SHIVRAJ SINGH CHOUHAN & ORS. v. SPEAKER MADHYA PRADESH LEGISLATIVE ASSEMBLY & ORS.

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A Karnataka Legislative Assembly‘ and recommended that action be initiated under Article 356 of the Constitution. Subsequently on 20 April 1989, seven legislators submitted letters to the Governor complaining that their signatures had been obtained by misrepresentation and reaffirmed their support to Shri Bommai‘s government. The state Cabinet decided to convene an assembly session on 27 April 1989 and the Chief B Minister met the Governor, offering to prove his majority on the floor of the house if necessary, by preponing the Assembly Session. Inspite of this, the Governor submitted another report to the President on 20 April 1989 and a proclamation was issued under Article 356 of the Constitution on the very next day. It was in this background that the nine-judge Bench C in SR Bommai was called upon to determine the legality of the Governor’s actions. In holding that the Governor‘s actions were unjustified, Justice BP Jeevan Reddy observed: ‘‘391. … The Constitution does not create an obligation that the political party forming the ministry should necessarily have a D majority in the Legislature. Minority Governments are not unknown. What is necessary is that that Government should enjoy the confidence of the House. This aspect does not appear to have been kept in mind by the Governor. Secondly and more importantly, whether the Council of Ministers has lost the confidence of the House is not a matter to be determined by the Governor or for that matter anywhere else except the floor of the House. The principle of democracy underlying our Constitution necessarily means that any such question should be decided on the floor of the House. The House is the place where the democracy is in action. It is not for the Governor to determine the said question on his own or on his own verification. This is not a matter within his subjective satisfaction. It is an objective fact capable of being established on the floor of the House.

392. Exceptional and rare situations may arise where because of all pervading atmosphere of violence or other extraordinary reasons, it may not be possible for the members of the Assembly to express their opinion freely. But no such situation had arisen here… (Emphasis supplied) H

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[DR DHANANJAYA Y CHANDRACHUD, J.]

These observations indicate that the question of whether the A Council of Ministers in an ongoing legislative assembly commands the confidence of the house is a matter which has to been determined only on the floor of the house and that it is not for the Governor to determine the issue within his subjective satisfaction. The only exception to this norm which the court drew was where a situation arises where members B of the Legislative Assembly may not be able express their opinions freely as a result of prevailing violence or for other extraordinary reasons.

40Copy pinpoint40. The judgment of Justice BP Jeevan Reddy also referred to a unanimous report submitted by a committee of Governors appointed by the President of India indicating that: C ‘‘393. In this connection, it would be appropriate to notice the unanimous report of the committee of Governors appointed by the President of India. The five Governors unanimously recommended that the ¯test of confidence in the Ministry should normally be left to a vote in the Assembly. … Where the Governor is satisfied by whatever process or means, that the Ministry no longer enjoys majority support, he should ask the Chief Minister to face the Assembly and prove his majority within the shortest possible time. If the Chief Minister shirks this primary responsibility and fails to comply, the Governor would be duty bound to initiate steps to form an alternative Ministry. A Chief Minister’s refusal to test his strength on the floor of the Assembly can well be interpreted as prima facie proof of his no longer enjoying the confidence of the legislature. If then, an alternative Ministry can be formed, which, in the Governor‘s view, is able to command a majority in the Assembly, he must dismiss the Ministry in power and install the alternative Ministry in office. On the other hand, if no such Ministry is possible, the Governor will be left with no alternative but to make a report to the President under Article 356….’’ (Emphasis supplied) G Subsequently dealing with the facts pertaining to the case of the State of Karnataka, Justice BP Jeevan Reddy held: ‘‘395. The High Court, in our opinion, erred in holding that the floor test is not obligatory. If only one keeps in mind the democratic H

