FLOOR TEST: A CHECK ON DISCRETION POWER OFGOVERNORS by -Aayush Akar

Because of its strongly imbibed "Unity in Diversity" culture, the Indian constitutional system

is unique. India is a "Union of States" outlined for political and cultural unity, the elimination

of divisive forces, and the effective administration of the huge country. The Indian

Constitution offers an excellent framework for a smooth relationship between the Union and

the States, on one side, and the intergovernmental States, on the other. 1

The legislative powers are distributed between the Centre and States keeping in mind the

objectives of the Indian Union. Under Articles 245 and 246, the Union is given powers to

make laws on matters of nature which are important for the unity and integrity of the nation

listed in List I of the Seventh Schedule. According to those provisions the States are granted

the power to make laws appropriate for the effective governance of the States in respect of

the questions mentioned in List II of said Schedule. The Union and the States are authorized

to legislate in the matters listed in List III, the Concurrent List, in order to ensure

coordination and cooperation. The demarcation of power between the State and the Centre is

the upshot of the detailed discussion in the Constituent Assembly. 2 There is a circumstance in

which the Union can interfere in the dominion of the State i.e. under Article 356, Union can

take over the jurisdiction of the State when there is a failure of the constitutional machinery

of the State. The President of India who is the first citizen of India can take over the

executive machinery of the State when the State Government is not running in accordance

with the provisions of the Constitution. Article 356 is also used by the Centre when the

political parties have not received the majority in the State Assembly and are failed to form

the Government. The Governor as a convention invites the largest political party to stake

claim to form the Government. 3

But since the Governors are appointed by the President who works on the advice of the

Council of Ministers headed by the Prime Minister as per Article 74(2) of the Indian

Constitution. The Governors hold office under the pleasure which is actually the discretion of

the President who itself works on the advice of the Prime Minister. So, the executive head of


1 Wilfried Swenden, ‘Centre-State Bargaining and Territorial Accommodation: Evidence from India’ (2016) 22

Swiss Political Science Review 491.

2 ‘Ambedkars-Book_1.Pdf’ <http://cwc.gov.in/sites/default/files/ambedkars-book_1.pdf> accessed 28

November 2019.

3 ‘Hung Assembly: Whom Should Governor Call First?’ (Bar & Bench, 28 May 2018)

<https://barandbench.com/hung-assembly-governor-call/> accessed 28 November 2019.


the State Assembly works on the behalf of the ruling party at the centre and favors the ruling

party of the centre in the state. There are instances where the Governor is favoring the ruling

party in terms of the Government formation where that party itself has no majority which is

per se unconstitutional. So the Supreme Court in various cases asking the largest party to

prove the majority in the floor test.


ROLE OF THE GOVERNOR IN THE HUNG ASSEMBLY


In a parliamentary government system, the Hung Parliament takes place without an absolute

majority (legislature) of parliamentary seats by any single political party. Under no overall

control, it is also the less common legislature. 4 If there is a Bicameral Legislator and the

administration is only responsible for the lower house, then the "Hung Parliament" is only

used for that house. The majority of the two-party general elections will lead to an absolute

majority and thus rapidly to the formation of the new government. This pattern is an

exception to the "Hung Parliament" that can be regarded as anomalous or unwanted. It is

unusual for a party to gain a simple majority of seats in a multi-party system of

representatives elected by proportional representation, so a "Hung Parliament" is the norm

and the term is seldom used. This term can be used for defining an election in which no

established Party coalition, such as the German election in 2005, obtains an outright majority.

This Hung Parliament is similar to the “Hung Legislative Assembly” where no coalition of

political parties or the single largest party has no majority to proof in the house of the

Legislative Assembly. The Karnataka Assembly Elections produced an inconclusive verdict

as no single party won a simple majority to form the government. However, the BJP won 104

of the 222 constituencies and emerged as a single largest party. Congress and Janata Dal

(Secular) won 78 seats and 37 seats respectively. 5 With the results of the Karnataka assembly

election throwing up a hung house, the Governor's position has been based on whether to

invite the new government to join the single largest party or the leader claiming majority with

the post-poll coalition. A similar situation arose recently in the Maharashtra election where

despite BJP being the largest party with 105 seats failed to form the government in the state.

