CAA’s Articulate – Cabinet decision binding on Governor


Context:

  • Rajasthan Governor returned the fresh proposal by the state Cabinet – seeking to convene a session of the Assembly on 31 July which has raised fresh legal questions on the powers of the Governor.

More on News:

  • The Governor wants to ensure that all MLAs are free to move around before a session could take place.
  • However, the Governor can require the CM and the Council of Ministers to seek a trust vote if he or she has reasons to believe that they have lost the confidence of the Assembly.
    • Currently the 19 rebel MLAs have not joined other political parties saying they are merely expressing their dissent within the party.
  • The State cabinet has reiterated its demand for a session, specifying a date and an agenda as demanded by the Governor.

Governor’s Discretion in convening assembly:

  • Article 163 of the constitution states there shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this constitution required to exercise his functions or any of them at his discretion.
  • The above provisions give him discretionary powers but the ambit of the same is not very wide.
  • In 2016 Nabam Rebia versus Deputy Speaker (Arunachal Pradesh Assembly Case) the SC held that –
    • Article 174 of the constitution gives the Governor power to summon the house of state legislature but the same needs to be exercised as per Article 163.
    • A Governor cannot employ his ‘discretion’, and should strictly abide by the “aid and advice” of the Cabinet to summon the House.
    • The Governor can summon, prorogue and dissolve the House only on the aid and advice of the Council of Ministers with the Chief Minister as the head. And not at his own.
    • It is an accepted principle that in a parliamentary democracy with a responsible form of government, the powers of the Governor as Constitutional or formal head of the State should not be enlarged at the cost of the real executive, viz. the Council of Ministers.
    • The Supreme Court highlighted how Article 163 of the Constitution does not give the Governor a “general discretionary power to act against or without the advice of his Council of Ministers.
    • The court concluded that “the only legitimate inference, that can be drawn in the final analysis is, that the framers of the Constitution altered their original contemplation, and consciously decided not to vest discretion with the Governor, in the matter of summoning and dissolving the House.
    • It has limited discretionary powers and even in this limited area, his [Governor’s] choice of action should not be arbitrary or fanciful.
      • It must be a choice dictated by reason, actuated by good faith and tempered by caution.
  • The judgment led to the restoration of the Congress-led Nabam Tuki government in Arunachal Pradesh.

It is settled law that the Governor cannot refuse the request of the Cabinet to call for a sitting of the House for legislative purposes or for the chief minister to prove his majority.


Governor’s Discretionary Powers:

Constitutional discretion

  • Determining the amount payable as Royalty accruing from mineral exploration licences to autonomous Tribal District Council by the Government of Assam, Meghalaya, Tripura and Mizoram.
  • Article 356 empowers him to recommend the imposition of President’s Rule in the state in case he feels that there is a breakdown of constitutional machinery in the state.
  • Reservation of a bill for the consideration of the President: Situations are mentioned in Article 200, when the Governor will reserve the bill, yet he can use discretion regarding this matter.
  • As per Article 167 he can seek any information from the chief minister with regard to the administrative and legislative matters of the state.
  • While exercising his functions as the administrator of an adjoining union territory (in case of additional charge)

Situational discretion

  • Appointment of chief minister:
    • Discretion is exercised in appointment of CM when a hung assembly turns up after the elections or when coalition partner suddenly withdraws the support from the ruling party.  
  • Dismissal of the council of ministers:
    • When it cannot prove their confidence in the legislative assembly, the governor can dismiss the ministry. But he cannot dismiss it until it loses majority support.
  • Dissolution of the state legislative assembly: 
    • As per Article 174, the Governor may Dissolve the Assembly if he/she is satisfied that the government has lost the majority in legislative assembly.

About the floor test

What is it?

  • A floor test is a motion through which the government of the day seeks to know whether it still enjoys the confidence of the legislature.
  • In this procedure, a CM appointed by the Governor can be asked to prove majority on the floor of the Legislative Assembly of the state.

Procedure

  • The chief minister has to move a vote of confidence and win a majority among those present and voting.
  • If the confidence motion fails to pass, the chief minister has to resign.

Modes of voting

  1. Voice vote:
    • In a voice vote, the legislators respond orally.
  2. Division vote:
    • In case of a division vote, voting is done using electronic gadgets, slips or going into lobbies.
  3. Ballot vote:
    • Ballot box is usually a secret vote – just like how people vote during state or parliamentary elections.

Composite Floor Test

  • If there is more than one person staking claim to form the government and the majority is not clear, the governor may call for a special session to see who has the majority.
  • Some legislators may be absent or choose not to vote. In such a case, the majority is counted based on those present and voting.

Role of protem speaker

  • The pro-tem speaker’s role is crucial in conducting a floor test.
  • Conventionally, the longest serving House member is nominated as pro tem speaker, whose role is limited to administering oaths to new MLAs and conducting the election of the full-time speaker.

Evolution of Floor Test in India

S.R Bommai Case, 1994

  • Concept of floor test was established in this case.
  • Background:
    • In this case, it was alleged that the Janata Party government led by Bommai did not enjoy a majority in the Karnataka legislature.
  • Judgement:
    • The court held that, wherever a doubt arises whether the Council of Ministers has lost the confidence of the House, the only way of testing it is on the floor of the House.

Jagdambika Pal vs. Union of India, 1999

  • Background:
    • In 1996, the Uttar Pradesh Assembly elections resulted in none of the contesting parties winning a clear majority.
    • The matter had come to the Supreme Court after the UP Governor had sacked Kalyan Singh as chief minister and appointed Congress leader Jagdambika Pal as his successor.
  • Judgement:
    • SC ordered a composite floor test between contending parties in order to see which out of the two contesting claimants of chief ministership had a majority in the House.

Anil Kumar Jha vs. Union of India, 2005

  • Background:
    • The contest was between Jharkhand Mukti Morcha’s Shibu Soren and the NDA’s Arjun Munda.
    • The Governor had invited Soren to form the government while Munda claimed that he commanded a majority in the House.
  • Judgement:
    • SC advanced the date of floor test and again issued similar instructions like in earlier cases.

Harish Chandra Singh Rawat vs. Union of India, 2016

  • Background:
    • A few rebel MLAs from the Congress party alleged that an appropriation Bill was passed without the government enjoying a majority in the legislature.
    • Thereafter, President’s Rule was imposed in the State.
  • Judgement:
    • SC suspended the president’s rule for two hours and ordered a floor test.

Chandrakant Kavlekar vs. Union of India, 2017

  • Background:
    • The BJP had won 13 of the 40 seats in the Goa legislature and had claimed the support of smaller parties for forming the government.
  • Judgement:
    • The Supreme Court, while ordering a floor test in this case, held, “The holding of the floor test would remove all possible ambiguities, and would result in giving the democratic process the required credibility.