SHIVRAJ SINGH CHOUHAN & ORS. versus SPEAKER MADHYA PRADESH LEGISLATIVE ASSEMBLY & ORS. on 13 April 2020

[2020] 9 S.C.R. 787

SHIVRAJ SINGH CHOUHAN & ORS.

v.

SPEAKER MADHYA PRADESH LEGISLATIVE

ASSEMBLY & ORS.

(Writ Petition (C) No. 439 of 2020)

APRIL 13, 2020

[DR. DHANANJAYA Y CHANDRACHUD ANDHEMANT GUPTA, JJ.]

Constitution of India: Art.174 – Power of the Governor tocall floor test – Scope of – Held: Power under Art.174 of theConstitution to summon the House and to prorogue is exercised bythe Governor on the aid and advice of the Council of Ministers –But in a situation where the Governor has reasons to believe thatthe Council of Ministers headed by the Chief Minister have lost theconfidence of the House, constitutional propriety requires that theissue be resolved by calling for a floor test – The Governor in callingfor a floor test cannot be construed to have acted beyond the boundsof constitutional authority.

Administrative Law: Judicial review – Governor calling for afloor test – Scope of interference by Courts – Held: The powerswhich are entrusted to constitutional functionaries are not beyondthe pale of judicial review – Where the exercise of the discretion byGovernor to call a floor test is challenged before the court, it is notimmune from judicial review – The court is entitled to determinewhether in calling for the floor test, the Governor did so on thebasis of objective material and reasons which were relevant andgermane to the exercise of the power.

Constitution of India: Art.174 – Duty of the Governor whilecalling floor test – Held: In exercising the constitutional authorityto demand a trust vote, the Governor must do so with circumspectionin a manner that ensures that the authority of the House to determinethe existence or loss of confidence in the government is notundermined – Absent exigent and compelling circumstances, thereis no reason for the Governor to prevent the ordinary legislativeprocess of a no confidence motion from running its due course –

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AThe Governor is an appointee of the President but does not representeither a political ideology or a political view – The reason underlyingthe entrustment of the authority to the Governor is the ability tostand above political conflicts and with the experience ofstatesmanship, to wheel the authority in a manner which subservesand does not detract from the strength and resilience ofBdemocratically elected legislatures and the governments in the stateswho are accountable to them.

Constitution of India: Art.174 – Exercise of power byGovernor to convene floor test – In this case, the Budget Session ofthe Legislative Assembly was convened on the aid and advice of theCCouncil of Ministers to commence from 16 March 2020 – TheGovernor was intimated that 22 Members owing allegiance to theINC had tendered their resignations to the Speaker of the Assembly– Copies of the resignation letters were forwarded to the Governor– At this stage, the validity of these resignations was not discernedDand no decision was made by the Speaker as to whether theresignations were voluntary or genuine – The Chief Ministersubsequently tendered advice to the Governor for the removal ofsix Members who were ministers in the State government – On 13March 2020, the Speaker of the Legislative Assembly issued noticesof disqualification – However, on 14 March 2020, the resignationsEof six Members who were ministers of the incumbent governmentwere accepted by the Speaker acting in exercise of the constitutionalauthority under the proviso to Art.190(3)(b) – The Chief Ministeraddressed a communication to the Governor stating that theconvening of the floor test would be a sure basis for resolving theFconundrum – However, upon the convening of the LegislativeAssembly, no floor test was conducted, and the House was adjournedtill 26 March 2020 – Governor advised to conduct a floor test –Propriety of, challenged – Held: Based on the resignation of sixministers of the incumbent government (accepted by the Speaker),

the purported resignation of sixteen more Members belonging toGthe INC, and the refusal of the Chief Minister to conduct a floortest despite the House having been convened on 16 March 2020,the exercise of power by the Governor to convene a floor test cannotbe regarded as constitutionally improper – In order to obviateillegitimate and unseemly political bargaining in the quest forH

political power, the trust vote should be convened at the earliestdate – It is a matter which can brook no delay since the authority ofthe government presided over by the Chief Minister depends on theCouncil of Ministers continuing to have the faith of the legislativebody as a collective entity.

Constitution of India: Power of Governor to take decisionsas to whether the resignations tendered by Members were genuineor a Member of the House has incurred a disqualification – Held:The Governor does not decide whether the resignations that weresubmitted by the Members were genuine and voluntary – That issquarely a matter which lies within the domain of the Speaker –Similarly, whether a Member of the House has incurred adisqualification under the Tenth Schedule is a matter where theSpeaker is the designated authority – It is trite law that neither theGovernor, nor for that matter this court, has the power to impingeupon the authority of the Speaker to take a decision on these issues.

Constitution of India: Holding of a trust vote – The holdingof a trust vote operates in a distinct field from the issue as to whetherone or more individual members of the Legislative Assembly haveembarked upon a voluntary act of resignation or have incurred thewrath of the Tenth Schedule – Holding a trust vote is necessary toascertain whether the Council of Ministers headed by the ChiefMinister has the confidence of the House – The continuous existenceof that confidence is crucial to the legitimacy and hence survival ofthe government – Particularly where the Members resigned in anexpression of a lack of faith in the existing government, theconvening of a floor test is the surest method of assessing the impactof the resignations on the collective will of the House – Thus, theconvening of a trust vote is of crucial importance to affirm thefundamental values of the Constitution namely, abiding by the ruleswhich govern a parliamentary democracy – Holding of a trust votedoes not short-circuit the jurisdiction of the Speaker on a matter ofresignation and disqualification – The court cannot issue a directionmandating that a trust vote cannot be convened if any one or moreMembers do not remain present in the House – Whether or not toremain present is for the individual Members to decide and theywould, necessarily be accountable for the decisions which they take,both to their political party and to their constituents.

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ADisposing of the writ petitions, the Court HELD: 1.1 The Governor is appointed by the Presidentand is the head of the executive branch in whom, under Article154, the executive power of the state is vested. While holdingoffice at the pleasure of the President, the Governor as aBconstitutional authority is not a Member of either House ofParliament or of the legislature of a State. The discretionarypowers vested in the Governor under Article 163 of theConstitution represents an exception to the general rule of aidand advice. The Constitution embodies the principle of aid andadvice and in doing so, emphasizes that the Governor is a titularChead of State, while the real authority and power vests in theCouncil of Ministers headed by the Chief Minister. [Paras 32,37][823-E; 827-E]

1.2 The legislative assembly is a democratically electedbody and the government represented by the Council of MinistersDwith the Chief Minister at the head can continue in office only solong as it continues to have the confidence of the legislature.Integral to this concept is the ultimate authority of the statelegislature to exercise supervisory control over the conduct,decisions and affairs of the government. The legislature does soEthrough the debates which take place on the floor of the house aswell as by exercising oversight over the departments ofgovernment. The relationship between the executive arm of thestate and its legislative arm in the democratically electedlegislative bodies of the states is not merely a matter ofconstitutional affliction. In making the Council of MinistersFanswerable to the legislative assembly and in entrusting to thelegislative assembly the authority to exercise oversight over theaffairs of the state, the Constitution weaves an intricate processthat has been described as representing the checks and balancesof democratic governance. [Para 37][828-C-E]G

1.3 The Constitution employs distinct expressions inrelation to the term of its legislative bodies, their convening,sittings and ultimate dissolution. The duration of the statelegislature is prescribed as five years from the date appointedfor the first meeting, unless the legislature is dissolved sooner.

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After the elections have been held for the purpose of constitutinga legislative assembly, the legislature is summoned by theGovernor to meet at such time and place as he thinks fit. Uponthe legislature being summoned, the Governor is entrusted withthe authority to prorogue the House. The concept of the Housebeing prorogued is distinct from the dissolution of the legislativeassembly. A decision to prorogue the Houses does not bring toan end the duration of the assembly. The duration of the assemblywhich is prescribed as five years by Article 172 is brought to anend either on the expiry of this period counted from the first dateappointed for the meeting or an earlier dissolution. In summoningthe House, and in taking a decision to prorogue or dissolve it,the Governor ordinarily acts on the aid and advice of the Councilof Ministers. The primary basis on which the accountability ofthe Council of Ministers is exacted towards the legislature isthrough the relationship which the Constitution envisionsbetween the government and the elected body of the legislature.The Council of Ministers is drawn from the legislative body,membership of the Council of Ministers being dependent (beyonda term of six months) on membership of the House. But apartfrom the principle that a member of the Council of Ministersmust be a member of the legislature, accountability of theexecutive to the legislature is exacted by the ultimate authoritywhich was conferred on the legislature to express a lack ofconfidence in the Council of Ministers. In envisioning the role ofthe Governor as a constitutional statesman, care must be takenin the course of interpretation to ensure that the balance of powerwhich was envisaged by the Constitution between the executiveand the legislature is maintained by the gubernatorial office. [Para38][828-F-H; 829-A-D]

2. The issue of whether a Governor can call for a trust votein an already constituted legislative assembly is not entirely resintegra. Before a nine-judge Bench of this Court in SR Bommai,the individual cases which came up for consideration includedthe dispute emanating from the State of Karnataka. It wasobserved therein that the question of whether the Council ofMinisters in an ongoing legislative assembly commands theconfidence of the house is a matter which has to been determinedonly on the floor of the house and that it is not for the Governor AB

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Ato determine the issue within his subjective satisfaction. The onlyexception to this norm which the court drew was where a situationarises where members of the Legislative Assembly may not beable to express their opinions freely as a result of prevailingviolence or for other extraordinary reasons.[Para 39][829-E; 831-A-B]BSR Bommai v. Union of India (1994) 3 SCC 1 : [1994]2 SCR 644 – followed

3. The powers which are entrusted to constitutionalfunctionaries are not beyond the pale of judicial review. WhereCthe exercise of the discretion by the Governor to call a floor testis challenged before the court, it is not immune from judicialreview. The court is entitled to determine whether in calling forthe floor test, the Governor did so on the basis of objectivematerial and reasons which were relevant and germane to theexercise of the power. The exercise of such a power is not intendedDto destabilise or displace a democratically elected governmentaccountable to the legislative assembly and collectivelyresponsible to it. The exercise of the power to call for a trustvote must be guided by the over-arching consideration that theformation of satisfaction by the Governor is not based onEextraneous considerations. While the Constitution recognisesthat the Governor does possess a power inhering in the office tomonitor that the elected government continues to possess theconfidence of the Legislative Assembly, this entrustment oughtnot to overide or displace the basic responsibility of the executiveto the legislature or the ability of the legislature to demandFaccountability of the executive arm of the state. [Paras 43,44][836-H; 837-A-D]

4.1 In exercising the constitutional authority to demand atrust vote, the Governor must do so with circumspection in amanner that ensures that the authority of the House to determineGthe existence or loss of confidence in the government is notundermined. Absent exigent and compelling circumstances, thereis no reason for the Governor to prevent the ordinary legislativeprocess of a no confidence motion from running its due course.The Governor is an appointee of the President but does notHrepresent either a political ideology or a political view. The Governor is expected to discharge the role of a constitutionalstatesman. The authority of the Governor is not one to beexercised in aid of a political dispensation which considers anelected government of the day to be a political opponent. Theprecise reason underlying the entrustment of the authority tothe Governor is the ability to stand above political conflicts andwith the experience of statesmanship, to wheel the authority in amanner which sub-serves and does not detract from the strengthand resilience of democratically elected legislatures and thegovernments in the states who are accountable to them. [Para45][838-A-D]

4.2 In discharging this crucial role, it is necessary that theGovernor bears in mind that the purpose underlying theentrustment of the authority to require a trust vote is not todisplace duly elected governments but to intervene with cautionwhen the circumstances which are drawn to the attention of theGovernor indicate a loss of majority. This power is granted to theGovernor to ensure that the principle of collective responsibilityis maintained at all times and must be exercised with caution.The circumstances on the basis of which the Governor forms aprima facie opinion leading up to a communication requiring atrust vote in the legislative assembly must be of an objectivenature. [Para 46][838-F-G]

5. Based on the resignation of six ministers of theincumbent government (accepted by the Speaker), the purportedresignation of sixteen more Members belonging to the INC, andthe refusal of the Chief Minister to conduct a floor test despitethe House having been convened on 16 March 2020, the exerciseof power by the Governor to convene a floor test cannot beregarded as constitutionally improper. [Para 47][839-E-F]

6. The Governor has in fact not intervened in the authoritywhich is entrusted to the Speaker to either decide upon thevoluntary and genuine character of the resignations or any issueof disqualification within the meaning of the Tenth Schedule. Facedwith the communication of the Governor for convening a trustvote immediately after the Governor’s address, the session ofthe Legislative Assembly was adjourned till 26 March 2020

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Adespite the House having already convened. This would haveallowed the state of political uncertainty in Madhya Pradesh tocontinue and furnish avenues for political bargaining on termswhich cannot be regarded as legitimate. It is with a view to obviateillegitimate and unseemly political bargaining in the quest forpolitical power that this Court has consistently insisted upon theBconvening of a trust vote at the earliest date. [Para 48][839-G-H;840-A-B]

7. The idea underlying the trust vote is to uphold thepolitical accountability of the elected government to the statelegislature. Assertion of accountability is a mirror image of theCcollective responsibility of the government to the legislature. Therequirement of the trust vote fulfils that purpose in the presentcase. The present controversy has shone a light on the often-fluid allegiances of democratically elected representatives. Thisis a matter for their conscience and the court expresses noDopinion on the matter. However, in directing a trust vote, theGovernor does not favour a particular political party. It isinevitable that the specific timing of a trust vote may tilt thebalance towards the party possessing a majority at the time thetrust vote is directed. All political parties are equally at risk oflosing the support of their elected legislators, just as theElegislators are at risk of losing the vote of the electorate. This ishow the system of parliamentary governance operates andadmittedly the outcome of the trust vote is the ultimate litmustest for the legitimacy to govern. However, where the evidenceindicates that circumstances of violence and coercion exist thatFwould undermine a free and fair vote in the assembly, theGovernor and the court must take measures to ensure that thesanctity of the trust vote is maintained. In the circumstances asthey have emerged in this case, the exercise of authority by theGovernor was based on circumstances which were legitimate to the purpose of ensuring that the norm of collective responsibilityGis duly preserved. There existed no extraordinary circumstancesfor the Governor to determine that a trust vote was not theappropriate course of action on 16 March 2020. [Para 49][843-G-H; 844-A]