The other opposition parties Congress got 44 seats, Shiv Sena got 56 seats and the Nationalist

Congress Party got 54 seats. They together formed an alliance known as “Maharashtra Vikas

Aghadi”. 6 So the similar Karnataka election arises here where the Governor’s position has

4 ‘What Is a Hung Parliament and What Happens Now? | Politics | The Guardian’

<https://www.theguardian.com/politics/2017/jun/09/what-is-a-hung-parliament-and-what-happens-now>

accessed 28 November 2019.

5 ‘The Governor’s Role in the Hung Assembly’ (Jagranjosh.com, 16 May 2018)

<https://www.jagranjosh.com/current-affairs/the-governors-role-in-the-hung-assembly-1489729786-1>

accessed 28 November 2019.


been based on whether to invite the new government to join the single largest party or the

leader claiming the majority with the post-poll coalition.

It triggered a debate about the governor's role in forming the government when an assembly

is hung. The Governor must first invite the largest party to establish the government as a

matter of convention. But in order to provide for a stable government, the decision needs to

be 'informed one' and 'on a sound basis'. In 2006, the President of India (then) Dr. A P J

Abdul Kalam, addressing to the Governors, emphasized the importance of the Sarkaria

Commission's recommendations and said, "While the Constitution provides for many checks

and balances, the Governor's office has been granted independence in order to rise above day-

to-day politics and circumvent compulsions whether arising from the center.” 7 In the case of

Rameshwar Prasad v. Union of India, 2006, 8 a five-judge Constitution Bench, specifically

supported the suggestions made by the RS Sarkaria Commission in its Center-State Relations

Study, which illustrated the impartiality of Governors and their position in maintaining the

constitutional mandate.

Later, in a case of a hung assembly, the M M Punchhi Commission also explained that the

governor should follow "constitutional conventions”. The Punchhi Commission also

prescribed in the case of a Hung Assembly:

 The faction or parties in the Legislative Assembly which enjoy the broadest support should

be called upon to form the government.

 It should be treated as one political party if there is a pre-poll coalition or alliance. And if

such a coalition gets a majority, the governor will call the leader of such alliances to form the

government.

 In the event that no pre-poll coalition or faction has a clear majority, the governor will

appoint the chief minister in the order of priorities stated here:

1. The group of parties with the largest pre-poll alliance.

2. The largest single party which seeks to form a government with the support of others;

3. A post-electoral coalition with all allies which join the regime;

4. A post-electoral alliance in which factions enter the government and the remaining ones,

including independents, support the government from outside.

6 ‘What Is Maha Vikas Aghadi? | What Is News, The Indian Express’ <https://indianexpress.com/article/what-

is/what-is-maha-vikas-aghadi-shiv-sena-ncp-congress-alliance-maharashtra-6139167/> accessed 28 November

2019.

7 Agnidipto Tarafder, ‘Governance and the Governor’ The Hindu (5 June 2018)

<https://www.thehindu.com/opinion/op-ed/governance-and-the-governor/article24082156.ece> accessed 28

November 2019.

8 Rameshwar Prasad v. Union of India, (2006) 2 SCC 1.


In the case of Nabam Rebia and Bamang Felix v. Deputy Speaker, 9 the five-judge bench

suggested the opinions of the Punchhi and Sarkaria commissions on granting the governor a

unilateral right to take an appeal on the floor check when the government lost the legislature's

confidence. In the case of S.R. Bommai v. Union of India, 10 a nine-judge bench had

illustrated the importance of a floor test as two political groups say that the floor test must be

done as soon as possible by the governor. A floor check is the House's conclusive evidence

for figures. The Constitutional Bench referred to Article 164(2) which requires the "Council

of Ministers to be collectively responsible to the State Legislative Assembly". The Bench

understood that the actual majority test is taking place not in the Raj Bhavan, but on the

House floor.

In 1993, in the case of Supreme Court Advocates of Record Association v. Union of

India, 11 a case involving the weight of "constitutional convention", a seven-judge bench, held

that "there is no difference between “constitutional law” and an existing “constitutional

convention” and both are binding in the area of their action. The Supreme Court has noted

that "Once a given convention occurs and works according to the interest of the Court, the

convention is part of the constitutional law of the land and can be applied in the same way".

JUDICIAL REVIEW OF THE DISCRETIONARY POWERS OF THE GOVERNOR

India's constitution itself provides the Governors with some discretionary powers. Governors

sometimes do not judiciously exercise their discretionary powers. Here the role of the

judiciary begins and the Governors have been given valuable guidelines many times by the

judiciary.

