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Madhya Pradesh crisis: Power and functions of the Governor as Supreme Court orders floor test for Kamal Nath government

The Governor’s discretion in the appointment of Chief Minister is conditioned by an essential form of Parliamentary form of Government that the Council of Ministers shall be collectively responsible to the State legislative assembly.

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Shubhendu Anand
Shubhendu Anand is a lawyer, practicing primarily in the Supreme Court of India, and is Chamber Junior to the Additional Solicitor General of India.

In a dramatic sequence of events 22 Members of the Madhya Pradesh legislative Assembly, who were Congress MLAs, tendered their resignation to the Speaker of the House after Jyotiraditya Scindia joined the Bharatiya Janata Party. The Speaker NP Prajapati accepted the resignation of 6 of the 22 rebel MLAs who formed the part of Madhya Pradesh Cabinet while not accepting the resignation of the remaining 16 MLAs, reducing the strength of the house to 222 and the halfway mark to 112, thereby keeping the Kamal Nath led Congress Government safe in the state. This, however, became a crisis situation in the State pushing the BJP to claim that the Kamal Nath government was indeed in minority.

Under such circumstances, the Governor of the State Lalji Tandon, who is entrusted with the task of making sure that the Constitutional machinery in the state doesn’t break down, wrote to the Chief Minister Kamal Nath to face a floor test in the Assembly stating, “Under Article 174 and 175(2) of the Constitution, I am empowered to direct that MP Assembly session will begin on March 16 at 11 am with my address. Soon after that, the only work to be done is voting on trust vote.” When the Speaker NP Prajapati refused to hold floor test and deferred the Budget Session of the House to 26th March, ex-Chief Minister of Madhya Pradesh, Shivraj Singh Chouhan approached the Supreme Court of India to seek the Court’s direction to getting a floor test done in the State Assembly.

In a two-day long hearing of the case titled Shivraj Singh Chouhan & Ors vs. Speaker Madhya Pradesh legislative Assembly & Ors., the Supreme Court ordered for the floor test to be conducted in the state Assembly on 20th March by 5 PM and the same to be video recorded, to effectively resolve the state of uncertainty in the State of Madhya Pradesh. The operative part of the judgment that lays down the guidelines for a floor test to be held today is as follows:

  • The session of the Madhya Pradesh Legislative Assembly which has been deferred to 26 March 2020 shall be reconvened on 20 March 2020.
  • The meeting to be convened in pursuance of (i) above shall be confined to a single agenda, namely, whether the government of the incumbent Chief Minister continues to enjoy the confidence of the House. 
  • Voting on agenda (ii) above shall take place by show of hands (the Governor having clarified by his letter dated 15 March 2020 that there is no provision for recording the division by ‘press of a button’). 
  • The proceedings before the Legislative Assembly shall be videographed and, if a provision exists for the live telecast of the proceedings, this shall, in addition, be ensured.
  • All authorities, including the Legislative Secretary, shall ensure that there is no breach of law and order in the course of the proceedings and that the floor test is conducted in a peaceful manner.
  • The floor test in pursuance of the above directions shall be concluded by 5.00 pm on 20 March 2020.
  • The Director-General of Police, Karnataka as well as the Director-General of Police, Madhya Pradesh shall ensure that there shall be no restraint or hindrance whatsoever on any of the sixteen MLAs taking recourse to their rights and liberties as citizens. In the event that they or any of them opt to attend the session of the Legislative Assembly, arrangements for their security shall be provided by all the concerned authorities.”

In light of the arguments that took place in the Supreme Court on the issue of floor test and the role of Governor, we shall now see what are the powers, functions and roles of the Governor in a State.

The post of governor of a state is of immense importance in our political system. It is considered as one of the pivotal parts of “checks and balances” that our democracy is proud of. Powers and functions bestowed upon the governors and lieutenant-governors of the states and union territories of India are similar in nature to that of the President of India at Union level. Being de jure head of the state government, all its executive actions are taken in the governor’s name. While the President of India is “elected”, the governor is “selected” by the existing central government via imperative processes.

While the Constitution was being framed and discussed upon, Sardar Patel sought to make it explicit that ‘special powers’ endowed upon the Governor would not create dissonance between him and the ministry. He stressed that there would be no ‘invasion of the field of ministerial responsibility’. The ‘special powers’ would primarily be limited to sending a report to the Union President when a grave emergency arose, threatening menace to peace and tranquillity. At one point there was also an argument put forward that the governor should be elected directly by the people of that province, but it did not find assent. Jawaharlal Nehru had emphasized that this post could be utilized to bring distinguished people from eclectic backgrounds as well as academics into the field of public service, as they might not have necessary expertise or zest for winning an election.