8. The Governor does not decide whether the resignationsHthat were submitted by the Members were genuine and voluntary.

That is squarely a matter which lies within the domain of theSpeaker. Similarly, whether a Member of the House has incurreda disqualification under the Tenth Schedule is a matter where theSpeaker is the designated authority. It is trite law that neitherthe Governor, nor for that matter this Court, has the power toimpinge upon the authority of the Speaker to take a decision onthese issues. The issue however is whether the convening of atrust vote has to be deferred until such time as the Speaker hastaken a decision on whether or not to accept the resignationsand if so, the consequence of the Members departing from thefold of the party on whose ticket they were elected under theTenth Schedule. The holding of a trust vote operates in a distinctfield from the issue as to whether one or more individual membersof the Legislative Assembly have embarked upon a voluntary actof resignation or have incurred the wrath of the Tenth Schedule.Holding a trust vote is necessary to ascertain whether the Councilof Ministers headed by the Chief Minister has the confidence ofthe House. The continuous existence of that confidence is crucialto the legitimacy and hence survival of the government. It is amatter which can brook no delay since the authority of thegovernment presided over by the Chief Minister depends onthe Council of Ministers continuing to have the faith of thelegislative body as a collective entity. Particularly where theMembers resigned in an expression of a lack of faith in theexisting government, the convening of a floor test is the surestmethod of assessing the impact of the resignations on thecollective will of the house. The consequence of the acceptanceof a resignation is to reduce the numerical strength of the House.Until the resignations are accepted, the Members who haveresigned continue to be reflected in the strength of the househaving regard to the language which has been employed in Article190(3)(b) (-shall thereupon fall vacant). Whether in a situationsuch as the present an elected government is entitled to continuedespite the resignations of twenty-two of its Members has asignificant bearing on the issue of confidence. Neither theGovernor nor for that matter the Court can entrench upon thepower of the Speaker, but the pendency of the proceedings beforethe Speaker cannot be a valid basis to not have the confidence ofthe House in the government determined by the convening of a ABC

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Afloor test. Added to it is a factual circumstance in the presentcase that the Speaker accepted the resignations tendered by sixof the twenty-two Members on 14 March 2020. All of theMembers sailed together. No explanation was forthcoming in thesubmission of Dr. Singhvi on what, if any, was the distinctionbetween the six Members whose resignations were accepted withBalacrity and the remaining sixteen on whose resignations, nodecision has been taken. None of the Members who resigned(neither the six nor the sixteen) appeared before the Speaker.Therefore, non-appearance before the Speaker is evidently nota ground of distinction. Thus, the convening of a trust vote is ofCcrucial importance to affirm the fundamental values of theConstitution namely, abiding by the rules which govern aparliamentary democracy. The fundamental precept ofparliamentary democracy is that the government owes collectiveresponsibility to the legislative assembly and as a collective body,the legislative assembly is entitled to hold the government toDaccount. The ultimate expression of accountability is theexistence of or the lack of confidence in the Council of Ministers.The submission that the holding of a trust vote would short-circuitthe jurisdiction of the Speaker on a matter of resignation anddisqualification is not accepted. [Paras 50, 51][844-D-G; 845-A-EH; 846-A]

9. The spectacle of rival political parties whisking away theirpolitical flock to safe destinations does little credit to the state ofour democratic politics. It is an unfortunate reflection on theconfidence which political parties hold in their own constituentsFand a reflection of what happens in the real world of politics.Political bargaining, or horse-trading is now an oft repeated usagein legal precedents. ‘Poaching’ is an expression which was bandiedabout on both sides of the debate in the present case. It is bestthat courts maintain an arm’s length from the sordid tales ofpolitical life. In order to facilitate a trust vote for which the twenty-Gtwo Members should be free to participate in the house shouldthey opt to do so, directions in that regard should be issued bothto the Director General of Police of Karnataka as well as to theDirector General of Police of Madhya Pradesh. These directionsare intended to sub-serve the purpose of ensuring that none ofHthe Members are restrained in the exercise of their rights and liberties as citizens and that if any of them opt to attend theproceedings of the Legislative Assembly, they should not beprevented from doing so. [Para 54][847-B-C; 848-A-B]

10. The reliefs which have been sought in the writ petitioninstituted by the MP Congress Party are manifestly misconceived.A direction to the Union of India (through the Secretary, Ministryof Home Affairs) and to the State of Karnataka (through its ChiefSecretary) has been sought to grant access to the office bearersof the MP Congress Party to communicate with respondents fiveto nineteen (the Members who have tendered their resignations).The petition has not been framed as one seeking a writ of habeascorpus. The Members who have appeared in these proceedingssubmitted that they do not wish to interact with any of the memberof the MP Congress Party. It is for the Members to decide whothey wish to associate with and to face the consequences of sucha decision in accordance with the law and the Constitution. Amongthe reliefs which have been sought is a direction that the vote ofconfidence should be held only in the presence of all the dulyelected Members and that a trust vote cannot be held in theabsence of representatives of twenty-two constituencies, whosepresence could be secured by holding by-elections for the vacantseats in accordance with law. These reliefs are patentlymisconceived. The court cannot issue a direction mandating thata trust vote cannot be convened if any one or more Members donot remain present in the House. Whether or not to remainpresent is for the individual Members to decide and they would,necessarily be accountable for the decisions which they take, bothto their political party and to their constituents. Similarly, therelief to the effect that no trust vote should be conducted untilby-elections are held for the twenty-two seats is againmisconceived. One of the prayers in the second writ petitionseeks an anticipatory direction of this Court based on theassumption that a disqualification would stand attracted uponwhich the seat would fall vacant and an election would have beenheld. In any event, the convening of a trust vote cannot bepostponed to a future date until by-elections take place. Thechallenge to the communication of the Governor must fail.[Paras 55-57][848-C-H; 849-A-B]

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ANebam Rebia and Bamang Felix v. Deputy Speaker,Arunachal Pradesh Legislative Assembly (2016) 8 SCC1 : [2016] 6 SCR 1 – relied on.

Kihoto Hollohan v. Zachillhu (1992) 2 Suppl. 2 SCC651 : [1992] 1 SCR 686; Shrimanth Balasaheb Patil v.BSpeaker, Karnataka Legislative Assembly (2020) 2 SCC595; State of Rajasthan v. Union of India (1977) 3 SCC592 : [1978] 1 SCR 1; State (NCT of Delhi) v. Union ofIndia (2018) 8 SCC 501 : [2018] 7 SCR 1 – referredto.

Case Law Reference

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CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.E439 of 2020.

Under Article 32 of the Constitution of India With Writ Petition (Civil) No. 449 of 2020.FTushar Mehta, SG, K.M. Nataraj, ASG, Prashant Kumar, AAG,Ms. Prachi Mishra, Vaibhav Srivastava, Ms. Suman Rani, DAGs, MukulRohatgi, Dushyant Dave, Devadatt Kamat, Dr. Abhishek Manu Singhvi,Kapil Sibal, Vivek Tankha, Harin P. Raval, Maninder Singh, Sr. Advs.,Mishra Saurabh, D.S. Parmar, Ms. Vanshaja Shukla, Ms. Anuja Pethia,Ms. Anuradha Mishra, Rajesh Inamdar, Javedur Rahman, Pai Amit, AliGAsghar Rahim, Nishanth Patil, Rahat Bansal, Ms. Jessica Khan, SunilFernandes, Amit Bhandari, Varun K. Chopra, Avishkar Singhvi,Muhammad Ali Khan, Sailesh Gopal Mhaske, Ms. Nupur Kumar, PrastutDalvi, Ms. Anju Thomas, K.C. Kaushik, Rahul Kaushik,Ms. Bhuvneshwari Pathak, Ms. Shilpi Satya Priya Satyam, Ujjwal PrasadHSharma, Prashant Shivrajan, Chaitanya, Aditya Kashyap, Chanakya

Sharma, Ms. Tanvi Bhatnagar, Harsh Parashar, Shashank Shekhar,Rajeev Ranjan, Sarath Nambiar, Shantanu Sharma, Bhuvan Kapoor,Digvijay Dam, Rajesh Srivastava, Shubhranshu Padhi, Manindra PalGupta, Sharath, Arjun Garg, S. Mahesh Sahasranaman, M. Vinod Kr.,Ms. Rati Tandon, Devansh, Aakash Nandolia, Mahesh S., Gurtej PalSingh, Shubham Sharma, Rahul Khatri, M/s. VKC Law Offices, Advs.for the appearing parties.

The Judgment of the Court was delivered by DR DHANANJAYA Y CHANDRACHUD, J.

1. An imbroglio in the Madhya Pradesh Legislative Assembly overthe purported resignations of twenty-two Members and severalcommunications by the Governor to the Chief Minister to hold animmediate floor test have given rise to these writ petitions under Article32 of the Constitution.

2. The first writ petition has been instituted by ten Members ofthe Madhya Pradesh Legislative Assembly seeking a writ directing theSpeaker, Chief Minister and Principal Secretary of the LegislativeAssembly to hold a floor test in accordance with the directions issued bythe Governor.[1] The second writ petition has been instituted by the MadhyaPradesh Congress Legislature Party[2] through its Chief Whip seekingdiverse reliefs including:

(i) A direction to the Union of India and the State of Karnatakato grant access to the officer bearers of the MP CongressParty to communicate with respondents five to nineteen (theMembers of the Madhya Pradesh Legislative Assembly whohave tendered their resignation);

(ii) A declaration that respondents five to nineteen are in theillegal confinement of the Union of India, the State ofKarnataka and the Bharatiya Janata Party[3]; 1 Prayer: Issue a writ of mandamus or any other appropriate writ or direction, directingrespondent nos 1 to 3 to hold the floor test in the Madhya Pradesh Legislative Assemblywithin 12 hours of the passing of the order by this Hon‘ble Court and as per directionsdated 14.3.2020 and 15.3.2020 issued by the Hon‘ble Governor of Madhya Pradesh.2 “MP Congress Party”3 “BJP”

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A(iii)A direction permitting and enabling respondents five tonineteen to participate in the ongoing Budget Session of theMadhya Pradesh Legislative Assembly;

(iv) A direction that a trust vote should be held only in thepresence of all the elected Members of the Madhya PradeshBLegislative Assembly;

(v) A declaration that the communications of the Governor ofMadhya Pradesh to the Chief Minister under Articles 174and 175 of the Constitution of India are unconstitutional;and C

(vi) A direction that if the twenty-two Members belonging tothe Indian National Congress[4] have resigned, the trust votebe postponed until by-elections are held for the vacant seats.

The Facts leading up to the Writ Petitions D3. Elections for the fifteenth Legislative Assembly of the State ofMadhya Pradesh were held on 28 November 2018. The results weredeclared on 11 December 2018. There are 230 seats in the LegislativeAssembly. The party position upon the declaration of the results isindicated in the following tabulation:

GThe INC staked the claim to form the government together withthe support of four independents Members, two Members of the BahujanSamaj Party[5] and one Member belonging to the Samajwadi Party[6]. TheINC, having the support of 121 Members (114 + 4 + 2 + 1 = 121),4 “INC’’5 “BSP’’H6 “SP’’

formed the government. Mr. Kamal Nath who belongs to the INC wasappointed Chief Minister. Two seats have fallen vacant from amongstthe 109 seats held by the BJP. The current strength of the LegislativeAssembly is 228 Members of which the BJP has 107 Members in theHouse.

4. At about 5:30 PM on 10 March 2020, leaders of the BJP metthe Speaker of the Madhya Pradesh Legislative Assembly and handedover what purported to be the resignation letters of twenty-two Membersbelonging to the INC. Three days later, on 13 March 2020, the ChiefMinister addressed a communication to the Governor alleging thatfollowing a foiled attempt on 3 / 4 March 2020 to allure Members owingallegiance to the INC, the BJP had on 8 March 2020 arranged threechartered aircraft to whisk away’ nineteen Members to Bengaluru.Since then, the nineteen Members, of whom six are Cabinet Ministers,were alleged to have been held incommunicado in a resort arranged forby the BJP. The letter adverted to the fact that the resignations of thesenineteen Members had not been handed over by the Members themselvesbut rather by leaders of the BJP and that subsequently on 12 March2020, an unsuccessful attempt was made by two Cabinet Ministers tomeet one of the Members. The Chief Minister recorded:

‘‘We expect the enquiry and investigation on the resignation letterssubmitted by BJP allegedly of the captive Congress MLAs, isacted upon and completed early. As a responsible leader of IndianNational Congress, I invite and would welcome a floor test of myGovernment in the forthcoming Session of Madhya PradeshLegislative Assembly already notified from 16[th] March 2020, on adate fixed by the Speaker. This is the minimum a ConstitutionalAuthority, can offer to address the ongoing turmoil.’’

The letter ended with a request to the Governor to ensure therelease of the Members ‘‘held in captivity’’ in Bengaluru by taking thematter up with the Union Home Minister.

The above letter was followed by a communication dated 14 March2020 by the Chief Minister to the Union Home Minister. In his letter, theChief Minister stated:

‘‘You will agree that any demand of a floor test in the Assemblyhas little meaning with 22 of my MLAs being kept captive outsideMadhya Pradesh. This is an unprecedented situation where the A

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ABJP is seeking a floor test in the Assembly while holding manyCongress MLAs hostage away from Madhya Pradesh.’’

5. On 14 March 2020, the INC issued a three-line whip to ensurethe presence of all its Members in the forthcoming Budget Session andto vote for and support the government. As noted above, amongst theBMembers who had purportedly tendered their resignations, six wereCabinet Members of the incumbent Madhya Pradesh government. Actingon the aid and advice of the Chief Minister, the Governor accepted theresignations of these six Members. On the same day, a communicationwas addressed by the Governor to the Chief Minister with the followingcontents:C

‘‘I have received information that 22 MLAs of Madhya PradeshVidhan Sabha, have sent their resignation letters to the Speaker,Vidhan Sabha. These MLAs have also informed regarding theirresignation through Electronic and Print Media. In this regard, Ihave watched the media coverage carefully.

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These 22 MLAs have sent their resignation letters also to mevide separate letters dated 10.03.2020 respectively and the sameMLAs vide their separate letters dated 13.03.2020 have alsorequested to provide security during their presence before theVidhan Sabha Speaker. Today, out of these 22 MLAs, theEresignation total 6 MLAs who were Ministers in your Government,who were removed from the post of Minister on yourrecommendations, has also been accepted by Vidhan SabhaSpeaker.

You vide your letter dated 13.03.2020 has also granted consentFfor getting done the Floor Test and I have also received aMemorandum from the main Opposition Party of Vidhan Sabhai.e. Bhartiya Janta Party, wherein, they have mentioned theaforementioned circumstances. They have also stated that theundue pressure is being created by the State Government on theGMembers who have resigned as well as other members.

From the above, I am confident that your Government has lostthe trust of house and your Government is in minority. This situationis very serious, therefore, it has become mandatory as perConstitution and for the safeguarding the democratic value, it isnecessary for you to gain the trust vote in Vidhan SabhaHimmediately after my speech on 16.03.2020.

In this regard, I by exercising the powers conferred by Article174 r/w 175(2) of the Constitution and other Constitutional powersvested in me, I do hereby issue the following directions:-

1. Session of Madhya Pradesh Vidhan Sabha will on 16[th] March,2020 w.e.f. 11 a.m. in the morning, and after my speech, onlyone work will be done i.e. trust vote.

2. The Trust Vote shall be done by pressing button on the basis ofdivision and same will not be done by any other method.