The judicial approach regarding the appointment of Chief Minister was highlighted in the

case of Mahabir Prasad v. Prafulla Chandra 12 in which it was laid down that the power of

Governor is absolute with regard to the appointment of Chief Minister and the Court cannot

call in question the same since it is his sole discretion. In the case of Pratap Singh Raojirao

v. State of Goa and Ors, 13 the Court ruled that the Governor acts at his sole discretion in

order to appoint the Chief Minister and, at the discretion of the Governor, enjoys immunity in

compliance with Article 361 of the Constitution, when making a decision.

In the case of Jagdambika Pal v. State of UP, 14 the Supreme Court held a special Assembly

session and a composite floor check among the opposing sides to determine which among

9 Nabam Rebia and Bamang Felix v. Deputy Speaker 2016 SCC SC 694.

10 S.R. Bommai v. Union of India 1994 AIR 1918.

11 Supreme Court Advocates of Record Association v. Union of India AIR 1994 SC 268.

12 Mahabir Prasad v. Prafulla Chandra AIR 1969 Cal 198.

13 Pratap Singh Raojirao v. State of Goa and Ors AIR 1999 Bom 53.

14 Jagdambika Pal v. State of UP JT 1998 (4) SC 319.


two had a majority in the House. With regard to the Governor's discretion in appointing or

dismissing the Chief Minister, the Gauhati High Court discerned that the repository of the

power to appoint or revoke the pleasure provided in Article 164 and/or dismissal of the

ministry is the Governor's exclusive pleasure-cum-discretion. He has the absolute and

exclusive power to appoint the Chief Minister.


WHAT IS FLOOR TEST?


A floor test is conducted mainly to assess if the executive maintains the legislature's

confidence. It is a statutory procedure that on the floor of the Legislative Assembly, a Chief

Minister appointed by the Governor may be asked to prove support or a floor test is a way to

decide whether the majority of MLAs support a government or a Chief Minister. With a yes

or a no, the MLA-elect will vote to answer if they support the individual as the Chief

Minister. 15

Indian constitution under Article 356, provides that if Governor of a state feels that there has

been a breakdown of constitutional machinery in a state, he can request the President of India

to take direct control of the state, which is simply called President's Rule. Keep in mind that

Governors are appointed by the President with the advice of the cabinet. So, technically the

President's Rule is equivalent to the central government running the state government, which

is against the federal structure. Dissatisfied with this blatant misuse of power, the Supreme

Court of India in the S.R. Bommai case decided that the test of the Constitutional machinery

has to be decided on the floor of Legislative Assembly of the state (by voting) and not as per

the whim of governor. The purpose behind the floor test is to enquire the question of whether

the claimant will be able to provide the people, a stable (in terms of unity) and consistent (in

terms of the period i.e. 5 years) government.

According to the Constitution, the Governor appoints the Chief Minister. When the majority

of seats in the house are won by a single party, the Governor appoints the party leader as the

Chief Minister. If the majority is questioned, the party leader who claims the majority must

move a vote of trust and prove the majority among those present and voting. If they fail to

prove their majority in the house, the Chief Minister must resign. This is happening in the

assemblies of both the Legislature and the Parliament.


15 ‘What Is a Floor Test? | What Is News, The Indian Express’ <https://indianexpress.com/article/what-is/what-

is-a-floor-test/> accessed 28 November 2019.


The Governor's office is by far the most crucial of many of the institutions atrophied by the

loss of credibility. Because many Governors have allowed themselves to be used as the

centre's hatchet people, they can be easily besmirched. It gives the judiciary an opportunity to

intervene even if it does not have jurisdiction. Political parties, when in opposition, are quite

poignant about moving the Court, but decry it when in power.

In the case of Jagdambika Pal v. Union of India and Ors, 1998, the Supreme Court had

ordered the composite floor test in the legislature of the state of Uttar Pradesh. The composite

vote was taken to determine who commanded a majority among two claimants-newly sworn-

in chief minister Jagdambika Pal or his rejected predecessor Kalyan Singh. Later on, Kalyan

Singh who was once rejected by the Governor became the CM of the state. The Court was

supposed to uphold or set aside the High Court's decision, but it preferred to keep mom on

the main issue. It's not provided for. It was done, of course, in accordance with Article 142,

which empowers the SC. But it is impossible to exercise this jurisdiction over constitutional

provisions. The extracts of the historical case are-

 The special session of the Uttar Pradesh Assembly shall be called on February 26, 1998, at

the beginning of the forenoon session.

