting in the house through votes.
- On 15th March 2020 the Governor made a disclaimer that since the voting machine was not available, the votes will take place through raising of hands.
- On March 17, 2020, the Governor requested the CM to have a floor test carried out and to establish his majority. In case if he fails to do so the Governor would assume that the CM has lost the support of the majority of the legislative assembly.
- On 19 March 2020, the Supreme Court had ordered a floor test in the Madhya Pradesh Assembly to be held on March 20, following which Chief Minister Kamal Nath tendered his resignation. Bharatiya Janata Party leader Shivraj Singh Chouhan had later taken oath as the new state Chief Minister.
The issue in this case
- Whether any claim under Article 32 of the Indian Constitution relates to the enforcement of rights under Part III of the Constitution?
- Also, under the same Article, i.e Part III of the Indian Constitution whether there exists such a right conferred on the person/entity asserting it (petitioner) and whether such person/entity must enforce such a right (respondent)?
The court in this case disposed of the writ petition and affirmed that no hindrance be served upon the leaders while ferrying them back to Madhya Pradesh. The Supreme Court held that the power exercised by the Governor of MP to convene the assembly for a floor test cannot be regarded as constitutionally improper. It favored holding a floor test in the MP assembly for providing a majority of the government led by Kamal Nath.
The bench consisting of Justice D.Y. Chandrachud and Justice Hemant Gupta further said that when 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 and it wouldn’t be accurate to say that the Governor can only exercise his power of issuing the floor test at the very inception after general elections.
As per Article 174 of the Indian Constitution, the Governor can summon the floor test when he feels that the sitting Chief Minister has lost the confidence of the majority and in case there is a dual government then the Governor can ask either of the heads to gain a majority and form a party.
But the Court also added that this exceptional power should be handled with proper care and caution. The Governor is an appointee of the President but does not represent either a political ideology or a political view. Therefore, the Governor is expected to discharge the role of a constitutional statesman.
The court further upheld Madhya Pradesh’s Governor Lalji Tandon’s order to conduct a floor test on March 16, saying there existed no extraordinary circumstances for him to determine that a trust vote was not the appropriate course of action.
Citing previous decisions by a nine-judge bench in the SR Bommai case (1994) and a 5 Judge Bench in the Nabam Rebia case (2015) the court said that when the Governor has objective reasons to believe that the incumbent government does not command the confidence of the house, his call for a floor test cannot be construed beyond the bounds of constitutional authority.
A Governor can call for a floor test if he or she believes, based on factual evidence, that the current State administration has lost its majority in the Assembly. The Governor, on the other hand, should not favor one political party over another when conducting a trust vote. The Governor’s right to ask for a floor test does not end when a State government takes office following elections, but it continues during its term. The Supreme Court has ruled that the Governor’s power of trust vote has no bearing on any pending disqualification proceedings before the Speaker.
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