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A principle underlying the Constitution and the fact that it is the Legislative Assembly that represents the will of the people – and not the Governor – the position would be clear beyond any doubt. In any case, it may be remembered that the Council of Ministers not only decided on April 20, 1989 to convene the Assembly on 27th of that very month, i.e., within 7 days, but also offered to prepone the Assembly if the Governor so desired. It pains us to note that the Governor did not choose to act upon the said offer. Indeed, it was his duty to summon the Assembly and call upon the Chief Minister to establish that he enjoyed the confidence of the House. Not only did he not do it but when the Council of Ministers offered to do the same, he demurred and chose instead to submit the report to the President. In the circumstances, it cannot be said that the Governor‘s report contained, or was based upon, relevant material. There could be no question of the Governor making an assessment of his own. The loss of confidence of the House D was an objective fact, which could have been demonstrated, one way or the other, on the floor of the House. In our opinion, wherever a doubt arises whether the Council of Ministers has lost the confidence of the House, the only way of testing it is on the floor of the House except in an E extraordinary situation where because of all-pervasive violence, the Governor comes to the Conclusion – and records the same in his report – that for the reasons mentioned by him, a free vote is not possible in the House.’’ (Emphasis supplied) F In analysing the observations made by the nine-judge Bench in SR Bommai it is pertinent to remember that the Governor in that case did not call for a floor test. Rather, the Governor of Karnataka sent a report to the President, based on which a proclamation was issued under Article 356. The observations in SR Bommai can be relied on in determining whether the Governor possesses the power to call for a floor test. Discerning the subsequent question of when the exercise of such power is appropriate is a distinct issue. On a perusal of the above observations in SR Bommai, it is evident that: (i) Whether or not the Council of Ministers has lost the confidence of the House must be determined only on the

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[DR DHANANJAYA Y CHANDRACHUD, J.]

floor of the house and not by the Governor conducting an A independent verification; (ii) Where the Governor has reasons to believe that the incumbent government does not possess the support of the majority in the legislative assembly, the correct course of action would be for the Governor to call upon the Chief B Minister to face the assembly and to establish the majority of the incumbent government within the shortest possible time; and (iii) An exception to the invariable rule of testing whether the government has the assembly‘s confidence on the floor of C the house is envisaged only in extraordinary situations where because of the existence of ‘‘all pervasive violence’’, a free vote is not possible in the House.

41Copy pinpoint41. As a matter of constitutional law, it would not be correct to proceed on the basis that the constitutional authority entrusted to the D Governor to require the Council of Ministers to prove their majority on the floor of the House can only be exercised at the very inception after general elections are held and not when the Governor has objective reasons to believe that the incumbent government does not command the confidence of the house. The Governor is not denuded of the power to order a floor test where on the basis of the material available to the E 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. Undoubtedly, the purpose of entrusting such a function to the Governor is not to destabilise an existing government. When the satisfaction on the basis of which the Governor has ordered a floor test is called into question, the decision of the Governor is not immune from judicial review. The court would be justified in scrutinizing whether the Governor prima facie had relevant and germane material to order a floor test to be conducted. It must be noted that the Governor does not decide whether the incumbent government commands the confidence of the house. The purpose of holding a floor test in the legislative assembly is precisely to enable the elected representatives to determine whether the Council of Ministers commands the confidence of the House; that verification is not conducted by the Governor. The decision in SR Bommai in fact held that recourse to the power under Article 356 was not warranted in a situation where the issue of confidence could yet be H

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A tested on the floor of the house by calling for a trust vote. Undoubtedly, in that case, it was the Chief Minister who had suggested, following a meeting of the Cabinet, that the House should be convened for the purposes of testing the majority of the Council of Ministers. The significance of the decision lies in the fact that the decision of the Governor to submit a report under Article 356 was faulted on the ground that the B floor test would have been an appropriate course of action.

42Copy pinpoint42. The principle which has been laid down in the nine judge Bench decision in SR Bommai has been reaffirmed by the Constitution Bench in Nebam Rebia. The judgment of the Constitution Bench arose when the Governor of Arunachal Pradesh, on the aid and advice of the Council C of Ministers, summoned the Legislative Assembly of the state on 3 November 2015 to meet on 14 January 2016. Subsequently, the session of the Arunachal Assembly was preponed by the Governor to 16 December 2015 and by an order dated 19 December 2015, the Governor indicated the manner in which the proceedings of the House should be conducted. A notice for the removal of the Speaker dated 19 November 2015 was addressed by thirteen Members of the House to the Secretary of the Legislative Assembly. One of the primary reasons for the message of the Governor dated 9 December 2015 was the understanding of the Governor that it would be an act of constitutional impropriety if the issue of the removal of the Speaker was not taken up for consideration forthwith. Dealing with this aspect, Justice J S Khehar (as the learned Chief Justice then was) observed that in contradiction to the provisions of Section 53 of the Government of India 1935 (which permitted the Governor to address messages to the House at his discretion) Article 175 does not contain a similar expression. Hence, the Court observed that the messages of the Governor to the House ‘‘must be deemed to be limited to the extent considered appropriate by the Council of Ministers headed by the Chief Minister’’. Dr Abhishek Manu Singhvi, learned Senior Counsel appearing for the Speaker, placed emphasis on this facet of the decision in Nebam Rebia and urged that that the relationship of the Governor with the legislative assembly must be bound by the principle of aid and advice. Mr Kapil Sibal, learned Senior Counsel appearing for the Chief Minister, urged that any observations beyond this in the judgment of the Constitution Bench are obiter. Justice J S Khehar, while dwelling upon the powers of the Governor adverted to the treatise of M N Kaul and S L Shakdher20, noting that: H 20 Practice and Procedure of Parliament, published by the Lok Sabha Secretariat