 The Assembly's only agenda would be to have a composite floor test between the contesting

parties to see which of the two contesting chief ministership claimants has a majority in the

House.

 It is important to ensure that the procedures in the Assembly are entirely peaceful and that the

disruption created, if any, is seriously considered.

 The Speaker must diligently and truthfully report the outcome of the standardized floor test

Likewise in the case of Jharkhand in the case of Anil Kumar Jha v. Union of India, 2005, 16

the Supreme Court gave instructions as to how the floor check would be performed in the

Jharkhand Assembly if it had no jurisdiction. It was a decision of the game-changer that

shifted the dynamic for good between the judiciary and the legislature. It had ordered a floor

test to decide whether Arjun Munda or Shibu Soren had a majority in the assembly. The 3-

judge bench, which passed the order on the row of a previous apex Court order for a

composite floor test in Uttar Pradesh in 1998, also instructed the Chief Secretary and the

Police Director General to "see that all elected MLAs freely, safely and securely attended the

assembly's proceedings without anyone interfering with it". This comment opened a

16 Anil Kumar Jha v. Union of India 2005 (3) SCC 150.


floodgate of remarks as the bench said "if it's true, then it's a total fraud on the Constitution.

We're passing this interim directive not to encourage more fraud on the Constitution to be

committed".

The decade later in the case of Harish Chandra Singh Rawat v. Union of India and

Another, 2016, 17 the Governor set a date for the Chief Minister to request a vote of

confidence, but the Assembly was suspended in accordance with Article 356 a day before

that date. Harish Rawat, whose government was sacked on the grounds of "breakdown of

Constitutional machinery", had moved the Uttarakhand High Court calling the centre's

decision as "arbitrary" and demanded it’s quashing. The High Court ordered the floor test in

the Assembly which provided relief to the petitioner and declared the President rule in the

state unconstitutional. The order of the Uttarakhand High Court that the State Assembly holds

a floor test to ascertain the majority of ousted Chief Minister Harish Rawat may be the rarest

instance of such an interim relief being granted while the legislature is under suspended

animation. The Court's key precedent is that of a 1998 Supreme Court directive for a

"composite vote" in the Uttar Pradesh Assembly. Another reason cited by the Court is that its

interim order is “non-invasive and non-prejudicial” (to either party). It allowed participation

of 9 disqualified MLAs to participate in the floor test. The Union Government appealed this

decision in the Supreme Court. In the case of Union of India v. Harish Chandra Singh

Rawat, 2016, 18 adjudicating the legality of the President's rule, the Supreme Court created a

three-hour constitutional void by asking the Center to lift it for three hours to conduct the

floor test whether the unseated Harish Rawat government enjoyed the House's confidence. It

prohibited the Speaker from chairing the proceedings. Alternatively, for the intent, it named

Chief Secretary, Legislative and Parliamentary Affairs, Uttarakhand State and Speaker,

Legislative Assembly. There was no government in the state for this period, as neither the

state government nor the central government existed. Therefore, President Rule has been

translated into curfew, which has been removed for some time to allow people to purchase

essential items.

In the case of Nabam Rebia and Etc. v. Deputy Speaker and Ors, 2016, Article 163 does

not, as is often mistaken, grant Governors a general discretionary power. The area where his

(Governor) discretion is exercised is limited. Even this limited area should not be arbitrary or


17 Harish Chandra Singh Rawat v. Union of India and Another 2016 SCC Utt 654.

18 Union of India v. Harish Chandra Singh Rawat MANU/SC/0611/2016.


fanciful in his choice of action. It must be a choice dictated by reason, driven by good faith

and tempered by prudence. When its successor government is still in place, it used its judicial

review powers to restore a government. The Governor is not an elected representative, but

only an executive nominee whose powers are derived from the Cabinet's assistance and

advice. It's not within the Governor's domain to embroil in any electoral thicket. Within

individual political factions, the governor must stay aloof from any conflict, strife,

disharmony, resentment or disagreement. Activities within a political party are beyond the

Governor's concern, confirming turbulence or unrest within its ranks. The Governor will

remain clear of any public horse-trading and even unethical political manipulations,

regardless of the degree of their moral repulsion.