3. The videography of entire proceedings of Trust Vote will beconducted by Vidhan Sabha through independent persons.

Aforesaid proceedings shall be started on 16[th] March, 2020 inany case, and same shall not be adjourned delayed or suspended.

On 15 March 2020, the Governor addressed a furthercommunication to the Chief Minister that since the facility for mechanicallyrecording votes (through the press of a button‘) was not available, thetrust vote should be taken by the raising of hands.

6. The Budget Session of the Madhya Pradesh LegislativeAssembly commenced on 16 March 2020. The agenda which wascirculated on 15 March 2020 covered (i) The speech of the Governor;and (ii) the motion of thanks by the Governor. The agenda did not includea provision for a trust vote in terms of the communication of the Governordated 14 March 2020. Eventually, the proceedings of the LegislativeAssembly were adjourned to 26 March 2020 on account of public healthconcerns arising from the recent outbreak of Coronavirus (Covid-19).

7. On 16 March 2020, the Chief Minister addressed acommunication to the Governor. While adverting to the decision of thisCourt in Nebam Rebia and Bamang Felix v Deputy Speaker,Arunachal Pradesh Legislative Assembly[7](‘‘Nebam Rebia’’), theChief Minister stated that the messages addressed by the Governorto the Legislative Assembly must abide by the mandate of Article 163(1)and that any such communication can only be on the aid and advice ofthe Council of Ministers. The Chief Minister stated that the directionswhich had been issued by the Governor touched upon issues which layin the exclusive domain of the Speaker of the Legislative Assembly. Inhis response to the Chief Minister dated 16 March 2020, the Governor 7 (2016) 8 SCC 1

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Arecorded that despite his earlier letter dated 14 March 2020, the ChiefMinister did not initiate the process of proving his majority on the housefloor and the proceedings of the Legislative Assembly were adjournedto 26 March 2020. The Governor requested the Chief Minister to havethe floor test carried out on 17 March 2020 and to establish his majority,failing which the Governor would have to assume that the ChiefBMinister‘s government did not command the support of a majority in theLegislative Assembly. It was at this constitutional impasse that the presentwrit petitions were instituted before this Court.

Submissions

C8. The submissions in the writ petition which has been moved bythe MP Congress Party are addressed first. Mr Dushyant Dave, learnedSenior Counsel having led the challenge, urged that the writ petitionunder Article 32 is founded on the need to maintain (i) constitutionalmorality; (ii) constitutional ethos; and (iii) constitutional principles. Thesubmission is that the Constitution contemplates, in the ordinary course,Da fixed term of five years for the Legislative Assembly and as a necessaryincident, a voter is entitled to expect to be represented by their dulyelected representative for a period of five years. It was urged that theanti-defection provisions contained in the Tenth Schedule of theConstitution prescribe a 2/3[rd] requirement to sustain a valid break awayEor merger. Mr Dave has urged that twenty-two Members owing allegianceto the INC have been highjacked and have been held in captivity inBengaluru. According to the submission, the process began on 3 / 4March 2020 when three INC Members, one BSP Member and oneIndependent Member, all of whom have supported the INC governmentof Madhya Pradesh in the past, were taken away to a hotel at Manesar,FGurugram by the BJP. It has been urged that though the BSP Memberwas rescued‘ by the INC, other Members of the Legislative Assemblywere taken to Bengaluru on a series of chartered flights arranged for bythe BJP and under the escort of BJP Members and office bearers. MrDave submitted that on 9 March 2020 three chartered aircraft wereGarranged by the BJP to spirit away‘ nineteen Members belonging to theINC including six Members who were Cabinet Ministers in the StateGovernment of Madhya Pradesh to Bengaluru. They were stated tohave been accompanied by Shri Hemant Khandelwal, Shri Uma Shankarand Shri Sudarshan Gupta belonging to the BJP. In this context, reliancehas been placed on the manifest of the chartered aircraft. It has beenH

urged that the resignations of the Members were handed over to theSpeaker not by the INC Members themselves in person but rather bythe leaders of the BJP in the Madhya Pradesh Legislative Assembly. Inthe above background, Mr Dave submitted that:

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(i) Neither the Governor nor the Speaker required the Memberswho had been whisked away to Bengaluru to be broughtBback;

(ii) The Governor could not have addressed a communicationto the Chief Minister without ascertaining the voluntarynature of the resignations, a matter which was within thedomain of the Speaker of the Legislative Assembly; C

(iii) In the alternative, even if the resignations of the Membersare to be accepted, the holding of the trust vote must awaitby-elections being held for the purpose of filing up thevacancies; and D

(iv) If at all, a motion of no confidence may be moved by anypolitical party which seeks to do so, but there is no basis orjustification for a government which was formed after theelections to be required by the Governor to convene a trustvote absent a motion of no confidence.

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These submissions were buttressed by relying upon Articles 168,172, 175, 188 (read with the Third Schedule), 190,191 and the TenthSchedule (specifically paragraphs 2(1)(a), 4 and 6) of the Constitution.Mr Dave has also placed reliance on the fundamental duties embodiedin Article 51A of the Constitution. The decision in Nebam Rebia wasrelied upon in support of the proposition that the Governor has noconstitutionally assigned role in relation to a disqualification under theTenth Schedule. Mr. Dave also relied on extracts from the ConstituentAssembly Debates to urge that, although the framers chose a system ofparliamentary democracy to ensure the continuous accountability ofgovernment, minority Members of a legislative house should not sabotagethe working of a legitimately elected government. Lastly, the decision ofthe Constitution Bench in Kihoto Hollohan v Zachillhu[8] has beenplaced before the Court to emphasise the nature of the political party asthe primary political unit under the Constitution.

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A9. Opposing the above submissions, Mr Mukul Rohatgi, learnedSenior Counsel who has appeared in support of the petition filed byShivraj Singh Chauhan and nine other BJP Members submitted that:

(i) Twenty-two Members no longer owing allegiance to theINC resigned on 10 March 2020; B

(ii) The Governor had directed the Chief Minister to conduct afloor test; and

(iii) The communication by the Governor has been flouted bothby the Speaker and by the Chief Minister.

CMr Rohatgi urged that the view formed by the Governor in hiscommunication to the Chief Minister dated 14 March 2020 was basedon the:

(i) Information received in regard to the tendering ofresignations by the twenty-two Members; D(ii)Coverage of the resignations in the print and electronicmedia;

(iii) Receipt of separate letters addressed by the twenty-twoMembers to the Governor in regard to their resignations;and E

(iv) Acceptance by the Speaker of the resignations of six ofthe twenty-two Members with no indication of why the sixMembers were different from the larger group of twenty-two Members.

In this backdrop, Mr Rohatgi submitted that the satisfaction of theFGovernor on the basis of which the communication was addressed tothe Chief Minister was based on relevant and germane material. It wasurged that in issuing the communication, the Governor has acted withinthe scope of his constitutional authority as delineated in the decisions ofthis Court in SR Bommai v Union of India[9] (‘‘SR Bommai’’) andGNebam Rebia. As regards the writ petition which has been institutedby the MP Congress Party, Mr Rohatgi urged that:

(i) A petition under Article 32 by a political party is notmaintainable; SHIVRAJ SINGH CHOUHAN v. SPEAKER M. P. LEGISLATIVE ASSEMBLY807[DR DHANANJAYA Y CHANDRACHUD, J.](ii)The reliefs which have been sought are not in the nature ofAa habeas corpus remedy;

(iii) The MP Congress Party is not entitled to seek access tothe Members in the face of their disinclination to meet anyleader of the MP Congress Party; and B

(iv) Any direction to allow the office bearers of the MP CongressParty to access the twenty-two Members who haveresigned would only lead to further political bargaining.

10. Mr Maninder Singh, learned Senior Counsel appeared in anapplication for impleadment[10] moved on behalf of the sixteen Memberswho had tendered their resignations to the Speaker (but whoseresignations have not been accepted). On their behalf, Mr ManinderSingh submitted that:

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(i) An elected Member of a legislative assembly has anabsolute right to resign by virtue of the provisions of Article190 of the Constitution; D

(ii) The Speaker of the Madhya Pradesh Legislative Assemblyaccepted the resignations tendered by six Members, whoare part of the same group of twenty-two Members, withinthe span of one day and in doing so has chosen not to makeany enquiry in regard to the remaining sixteen letters ofresignation; E

(iii) Resignation and disqualification are distinct concepts; and

(iv) The exercise of judicial review in regard to the advicetendered by the Governor to the Chief Minister to convenea trust vote is not warranted.

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In urging these submissions, Mr Maninder Singh placed relianceon the decision of the three judge Bench in Shrimanth Balasaheb Patilv Speaker, Karnataka Legislative Assembly[11].

11. Dr Abhishek Manu Singhvi, learned Senior Counsel appearingon behalf of the Speaker of the Madhya Pradesh Legislative Assembly,submitted that:

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A(i)The issue, in substance, is whether by a writ of mandamusissued upon a petition under Article 32 this Court can issuea direction to the Speaker to accept the resignations of thesixteen Members of the Legislative Assembly;

(ii) There is a fallacy in the assumption that the Governor hasBany locus to direct the Chief Minister to conduct a floortest to establish a majority on the floor of the house;

(iii) This Court ought not to enforce the direction for conveninga floor test as it will have the effect of short-circuiting‘ (asit was described) the large discretion which is entrusted toCthe Speaker on matters of resignation by Members underArticle 190.;

(iv) Under Article 193(3)(b) of the Constitution, the determinationof whether a resignation is voluntary and genuine lies withinthe discretion of the Speaker; D(v)The role of the Speaker to determine matters of resignationhas been reinforced by the Constitution (Thirty-ThirdAmendment) Act 1974 and the authority of the Speaker aspersona designata under the Tenth Schedule;

(vi) A wide and inevitable discretion is enjoyed by the SpeakerEin holding an enquiry in regard to a resignation which istendered by the Member of the Legislative Assembly;

(vii) While disqualification and resignation are distinct concepts,the decision of the Speaker in accepting or rejecting aresignation of a Member falls within the ambit of ArticleF212 of the Constitution;

(viii) The precedents of this Court in regard to the convening ofa trust vote have arisen in the context of fresh electionsheld to the legislature and not in the context of a running‘assembly; and G(ix)The government under the auspices of Mr Kamal Nath,Chief Minister has already faced three motions of noconfidence and another no confidence motion has beenmoved.

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Apart from the above submissions, Dr Singhvi submitted that thereis a substantial question on the issue of whether the purported resignationsof the sixteen Members are genuine and voluntary and this issue requiresthe urgent attention of the Governor. In particular, the followingcircumstances were relied upon:

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(i) None of the sixteen Members, who are (according to DrBSinghvi) confined in Bengaluru, are ready to leave the Stateof Karnataka;

(ii) None of the Members have shown any inclination to meeteven their own relatives; C

(iii) The resignation letters were not presented to the Speakerby the Members themselves, but rather were first sent byemail and subsequently presented by leaders of the BJP;and

(iv) Three batches of resignations (seven, six and six) by theMembers had been scribed in the handwriting of threeDpersons.

Dr Singhvi however clarified that while on 13 March 2020disqualification notices were issued to the six Members who wereministers, the Speaker eventually did accept their resignations on 14March 2020.

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12. Elucidating on the above submissions, Dr Abhishek ManuSinghvi urged that the object of the exercise undertaken by the BJP is tofind a way around the 2/3[rd] stipulation contained in the Tenth Scheduleby engineering the resignations of the twenty-two Members in a running‘House. The submission is that if a trust vote were to be held before adecision has been taken by the Speaker on whether to accept theresignations of the Members, this will pave the way for the sixteenMembers whose resignations have not been accepted till date to abstainfrom voting. Their abstention, it has been urged, would alter the strengthof members present and voting, thus modifying the required majorities inthe house and impacting the outcome of the trust vote. If the presentgovernment were to lose the confidence of the house, it is apprehendedthat these sixteen Members may then be offered ministerial berths bythe new government. Dr Singhvi submitted that disqualification petitionshave been filed on which notices have been issued and if a Member ofthe House stands disqualified, this would result in consequences asenvisaged in law.

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A13. The gravamen of the attack on the decision of the Governor isthat there is a clear distinction between the powers of the Governor inrelation to the constitution of the House in the aftermath of a new electionand those in relation to a duly constituted Assembly. There is,in thesubmission, no precedent where the Governor has directed a floor testto be conducted in a running‘ assembly. Dr Singhvi submitted that on 19BSeptember 1976 the Rules of Business of the Madhya Pradesh LegislativeAssembly[12 ]were amended, following the amendment of Article 190 bythe Constitution (Thirty-Third) Amendment Act 1974. Rule 276 (1) –kha‘ contains the following provisions:

C¼1&[k½- ;fn v/;{k dks R;kx&i= Mkd ls vFkok fdlhvU; O;fDr fo”ks’k ds }kjk izkIr gks rks v/;{k viuk ;glek/kku djus ds fy;s fd R;kx&i= LosPNk ls fn;k x;krFkk ;FkkFkZ gS] ,slh tk¡p dj ldsxk tSlk fd og vko”;dle>s] ;fn v/;{k dk Lo;a dk fo/kku lHkk lfpoky; dsDvfHkdj.k }kjk vFkok ,sls vU; vfHkdj.k }kjk ftls ogmfpr le>s laf{kIr tkap djkus ds i”pkr~ ;g lek/kku gkstk; fd R;kx&i= LosPNkiwoZd ugha fn;k x;k gS ;k ;FkkFkZugha gS rks og R;kx&i= Lohdkj ugha djsxk A

EA translated copy of the note of publication issued under theauthority of Governor has been placed on the record.

Dr Singhvi urged that it is reasonable for the Speaker of theLegislative Assembly to seek about two weeks to decide the issue ofresignation and disqualification. Dr Singhvi further submitted that whenFthe recent constitutional dispute over the constitution of the governmentof Karnataka reached this Court, an order was passed initially on 11 July2019 directing the Members to appear before the Speaker and for theSpeaker to take a decision forthwith. Subsequently, however, by ordersdated 12 July 2019 and 17 July 2019, the earlier direction was suspended,and this Court clarified that no fetter could be placed on the power ofGthe Speaker to take a decision on matters of resignation.

14. The interim application for impleadment which has been filedon behalf of the sixteen Members has been the subject matter of seriouscriticism. The manner in which the affidavits in support of the IA have H12 ‘‘Madhya Pradesh Assembly Rules’’

been filed and one of the signatures in the Vakalatnama have beenquestioned. Alternatively, it has been submitted by that a no-confidencemotion has been received by the Secretariat of the Madhya PradeshLegislative Assembly. Under Rule 143 of the Madhya Pradesh AssemblyRules, a decision on a no confidence motion has to be taken within tendays, which Dr Singhvi urged is an index of what is considered as areasonable period. Dr Singhvi submitted that in an ongoing session ofthe legislature, the only way to test whether the government has a majorityis through a no confidence motion moved under Rule 143.