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[DR DHANANJAYA Y CHANDRACHUD, J.]

‘‘165. … The Governor would summon or prorogue the House or A Houses of the State Legislature, on the Aid and advice of the Chief Minister. The narration by the authors reveals that it would be open to the Governor to suggest an alternative date for summoning or proroguing the House or Houses of the State Legislature, but the final determination on the above issue rests with the Chief Minister or the Cabinet, which may decide to accept or not to accept, the alternate date suggested by the Governor. The opinion of M.N Kaul and S.L. Shakdher is in consonance with the Constituent Assembly Debates. The position only gets altered, when the Government in power loses its majority in the House. With reference to prorogation, the opinion expressed by the authors is that the same is also to be determined by the Council of Ministers with the Chief Minister as the head, except in a situation wherein the Government’s majority in the House, is under challenge. From the above exposition it emerges that the Chief Minister and his Council of Ministers lose their right to aid and advise the Governor, to summon or prorogue or dissolve the House, when the issue of the Government’s support by a majority of the Members of the House, has been rendered debatable. We have no hesitation in endorsing the above view. But, what is of significance and importance in the opinion expressed by M.N. E Kaul and S.L. Shakdher, which needs to be highlighted is, that the mere fact that some members of the ruling party have defected, does not necessarily prove that the party has lost confidence of the House. And in such a situation, if there is a no-confidence motion against the Chief Minister, who F instead of facing the Assembly, advises the Governor to prorogue or dissolve the Assembly, the Governor need not accept such advice. In the above situation, the Governor would be well within his right, to ask the Chief Minister to get the verdict of the Assembly, on the no-confidence motion’’. (Emphasis supplied) G

Having adverted to the above treatise, Justice J S Kehar (as the learned Chief Justice then was) held: ‘‘166. In view of the consideration recorded hereinabove, we are of the view that in ordinary circumstances during the period when H

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A the Chief Minister and his Council of Ministers enjoy the confidence of the majority of the House, the power vested with the Governor under Article 174, to summon, prorogue and dissolve the House(s) must be exercised in consonance with the aid and advice of the Chief Minister and his Council of Ministers. In the above situation, he is precluded to take an individual call on the B issue at his own will, or in his own discretion. In a situation where the Governor has reasons to believe that the Chief Minister and his Council of Ministers have lost the confidence of the House, it is open to the Governor, to require the Chief Minister and his Council of Ministers to prove their majority in the House, by a C floor test. Only in a situation, where the Government in power on the holding of such floor test is seen to have lost the confidence of the majority, it would be open to the Governor to exercise the powers vested with him under Article 174 at his own, and without any aid and advice.’’ D The court held that since it was not in dispute that the Governor ‘‘never called for a floor test’’, it was reasonable to infer that the Governor did not ever entertain any doubt about the Chief Minister and the Council of Ministers continuing to enjoy the confidence and the majority in the House. Nor was there any motion of no confidence moved against the government. We are unable to accept the submission of Mr Sibal E that the observations of the Constitution Bench in Nebam Rebia are obiter. The observations in Nebam Rebia are consistent with the formulation of principle in the nine judge Bench decision in SR Bommai, as we have discussed earlier. 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. Exercise of Power by the Governor

43Copy pinpoint43. 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

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[DR DHANANJAYA Y CHANDRACHUD, J.]

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 considerations.

