SC on Maharashtra Governor’s Call for Floor Test

• 13 May 2023

For Prelims: SC, Governor, Floor Test, 10^th Schedule the Constitution, Anti-Defection Law, Whip.

For Mains: Governor’s Power to call for Floor Test.

Why in News?

Recently, the Supreme Court (SC) has held that the decision of the (former) Governor of Maharashtra to call for a Floor Test, asking the then Chief Minister to prove his majority in the house, was not justified. However, the SC cannot restore his government as he did not face the 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 the 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 an individual’s stake 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.

What is the Background?

• 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.

What is the SC’s Ruling?

• On Floor Test:
  • The floor test should not be used to solve problems within a political party and that party disagreements should be resolved according to the party's constitution or other methods.
• Appointing a Whip:
  • The Speaker must only recognize the Whip duly authorised by the political party with reference to 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 party and not the legislature party.
    • In parliamentary parlance, a whip may refer 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 concept of the whip was inherited from colonial British rule.
• Disqualification on the Ground of Defection:
  • The Speaker is the authority to adjudicate petitions for disqualification under the 10^th Schedule of the Constitution.
  • The Court cannot ordinarily adjudicate petitions for disqualification under the 10th Schedule.
    • Notices were issued by the then Deputy Speaker of the Maharashtra Assembly, against 40 rebel MLAs under the 10th Schedule which deals with disqualification on the grounds of Defection.

What is the 10th Schedule of the Constitution?

• Anti Defection Law: The 10th schedule of the Indian Constitution, also known as the "Anti-Defection Law," was added by the 52^nd Amendment Act of 1985.
  • It lays down the provisions related to the disqualification of members of Parliament (MPs) and state legislatures on the grounds of defection.
  • It seeks to promote political stability and discipline among political parties by preventing elected members from changing parties after they have been elected.
• Disqualification: According to it, a member of Parliament or a state legislature is disqualified if he/she voluntarily gives up the membership of the political party on whose ticket he/she was elected, or if he/she votes or abstains from voting in the House against the directives of the political party.
  • However, a member is not disqualified if he/she leaves the party due to a merger of two or more political parties or if the party itself merges with another party.
  • As per the 52^nd amendment, a 'defection' by 1/3^rd of the elected members of a political party was considered a 'merger'.
    • But the 91^st Constitutional Amendment Act, 2003, changed this and now at least 2/3^rd of the members of a party must be in Favour of a "merger" for it to have validity in the eyes of the law.

What are the Powers with the Governor to Call a Floor Test?

• About:
  • Article 174 of the Constitution authorizes 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.
• Governor’s Discretionary Power:
  • According to Article 163 (1), there will be a group of Ministers, led by the Chief Minister, who will assist and advise the Governor in carrying out his functions. However, the Governor will have the final say in any matters where he is required to exercise his discretion as per the constitution.
    • The Constitution makes it clear that if any question arises whether a matter falls within the governor’s discretion or not, the decision of the governor is final and the validity of anything done by him cannot be called in question on the ground that he ought or ought not to have acted in his discretion.
  • 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.

What are Previous Rulings on the Governor's Floor Test Call?

• 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.

Source: IE