In the case of Chandrakant Kavlekar v. Union of India through its Secretary and

another, 2017, 19 the Apex Court heard the issue of inviting the governor to BJP legislature

party leader Manohar Parrikar to form the government, based on assistance provided by

smaller parties, although the BJP had secured just 13 of the 40 Goa assembly seats. The

Congress, which had emerged as the assembly's largest single party, had criticized the

conduct of the governor. The bench held in its order: "The holding of the floor test would

remove any ambiguities and give the necessary credibility to the democratic process." It

was requested that the Governor of the State of Goa ensure that a floor test is possible as

soon as possible. It would also be the only agenda for the day to assess if the chief minister

administered the oath of office enjoys the majority support. The order also emphasizes that

the floor test should be carried out as soon as possible.

In the case of Dr. G. Parmeshwara v. Union of India Ministry of Home, 20 where similar

instructions were given for the creation of a government in the State of Karnataka to check

whether the named chief minister had the majority of the House's support. The Floor Test

shall be administered by the Pro-tem Speaker to assess the majority and shall not be

performed by secret ballot and shall be conducted in accordance with the law. The Court

ordered the live telecast of the floor test the next day, limiting the Governor's 15-day window

to demonstrate his majority to BJP Chief Minister B S Yeddyurappa. The insistence of the

Court for an urgent floor check was attributed to the nod provided by a governor to a group or

coalition to form the government on a prima facie assessment based on the letters of support.


19 Chandrakant Kavlekar v. Union of India through its Secretary and Another AIR 2107 SC 1435.

20 Dr. G. Parmeshwara v. Union of India Ministry of Home (2018) 16 SCC 46.


Until naming a chief minister under Article 164 of the Constitution, a governor cannot

"collect faces" or embark on a "fishing or roving investigation." Sufficient and adequate

security arrangements shall be made and the Director-General of Police, State of Karnataka

shall supervise the said arrangements himself in such a way that there is no delay of any such

count

In the case of Shiv Sena and Ors. v. Union of India and Ors, 2019, 21 the most recent case

where the writ petition filed by the Shiv Sena, the Nationalist Congress Party, and the Indian

National Congress attempts to quash the intervention of the Maharashtra Governor by

inviting Devendra Fadnavis to form the government on the grounds that it was unlawful,

unilateral, illegitimate, void ab initio, and infringing Article 14 of the Constitution. The

petition also seeks an acceptable direction from the governor to invite the Maha Vikas

Aghadi coalition of these three parties to form the government under Uddhav Thackeray's

leadership, citing support from more than 144 MLAs. Lastly, the petitioners want the Court

to pass any other order or direction as it considers fit in the facts of this case and in the

interests of justice. The Apex ordered the live telecast of the floor test the next day. The

Bench observed that the questions of maintainability, degree of judicial review, and

legitimacy of the approval of the Governor presented by the counsel participating in the case

are important constitutional concerns that needed subsequent adjudication. The Court did not,

however, see any justification for suspending the floor check for the time being. Implicit in

the bench’s decision was the acknowledgment that any delay in holding the floor test

could distort the mandate of the people by giving an opportunity to the leader with

minority support in the assembly to use the time available to cobble up a majority –

through the engineering of defections. The Court also noted that the elected members did

not receive oath even though a month has passed since the election results were declared.

In such conditions, the Fadnavis-led government had to request a floor test to prove its

support. The Supreme Court relied on its previous cases of Jagdambika Pal v. Union of

India, Union of India v. Harish Chandra Rawat (Uttarakhand case), Chandrakant

Kavlekar v. Union of India (Goa case), and most recently in G Parmeshwara v. Union

of India (Karnataka case) in this case.


21 Shiv Sena and Ors. v. Union of India and Ors 2019 SCC SC 1502.


Following many judicial pronouncements and guidelines from the commissions of Justice

RS Sarkaria and Justice Punchhi, Governors are reported to have behaved separately with

constitutional consequences in apparently similar circumstances. Ultimately, restoring

balance and upholding the principles enshrined in our Constitution was left to the Supreme

Court. To which, of course, it could always be added that constitutional authorities, such

as the governor, must also respect constitutional property so that such a situation does not

arise in the first place. The apex Court has intervened over the years to order floor tests to

overcome deadlocks in different states. From time to time, incidents have come to notice

where the guidelines laid down in the Bommai judgment have not been pursued by

Governors and, as such, wherever and whenever needed, notwithstanding the terms of

Article 212, where the Courts are not to examine the legislature's proceedings, the

Supreme Court has adopted a constructive position in maintaining the Constitution's

dignity.

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