44Copy pinpoint44. While the Constitution recognises that the Governor does possess a power inhering in the office to monitor that the elected government continues to possess the confidence of the Legislative C Assembly, this entrustment ought not to override or displace the basic responsibility of the executive to the legislature or the ability of the legislature to demand accountability of the executive arm of the state. Dr Singhvi’s submission that the Governor cannot demand a trust vote except at the initial constitution of the Legislative Assembly following an D election would be to unduly constrain the constitutional entrustment authority to the Governor. Undoubtedly, the largest number of precedents emanating from this Court have dealt with situations where a trust vote was called at the time of the initial formation of government following an election. One of the reasons for this may well be the prevalence of disputes at the time of the initial formation of governments in the states. E But, this line of precedent would not exhaust the power of the Governor nor does it suggest that the authority which is entrusted to the Governor cannot be exercised once a government has been formed. Mr Sibal, on the other hand, accepted that there may be situations where the House is not in session, having been prorogued, and there arise circumstances F leading the Governor to a reasonable belief that the government has ceased to command a majority in the legislative assembly. This, in our view, would certainly be one of the situations where the Governor would be justified in calling for a special session in the course of which the incumbent government may be required to establish that it continues to hold the confidence of the House. G

45Copy pinpoint45. In a situation where the House has been summoned following the aid and advice of the Council of Ministers, the position would be more nuanced in the sense that the remedy of a no confidence motion would be available to any segment of the legislature seeking to espouse H

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A the view that the government has ceased to command the confidence of the house. 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 B prevent the ordinary legislative process of a no confidence motion from running its due course. 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 C 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.

46Copy pinpoint46. 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. This power is granted to the Governor to ensure that the principle of collective responsibility is maintained at all times and must be exercised with caution. The circumstances on the basis of which the Governor forms a prima facie opinion leading up to a communication requiring a trust vote in the legislative assembly must be of an objective nature. The decision of the Governor to do so is not immune from judicial review and must therefore withstand the ability of being scrutinised on the touchstone of the circumstances being relevant, germane and not extraneous to the exercise of an exceptional power which is vested in the Governor. H

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[DR DHANANJAYA Y CHANDRACHUD, J.]

47Copy pinpoint47. In the present case, the facts which have come on the record indicate the Budget Session of the Legislative Assembly had been convened on the aid and advice of the Council of Ministers to commence from 16 March 2020. The Governor was intimated that twenty-two Members owing allegiance to the INC had tendered their resignations to the Speaker of the Assembly. Copies of the resignation letters were forwarded to the Governor. At this stage, the validity of these resignations had not been discerned and no decision had been made by the Speaker as to whether the resignations were ‘‘voluntary’’ or ‘‘genuine’’. The Chief Minister subsequently tendered advice to the Governor for the removal of six Members who were ministers in the State government. On 13 March 2020, the Speaker of the Legislative Assembly issued notices of disqualification. However, on 14 March 2020 the resignations of six Members who were ministers of the incumbent government were accepted by the Speaker acting in exercise of the constitutional authority under the proviso to Article 190(3)(b). The Chief Minister, adverting to the turmoil in the state, addressed a communication to the Governor on D 13 March 2020 stating that the convening of the floor test would be a sure basis for resolving the conundrum. This is a strong indication that the Chief Minister himself was of the opinion that the situation in the state had cast his government‘s majority in doubt. However, upon the convening of the Legislative Assembly, no floor test was conducted, and the House was adjourned till 26 March 2020. These facts form the basis E on which the Governor advised that a floor test be conducted. Based on the resignation of six ministers of the incumbent government (accepted by the Speaker), the purported resignation of sixteen more Members belonging to the INC, and the refusal of the Chief Minister to conduct a floor test despite the House having been convened on 16 March 2020, F the exercise of power by the Governor to convene a floor test cannot be regarded as constitutionally improper.

