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

- **Citation:** [2020] 9 S.C.R. 787
- **Court:** Supreme Court of India
- **Decided:** 2020-04-13
- **Bench:** Dr. Dhananjaya Y Chandrachud, Hemant Gupta
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shivraj-singh-chouhan-ors-v-speaker-madhya-pradesh-legislative-assembly-ors-34880
- **Pages:** 64

## Headnote

Constitution of India: Art.174 - Power of the Governor to
call floor test - Scope of - Held: Power under Art.174 of the
Constitution to summon the House and to prorogue 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 have 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.
Administrative Law: Judicial review - Governor calling for a
floor test - Scope of interference by Courts - Held: The powers
which are entrusted to constitutional functionaries are not beyond
the pale of judicial review - Where the exercise of the discretion by
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.
Constitution of India: Art.174 - Duty of the Governor while
calling floor test - Held: 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 -
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The Governor is an appointee of the President but does not represent
either a political ideology or a political view - The 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 subserves
and does not detract from the strength and resilience of
democratically elected legislatures and the governments in the states
who are accountable to them.
Constitution of India: Art.174 - Exercise of power by
Governor to convene floor test - In this case, the Budget Session of
the Legislative Assembly was convened on the aid and advice of the
Council of Ministers to commence from 16 March 2020 - The
Governor was intimated that 22 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 was not discerned
and no decision was 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 Art.190(3)(b) - The Chief Minister
addressed a communication to the Governor stating that the
convening of the floor test would be a sure basis for resolving the
conundrum - However, upon the convening of the Legislative
Assembly, no floor test was conducted, and the House was adjourned
till 26 March 2020 - Governor advised to conduct a floor test -
Propriety of, challenged - Held: 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

