Eknath Shinde’s rebellion, which has brought the Uddhav Thackeray government on its knees, has once again put the spotlight on the role of the Governor to call for a floor test amid fears that the Maha Vikas Aghadi government’s days are over.
Under Article 174(2)(b) of the Constitution, the Governor has the powers to dissolve the Assembly on the aid and advice of the cabinet. However, the Governor can apply their mind when the advice comes from a chief minister whose majority could be in question.
The Supreme Court, in the Shivraj Singh Chouhan & Ors versus Speaker, Madhya Pradesh Legislative Assembly & Ors, upheld the powers of the Speaker in 2020 to call for a floor test if there is prima facie proof that the government has lost its majority.
In a 68-page judgment, a Bench of Justices DY Chandrachud and Hemant Gupta concluded that a Governor can call for a trust vote if he has arrived at a prima facie opinion, based on objective material, that the incumbent State government has lost its majority in the Assembly.
The intention behind a trust vote was to enable the elected representatives to determine whether the Council of Ministers commanded the confidence of the House. It was the MLAs, and not the Governor, who made the ultimate call whether a government should stay in power or not, the court reasoned.
The situation arose when MLAs in the Jyotiraditya Scindia camp had defected to the BJP and the then Congress Chief Minister Kamal Nath had asked the Governor to dissolve the Assembly. However, he called for a floor test.
When the House is in session, the Speaker calls for a floor test. But when the Assembly is not in session, the Governor’s residuary powers under Article 163 allow him to call for a floor test.
What happens if Shinde meets Maharashtra governor?
Governor BS Koshyari and CM Uddhav Thackeray have had several run-ins in the past over social-political issues. If push comes to shove, Koshyari will finally decide whether the MVA government has the numbers to stay in power.
If the government is pushed into minority, Uddhav Thackeray will have to step down. If he fails to do so, the Governor may ask him to go for the floor test. Another possibility could be the Shinde-led group approaching Koshyari and pledging support to the BJP. In that case, the Raj Bhavan can ask the government to prove its majority on the floor.
According to the provision of the Anti-Defection Act, the Shinde-led faction will be disqualified if the number of defecting Sena MLAs is less than two-thirds of its strength in the assembly (55), which comes to 37. However, the faction can be treated as an actual legislative group of Shiv Sena if they succeed to gather 37 members and thus avoid disqualification. If disqualified, the MLAs will have to face elections.
Borrowing from SC verdicts
A 2013 Supreme Court judgment rules that governors are not bound by the aid and advice of the council of ministers, headed by a CM, when they believe that dissolving the assembly is not in the interest of the nation.
The Supreme Court defined the ambit of the discretionary power of a governor for the first time in 1974 in Samsher Singh vs State of Punjab. In the subsequent judgment of Rameshwar Prasad & Ors vs Union of India & Anr (2006), the top court clarified that the “discretion” a governor could exercise under Article 163 rested on a compelling necessity.
The Justice MM Puncchi Commission report on Centre-state relations, released in 2007, further laid down that Article 163 does not give the governor general discretionary power to act against or without the advice of the council of ministers, Hindustan Times reported.
Another crucial provision that dwells on the powers of a governor is enshrined under Article 174. Article 174 (1) lays down that a governor shall summon the House of a state legislature at a time and place as they think fit. Article 174(2)(a) authorises a governor to prorogue the House from “time to time” while Article 174 (2) (b) empowers them to dissolve the legislative assembly.