48Copy pinpoint48. Following the acceptance of the resignations of six Members owing their allegiance to the INC, the strength of the INC in the Legislative Assembly was reduced from 114 to 108. The strength of the House stood reduced to 222. The Governor has in fact not intervened in G the authority which is entrusted to the Speaker to either decide upon the voluntary and genuine character of the resignations or any issue of disqualification within the meaning of the Tenth Schedule. Faced with the communication of the Governor for convening a trust vote immediately after the Governor‘s address, the session of the Legislative Assembly H

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A was adjourned till 26 March 2020 despite the House having already convened. This would have allowed the state of political uncertainty in Madhya Pradesh to continue and furnish avenues for political bargaining on terms which cannot be regarded as legitimate. It is with a view to obviate illegitimate and unsemly political bargaining in the quest for political power that this Court has consistently insisted upon the convening B of a trust vote at the earliest date. Some of those decisions are summarized in a tabulated statement, for the sake of brevity, which is extracted below:

Name Facts Order of this Court C Jagdambika • Dispute over Chief • Court heard the matter on 24 Pal v Ministership and February 1998. This Court Union of majority in the directed that a special session India house in the state of of Uttar Pradesh Legislative Uttar Pradesh. Assembly be convened for 26 (1999) 9 D February 1998 and a SCC 95 • Conduct of the composite floor test was Speaker, Uttar ordered. Pradesh Legislative Assembly was • The results of the floor test challenged as he were to be submitted to the E withheld the verdict court on 27 February 1998. on disqualification • The government was barred of 12 Members from taking any major despite conducting decisions except routine a hearing. matter until floor test. F Anil • Dispute over • A session of the Jharkhand Kumar Jha formation of Legislative Assembly had v Union of government in the already been convened for 10 India state of Jharkhand. March 2005. This Court heard the matter on 7 March G (2005) 3 • The Governor had 2005 and directed a vote of SCC 150 appointed a pro tem confidence on 11 March 2005. Speaker who was a comparatively • The only agenda for the day junior member of was to be the floor test. The the Jharkhand result of the floor test would H

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Legislative be announced by the pro tem A Assembly. Speaker. • There existed • Till the floor test, the Governor a p p r e hen s i o n s was barred from nominating that the Governor Members. The floor test was would tilt the to be confined to the 81 B electoral balance elected members. between the • The Directorate General of parties by Police, Jharkhand was to see appointing an that all elected Members can Anglo -In di an C “freely, safely and securely member under attend the Assembly and no Article 333 of the interference or hinderance is Constitution. caused by anyone therein.” • Proceedings were to be video recorded and a copy sent to D the court Chandrakant • Dispute over • The election results were Kavlekar v formation of declared on 11 March 2017. Union of government in the This Court heard the matter India state of Goa. on 14 March 2017 and E (2017) 3 directed a vote of confidence • Shri Manohar SCC 758 on 16 March 2017. Parrikar belonging to the BJP was • The only agenda for the day appointed as the was to be the floor test. Chief Minister of F • The Election Commission was Goa on the claim of directed to ensure all 21 supporting formalities were completed by legislators in a 15 March 2017. house of 40. • This number was G challenged by the Congress Party in a letter addressed to the Governor.

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A G • Dispute over the • This Court heard the matter Parmeshwara formation of on 18 March 2018. The letter v Union of government in the of BS Yedyurappa to the India state of Karnataka. Governor claiming to be single largest party was produced. (2018) 16 • The letter of the B As a detailed hearing would SCC 46 Governor inviting be required, a floor test was BS Yeddyurappa directed to be conducted on belonging to the 19 March 2018 (despite the BJP to form the Governor giving BS government in the Yeddyurappa 15 days to C state and granting prove his majority). him 15 days to prove a majority • Elected members were to was challenged. take oath by 4:00 pm on 19 March 2018 at which time the floor test shall be conducted. D No secret ballot was permitted for the floor test, which was to be conducted in accordance with the law. • The court held that, E “Adequate and sufficient security arrangements shall be made and Director General of Police, State of Karnataka will himself supervise the said arrangements...”.

Shiv Sena • Dispute over the • This Court heard the matter v Union of formation of on 26 November 2019 and India government in the directed a vote of confidence state of on 27 November 2019. (2019) 10 Maharashtra. SCC 809 • A pro tem speaker was to be • Following a hung appointed. Elected members assembly, the were to take their oaths by President’s rule 5:00 pm on 27 November at H

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was imposed and which time the floor test was A subsequently to be conducted. No secret revoked in the ballot was permitted for the early hours of the floor test and the proceedings morning leading to were to be live telecasted. the swearing in of B Devendra Fadnavis belonging to the BJP being invited to form the government. C • The decision of the Governor was challenged.