15. Assailing the communication of the Governor dated 14 March2020, Dr Singhvi submitted that in requiring a trust vote to be undertakenon the floor of the house, the Governor purported to rely upon Articles174 and 175(2), neither of which confer such a power on the Governor.It was urged that the Governor sought a trust vote following an earliercommunication of the same day inter alia by the Chief Whip of the BJPin the Madhya Pradesh Legislative Assembly. Dwelling on the judgmentin Nebam Rebia, it has been submitted that the Constitution Bench hasheld that any message by the Governor to the Legislative Assembly canonly be on the aid and advice of the Council of Ministers. The submissionis that absent a situation where the Council of Ministers has tendered itsaid and advice, it was not open to the Governor to intercede in thelegislative business of the Legislative Assembly, particularly having regardto the provisions contained in Article 212 of the Constitution. The BJP,as the main opposition, would not (it was urged) be without a remedysince it is open to it to move a motion of no confidence. In sum andsubstance, it was of the submission of the Dr Singhvi on behalf of theSpeaker that if the intervention of the Governor were to be permitted inthe circumstances which have arisen in the present case, it would allowthe Governor to become a supra legislative authority diluting theconstitutional position of the Legislative Assembly. In the present case,it has been submitted that ongoing sessions of the Legislative Assembliesin Rajasthan, Madhya Pradesh, Maharashtra, Chhattisgarh, Odisha andKerala have been recently adjourned as a result of the outbreak ofCoronavirus (Covid-19) and hence there was nothing untoward in theSpeaker‘s decision to adjourn the Madya Pradesh Legislative Assemblyin the present case.

16. Lastly, it has been submitted that the decision of the nine judgeBench in SR Bommai dealt with a situation where the Governor had A

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Asubmitted a report under Article 356 of the Constitution and was notapplicable to a situation where a trust vote was directed by the Governor.Dr Singhvi submitted that upon the declaration of President‘s rule in astate, the limitations on the exercise of powers of the Governor aresubstantially reduced. Hence, the decision in SR Bommai was soughtto be distinguished on the ground that it does not deal with the caseBwhere the Governor has mandated a trust vote in a running‘ Assembly.

17. Mr Kapil Sibal, learned Senior Counsel appearing on behalf ofthe Chief Minister of Madhya Pradesh, supported the arguments madeby Dr Singhvi and urged that the present situation is unique because:

C(i)No one has appeared before the Governor to claim a majorityin the Madhya Pradesh Legislative Assembly; and

(ii) This is the first case of its kind where the Governor hassought a floor test when the House is in session.

Mr Sibal contends that the observations of the Constitution BenchDin Nebam Rebia on the authority of the Governor to order a trust voteto be conducted on the floor of an ongoing legislative assembly are purelyobiter. The case before the Constitution Bench in Nebam Rebia dealtwith a situation where the Governor had preponed the date for the meetingof the Legislative Assembly to decide the question of the Speaker‘sEremoval. It was submitted that Nebam Rebia is not a precedent for theproposition that the Governor is entitled to require a trust vote to beconducted on the floor of a legislative assembly which has been dulyconstituted and is in session. Mr Sibal submitted that the consequencesof upholding the power of the Governor would be to encourage both thedemolition of an elected government and of the democratic structures ofFgovernance. In Mr. Sibal‘s submissions, the Governor would have thepower to summon the House, where it is not in session. Since underArticle 168, the Governor is a part of the legislature, if the House is notin session it is open to a Governor to seek a special session where factsindicate that the existing government has lost its majority. However, in aGsimilar vein to Dr Singhvi‘s submission, Mr Sibal urged that this courseof action is not open to the Governor when the House is in session and insuch an eventuality, the only remedy is to seek a motion of no confidenceto test whether the incumbent government is possessed of the confidenceof the House.

18. With respect to the exercise of the power of the Governor byHcalling for a trust vote, it has been submitted that:

(i) There must exist an objective satisfaction of the Governorbased on material in his possession;

(ii) Absent a physical verification, it cannot be said that themere tendering of resignations by Members led to a validexercise of power by the Governor to call for a trust vote; B

(iii) The Governor had no material to conclude that sixteenMembers had submitted their resignations voluntarily; and

(iv) Legislative history in the country indicates that minoritygovernments have survived and unless it is shown that themere tendering of resignations actually caused the loss ofCconfidence in the incumbent government, it is not open tothe Governor to conclude that the actions of the sixteenMembers would result in a loss of confidence in thegovernment.

In sum and substance, while both Dr Singhvi and Mr Sibal deniedthe existence of the power of the Governor to call for a trust vote in anongoing legislative assembly, this limb of Mr Sibal‘s submissions is thateven if the Governor possesses such a power, his exercise of the powerwas ultra vires the scope of that power. It is the submission of Mr Sibalthat the Governor was not in possession of any facts that woulddemonstrate that the incumbent government had suffered a loss ofmajority. Lastly, Mr Kapil Sibal also submitted that sixteen Membershave been whisked away‘ on a chartered flight from a high securityzone of the Delhi Airport to Bengaluru, where they have been held at aresort. Mr Sibal submitted that the statement made before this Court onbehalf of the sixteen Members, that they are not prepared to appearbefore the Speaker or to participate in the proceedings in the House, is astrong indicator of their being held in captivity.

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19. Mr Vivek Tankha, learned Senior Counsel appearing on behalfof the State of Madhya Pradesh, has supported the submissions whichwere urged by Dr Abhishek Manu Singhvi and by Mr Kapil Sibal, learnedSenior Counsel. Apart from relying on certain observations contained inthe report of the Sarkaria Commission, Mr Vivek Tankha submitted thatthe letter of the Governor was premature since the resignations of thesixteen Members were yet to be accepted by the Speaker. Absent adecision by the Speaker, it was urged that the Governor should not haveformed an opinion that the government is in a minority.

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A20. Adopting the same line of submissions, Mr Harin P Raval,learned Senior Counsel appearing on behalf of the Secretariat of theMadhya Pradesh Legislative Assembly, submitted that the affidavit whichhas been filed before the Madhya Pradesh Legislative Assembly byfifty-four Members belonging to the BJP is likely to be treated as amotion of no confidence.B

21. Mr Tushar Mehta, Solicitor General of India, appeared onbehalf of the Governor of Madhya Pradesh and submitted that:

(i) The question of whether an incumbent government enjoysthe support of the majority of the Members of a stateClegislative assembly is the sole prerogative of the Governorof that state;

(ii) The satisfaction of the Governor as to whether an incumbentgovernment continues to enjoy the support of the majorityin the legislative assembly is beyond judicially manageableDstandards of review and this Court should guard againstentering the ‘‘political thicket’’;

(iii) The Governor has not taken a decision as to which politicalparty enjoys a majority in the legislative assembly but hasmerely come to a prima facie determination that there existsa doubt over whether the incumbent government continuesto enjoy the support of the majority in the House; and E

(iv) It is a well-recognised principle that a floor test within theshortest possible time is the appropriate measure whereany doubt arises over whether an incumbent governmentFcontinues to enjoy the support of the majority in the legislativeassembly.

Constitutional Provisions concerning State Legislatures

22. Part VI of the Constitution of India deals with the States.Chapter III of Part VI contains provisions relating to the state legislatures.GArticle 168(1) postulates that in every state ‘‘there shall be a legislaturewhich shall consists of the Governor’’and of two Houses in certain states(including Madhya Pradesh) and one House in others. Article 174(1)entrusts to the Governor, the authority to summon each House of thelegislature of a state, ‘‘to meet at such time and place as it thinks fit’’.However, the duration between the end of a session and theH

commencement of the next session shall not exceed six months. Article174(2) entrusts the Governor with the authority to (i) prorogue the House;and (ii) dissolve the legislative assembly. Article 175(1) permits theGovernor to address the legislative assembly. Article 175(2) contemplatesthat the Governor may send messages to the House or Houses of thelegislatures of the states. Article 176 makes provisions for a specialaddress by the Governor to the legislative assembly at the commencementof the session after the general election and at the commencement ofthe first session of each year. The powers which have been entrusted tothe Governor are, generally speaking, exercised on the basis of the aidand advice of the Council of Ministers in terms of the provisions ofArticle 163(1). Article 163(1) stipulates that the Council of Ministerswith the Chief Minister as its head would ‘‘aid and advise the Governorin the exercise of his functions’’ except where the Constitution requiresthe Governor to exercise ‘‘his functions or any of them in his discretion’’.

23. Article 190 contains provisions for the ‘‘vacation of seats’’.Clause (3) of the Article states:

‘‘(3) If a member of a House of the Legislature of a State—

(a) becomes subject to any of the disqualifications mentioned inclause (1) or clause (2) of article 191; or (b) resigns his seat by writing under his hand addressed to thespeaker or the Chairman, as the case may be, and hisresignation is accepted by the Speaker or the Chairman, asthe case may be, his seat shall thereupon become vacant:

Provided that in the case of any resignation referred to in sub-clause (b), if from information received or otherwise and aftermaking such inquiry as he thinks fit, the Speaker or the Chairman,as the case may be, is satisfied that such resignation is notvoluntary or genuine, he shall not accept such resignation.’’

Sub-clause (b) of clause (3) of Article 190 indicates that a seat‘‘shall thereupon become vacant’’ when a Member ‘‘resigns his seat’’andthe resignation is accepted by the Speaker and the Chairman, as thecase may be. The provisions of sub-clause (b) of clause (3) of Article190 were amended by the Constitution (Thirty-Third Amendment) Act1974 to incorporate a specific provision for the acceptance of theresignation of a Member by the Speaker. The expression ‘‘shall thereuponbecome vacant’’ indicates that a vacancy arises only upon the A

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Aacceptance of the resignation by the Speaker, or as the case may be, theChairman of the House. The proviso to clause (3) of Article 190 indicatesthat a resignation shall not be accepted if the Speaker or Chairman is notsatisfied that the resignation is ‘‘voluntary or genuine’’. Before thissatisfaction is arrived at, the proviso requires the Speaker or the Chairman(as the case may be) to make an enquiry as is thought to be fit. TheseBprovisions were introduced through a constitutional amendment tosafeguard the membership of elected members of the legislature beingforfeited by coercion or misrepresentation. The Statement of Objectsand Reasons accompanying the constitutional amendment explained itspurpose in the following terms:C‘‘…In the recent past, there have been instances where coercivemeasures have been resorted to for compelling members of aLegislative Assembly to resign their membership. If this is notchecked, it might become difficult for Legislatures to function inaccordance with the provisions of the Constitution. It is, thereforeDproposed to amend the above two articles to impose a requirementas to acceptance of the resignation by the Speaker or the Chairmanand to provide that the resignation shall not be accepted by theSpeaker or the Chairman if he is satisfied after making such inquiryas he thinks fit that the resignation is not voluntary or genuine.’’

E24. The role of the Speaker in accepting resignations anddetermining disqualifications was the subject of a three judge Benchdecision of this Court in Shrimanth Balasaheb Patil v KarnatakaLegislative Assembly[13]. While elaborating on the provisions of Article190(3)(b) as amended, the judgment lays down the following principles:

F(i)A Member of the legislature is vested with the soleprerogative to determine whether or not to continue inoffice;

(ii) A Member who seeks to resign cannot be compelled tocontinue in office;G(iii)A resignation is required to be accepted by the Speaker orthe Chairman, as the case may be;

(iv) The seat occupied by the Member falls vacant only uponacceptance of the resignation; SHIVRAJ SINGH CHOUHAN v. SPEAKER M. P. LEGISLATIVE ASSEMBLY817[DR DHANANJAYA Y CHANDRACHUD, J.](v)The role of the Speaker is to determine whether a resignationAis ‘‘voluntary or genuine’’;

(vi) The satisfaction of the Speaker should be based on theinformation received or otherwise and upon making suchenquiry as is considered to be fit; B

(vii) Though, the term ‘‘genuine’’ has not been defined, what ismeant is the authenticity of the letter of resignation; and

(viii) Though, the expression ‘‘voluntary’’ has not been defined,it would mean that a resignation should not be a result ofthreat of force or coercion.

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Justice N V Ramana speaking for the three-judge bench of thisCourt elaborated on the role which has been entrusted to the Speaker,stating:

‘‘79. Third, the Speaker can reject the resignation, if the Speakeris satisfied that the resignation was ‘‘not voluntary or genuine’’.Herein, our attention is drawn to the Chapter 22, Rule 202(2) ofthe Rules of Procedure and Conduct of Business in KarnatakaLegislative Assembly […] Reading the rule in consonance withArticle 190(3)(b) of the Constitution and its proviso, it is clear thatthe Speaker’s satisfaction should be based on the informationreceived and after making such inquiry as he thinks fit. Theaforesaid aspects do not require a roving inquiry and with theexperience of a Speaker, who is the head of the House, he isexpected to conduct such inquiry as is necessary and pass anorder. If a Member appears before him and gives a letter in writing,an inquiry may be a limited inquiry. But if he receives informationthat a Member tendered his resignation under coercion, he maychoose to commence a formal inquiry to ascertain if the resignationwas voluntary and genuine.

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The three judge Bench of this Court finally held:

‘‘83. In view of our above discussion we hold that the Speakercan reject a resignation only if the inquiry demonstrates that it isnot ‘‘voluntary’’ or ‘‘genuine’’. The inquiry should be limited toascertaining if the Member intends to relinquish his membershipout of his free will. Once it is demonstrated that a Member iswilling to resign out of his free will, the Speaker has no option but G

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Ato accept the resignation. It is constitutionally impermissible forthe Speaker to take into account any other extraneous factorswhile considering the resignation. The satisfaction of the Speakeris subject to judicial review.

It is in the above context that the inquiry by the Speaker orBChairman (as the case may be) has to be understood. The Court cannotfetter the discretion of the Speaker to conduct an inquiry into whether aresignation is ‘‘voluntary’’ or ‘‘genuine’’. However, neither can theSpeaker exceed the terms of the mandate and conduct an overbroadinquiry into the underlying motives of the Member. It is sufficient thatthe Speaker is satisfied that the Member’s resignation is ‘‘voluntary’’andC‘‘genuine’’.

25. The court further held that both a resignation as well as adisqualification arising on account of the defection under a Tenth Scheduleresults in a vacancy of the seat held by the Member in the legislature,but the consequences which emanate are distinct. As a result of ArticleD164(1B) a Member who is disqualified by the Speaker on account ofdefection is barred from being appointed as a Minister or from holdingany remunerative political post from the date of disqualification till thedate on which the term of their office would expire or until re-election tothe legislature, whichever is earlier. The court held that under the TenthESchedule, the Speaker does not have an explicit power either to specifythe period of disqualification or to bar a Member from contesting electionsafter disqualification until the end of the term of the Legislative Assembly.

