Maharashtra political crisis and Governor's crucial role

As the Maharashtra political crisis continues to play out, the Governor’s powers under the Constitution to call for a floor test takes Centre stage.

• Defection by legislators occurs in many democracies.
• They can undermine the stability of the government, which is dependent on the support of the majority party's own elected legislators and/or a coalition of those elected to represent other parties.
• Prior to the introduction of the anti-defection law, both the central Government of India and the governments of some of its states and territories had experienced instances of perceived instability resulting from legislators changing their political allegiance.
• In 1985, the Tenth Schedule of the 52nd amendment to the Constitution of India was passed by the Parliament of India to achieve this.
• Following recommendations from many constitutional bodies, Parliament in 2003 passed the Ninety-first Amendment to the Constitution of India.
• The anti-defection law punishes individual Members of Parliament (MPs)/MLAs for leaving one party for another.

What is Anti-defection Law?

• The anti-defection law punishes individual Members of Parliament (MPs)/MLAs for leaving one party for another.
• It sets the provisions for disqualification of elected members on the grounds of defection to another political party.
• Provisions: The members disqualified under the law can stand for elections from any political party for a seat in the same House.
• The decisions on questions as to disqualification on ground of defection are referred to the Chairman or the Speaker of such House, which is subject to ‘Judicial review’.
• However, the law does not provide a timeframe within which the presiding officer has to decide a defection case.

Can the Governor dissolve the State Assembly?

• Cabinet of a government with doubtful majority cannot recommend dissolution of House; Supreme Court has ruled that floor test is the best way to test majority.
• The Governor can use his discretionary power and may choose not to dissolve the Assembly — even if Chief Minister seeks the same — if she is convinced that the council of ministers, in whose name the recommendation is made, does not enjoy the confidence of the House
• In Madhya Pradesh, the then CM had recommended the dissolution after the defection of two dozen-odd MLAs, but the Governor called for a floor test instead.

What does constitution say?

• Article 163: Council of Ministers to aid and advice Governor:There shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion

• Article 174(2) (b): gives powers to the Governor to dissolve the Assembly on the aid and advice of the cabinet.
  • However, the Governor can apply his mind when the advice comes from a Chief Minister whose majority could be in doubt.
• Under Article 175(2), the Governor can summon the House and call for a floor test to prove whether the government has the numbers.
• If the Assembly is in session, then the Speaker can call for the floor test. If the Assembly is not in session, then the Governor can allow the Speaker to call for a floor test under his residuary powers under Article 163.

What are the issues with Anti Defection Law?

• Undermining Representative & Parliamentary Democracy: Due to Anti-Defection law, the chain of accountability has been broken by making legislators accountable primarily to the political party.
• Controversial Role of Speaker: There is no clarity in the law about the timeframe for the action of the House Chairperson or Speaker in the anti-defection cases.
• Promote Horse Trading: Defection also promotes horse-trading of legislators which clearly go against the mandate of a democratic setup.
• Subversion of Electoral Mandates:
• Affects the Normal Functioning of Government:
• Allows only Wholesale Defection:

The role of governor is indispensable for the successful working of the constitutional democracy. He must refrain from aligning himself to any political ideology. The virtue of impartiality must be withheld to ensure a free and fair election in a democracy.