Governor’s power not intended to displace democratically elected government, says SC

In its judgment upholding the order of the Madhya Pradesh Governor who had ordered a floor test while the house was in session, the Supreme Court made some important observations about the scope and limits of powers of the Governor.

"The authority of the Governor is not one to be exercised in aid of a political dispensation which considers an elected government of the day to be a political opponent," the court held, reported legal news website LiveLaw.in.

The court said that a Governor's power is not intended to destabilise or displace a democratically elected government accountable to the legislative assembly and collectively responsible to it. It observed that a Governor, being an appointee of the President, does not represent either a political ideology or a political view, and he/she ought not to exercise his authority in aid of a political dispensation.

The court also held that Governor is not denuded of the power to order a floor test where on the basis of the material available to the Governor it becomes evident that the issue as to whether the government commands the confidence of the house requires to be assessed on the basis of a floor test. However, the exercise of the power to call for a trust vote must be guided by the over-arching consideration that the formation of satisfaction by the Governor is not based on extraneous considerations, the bench said.

"In discharging this crucial role, it is necessary that the Governor bear in mind that the purpose underlying the entrustment of the authority to require a trust vote is not to displace duly elected governments but to intervene with caution when the circumstances which are drawn to the attention of the Governor indicate a loss of majority," the Court added, as per the report carried by LiveLaw.in.

The bench of Justices DY Chandrachud and Hemant Gupta made following important observations in this regard:

Governor expected to discharge role of a constitutional statesman

The Governor is an appointee of the President but does not represent either a political ideology or a political view. The Governor is expected to discharge the role of a constitutional statesman. The authority of the Governor is not one to be exercised in aid of a political dispensation which considers an elected government of the day to be a political opponent.

The precise reason underlying the entrustment of the authority to the Governor is the ability to stand above political conflicts and with the experience of statesmanship, to wheel the authority in a manner which sub-serves and does not detract from the strength and resilience of democratically elected legislatures and the governments in the states who are accountable to them.

To act contrary to this mandate would result in the realisation of the worst fears of the constitutional framers who were cognisant that the office of the Governor could potentially derail democratically elected governments but nonetheless placed trust in future generations to ensure that government of the people, by the people and for the people would not be denuded by those who were designed to act as its sentinels.

Governor's orders not immune from judicial review

The powers which are entrusted to constitutional functionaries are not beyond the pale of judicial review. Where the exercise of the discretion by the Governor to call a floor test is challenged before the court, it is not immune from judicial review. The court is entitled to determine whether in calling for the floor test, the Governor did so on the basis of objective material and reasons which were relevant and germane to the exercise of the power.

The exercise of such a power is not intended to destabilise or displace a democratically elected government accountable to the legislative assembly and collectively responsible to it. The exercise of the power to call for a trust vote must be guided by the over-arching consideration that the formation of satisfaction by the Governor is not based on extraneous consideration

Governor not to favour any political party in directing trust vote

The idea underlying the trust vote in the ultimate analysis, is to uphold the political accountability of the elected government to the state legislature. Assertion of accountability is a mirror image of the collective responsibility of the government to the legislature.

It is important to note that in directing a trust vote, the Governor does not favour a particular political party. It is inevitable that the specific timing of a trust vote may tilt the balance towards the party possessing a majority at the time the trust vote is directed. All political parties are equally at risk of losing the support of their elected legislators, just as the legislators are at risk of losing the vote of the electorate. This is how the system of parliamentary governance operates.

Governor to act with circumspection while demanding a trust vote

In exercising the constitutional authority to demand a trust vote, the Governor must do so with circumspection in a manner that ensures that the authority of the House to determine the existence or loss of confidence in the government is not undermined. Absent exigent and compelling circumstances, there is no reason for the Governor to prevent the ordinary legislative process of a no confidence motion from running its due course.

Governor can seek floor test on reasonable belief that the govt has lost confidence

While the Court observed that the power to summon and prorogue the house as per Article 174 has to be exercised by the Governor as per the aid and advice of the Council of Ministers, it added that the Governor can call for floor test when there are reasonable grounds to believe that the government has lost the confidence of the house.

"The power under Article 174 of the Constitution to summon the House and to prorogue it is one which is exercised by the Governor on the aid and advice of the Council of Ministers. But in a situation where the Governor has reasons to believe that the Council of Ministers headed by the Chief Minister has lost the confidence of the House, constitutional propriety requires that the issue be resolved by calling for a floor test. The Governor in calling for a floor test cannot be construed to have acted beyond the bounds of constitutional authority," it said.