49Copy pinpoint49. 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. The requirement of the trust vote fulfils that purpose in the present case. The present controversy has shone a light on the often-fluid allegiances of democratically elected representatives. This is a matter for their conscience and the court expresses no opinion on the matter. However, 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 and learned Senior Counsel on both sides of the dispute congenially admitted that the outcome of the trust vote is the ultimate litmus test for the legitimacy to govern. However, we note that where the evidence indicates that circumstances of violence and coercion exist that would undermine a free and fair vote in the assembly, the Governor and the court must take measures to ensure that the sanctity of the trust vote is maintained. In the circumstances as they have emerged in this case, the exercise of authority by the Governor was based on circumstances which were legitimate to the purpose of H

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A ensuring that the norm of collective responsibility is duly preserved. There existed no extraordinary circumstances for the Governor to determine that a trust vote was not the appropriate course of action on 16 March 2020. Short-circuiting the Speaker’s discretion

50Copy pinpoint50. A significant ground of attack by Dr Singhvi, learned Senior Counsel appearing on behalf of the Speaker, on the decision by the Governor to call for the trust vote is that convening a trust vote at this stage will impinge on the discretion of the Speaker to determine whether the resignations should be accepted (under the proviso to Section C 190(3)(b)) and at the second level to decide upon the consequence of the resignation in terms of the anti-defection provisions of the Tenth Schedule. Short-circuiting‘ is the phrase which was used by Dr Singhvi. Implicit in the submission is the charge that holding a trust vote impinges upon the discretion of the Speaker on whether to accept the resignations and to decide whether these Members have incurred the wrath of D disqualification. While analysing the submission articulated by Dr Singhvi, the cobwebs need to be cleared. The Governor does not decide whether the resignations that were submitted by the Members were genuine and voluntary. That is squarely a matter which lies within the domain of the Speaker. Similarly, whether a Member of the House has incurred a E disqualification under the Tenth Schedule is a matter where the Speaker is the designated authority. Conscious as the Court has been of the fact that these are matters which lie within the domain of the Speaker, in the recent past a direction to Members to appear before the Speaker and for the Speaker to take a decision immediately was recalled by a three judge Bench.21 Dr Singhvi alluded to these orders. F

51Copy pinpoint51. It is trite law that neither the Governor, nor for that matter this Court, has the power to impinge upon the authority of the Speaker to take a decision on the above issues. The issue however is whether the convening of a trust vote has to be deferred until such time as the Speaker has taken a decision on whether or not to accept the resignations and if G so, the consequence of the Members departing from the fold of the party on whose ticket they were elected under the Tenth Schedule. The holding of a trust vote operates in a distinct field from the issue as to whether one or more individual members of the Legislative Assembly 21 Pratap Gouda Patil v State of Karnataka (W.P. 872 of 2019): orders dated 12 July H 2019 and 17 July 2019

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have embarked upon a voluntary act of resignation or have incurred the wrath of the Tenth Schedule. Holding a trust vote is necessary to ascertain whether the Council of Ministers headed by the Chief Minister has the confidence of the House. The continuous existence of that confidence is crucial to the legitimacy and hence survival of the government. It is a matter which can brook no delay since the authority of the government presided over by the Chief Minister depends on the Council of Ministers continuing to have the faith of the legislative body as a collective entity. Particularly where the Members resigned in an expression of a lack of faith in the existing government, the convening of a floor test is the surest method of assessing the impact of the resignations on the collective will of the house. The consequence of the acceptance of a resignation is to reduce the numerical strength of the House. Until the resignations are accepted, the Members who have resigned continue to be reflected in the strength of the house having regard to the language which has been employed in Article 190(3)(b) (‘‘shall thereupon fall vacant’’). Whether in a situation such as the present an elected government is entitled to continue despite the resignations of twenty-two of its Members has a significant bearing on the issue of confidence. Neither the Governor nor for that matter the Court can entrench upon the power of the Speaker, but the pendency of the proceedings before the Speaker cannot be a valid basis to not have the confidence of the House in the government determined by the convening of a floor test. Added to it is a factual circumstance in the present case that the Speaker accepted the resignations tendered by six of the twenty-two Members on 14 March