The Actions of the Governor and the Legal Challenge

The Actions of the Governor and the Legal Challenge

26. The heart of the dispute in the present case is whether theFGovernor was acting within the bounds of his constitutional authority inordering a trust vote to be conducted on the floor of the Madhya PradeshLegislative Assembly on 16 March 2020. The factual background to thisquestion has been adverted to in the prefatory part of the judgment. Torecapitulate, twenty-two Members belonging to the INC tendered theirGresignations on 10 March 2020. Alleging the complicity of the BJP inengineering these resignations, the Chief Minister of Madhya Pradeshin his letter to the Governor dated 13 March 2020 stated that as aresponsible leader‘ he would invite and would welcome a floor test‘ ofhis government in the forthcoming Budget Session of the LegislativeAssembly notified to commence on 16 March 2020. This, according toH

the Chief Minister, was the minimum a constitutional authority couldoffer to address the ongoing turmoil’. The Speaker of the LegislativeAssembly furnished an opportunity on 13 March 2020 and 14 March2020 to all the twenty-two Members (including six Cabinet Ministersamong them) to appear before him but they did not do so. On 13 March2020, notices of disqualification were issued to the six Members whowere members of the Cabinet. The Governor acting on the aid and adviceof the Chief Minister dismissed these six individuals from the StateCabinet. On 14 March 2020, the Speaker of the Legislative Assemblyacting pursuant to Rule 276 of the Madhya Pradesh Assembly Rules,accepted their resignations. In a communication dated 14 March 2020the Governor called upon the Chief Minister to undertake a floor test todetermine whether the latter‘s to determine whether the governmentcommanded the confidence of the legislature. The communication statedthat the floor test was to take place at the inception of the forthcomingBudget Session immediately after the address of the Governor.

27. The letters sent by the Governor to the Chief Minister indicatethat the Governor relied on the following circumstances in coming to theconclusion that a floor test was urgently required:

(i) Receipt of information by the Governor that twenty-twoMembers who had previously supported the incumbentgovernment had submitted their resignations to the Speakerof the Legislative Assembly;

(ii) The Members who had tendered their resignations hadcommunicated their decision through the print and electronicmedia;

(iii) Copies of the letters of resignations had been submitted bythe twenty-two Members to the Governor;

(iv) The twenty-two Members had asked the Governor toprovide security to facilitate their appearing before theSpeaker;

(v) Among the group of twenty-two Members who hadtendered their resignations were six Cabinet Ministerswhose resignations had been accepted by the Speaker;

(vi) The Chief Minister‘s letter dated 13 March 2020 indicatingthe desire to conduct a floor test in the Legislative Assembly;and A

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A(vii)A letter received from the BJP (the principal opposition inthe Legislative Assembly) adverting to the abovecircumstances. The BJP complained that undue pressurewas being brought on the Members who have tenderedtheir resignations.

BIt was on the basis of the above material and circumstances thatthe Governor informed the Chief Minister of his having formed the opinionprima facie that the government had been reduced to a minority in theHouse, making it necessary to conduct a floor test immediately after theaddress of the Governor at the Budget Session. The agenda which wascirculated to the Members of the House did not include a floor test.CInstead, soon after the House convened, it was adjourned until 26 March2020 on account of the outbreak of Coronavirus (Covid-19).

28. The action of the Governor requiring a trust vote be carriedout has essentially been assailed on three broad grounds of challenge. Ithas been submitted that:D

(i) The Governor had no power to order a trust vote in thecourse of an ongoing Legislative Assembly or at any ratewhile the Legislative Assembly was in session;

(ii) If the Governor did possess such a power then the exerciseEof the power by the Governor in ordering a trust voteimpinged upon the authority entrusted to the Speaker underthe proviso to Article 190(3)(b) and the Tenth Schedule ofthe Constitution to determine matters of resignation anddisqualification respectively; and F(iii)The Governor had no objective basis or material to formthe prima facie opinion that the incumbent government hadlost its majority in the Madhya Pradesh LegislativeAssembly.

29. Before we deal with the constitutional issues raised by theabove submissions, it is necessary to consider the submission that a motionGof no confidence has been received by the Speaker and that there wasno justification for the Governor to impede that process. During the courseof his submissions, Dr Singhvi placed on the record a copy of an affidavitsubmitted by 54 Members owing their allegiance to the BJP. It is evidentfrom the contents and tenor of the affidavit that it has been prepared toHsupport the position of the signatories that they will support the BJP and vote against the incumbent government. On a bare reading of theaffidavit, it is evident that it does not postulate a request for convening adiscussion on a motion of no confidence. Having concluded that thereexists no parallel proceeding for convening a trust vote, we now turn towhether the Governor has acted within the scope of his constitutionalauthority in calling for a trust vote.

Questions before the Court

30. The present controversy raises two separate but intertwinedconstitutional questions. First, whether the Governor is entrusted withthe authority to call for a trust vote in the course of a ‘‘running assembly’’,and second whether the Governor exercised this authority correctly. Ifthe Governor does not possess the authority, the action of calling for animmediate floor test is ultra vires and unconstitutional. Alternatively, ifthe Governor does possess the authority to call for a floor test, this Courtmust determine the contours of such power and answer the question ofwhether the Governor acted within those contours.

31. It was briefly contended before us that this Court should bewary of entering the realm of politics‘ where no judicially manageablestandards‘ can be maintained, and the outcome prescribed by the courtis likely to tilt the political balance. We reject these submissions. Merelybecause the present dispute concerns the conduct of electedrepresentatives, or the remedy sought is a democratic process, does notmean that the court will refuse to consider it. In State of Rajasthan vUnion of India[14] it was contended that whether the government of astate could continue to operate in accordance with the Constitution wasa political question not justiciable in courts of law. Rejecting this submissionat the outset, Justice Bhagwati (as the learned Chief Justice then was)speaking for himself and Justice A C Gupta held:

‘‘[The Additional Solicitor General] urged that having regard tothe political nature of the problem, it is not amenable to judicialdetermination and hence the Court must abstain from inquiringinto it. We do not think we can accept this argument. Of course,it is true that if a question brought before the Court is purely apolitical question not involving determination of any legal orconstitutional right or obligation, the Court would not entertain it,since the Court is concerned only with adjudication of legal rights

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Aand liabilities. But merely because a question has a politicalcomplexion, that by itself is no ground why the Court shouldshrink from performing its duty under the Constitution if itraises an issue of constitutional determination. Everyconstitutional question concerns the allocation and exerciseof governmental power and no constitutional question can,Btherefore, fail to be political. A constitution is a matter of purestpolitics, a structure of power and as pointed out by Charles Blackin ‘Perspectives in Constitutional Law’ ‘‘constitutional lawsymbolizes an intersection of law and politics, wherein issues ofpolitical power are acted on by persons trained in the legal tradition,Cworking in judicial institutions, following the procedures of lawthinking as lawyers think’’.

Elucidating on the role of the court in such situations, the learnedjudge observed:D

‘‘This Court is the ultimate interpreter of the Constitution and tothis Court is assigned the delicate task of determining what is thepower conferred on each branch of Government, whether it islimited, and if so, what are the limits and whether any action ofthat branch transgresses such limits. It is for this Court to upholdEthe constitutional values and to enforce the constitutional limitations.That is the essence of the rule of law. … Where there ismanifestly unauthorised exercise of power under theConstitution, it is the duty of the Court to intervene. Let itnot be forgotten, that to this Court as much as to otherFbranches of Government, is committed the conservationand furtherance of democratic values. The Court’s task is toidentify those values in the constitutional plan and to work theminto life in the cases that reach the Court.’’

GSince the adoption of the Constitution, this Court has on severaloccasions adjudicated upon whether the actions of the legislative andexecutive branches adhere to the democratic processes created by theConstitution. As the ultimate arbiter of the constitutional text, this Courtis tasked with ensuring that each branch of government operates withinthe limits placed upon it by the Constitution, including in the realm ofH

democratic politics. The present controversy arises out of a disputebetween the Governor, as the titular head of the executive within theState of Madhya Pradesh, the Chief Minister, the de-facto head of theexecutive within the state and the Speaker of the Madhya PradeshLegislative Assembly, who has supervisory jurisdiction over the legislativebranch of the state. In hearing the present dispute, the court is tasked todetermine whether the Governor, a constitutional functionary, acted withinhis constitutional authority in relation to the legislature by demanding afloor test. Merely because the prima facie determination made by theGovernor was of the political support enjoyed by the incumbentgovernment or the action demanded was a political process (the floortest) is not a reason for this Court not to hear the matter. There is nodoubt that the present case is suitable for judicial determination by thisCourt. In fact it is eminently so.

Constitutional Role of the Governor

32. We must consider the constitutional scheme in operationbetween the state legislature and the office of the Governor. As a matterof constitutional principle, the state legislature comprises of the Governorand the legislative assembly (and in the case of a bicameral legislature,this also includes the legislative council). The Governor is not an electedmember of the state legislature. The Governor is appointed by thePresident and is the head of the executive branch in whom, under Article154, the executive power of the state is vested. While holding office atthe pleasure of the President, the Governor as a constitutional authorityis not a Member of either House of Parliament or of the legislature of astate.[15]

33. Prior to the adoption of the Constitution, the discretion of theGovernor to supervise the legislative processes of the (then) provinceswas enshrined in Section 50 of the Government of India Act 1935. Theprovision stated that the Governor would act on the aid and advice of theCouncil of Ministers for a province ‘‘except in so far as he is by or underthis Act required to exercise his functions or any of them in his discretion’’.

15 Article 158. Conditions of Governor’s office.—(1) The Governor shall not be amember of either House of Parliament or of a House of the Legislature of any Statespecified in the First Schedule, and if a member of either House of Parliament or of aHouse of the Legislature of any such State be appointed Governor, he shall be deemedto have vacated his seat in that House on the date on which he enters upon his office asGovernor.

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ASection 50 also gave the Governor of a province the power topreside at meetings of the Council of Ministers. During the framing ofour Constitution, once a decision was taken that the post of the Governorwould be filled by nomination and not election, it was widely acceptedthat the Governor should not be permitted to preside at meetings of theCouncil of Ministers. However, the drafting committee thought it wiseBto retain the discretionary powers of the Governor in draft article 143(what ultimately became Article 163 of the Constitution). However, thisdecision was not taken lightly. When the motion to adopt the article wastabled, H V Kamath took objection to the Article and suggested anamendment in the following speech:C‘‘When you, Sir, raised a very important issue, the other day, Dr.Ambedkar clarified this clause by saying that the President isbound to accept the advice of his ministers in the exercise of all ofhis functions. But here Article 143 vests certain discretionarypowers in the Governor, and to me it seems that even as it was, itDwas bad enough, but now after having amended Article 131regarding election of the Governor and accepted nominatedGovernors, it would be wrong in principle and contrary to thetenets and principles of Constitutional Government, which youare going to build up in this country. It would be wrong I say, toinvest a Governor with these additional powers, namely,Ediscretionary powers. I feel that no departure from theprinciples of Constitutional Government should be favouredexcept for reasons of emergency and these discretionarypowers must be done away with. I hope this Amendment ofmine will commend itself to the House. I move, Sir.[’’ 16]

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The amendment proposed by H V Kamath sought to strip theGovernor of all discretionary powers except in the case of an emergency.Crucially, the reason given by H V Kamath for doing away with thediscretionary powers of the Governor was that the decision had recentlyGbeen taken that the Governor would be nominated and not elected. Thus,granting discretionary powers to an unelected constitutional authoritywas, to the mind of H V Kamath, ‘‘a departure from the principles ofConstitutional Government’’.

34. Opposing the above amendment to divest the Governor ofdiscretionary powers, Brajeshwar Prasad took the floor and stated:

‘‘I feel that the Governor should be vested with the power ofspecial responsibilities which the Governors under the Britishregime were vested in this country. I feel that there is a dearthof leadership in the provinces. Competent men are notavailable and there are all kinds of things going on in thevarious provinces. Unless the Governor is vested with largepowers it will be difficult to effect any improvement in theProvincial administration. Such a procedure may beundemocratic but such a procedure will be perfectly rightin the interest of the country. I feel there is no creative energyleft in the middle-class intelligentsia of this country. They seem tohave become bereft of initiative and enterprise. The masses whoought to be the rulers of this land are down-trodden and exploitedin all ways. Under these circumstances there is no way left openbut for the Government of India to take the Provincialadministrations in its own hands. I feel that we are on thethreshold of a revolution in this country. There will berevolution, bloodshed and anarchy in this country. I feelthat at this juncture it is necessary that all powers shouldremain centralised in the hands of the Government of India.In certain provinces the machinery of law and order seems tohave completely broken down. Dacoities, arson, loot, murder andinflationary conditions are rampant. I am opposed to this Article,because I am convinced that federalism cannot succeed in acountry which is passing through a transitory period.[’’17]

In defending the discretionary powers of the Governor, theMember acknowledged that the grant of discretionary powers to theGovernor ran counter to the principles of democracy. However, theMember saw two key historical circumstances that in his viewnecessitated the grant of such powers: first, the lack of competentadministrators in the provinces to facilitate the democratic processesenvisioned by the Constitution and second, the need for centralised andcoordinated governance at a time when the unity and integrity of Indiawas still in doubt.

17 Constituent Assembly of India, Volume VIII (debate of 1 June 1949)

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A35. It is pertinent to advert to the remarks made by Rohini KumarChaudhury in the Constituent Assembly Debates for they are particularlyprescient in light of the present controversy. In supporting the amendmentput forth by H V Kamath to restrict the discretionary powers of theGovernor, the Member observed:B‘‘Sir, I know to my cost and to the cost of my Province what‘acting by the Governor in the exercise of his discretion’ means.It was in the year 1942 that a Governor acting in his discretionselected his Ministry from a minority party and that minority wasultimately converted into a majority. I know also, and the Housewill remember too, that the exercise of his discretion by theCGovernor of the Province of Sindh led to the dismissal of one ofthe popular Ministers— Mr. Allah Bux. Sir, if in spite of thisexperience of ours we are asked to clothe the Governors with thepowers to act in the exercise of their discretion, I am afraid weare still living in the past which we all wanted to forget.[’’18]DIn granting the Governor a supervisory jurisdiction over thelegislative assemblies of the states, there exists a risk that the unelectedoffice of the Governor can alter democratically achieved electoraloutcomes. The examples highlighted above show that the framers of theConstitution had themselves been subject to the abuse of the discretionaryEpowers of the Governor under the Government of India Act 1935 andwere acutely aware of the risks associated with the office of theGovernor.

36. In interpreting the Constitution, it would be not be correct torely on the speeches made by individual members of the ConstituentFAssembly. Each speech represents the view of one individual in theAssembly which taken as a whole formed a kaleidoscope of competingpolitical ideologies. There may arise instances where the court is of theindependent opinion that the views raised by individual Members of theConstituent Assembly in their speeches lay down considerations thatwarrant examination and approval by the Court. The general rule however,Gwould be to examine the decisions taken by Constituent Assembly takenby majority vote. The votes of the Constituent Assembly represent equallythe views of all the members of the Assembly and are the final anddispositive expressions of the constitutional choices taken in framing ourConstitution. On the question of whether the Constitution should grant H18 Constituent Assembly of India, Volume VIII (debate of 1 June 1949)

certain discretionary powers to the Governor, the question was put tothe Assembly:

‘‘The question is: “That in clause (1) of Article 143, the words‘except in so far as he is by or under this Constitution requiredto exercise his functions or any of them in his discretion bedeleted.”

