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Maharashtra political crisis and Governor's crucial role

  • Category
    Polity & Governance
  • Published
    6th Jul, 2022

Overview

  • What is Anti-defection law?
  • Governor’s Role in Floor test
  • Constitutional Provisions
  • Suggestive measures

Context

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.

Background

  • 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.

Analysis

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 is a floor test?

A floor test is a legislative procedure through which an incumbent government that is suspected to have lost majority is required to prove it still retains the confidence of the House.

The procedure:

  • The whole idea of floor test is incorporated in the Constitution of India to ensure transparency in the constitutional process.
  • The voting takes place in the Legislative Assembly or the Lok Sabha at the central level.
  • When a floor test is called for in the assembly of a state, the Chief Minister will move a vote of confidence and prove that he has the majority support.
    • A confidence motion or a vote of confidence or a trust vote is sought by the government in power on the floor of the House.
    • A trust vote or confidence motion has to be moved by an MLA or an MP, and the objective is to find out whether the chief minister has the ‘trust’ or ‘confidence’ of the House.
  • If the floor test fails, the CM needs to give his/her resignation.

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.

Related Apex court verdict:

  • In 2020, the Supreme Court, in Shivraj Singh Chouhan & Ors versus Speaker, Madhya Pradesh Legislative Assembly & Ors, upheld the powers of the Speaker to call for a floor test if there is a prima facie view that the government has lost its majority.
    • “The 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,”
  • In the landmark S.R. Bommai case, the Supreme Court ruled that the refusal of the Chief Minister to undergo the floor test will be considered as the Government losing the faith of its own legislature. 
  • In the 2019 Pratap Gowda Patil vs State of Karnataka case, the top court ruled that the rebel MLAs have the right to skip the floor test voting process in the House.

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:

Conclusion

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.

PRACTICE QUESTION

Q1. Examine as to why the anti-defection law has been ineffective, even counterproductive in preventing defections. How can this situation be rectified?

Q2. Although in India, Governor of the state is Constitutional head like President he may have more rights, do you agree? Give reasons.

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