2020. All of the Members sailed together. No explanation was forthcoming in the submission of Dr Singhvi on what, if any, was the distinction between the six Members whose resignations were accepted with alacrity and the remaining sixteen on whose resignations, no decision has been taken. None of the Members who resigned (neither the six nor the sixteen) appeared before the Speaker. Therefore, non-appearance before the Speaker is evidently not a ground of distinction. We have highlighted above the factual scenario only to emphasise that the convening of a trust vote is of crucial importance to affirm the fundamental values of the Constitution namely, abiding by the rules which govern a parliamentary democracy. The fundamental precept of parliamentary democracy is that the government owes collective responsibility to the legislative assembly and as a collective body, the legislative assembly is entitled to hold the government to account. The ultimate expression of H

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A accountability is the existence of or the lack of confidence in the Council of Ministers. We are therefore unable to accept the submission of Dr Singhvi that the holding of a trust vote would short-circuit the jurisdiction of the Speaker on a matter of resignation and disqualification.

52Copy pinpoint52. During the course of his submission, Dr Singhvi fairly accepted that the holding of a trust vote at this stage would ultimately only affect the ability of the resigning Members to accept ministerial office in a new government that may be formed if the issue of disqualification has not been addressed in the meantime. Dr Singhvi submitted that the effort in such cases is for the resigning Members to bring down a government on the allure of ministerial positions in a succeeding government as their disqualification may not be accepted in the future if the government were to change. This, as Dr Singhvi submitted before the court, is how democratic politics operates in reality. The point of the mater however is that nothing prevents the Speaker from taking a decision either on matters of resignation or disqualification despite convening of a trust vote. That D the Speaker has not yet done so, is not a ground to defer the convening of a trust vote. Seeking Access to the ‘Captive’ Members

53Copy pinpoint53. An area on which rival submissions have been urged before this Court is the issue of captivity. The petition by the INC on which submissions have been canvassed by Mr Dushyant Dave, learned Senior Counsel seeks, as one of the reliefs, a direction of this Court to grant access to the twenty-two Members who were lodged at a hotel in Bengaluru. Mr Dave was at pains to emphasise the affront to constitutional morality. Mr Dave submitted that the twenty-two Members who have been elected on the ticket of the INC were spirited away‘ to Bengaluru. Mr Kapil Sibal, learned Senior Counsel and in some measure Dr Singhvi, learned Senior Counsel have also dwelt on this aspect. Mr Sibal submitted that the Members were escorted to Bengaluru from the high security areas of a domestic airport under the watchful gaze of BJP leaders. It was urged that the Members are in incommunicado and efforts to contact them have been met with resistance to the extent that the Members have not met even members of their own families. This submission has met with a significant amount of resistance. The Members have entered appearance in these proceeding by filing an application for impleadment, which was canvassed on their behalf by Mr Maninder Singh, learned H Senior Counsel. Mr Maninder Singh submitted that the Members who

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[DR DHANANJAYA Y CHANDRACHUD, J.]

have tendered their resignation have no desire to interact with any representatives of the INC and that they are entitled to decide for themselves as to whether they should continue to be Members of the House when they lack faith in the incumbent government in the state.

54Copy pinpoint54. The spectacle of rival political parties whisking away their political flock to safe destinations does little credit to the state of our democratic politics. It is an unfortunate reflection on the confidence which political parties hold in their own constituents and a reflection of what happens in the real world of politics. Political bargaining, or horse- trading, as we noticed, is now an oft repeated usage in legal precedents. Poaching‘ is an expression which was bandied about on both sides of the debate in the present case. It is best that courts maintain an arm‘s C length from the sordid tales of political life. In defining constitutional principle, however, this Court must be conscious of the position on the ground as admitted by Counsel of both sides and an effort has to be made to the extent possible to ensure that democratic values prevail. An underlying assumption of the anti-defection scheme outlined in the Tenth D Schedule of the Constitution is that the political party is the defined political unit which the Constitution recognises. Where we increasingly see a breakdown in the composition and allegiances of the political party due to private allurements offered to Members as opposed to public policy considerations, the law may have to evolve to address these burgeoning evils. We were of the view during the course of the hearing that directions E can be issued by the Court to ensure that the twenty-two Members who were in Bengaluru during the course of the hearing are not subjected to any restraint or hindrance whatsoever in the free exercise of their rights and liberties as citizens. We put the question to Dr Singhvi, learned Senior Counsel appearing on behalf of the Speaker, as to whether the Speaker F would be willing to accept speaking to the resigning Members through video conferencing at an independent neutral venue, under the supervision of an observer appointed by the Court. Mr Maninder Singh, learned Senior Counsel, appearing on behalf of the Members submitted that he was willing to abide by any modalities that may be fixed by this Court to ensure that the Members were not under any coercion. However, Dr G Singhvi submitted that he did not have instructions to accept any such modality. Conscious as we are of the domain of the Speaker in such matters, we have desisted from issuing any such directions. However, we are of the view that in order to facilitate a trust vote for which the twenty-two Members should be free to participate in the house should H