The Amendment was negatived.

The Constituent Assembly thus decided to vest the office of theGovernor with certain discretionary powers under the Constitution. Intaking this decision, the Constituent Assembly was aware that therewere certain associated risks in granting the Governor discretionarypowers, including in questions of the formation, disruption and dissolutionof democratically elected governments. However, the framers felt thatthis decision was necessitated by unique historical factors that existed atthe time of adopting the Constitution and it was hoped that with thematuring of our polity, a level of constitutional statesmanship and trustwould paper over the cracks of constitutional choices necessitated bymore violent times.

37. The discretionary powers ultimately vested in the Governorunder Article 163 of the Constitution represent an exception to the generalrule of aid and advice. The Constitution embodies the principle of aidand advice and in doing so, emphasizes that the Governor is a titularhead of state, while the real authority and power vests in the Council ofMinisters headed by the Chief Minister. The Council of Ministers iscollectively responsible to the legislative assembly of the state. Indiscussing the principle of collective responsibility, a Constitution Benchof this Court in State (NCT of Delhi) v Union of India[19]observed:

‘‘321. Collective responsibility of Ministers to Parliament iscomprehended in two aspects: (i) collective responsibility ofMinisters for the policies of the Government; and (ii) individualresponsibility of Ministers for the work of their governments. Theidea behind this bifurcation, as explained by Birch, is to hold aGovernment continuously accountable for its actions, so that italways faces the possibility that a major mistake may result in awithdrawal of parliamentary support’…

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A324. Granville Austin observes that the Framers of India‘sConstitution conceived that the democratic values of theConstitution would be achieved if the institutions of direct,responsible Government‘ The Members of the ConstituentAssembly borrowed the Parliamentary-Cabinet form ofGovernment from British constitutional theory and adopted it intoBour Constitution. Though the Constituent Assembly did not adoptthe British constitutional conventions in the written form, collectiveresponsibility of the Cabinet was specifically incorporated intoIndia‘s constitutional framework.

The legislative assembly is a democratically elected body and theCgovernment represented by the Council of Ministers with the ChiefMinister at the head can continue in office only so long as it continues tohave the confidence of the legislature. Integral to this concept is theultimate authority of the state legislature to exercise supervisory controlover the conduct, decisions and affairs of the government. The legislatureDdoes so through the debates which take place on the floor of the houseas well as by exercising oversight over the departments of government.The relationship between the executive arm of the state and its legislativearm in the democratically elected legislative bodies of the states is notmerely a matter of a constitutional affliction. In making the Council ofMinisters answerable to the legislative assembly and in entrusting to theElegislative assembly the authority to exercise oversight over the affairsof the state, the Constitution weaves an intricate process that has beendescribed as representing the checks and balances of democraticgovernance.

38. The Constitution employs distinct expressions in relation toFthe term of its legislative bodies, their convening, sittings and ultimatedissolution. The duration of the state legislature is prescribed as fiveyears from the date appointed for the first meeting, unless the legislatureis dissolved sooner. After the elections have been held for the purposeof constituting a legislative assembly, the legislature is summoned by theGGovernor to meet at such time and place ‘‘as he thinks fit’’. Upon thelegislature being summoned, the Governor is entrusted with the authorityto prorogue the House. The concept of the House being prorogued isdistinct from the dissolution of the legislative assembly. A decision toprorogue the Houses does not bring to an end the duration of the assembly.The duration of the assembly which is prescribed as five years by ArticleH

172 is brought to an end either on the expiry of this period counted fromthe first date appointed for the meeting or an earlier dissolution. Insummoning the house, and in taking a decision to prorogue or dissolve it,the Governor ordinarily acts on the aid and advice of the Council ofMinisters. The primary basis on which the accountability of the Councilof Ministers is exacted towards the legislature is through the relationshipwhich the Constitution envisions between the government and the electedbody of the legislature. The Council of Ministers is drawn from thelegislative body, membership of the Council of Ministers being dependent(beyond a term of six months) on membership of the House. But apartfrom the principle that a member of the Council of Ministers must be aMember of the legislature, accountability of the executive to the legislatureis exacted by the ultimate authority which was conferred on the legislatureto express a lack of confidence in the Council of Ministers. In envisioningthe role of the Governor as a constitutional statesman, care must betaken in the course of interpretation to ensure that the balance of powerwhich was envisaged by the Constitution between the executive and thelegislature is maintained by the gubernatorial office.

The Power of the Governor

The Power of the Governor

39. The issue of whether a Governor can call for a trust vote in analready constituted legislative assembly is not entirely res integra. Beforea nine-judge Bench of this Court in SR Bommai, the individual caseswhich came up for consideration included the dispute emanating fromthe State of Karnataka. In the State of Karnataka, following elections tothe Assembly in March 1985, the Janata Legislature Party emergedwith the majority. Shri Ramakrishna Hegde was elected as the leader ofthe party and was sworn-in as Chief Minister. Following his resignation,Shri Bommai was elected as leader of the party and was sworn-in asChief Minister on 30 August 1988. In September 1988, there was amerger of the Janata Party with the Lok Dal (B) resulting in the formationof Janata Dal. On 17 April 1989, a legislator defected from the party andpresented a letter to the Governor of Karnataka withdrawing his supportfrom the Janata Dal government. The legislator met the Governor onthe next day and presented nineteen letters purportedly of seventeenJanata Dal legislators, an independent and a BJP legislator withdrawingsupport from the Janata Dal government. On 19 April 1989, the Governorsent a report to the President opining that as a result of the withdrawalof support, the ruling party had been reduced to the minority in the AB

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AKarnataka Legislative Assembly‘ and recommended that action beinitiated under Article 356 of the Constitution. Subsequently on 20 April1989, seven legislators submitted letters to the Governor complainingthat their signatures had been obtained by misrepresentation andreaffirmed their support to Shri Bommai‘s government. The state Cabinetdecided to convene an assembly session on 27 April 1989 and the ChiefBMinister met the Governor, offering to prove his majority on the floor ofthe house if necessary, by preponing the Assembly Session. Inspite ofthis, the Governor submitted another report to the President on 20 April1989 and a proclamation was issued under Article 356 of the Constitutionon the very next day. It was in this background that the nine-judge BenchCin SR Bommai was called upon to determine the legality of theGovernor’s actions. In holding that the Governor‘s actions wereunjustified, Justice BP Jeevan Reddy observed:

‘‘391. … The Constitution does not create an obligation that thepolitical party forming the ministry should necessarily have aDmajority in the Legislature. Minority Governments are notunknown. What is necessary is that that Government shouldenjoy the confidence of the House. This aspect does notappear to have been kept in mind by the Governor. Secondlyand more importantly, whether the Council of Ministershas lost the confidence of the House is not a matter to beEdetermined by the Governor or for that matter anywhereelse except the floor of the House. The principle ofdemocracy underlying our Constitution necessarily meansthat any such question should be decided on the floor ofthe House. The House is the place where the democracy is inFaction. It is not for the Governor to determine the said question onhis own or on his own verification. This is not a matter within hissubjective satisfaction. It is an objective fact capable of beingestablished on the floor of the House.

392. Exceptional and rare situations may arise where because ofGall pervading atmosphere of violence or other extraordinaryreasons, it may not be possible for the members of the Assemblyto express their opinion freely. But no such situation had arisenhere…

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SHIVRAJ SINGH CHOUHAN v. SPEAKER M. P. LEGISLATIVE ASSEMBLY[DR DHANANJAYA Y CHANDRACHUD, J.]

These observations indicate that the question of whether theCouncil of Ministers in an ongoing legislative assembly commands theconfidence of the house is a matter which has to been determined onlyon the floor of the house and that it is not for the Governor to determinethe issue within his subjective satisfaction. The only exception to thisnorm which the court drew was where a situation arises where membersof the Legislative Assembly may not be able express their opinions freelyas a result of prevailing violence or for other extraordinary reasons.

40. The judgment of Justice BP Jeevan Reddy also referred to aunanimous report submitted by a committee of Governors appointed bythe President of India indicating that:

‘‘393. In this connection, it would be appropriate to notice theunanimous report of the committee of Governors appointed bythe President of India. The five Governors unanimouslyrecommended that the ¯test of confidence in the Ministry shouldnormally be left to a vote in the Assembly. … Where theGovernor is satisfied by whatever process or means, thatthe Ministry no longer enjoys majority support, he shouldask the Chief Minister to face the Assembly and prove hismajority within the shortest possible time. If the ChiefMinister shirks this primary responsibility and fails tocomply, the Governor would be duty bound to initiate stepsto form an alternative Ministry. A Chief Minister’s refusalto test his strength on the floor of the Assembly can wellbe interpreted as prima facie proof of his no longer enjoyingthe confidence of the legislature. If then, an alternative Ministrycan be formed, which, in the Governor‘s view, is able to commanda majority in the Assembly, he must dismiss the Ministry in powerand install the alternative Ministry in office. On the other hand, ifno such Ministry is possible, the Governor will be left with noalternative but to make a report to the President under Article356….’’

Subsequently dealing with the facts pertaining to the case of theState of Karnataka, Justice BP Jeevan Reddy held:

‘‘395. The High Court, in our opinion, erred in holding that thefloor test is not obligatory. If only one keeps in mind the democratic A

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Aprinciple underlying the Constitution and the fact that it is theLegislative Assembly that represents the will of the people – andnot the Governor – the position would be clear beyond any doubt.In any case, it may be remembered that the Council of Ministersnot only decided on April 20, 1989 to convene the Assembly on27[th] of that very month, i.e., within 7 days, but also offered toBprepone the Assembly if the Governor so desired. It pains us tonote that the Governor did not choose to act upon the saidoffer. Indeed, it was his duty to summon the Assembly andcall upon the Chief Minister to establish that he enjoyedthe confidence of the House. Not only did he not do it butCwhen the Council of Ministers offered to do the same, hedemurred and chose instead to submit the report to thePresident. In the circumstances, it cannot be said that theGovernor‘s report contained, or was based upon, relevant material.There could be no question of the Governor making anassessment of his own. The loss of confidence of the HouseDwas an objective fact, which could have been demonstrated,one way or the other, on the floor of the House. In ouropinion, wherever a doubt arises whether the Council ofMinisters has lost the confidence of the House, the onlyway of testing it is on the floor of the House except in anEextraordinary situation where because of all-pervasive violence,the Governor comes to the Conclusion – and records the same inhis report – that for the reasons mentioned by him, a free vote isnot possible in the House.’’

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In analysing the observations made by the nine-judge Bench inSR Bommai it is pertinent to remember that the Governor in that casedid not call for a floor test. Rather, the Governor of Karnataka sent areport to the President, based on which a proclamation was issued underArticle 356. The observations in SR Bommai can be relied on inGdetermining whether the Governor possesses the power to call for afloor test. Discerning the subsequent question of when the exercise ofsuch power is appropriate is a distinct issue. On a perusal of the aboveobservations in SR Bommai, it is evident that:

(i) Whether or not the Council of Ministers has lost theHconfidence of the House must be determined only on the floor of the house and not by the Governor conducting anindependent verification;

(ii) Where the Governor has reasons to believe that theincumbent government does not possess the support of themajority in the legislative assembly, the correct course ofaction would be for the Governor to call upon the ChiefMinister to face the assembly and to establish the majorityof the incumbent government within the shortest possibletime; and

(iii) An exception to the invariable rule of testing whether thegovernment has the assembly‘s confidence on the floor ofthe house is envisaged only in extraordinary situations wherebecause of the existence of ‘‘all pervasive violence’’, afree vote is not possible in the House.

41. As a matter of constitutional law, it would not be correct toproceed on the basis that the constitutional authority entrusted to theGovernor to require the Council of Ministers to prove their majority onthe floor of the House can only be exercised at the very inception aftergeneral elections are held and not when the Governor has objectivereasons to believe that the incumbent government does not commandthe confidence of the house. The Governor is not denuded of the powerto order a floor test where on the basis of the material available to theGovernor it becomes evident that the issue as to whether the governmentcommands the confidence of the house requires to be assessed on thebasis of a floor test. Undoubtedly, the purpose of entrusting such a functionto the Governor is not to destabilise an existing government. When thesatisfaction on the basis of which the Governor has ordered a floor testis called into question, the decision of the Governor is not immune fromjudicial review. The court would be justified in scrutinizing whether theGovernor prima facie had relevant and germane material to order afloor test to be conducted. It must be noted that the Governor does notdecide whether the incumbent government commands the confidenceof the house. The purpose of holding a floor test in the legislative assemblyis precisely to enable the elected representatives to determine whetherthe Council of Ministers commands the confidence of the House; thatverification is not conducted by the Governor. The decision in SRBommai in fact held that recourse to the power under Article 356 wasnot warranted in a situation where the issue of confidence could yet be

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Atested on the floor of the house by calling for a trust vote. Undoubtedly,in that case, it was the Chief Minister who had suggested, following ameeting of the Cabinet, that the House should be convened for thepurposes of testing the majority of the Council of Ministers. Thesignificance of the decision lies in the fact that the decision of the Governorto submit a report under Article 356 was faulted on the ground that theBfloor test would have been an appropriate course of action.42. The principle which has been laid down in the nine judge Benchdecision in SR Bommai has been reaffirmed by the Constitution Benchin Nebam Rebia. The judgment of the Constitution Bench arose whenthe Governor of Arunachal Pradesh, on the aid and advice of the CouncilCof Ministers, summoned the Legislative Assembly of the state on 3November 2015 to meet on 14 January 2016. Subsequently, the sessionof the Arunachal Assembly was preponed by the Governor to 16December 2015 and by an order dated 19 December 2015, the Governorindicated the manner in which the proceedings of the House should beDconducted. A notice for the removal of the Speaker dated 19 November2015 was addressed by thirteen Members of the House to the Secretaryof the Legislative Assembly. One of the primary reasons for the messageof the Governor dated 9 December 2015 was the understanding of theGovernor that it would be an act of constitutional impropriety if the issueof the removal of the Speaker was not taken up for considerationEforthwith. Dealing with this aspect, Justice J S Khehar (as the learnedChief Justice then was) observed that in contradiction to the provisionsof Section 53 of the Government of India 1935 (which permitted theGovernor to address messages to the House at his discretion) Article175 does not contain a similar expression. Hence, the Court observedFthat the messages of the Governor to the House ‘‘must be deemed to belimited to the extent considered appropriate by the Council of Ministersheaded by the Chief Minister’’. Dr Abhishek Manu Singhvi, learnedSenior Counsel appearing for the Speaker, placed emphasis on this facetof the decision in Nebam Rebia and urged that that the relationship of the Governor with the legislative assembly must be bound by the principleGof aid and advice. Mr Kapil Sibal, learned Senior Counsel appearing forthe Chief Minister, urged that any observations beyond this in the judgmentof the Constitution Bench are obiter. Justice J S Khehar, while dwellingupon the powers of the Governor adverted to the treatise of M N Kauland S L Shakdher[20], noting that:H20 Practice and Procedure of Parliament, published by the Lok Sabha Secretariat

‘‘165. … The Governor would summon or prorogue the House orHouses of the State Legislature, on the Aid and advice of theChief Minister. The narration by the authors reveals that it wouldbe open to the Governor to suggest an alternative date forsummoning or proroguing the House or Houses of the StateLegislature, but the final determination on the above issue restswith the Chief Minister or the Cabinet, which may decide to acceptor not to accept, the alternate date suggested by the Governor.The opinion of M.N Kaul and S.L. Shakdher is in consonancewith the Constituent Assembly Debates. The position only getsaltered, when the Government in power loses its majorityin the House. With reference to prorogation, the opinionexpressed by the authors is that the same is also to bedetermined by the Council of Ministers with the ChiefMinister as the head, except in a situation wherein theGovernment’s majority in the House, is under challenge.From the above exposition it emerges that the Chief Minister andhis Council of Ministers lose their right to aid and advise theGovernor, to summon or prorogue or dissolve the House, whenthe issue of the Government’s support by a majority of theMembers of the House, has been rendered debatable. We haveno hesitation in endorsing the above view. But, what is ofsignificance and importance in the opinion expressed by M.N.Kaul and S.L. Shakdher, which needs to be highlighted is, thatthe mere fact that some members of the ruling party havedefected, does not necessarily prove that the party has lostconfidence of the House. And in such a situation, if there isa no-confidence motion against the Chief Minister, whoinstead of facing the Assembly, advises the Governor toprorogue or dissolve the Assembly, the Governor need notaccept such advice. In the above situation, the Governorwould be well within his right, to ask the Chief Minister toget the verdict of the Assembly, on the no-confidence motion’’.