Role, Functions and Powers of the Governor as enshrined in the Indian Constitution

As provided by Articles 155 and 156 of the existing Constitution of India, Governors of the States are appointed by the President of India and are answerable to him and hold their offices during the pleasure of the President of India. The Governor, thus, is an appointee of the Central Government in the State, and, in so far as he acts in his discretion, he shall be answerable to the Union Government. Except in matters in which the Governor is required by or under the Constitution to exercise his function in his discretion, the Governor is the Constitutional or formal head of the State and he exercises all his powers and functions on the aid and advice of his council of Ministers.

This is so because our Constitution embodies generally the Parliamentary or Cabinet system of Government of the British Model both at the Union and the States. Article 164(1) of the Constitution of India empowers the Governor to appoint the Chief Minister. However, like the discretion of the President in the appointment of the Prime Minister, the Governor’s discretion in the appointment of Chief Minister is conditioned by an essential form of Parliamentary form of Government that the Council of Ministers shall be collectively responsible to the State legislative assembly. This means that the leader of a party which commands the majority in the legislative assembly is eligible for appointment as Chief Minister, and the Governor is bound to request him to form the Government. If there is no party commanding a clear majority in the legislative assembly, the Governor may exercise his discretion in the appointment of Chief Minister according to his personal assessment of the situation at that time. 

In a 5 Judge Bench, the Supreme Court of India has held in BP Singhal v. Union of India, (2010) 6 SCC 331 that the role of the Governor of a State is to function as a vital link or bridge between the Union Government and the State Government. He is required to discharge the functions related to his different roles harmoniously, assessing the scope and ambit of each role properly. Therefore, the Governor of a State has a dual role. The first is that of a Constitutional head of the State bound by the advice of his Council of Ministers. The second is to function as a vital link between the Union Government and the State Government. In certain special or emergent situations, he may also act as a special representative of the Union Government. He is constitutionally the head of the State in who is vested the executive power of the State and without whose assent there can be no legislation in exercise of the legislative power of the State. The fact that the Governor holds office during the pleasure of the President does not make the Government of India an employer of the Governor.

Difference between powers of The President and powers of The Governor

There is a distinction between the powers of the President under Article 74 and the Governor under Article 163 of the Constitution. There is some qualitative difference between the position of the President and the Governor. The President under Article 74 has no discretionary powers but the Governor has certain discretionary powers under Article 163(2) of the Constitution of India. In contrast to Article 74, even though Article 163 similarly provides that the Governor of a State is to exercise his functions in consonance with the aid and advice tendered to him by the council of Ministers with the Chief Minister as the head, yet Article 163(2) confers discretionary powers with the Governor when it is so expressly mandated by or under the Constitution. To a limited extent Article 163(2) authorizes Governor to act in his own discretion and in that sense, there is a clear distinction between the power vested in the President and the power vested in the Governor.

In the landmark judgment of B.R. Kapur v. State of T.N. & Anr, (2001) 7 SCC 231, the Supreme Court observed that the Governor should act as per the will or advice of the majority party only when the same is in accord with the Constitution and the laws.

Conclusion

The legislative and discretionary powers of Governor are very clear and precise in terms of the Constitutional Provisions and various judgments of the Supreme Court. The Governor can summon, prorogue, defer or dissolve the State Legislative Assembly, his decisions often taken in counsel with the Chief Minister and the Council of Ministers. The Governor holds the power to select the Chief Minister should no political party win a majority in the Vidhan Sabha of the state, or in the Chief Minister’s demise without any obvious successor. The Governor may recommend imposition of the President’s Rule on the President’s behalf, and in such circumstances, override the Council of Ministers and directly handle the workings of the State.

Lastly, the Governor of a state is the custodian of the Constitutional machinery of the state and hence has a greater responsibility to make sure that the same doesn’t breakdown. Lalji Tandon, the Governor of Madhya Pradesh, was doing exactly the same which he asked Chief Minister to prove his majority on the floor of the House after 22 of his party’s MLAs resigned.

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Shubhendu Anand
Shubhendu Anand is a lawyer, practicing primarily in the Supreme Court of India, and is Chamber Junior to the Additional Solicitor General of India.

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