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A they opt to do so, directions in that regard should be issued both to the Director General of Police of Karnataka as well as to the Director General of Police of Madhya Pradesh. Our directions are intended to sub-serve the purpose of ensuring that none of the Members are restrained in the exercise of their rights and liberties as citizens and that if any of them opt to attend the proceedings of the Legislative Assembly, they should not be prevented from doing so.

55Copy pinpoint55. The reliefs which have been sought in the writ petition instituted by the MP Congress Party are manifestly misconceived. A direction to the Union of India (through the Secretary, Ministry of Home Affairs) and to the State of Karnataka (through its Chief Secretary) has been sought to grant access to the office bearers of the MP Congress Party to communicate with respondents five to nineteen (the Members who have tendered their resignations). The petition has not been framed as one seeking a writ of habeas corpus. The Members who have appeared in these proceedings through learned Senior Counsel, Mr Maninder Singh D have submitted that they do not wish to interact with any of the member of the MP Congress Party. We cannot compel them to do so. Ultimately, it is for the Members to decide who they wish to associate with and to face the consequences of such a decision in accordance with the law and the Constitution. We have already indicated that we are inclined to issue directions to ensure the protection of their rights and liberties as free citizens. Among the reliefs which have been sought is a direction that the vote of confidence should be held only in the presence of all the duly elected Members and that a trust vote cannot be held in the absence of representatives of twenty-two constituencies, whose presence could be secured by holding by-elections for the vacant seats in accordance with law. These reliefs are patently misconceived.

56Copy pinpoint56. The court cannot issue a direction mandating that a trust vote cannot be convened if any one or more Members do not remain present in the House. Whether or not to remain present is for the individual Members to decide and they would, necessarily be accountable for the decisions which they take, both to their political party and to their constituents. Similarly, the relief to the effect that no trust vote should be conducted until by-elections are held for the twenty-two seats is again misconceived. One of the prayers in the second writ petition seeks an anticipatory direction of this Court based on the assumption that a disqualification would stand attracted upon which the seat would fall H

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[DR DHANANJAYA Y CHANDRACHUD, J.]

vacant and an election would have been held. In any event, the convening A of a trust vote cannot be postponed to a future date until by-elections take place.

57Copy pinpoint57. The challenge to the communication of the Governor must fail for the reasons that we have already indicated. After the conclusion of the argument, this Court had pronounced its operative directions. The B order passed by this Court on 19 March 2020 is extracted below: ‘‘Submissions extending over two days were addressed before the Court by learned counsel appearing on behalf of the contesting parties in the two writ petitions instituted under Article 32 of the Constitution. C We have heard Mr Dushyant Dave, Dr A M Singhvi, Mr Kapil Sibal, Mr Vivek Tankha and Mr Harin Raval, learned senior counsel, on one side and Mr Tushar Mehta, learned Solicitor General, Mr Mukul Rohatgi and Mr Maninder Singh, learned senior counsel, on the other. D The former set of counsel have assailed the communication of the Governor to convene a floor test. The latter set of counsel have supported the communication of the Governor. The submissions which have been urged before the Court would necessitate a judgment which would take some time to be delivered. The state of uncertainty in the State of Madhya Pradesh must be effectively resolved by issuing a direction for convening a floor test, bearing in mind the principles which have been enunciated in the decision of the nine-Judge Bench of this Court in S R Bommai v Union of India [(1994) 3 SCC 1)] and in the decision of the Constitution Bench in Nabam Rebia v Deputy Speaker, Arunachal Pradesh Legislative Assembly [(2016) 8 SCC 1]. These principles have been consistently reiterated in several subsequent decisions of this Court which would be adverted to in the course of the reasons which will follow. G We accordingly issue the following directions: (i) The session of the Madhya Pradesh Legislative Assembly which has been deferred to 26 March 2020 shall be reconvened on 20 March 2020; H

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Devika Gujral Writ Petitions disposed of. H