Having adverted to the above treatise, Justice J S Kehar (as thelearned Chief Justice then was) held:

‘‘166. In view of the consideration recorded hereinabove, we areof the view that in ordinary circumstances during the period when

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Athe Chief Minister and his Council of Ministers enjoy theconfidence of the majority of the House, the power vested withthe Governor under Article 174, to summon, prorogue and dissolvethe House(s) must be exercised in consonance with the aid andadvice of the Chief Minister and his Council of Ministers. In theabove situation, he is precluded to take an individual call on theBissue at his own will, or in his own discretion. In a situation wherethe Governor has reasons to believe that the Chief Minister andhis Council of Ministers have lost the confidence of the House, itis open to the Governor, to require the Chief Minister and hisCouncil of Ministers to prove their majority in the House, by aCfloor test. Only in a situation, where the Government in power onthe holding of such floor test is seen to have lost the confidence ofthe majority, it would be open to the Governor to exercise thepowers vested with him under Article 174 at his own, and withoutany aid and advice.’’

DThe court held that since it was not in dispute that the Governor‘‘never called for a floor test’’, it was reasonable to infer that theGovernor did not ever entertain any doubt about the Chief Minister andthe Council of Ministers continuing to enjoy the confidence and the majorityin the House. Nor was there any motion of no confidence moved againstthe government. We are unable to accept the submission of Mr SibalEthat the observations of the Constitution Bench in Nebam Rebia areobiter. The observations in Nebam Rebia are consistent with theformulation of principle in the nine judge Bench decision in SR Bommai,as we have discussed earlier. The power under Article 174 of theConstitution to summon the House and to prorogue it is one which isFexercised by the Governor on the aid and advice of the Council ofMinisters. But in a situation where the Governor has reasons to believethat the Council of Ministers headed by the Chief Minister has lost theconfidence of the House, constitutional propriety requires that the issuebe resolved by calling for a floor test. The Governor in calling for a floortest cannot be construed to have acted beyond the bounds of constitutionalGauthority.

Exercise of Power by the Governor

43. The powers which are entrusted to constitutional functionariesare not beyond the pale of judicial review. Where the exercise of theHdiscretion by the Governor to call a floor test is challenged before the court, it is not immune from judicial review. The court is entitled todetermine whether in calling for the floor test, the Governor did so onthe basis of objective material and reasons which were relevant andgermane to the exercise of the power. The exercise of such a power isnot intended to destabilise or displace a democratically electedgovernment accountable to the legislative assembly and collectivelyresponsible to it. The exercise of the power to call for a trust vote mustbe guided by the over-arching consideration that the formation ofsatisfaction by the Governor is not based on extraneous considerations.

44. While the Constitution recognises that the Governor doespossess a power inhering in the office to monitor that the electedgovernment continues to possess the confidence of the LegislativeAssembly, this entrustment ought not to override or displace the basicresponsibility of the executive to the legislature or the ability of thelegislature to demand accountability of the executive arm of the state.Dr Singhvi’s submission that the Governor cannot demand a trust voteexcept at the initial constitution of the Legislative Assembly following anelection would be to unduly constrain the constitutional entrustmentauthority to the Governor. Undoubtedly, the largest number of precedentsemanating from this Court have dealt with situations where a trust votewas called at the time of the initial formation of government following anelection. One of the reasons for this may well be the prevalence ofdisputes at the time of the initial formation of governments in the states.But, this line of precedent would not exhaust the power of the Governornor does it suggest that the authority which is entrusted to the Governorcannot be exercised once a government has been formed. Mr Sibal, onthe other hand, accepted that there may be situations where the Houseis not in session, having been prorogued, and there arise circumstancesleading the Governor to a reasonable belief that the government hasceased to command a majority in the legislative assembly. This, in ourview, would certainly be one of the situations where the Governor wouldbe justified in calling for a special session in the course of which theincumbent government may be required to establish that it continues tohold the confidence of the House.

45. In a situation where the House has been summoned followingthe aid and advice of the Council of Ministers, the position would bemore nuanced in the sense that the remedy of a no confidence motionwould be available to any segment of the legislature seeking to espouse A

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Athe view that the government has ceased to command the confidence ofthe house. In exercising the constitutional authority to demand a trustvote, the Governor must do so with circumspection in a manner thatensures that the authority of the House to determine the existence orloss of confidence in the government is not undermined. Absent exigentand compelling circumstances, there is no reason for the Governor toBprevent the ordinary legislative process of a no confidence motion fromrunning its due course. The Governor is an appointee of the Presidentbut does not represent either a political ideology or a political view. TheGovernor is expected to discharge the role of a constitutional statesman.The authority of the Governor is not one to be exercised in aid of aCpolitical dispensation which considers an elected government of the dayto be a political opponent. The precise reason underlying the entrustmentof the authority to the Governor is the ability to stand above politicalconflicts and with the experience of statesmanship, to wheel the authorityin a manner which sub-serves and does not detract from the strengthand resilience of democratically elected legislatures and the governmentsDin the states who are accountable to them. To act contrary to this mandatewould result in the realisation of the worst fears of the constitutionalframers who were cognisant that the office of the Governor couldpotentially derail democratically elected governments but nonethelessplaced trust in future generations to ensure that government of the people,Eby the people and for the people would not be denuded by those whowere designed to act as its sentinels.

46. In discharging this crucial role, it is necessary that the Governorbear in mind that the purpose underlying the entrustment of the authorityto require a trust vote is not to displace duly elected governments but toFintervene with caution when the circumstances which are drawn to theattention of the Governor indicate a loss of majority. This power is grantedto the Governor to ensure that the principle of collective responsibility ismaintained at all times and must be exercised with caution. Thecircumstances on the basis of which the Governor forms a prima facie opinion leading up to a communication requiring a trust vote in theGlegislative assembly must be of an objective nature. The decision of theGovernor to do so is not immune from judicial review and must thereforewithstand the ability of being scrutinised on the touchstone of thecircumstances being relevant, germane and not extraneous to the exerciseof an exceptional power which is vested in the Governor.

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47. In the present case, the facts which have come on the recordindicate the Budget Session of the Legislative Assembly had beenconvened on the aid and advice of the Council of Ministers to commencefrom 16 March 2020. The Governor was intimated that twenty-twoMembers owing allegiance to the INC had tendered their resignations tothe Speaker of the Assembly. Copies of the resignation letters wereforwarded to the Governor. At this stage, the validity of these resignationshad not been discerned and no decision had been made by the Speakeras to whether the resignations were ‘‘voluntary’’ or ‘‘genuine’’. TheChief Minister subsequently tendered advice to the Governor for theremoval of six Members who were ministers in the State government.On 13 March 2020, the Speaker of the Legislative Assembly issuednotices of disqualification. However, on 14 March 2020 the resignationsof six Members who were ministers of the incumbent government wereaccepted by the Speaker acting in exercise of the constitutional authorityunder the proviso to Article 190(3)(b). The Chief Minister, adverting tothe turmoil in the state, addressed a communication to the Governor on13 March 2020 stating that the convening of the floor test would be asure basis for resolving the conundrum. This is a strong indication thatthe Chief Minister himself was of the opinion that the situation in thestate had cast his government‘s majority in doubt. However, upon theconvening of the Legislative Assembly, no floor test was conducted, andthe House was adjourned till 26 March 2020. These facts form the basison which the Governor advised that a floor test be conducted. Based onthe resignation of six ministers of the incumbent government (acceptedby the Speaker), the purported resignation of sixteen more Membersbelonging to the INC, and the refusal of the Chief Minister to conduct afloor test despite the House having been convened on 16 March 2020,the exercise of power by the Governor to convene a floor test cannot beregarded as constitutionally improper.

48. Following the acceptance of the resignations of six Membersowing their allegiance to the INC, the strength of the INC in theLegislative Assembly was reduced from 114 to 108. The strength of theHouse stood reduced to 222. The Governor has in fact not intervened inthe authority which is entrusted to the Speaker to either decide upon thevoluntary and genuine character of the resignations or any issue ofdisqualification within the meaning of the Tenth Schedule. Faced withthe communication of the Governor for convening a trust vote immediatelyafter the Governor‘s address, the session of the Legislative Assembly AB

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Awas adjourned till 26 March 2020 despite the House having alreadyconvened. This would have allowed the state of political uncertainty inMadhya Pradesh to continue and furnish avenues for political bargainingon terms which cannot be regarded as legitimate. It is with a view toobviate illegitimate and unsemly political bargaining in the quest forpolitical power that this Court has consistently insisted upon the conveningBof a trust vote at the earliest date. Some of those decisions aresummarized in a tabulated statement, for the sake of brevity, which isextracted below:

NameFactsOrder of this CourtCJagdambika• Dispute over Chief• Court heard the matter on 24Pal vMinistership andFebruary 1998. This CourtUnion ofmajority in thedirected that a special sessionIndiahouse in the state ofof Uttar Pradesh LegislativeUttar Pradesh.Assembly be convened for 26(1999) 9DFebruary 1998 and aSCC 95• Conduct of thecomposite floor test wasSpeaker, Uttarordered.Pradesh Legislative• The results of the floor testAssembly waswere to be submitted to thechallenged as heEwithheld the verdictcourt on 27 February 1998.on disqualification• The government was barredof 12 Membersfrom taking any majordespite conductingdecisions except routinea hearing.matter until floor test.FAnil• Dispute over• A session of the JharkhandKumar Jhaformation ofLegislative Assembly hadv Union ofgovernment in thealready been convened for 10Indiastate of Jharkhand.March 2005. This Courtheard the matter on 7 MarchG(2005) 3• The Governor had2005 and directed a vote ofSCC 150appointed a pro temconfidence on 11 March 2005.Speaker who wasa comparatively• The only agenda for the dayjunior member ofwas to be the floor test. Thethe Jharkhandresult of the floor test wouldH

Legislativebe announced by the pro temAAssembly.Speaker.• There existed• Till the floor test, the Governorapprehensionswas barred from nominatingthat the GovernorMembers. The floor test waswould tilt theto be confined to the 81Belectoral balanceelected members.between the• The Directorate General ofparties byPolice, Jharkhand was to seeappointing anthat all elected Members canAn g lo -In di a n“freely, safely and securelyCmember underattend the Assembly and noArticle 333 of theinterference or hinderance isConstitution.caused by anyone therein.”• Proceedings were to be videorecorded and a copy sent toDthe courtChandrakant• Dispute over• The election results wereKavlekar vformation ofdeclared on 11 March 2017.Union ofgovernment in theThis Court heard the matterIndiastate of Goa.on 14 March 2017 andE(2017) 3• Shri Manohardirected a vote of confidenceSCC 758on 16 March 2017.Parrikar belongingto the BJP was• The only agenda for the dayappointed as thewas to be the floor test.Chief Minister of• The Election Commission wasFGoa on the claim ofdirected to ensure all21 supportingformalities were completed bylegislators in a15 March 2017.house of 40.• This number wasGchallenged by theCongress Party ina letter addressedto the Governor.H

AG• Dispute over the• This Court heard the matterParmeshwaraformation ofon 18 March 2018. The letterv Union ofgovernment in theof BS Yedyurappa to theIndiastate of Karnataka.Governor claiming to be single(2018) 16• The letter of thelargest party was produced.BSCC 46Governor invitingAs a detailed hearing wouldbe required, a floor test wasBS Yeddyurappadirected to be conducted onbelonging to the19 March 2018 (despite theBJP to form theGovernor giving BSgovernment in theYeddyurappa 15 days toCstate and grantingprove his majority).him 15 days toprove a majority• Elected members were towas challenged.take oath by 4:00 pm on 19March 2018 at which time thefloor test shall be conducted.DNo secret ballot waspermitted for the floor test,which was to be conducted inaccordance with the law.• The court held that,E“Adequate and sufficientsecurity arrangements shallbe made and DirectorGeneral of Police, State ofKarnataka will himselfFsupervise the saidarrangements...”.Shiv Sena• Dispute over the• This Court heard the matterv Union offormation ofon 26 November 2019 andIndiagovernment in thedirected a vote of confidenceGstate ofon 27 November 2019.(2019) 10Maharashtra.SCC 809• A pro tem speaker was to be• Following a hungappointed. Elected membersassembly, thewere to take their oaths byPresident’s rule5:00 pm on 27 November atH

was imposed andwhich time the floor test wass u b s e q u e n t l yto be conducted. No secretrevoked in theballot was permitted for theearly hours of thefloor test and the proceedingsmorning leading towere to be live telecasted.the swearing in ofDevendra Fadnavisbelonging to theBJP being invited toform thegovernment.• The decision of theGovernor waschallenged.

49. The idea underlying the trust vote in the ultimate analysis, is touphold the political accountability of the elected government to the statelegislature. Assertion of accountability is a mirror image of the collectiveresponsibility of the government to the legislature. The requirement ofthe trust vote fulfils that purpose in the present case. The presentcontroversy has shone a light on the often-fluid allegiances ofdemocratically elected representatives. This is a matter for theirconscience and the court expresses no opinion on the matter. However,it is important to note that in directing a trust vote, the Governor does notfavour a particular political party. It is inevitable that the specific timingof a trust vote may tilt the balance towards the party possessing a majorityat the time the trust vote is directed. All political parties are equally atrisk of losing the support of their elected legislators, just as the legislatorsare at risk of losing the vote of the electorate. This is how the system ofparliamentary governance operates and learned Senior Counsel on bothsides of the dispute congenially admitted that the outcome of the trustvote is the ultimate litmus test for the legitimacy to govern. However,we note that where the evidence indicates that circumstances of violenceand coercion exist that would undermine a free and fair vote in theassembly, the Governor and the court must take measures to ensure thatthe sanctity of the trust vote is maintained. In the circumstances as theyhave emerged in this case, the exercise of authority by the Governorwas based on circumstances which were legitimate to the purpose of A

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Aensuring that the norm of collective responsibility is duly preserved. Thereexisted no extraordinary circumstances for the Governor to determinethat a trust vote was not the appropriate course of action on 16 March2020.

’Short-circuiting the Speakers discretionB

50. A significant ground of attack by Dr Singhvi, learned SeniorCounsel appearing on behalf of the Speaker, on the decision by theGovernor to call for the trust vote is that convening a trust vote at thisstage will impinge on the discretion of the Speaker to determine whetherthe resignations should be accepted (under the proviso to SectionC190(3)(b)) and at the second level to decide upon the consequence ofthe resignation in terms of the anti-defection provisions of the TenthSchedule. Short-circuiting‘ is the phrase which was used by Dr Singhvi.Implicit in the submission is the charge that holding a trust vote impingesupon the discretion of the Speaker on whether to accept the resignationsand to decide whether these Members have incurred the wrath ofDdisqualification. While analysing the submission articulated by Dr Singhvi,the cobwebs need to be cleared. The Governor does not decide whetherthe resignations that were submitted by the Members were genuine andvoluntary. That is squarely a matter which lies within the domain of theSpeaker. Similarly, whether a Member of the House has incurred aEdisqualification under the Tenth Schedule is a matter where the Speakeris the designated authority. Conscious as the Court has been of the factthat these are matters which lie within the domain of the Speaker, in therecent past a direction to Members to appear before the Speaker andfor the Speaker to take a decision immediately was recalled by a threejudge Bench.[21] Dr Singhvi alluded to these orders.F

51. It is trite law that neither the Governor, nor for that matter thisCourt, has the power to impinge upon the authority of the Speaker totake a decision on the above issues. The issue however is whether theconvening of a trust vote has to be deferred until such time as the Speakerhas taken a decision on whether or not to accept the resignations and ifGso, the consequence of the Members departing from the fold of theparty on whose ticket they were elected under the Tenth Schedule. Theholding of a trust vote operates in a distinct field from the issue as towhether one or more individual members of the Legislative Assembly 21 Pratap Gouda Patil v State of Karnataka (W.P. 872 of 2019): orders dated 12 JulyH2019 and 17 July 2019

have embarked upon a voluntary act of resignation or have incurred thewrath of the Tenth Schedule. Holding a trust vote is necessary to ascertainwhether the Council of Ministers headed by the Chief Minister has theconfidence of the House. The continuous existence of that confidenceis crucial to the legitimacy and hence survival of the government. It is amatter which can brook no delay since the authority of the governmentpresided over by the Chief Minister depends on the Council of Ministerscontinuing to have the faith of the legislative body as a collective entity.Particularly where the Members resigned in an expression of a lack offaith in the existing government, the convening of a floor test is thesurest method of assessing the impact of the resignations on the collectivewill of the house. The consequence of the acceptance of a resignation isto reduce the numerical strength of the House. Until the resignations areaccepted, the Members who have resigned continue to be reflected inthe strength of the house having regard to the language which has beenemployed in Article 190(3)(b) (‘‘shall thereupon fall vacant’’). Whetherin a situation such as the present an elected government is entitled tocontinue despite the resignations of twenty-two of its Members has asignificant bearing on the issue of confidence. Neither the Governor norfor that matter the Court can entrench upon the power of the Speaker,but the pendency of the proceedings before the Speaker cannot be avalid basis to not have the confidence of the House in the governmentdetermined by the convening of a floor test. Added to it is a factualcircumstance in the present case that the Speaker accepted theresignations tendered by six of the twenty-two Members on 14 March2020. All of the Members sailed together. No explanation wasforthcoming in the submission of Dr Singhvi on what, if any, was thedistinction between the six Members whose resignations were acceptedwith alacrity and the remaining sixteen on whose resignations, no decisionhas been taken. None of the Members who resigned (neither the six northe sixteen) appeared before the Speaker. Therefore, non-appearancebefore the Speaker is evidently not a ground of distinction. We havehighlighted above the factual scenario only to emphasise that theconvening of a trust vote is of crucial importance to affirm the fundamentalvalues of the Constitution namely, abiding by the rules which govern aparliamentary democracy. The fundamental precept of parliamentarydemocracy is that the government owes collective responsibility to thelegislative assembly and as a collective body, the legislative assembly isentitled to hold the government to account. The ultimate expression of AB

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Aaccountability is the existence of or the lack of confidence in the Councilof Ministers. We are therefore unable to accept the submission of DrSinghvi that the holding of a trust vote would short-circuit the jurisdictionof the Speaker on a matter of resignation and disqualification.

52. During the course of his submission, Dr Singhvi fairly acceptedBthat the holding of a trust vote at this stage would ultimately only affectthe ability of the resigning Members to accept ministerial office in a newgovernment that may be formed if the issue of disqualification has notbeen addressed in the meantime. Dr Singhvi submitted that the effort insuch cases is for the resigning Members to bring down a government onthe allure of ministerial positions in a succeeding government as theirCdisqualification may not be accepted in the future if the governmentwere to change. This, as Dr Singhvi submitted before the court, is howdemocratic politics operates in reality. The point of the mater however isthat nothing prevents the Speaker from taking a decision either on mattersof resignation or disqualification despite convening of a trust vote. ThatDthe Speaker has not yet done so, is not a ground to defer the conveningof a trust vote.

Seeking Access to the ‘Captive’ Members

53. An area on which rival submissions have been urged beforethis Court is the issue of captivity. The petition by the INC on whichEsubmissions have been canvassed by Mr Dushyant Dave, learned SeniorCounsel seeks, as one of the reliefs, a direction of this Court to grantaccess to the twenty-two Members who were lodged at a hotel inBengaluru. Mr Dave was at pains to emphasise the affront to constitutionalmorality. Mr Dave submitted that the twenty-two Members who haveFbeen elected on the ticket of the INC were spirited away‘ to Bengaluru.Mr Kapil Sibal, learned Senior Counsel and in some measure Dr Singhvi,learned Senior Counsel have also dwelt on this aspect. Mr Sibal submittedthat the Members were escorted to Bengaluru from the high securityareas of a domestic airport under the watchful gaze of BJP leaders. Itwas urged that the Members are in incommunicado and efforts to contactGthem have been met with resistance to the extent that the Membershave not met even members of their own families. This submission hasmet with a significant amount of resistance. The Members have enteredappearance in these proceeding by filing an application for impleadment,which was canvassed on their behalf by Mr Maninder Singh, learnedHSenior Counsel. Mr Maninder Singh submitted that the Members who have tendered their resignation have no desire to interact with anyrepresentatives of the INC and that they are entitled to decide forthemselves as to whether they should continue to be Members of theHouse when they lack faith in the incumbent government in the state.

54. The spectacle of rival political parties whisking away theirpolitical flock to safe destinations does little credit to the state of ourdemocratic politics. It is an unfortunate reflection on the confidencewhich political parties hold in their own constituents and a reflection ofwhat happens in the real world of politics. Political bargaining, or horse-trading, as we noticed, is now an oft repeated usage in legal precedents.Poaching‘ is an expression which was bandied about on both sides ofthe debate in the present case. It is best that courts maintain an arm‘slength from the sordid tales of political life. In defining constitutionalprinciple, however, this Court must be conscious of the position on theground as admitted by Counsel of both sides and an effort has to bemade to the extent possible to ensure that democratic values prevail. Anunderlying assumption of the anti-defection scheme outlined in the TenthSchedule of the Constitution is that the political party is the defined politicalunit which the Constitution recognises. Where we increasingly see abreakdown in the composition and allegiances of the political party dueto private allurements offered to Members as opposed to public policyconsiderations, the law may have to evolve to address these burgeoningevils. We were of the view during the course of the hearing that directionscan be issued by the Court to ensure that the twenty-two Members whowere in Bengaluru during the course of the hearing are not subjected toany restraint or hindrance whatsoever in the free exercise of their rightsand liberties as citizens. We put the question to Dr Singhvi, learned SeniorCounsel appearing on behalf of the Speaker, as to whether the Speakerwould be willing to accept speaking to the resigning Members throughvideo conferencing at an independent neutral venue, under the supervisionof an observer appointed by the Court. Mr Maninder Singh, learnedSenior Counsel, appearing on behalf of the Members submitted that hewas willing to abide by any modalities that may be fixed by this Court toensure that the Members were not under any coercion. However, DrSinghvi submitted that he did not have instructions to accept any suchmodality. Conscious as we are of the domain of the Speaker in suchmatters, we have desisted from issuing any such directions. However,we are of the view that in order to facilitate a trust vote for which thetwenty-two Members should be free to participate in the house should A

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Athey opt to do so, directions in that regard should be issued both to theDirector General of Police of Karnataka as well as to the DirectorGeneral of Police of Madhya Pradesh. Our directions are intended tosub-serve the purpose of ensuring that none of the Members are restrainedin the exercise of their rights and liberties as citizens and that if any ofthem opt to attend the proceedings of the Legislative Assembly, theyBshould not be prevented from doing so.

55. The reliefs which have been sought in the writ petition institutedby the MP Congress Party are manifestly misconceived. A direction tothe Union of India (through the Secretary, Ministry of Home Affairs)and to the State of Karnataka (through its Chief Secretary) has beenCsought to grant access to the office bearers of the MP Congress Partyto communicate with respondents five to nineteen (the Members whohave tendered their resignations). The petition has not been framed asone seeking a writ of habeas corpus. The Members who have appearedin these proceedings through learned Senior Counsel, Mr Maninder SinghDhave submitted that they do not wish to interact with any of the memberof the MP Congress Party. We cannot compel them to do so. Ultimately,it is for the Members to decide who they wish to associate with and toface the consequences of such a decision in accordance with the lawand the Constitution. We have already indicated that we are inclined toissue directions to ensure the protection of their rights and liberties asEfree citizens. Among the reliefs which have been sought is a directionthat the vote of confidence should be held only in the presence of all theduly elected Members and that a trust vote cannot be held in the absenceof representatives of twenty-two constituencies, whose presence couldbe secured by holding by-elections for the vacant seats in accordanceFwith law. These reliefs are patently misconceived.

56. The court cannot issue a direction mandating that a trust votecannot be convened if any one or more Members do not remain presentin the House. Whether or not to remain present is for the individualMembers to decide and they would, necessarily be accountable for theGdecisions which they take, both to their political party and to theirconstituents. Similarly, the relief to the effect that no trust vote should beconducted until by-elections are held for the twenty-two seats is againmisconceived. One of the prayers in the second writ petition seeks ananticipatory direction of this Court based on the assumption that adisqualification would stand attracted upon which the seat would fallH

vacant and an election would have been held. In any event, the conveningof a trust vote cannot be postponed to a future date until by-electionstake place.

57. The challenge to the communication of the Governor must failfor the reasons that we have already indicated. After the conclusion ofthe argument, this Court had pronounced its operative directions. Theorder passed by this Court on 19 March 2020 is extracted below:

‘‘Submissions extending over two days were addressed beforethe Court by learned counsel appearing on behalf of the contestingparties in the two writ petitions instituted under Article 32 of theConstitution.

We have heard Mr Dushyant Dave, Dr A M Singhvi, Mr KapilSibal, Mr Vivek Tankha and Mr Harin Raval, learned seniorcounsel, on one side and Mr Tushar Mehta, learned SolicitorGeneral, Mr Mukul Rohatgi and Mr Maninder Singh, learned seniorcounsel, on the other.

The former set of counsel have assailed the communication ofthe Governor to convene a floor test. The latter set of counselhave supported the communication of the Governor.

The submissions which have been urged before the Court wouldnecessitate a judgment which would take some time to bedelivered. The state of uncertainty in the State of Madhya Pradeshmust be effectively resolved by issuing a direction for conveninga floor test, bearing in mind the principles which have beenenunciated in the decision of the nine-Judge Bench of this Courtin S R Bommai v Union of India [(1994) 3 SCC 1)] and in thedecision of the Constitution Bench in Nabam Rebia v DeputySpeaker, Arunachal Pradesh Legislative Assembly [(2016) 8 SCC1]. These principles have been consistently reiterated in severalsubsequent decisions of this Court which would be adverted to inthe course of the reasons which will follow.

We accordingly issue the following directions:

(i) The session of the Madhya Pradesh Legislative Assemblywhich has been deferred to 26 March 2020 shall bereconvened on 20 March 2020;

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A(ii)The meeting to be convened in pursuance of (i) above shallbe confined to a single agenda, namely, whether thegovernment of the incumbent Chief Minister continues toenjoy the confidence of the House;

(iii) Voting on agenda (ii) above shall take place by show ofBhands (the Governor having clarified by his letter dated 15March 2020 that there is no provision for recording thedivision by press of button‘);

(iv) The proceedings before the Legislative Assembly shall bevideo graphed and, if a provision exists for live telecast ofCthe proceedings, this shall in addition be ensured;

(v) All authorities, including the Legislative Secretary, shallensure that there is no breach of law and order in the courseof the proceedings and that the floor test is conducted in apeaceful manner; D(vi)The floor test in pursuance of the above directions shall beconcluded by 5.00 pm on 20 March 2020; and

(vii) The Director General of Police, Karnataka as well as theDirector General of Police, Madhya Pradesh shall ensurethat there shall be no restraint or hindrance whatsoever onEany of the sixteen MLAs taking recourse to their rights andliberties as citizens. In the event that they or any of themopt to attend the session of the Legislative Assembly,arrangements for their security shall be provided by all theconcerned authorities.

FReasons shall follow.’’

Our reasons for the above directions are contained in the text ofthis judgment. We affirm the above directions as final operative directionsof this Court. Writ Petition No. 439 of 2020 shall stand disposed of interms of the above directions. Writ Petition No. 449 of 2020 shall standGdismissed. Impleadment applications shall accordingly stand disposedof.

Pending application(s), if any, shall stand disposed of.

H

Devika Gujral

Writ Petitions disposed of.