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SHIVRAJ SINGH CHOUHAN & ORS.
v.
SPEAKER MADHYA PRADESH LEGISLATIVE
ASSEMBLY & ORS.
(Writ Petition (C) No. 439 of 2020)
APRIL 13, 2020
[DR. DHANANJAYA Y CHANDRACHUD AND
HEMANT GUPTA, JJ.]
Constitution of India: Art.174 - Power of the Governor to
call floor test - Scope of - Held: Power under Art.174 of the
Constitution to summon the House and to prorogue 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 have 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.
Administrative Law: Judicial review - Governor calling for a
floor test - Scope of interference by Courts - Held: The powers
which are entrusted to constitutional functionaries are not beyond
the pale of judicial review - Where the exercise of the discretion by
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.
Constitution of India: Art.174 - Duty of the Governor while
calling floor test - Held: 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 -
[2020] 9 S.C.R. 787
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The Governor is an appointee of the President but does not represent
either a political ideology or a political view - The 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 subserves
and does not detract from the strength and resilience of
democratically elected legislatures and the governments in the states
who are accountable to them.
Constitution of India: Art.174 - Exercise of power by
Governor to convene floor test - In this case, the Budget Session of
the Legislative Assembly was convened on the aid and advice of the
Council of Ministers to commence from 16 March 2020 - The
Governor was intimated that 22 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 was not discerned
and no decision was 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 Art.190(3)(b) - The Chief Minister
addressed a communication to the Governor stating that the
convening of the floor test would be a sure basis for resolving the
conundrum - However, upon the convening of the Legislative
Assembly, no floor test was conducted, and the House was adjourned
till 26 March 2020 - Governor advised to conduct a floor test -
Propriety of, challenged - Held: 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,
the exercise of power by the Governor to convene a floor test cannot
be regarded as constitutionally improper - In order to obviate
illegitimate and unseemly political bargaining in the quest for
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political power, the trust vote should be convened at the earliest
date - 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.
Constitution of India: Power of Governor to take decisions
as to whether the resignations tendered by Members were genuine
or a Member of the House has incurred a disqualification - Held:
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
disqualification under the Tenth Schedule is a matter where the
Speaker is the designated authority - 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 these issues.
Constitution of India: Holding of a trust vote - 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 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 - 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 - Thus, 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 - Holding of a trust vote
does not short-circuit the jurisdiction of the Speaker on a matter of
resignation and disqualification - 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.
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Disposing of the writ petitions, the Court
HELD: 1.1 The Governor is appointed by the President
and is the head of the executive branch in whom, under Article
154, the executive power of the state is vested. While holding
office at the pleasure of the President, the Governor as a
constitutional authority is not a Member of either House of
Parliament or of the legislature of a State. The discretionary
powers vested in the Governor under Article 163 of the
Constitution represents an exception to the general rule of aid
and advice. The Constitution embodies the principle of aid and
advice and in doing so, emphasizes that the Governor is a titular
head of State, while the real authority and power vests in the
Council of Ministers headed by the Chief Minister. [Paras 32,
37][823-E; 827-E]
1.2 The legislative assembly is a democratically elected
body and the government represented by the Council of Ministers
with the Chief Minister at the head can continue in office only so
long as it continues to have the confidence of the legislature.
Integral to this concept is the ultimate authority of the state
legislature to exercise supervisory control over the conduct,
decisions and affairs of the government. The legislature does so
through the debates which take place on the floor of the house as
well as by exercising oversight over the departments of
government. The relationship between the executive arm of the
state and its legislative arm in the democratically elected
legislative bodies of the states is not merely a matter of
constitutional affliction. In making the Council of Ministers
answerable to the legislative assembly and in entrusting to the
legislative assembly the authority to exercise oversight over the
affairs of the state, the Constitution weaves an intricate process
that has been described as representing the checks and balances
of democratic governance. [Para 37][828-C-E]
1.3 The Constitution employs distinct expressions in
relation to the term of its legislative bodies, their convening,
sittings and ultimate dissolution. The duration of the state
legislature is prescribed as five years from the date appointed
for the first meeting, unless the legislature is dissolved sooner.
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After the elections have been held for the purpose of constituting
a legislative assembly, the legislature is summoned by the
Governor to meet at such time and place as he thinks fit. Upon
the legislature being summoned, the Governor is entrusted with
the authority to prorogue the House. The concept of the House
being prorogued is distinct from the dissolution of the legislative
assembly. A decision to prorogue the Houses does not bring to
an end the duration of the assembly. The duration of the assembly
which is prescribed as five years by Article 172 is brought to an
end either on the expiry of this period counted from the first date
appointed for the meeting or an earlier dissolution. In summoning
the House, and in taking a decision to prorogue or dissolve it,
the Governor ordinarily acts on the aid and advice of the Council
of Ministers. The primary basis on which the accountability of
the Council of Ministers is exacted towards the legislature is
through the relationship which the Constitution envisions
between the government and the elected body of the legislature.
The Council of Ministers is drawn from the legislative body,
membership of the Council of Ministers being dependent (beyond
a term of six months) on membership of the House. But apart
from the principle that a member of the Council of Ministers
must be a member of the legislature, accountability of the
executive to the legislature is exacted by the ultimate authority
which was conferred on the legislature to express a lack of
confidence in the Council of Ministers. In envisioning the role of
the Governor as a constitutional statesman, care must be taken
in the course of interpretation to ensure that the balance of power
which was envisaged by the Constitution between the executive
and the legislature is maintained by the gubernatorial office. [Para
38][828-F-H; 829-A-D]
2. The issue of whether a Governor can call for a trust vote
in an already constituted legislative assembly is not entirely res
integra. Before a nine-judge Bench of this Court in SR Bommai,
the individual cases which came up for consideration included
the dispute emanating from the State of Karnataka. It was
observed therein that the question of whether the 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
SHIVRAJ SINGH CHOUHAN v. SPEAKER M. P. LEGISLATIVE ASSEMBLY
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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 of the Legislative Assembly may not be
able to express their opinions freely as a result of prevailing
violence or for other extraordinary reasons.[Para 39][829-E; 831A-B]
SR Bommai v. Union of India (1994) 3 SCC 1 : [1994]
2 SCR 644 - followed
3. 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 considerations. 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 Assembly, this entrustment ought
not to overide 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. [Paras 43,
44][836-H; 837-A-D]
4.1 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.
The Governor is an appointee of the President but does not
represent either a political ideology or a political view. The
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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. [Para
45][838-A-D]
4.2 In discharging this crucial role, it is necessary that the
Governor bears 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. [Para 46][838-F-G]
5. 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, the exercise
of power by the Governor to convene a floor test cannot be
regarded as constitutionally improper. [Para 47][839-E-F]
6. The Governor has in fact not intervened in 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 was adjourned till 26 March 2020
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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 unseemly political bargaining in the quest for
political power that this Court has consistently insisted upon the
convening of a trust vote at the earliest date. [Para 48][839-G-H;
840-A-B]
7. The idea underlying the trust vote 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 oftenfluid allegiances of democratically elected representatives. This
is a matter for their conscience and the court expresses no
opinion on the matter. However, 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
admittedly the outcome of the trust vote is the ultimate litmus
test for the legitimacy to govern. However, 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 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. [Para 49][843G-H; 844-A]
8. The Governor does not decide whether the resignations
that were submitted by the Members were genuine and voluntary.
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That is squarely a matter which lies within the domain of the
Speaker. Similarly, whether a Member of the House has incurred
a disqualification under the Tenth Schedule is a matter where the
Speaker is the designated authority. 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
these 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 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 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
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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. Thus, 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 accountability is the
existence of or the lack of confidence in the Council of Ministers.
The submission that the holding of a trust vote would short-circuit
the jurisdiction of the Speaker on a matter of resignation and
disqualification is not accepted. [Paras 50, 51][844-D-G; 845-AH; 846-A]
9. 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 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 length from the sordid tales of
political life. In order to facilitate a trust vote for which the twentytwo Members should be free to participate in the house should
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. These directions
are intended to sub-serve the purpose of ensuring that none of
the Members are restrained in the exercise of their rights and
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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. [Para 54][847-B-C; 848-A-B]
10. 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
submitted that they do not wish to interact with any of the member
of the MP Congress Party. 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. 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. 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 vacant and an election would have been
held. In any event, the convening of a trust vote cannot be
postponed to a future date until by-elections take place. The
challenge to the communication of the Governor must fail.
[Paras 55-57][848-C-H; 849-A-B]
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Nebam Rebia and Bamang Felix v. Deputy Speaker,
Arunachal Pradesh Legislative Assembly (2016) 8 SCC
1 : [2016] 6 SCR 1 - relied on.
Kihoto Hollohan v. Zachillhu (1992) 2 Suppl. 2 SCC
651 : [1992] 1 SCR 686; Shrimanth Balasaheb Patil v.
Speaker, Karnataka Legislative Assembly (2020) 2 SCC
595; State of Rajasthan v. Union of India (1977) 3 SCC
592 : [1978] 1 SCR 1; State (NCT of Delhi) v. Union of
India (2018) 8 SCC 501 : [2018] 7 SCR 1 - referred
to.
Case Law Reference
[2016] 6 SCR 1
relied on
Para 7
[1992] 1 SCR 686
referred to
Para 8
[1994] 2 SCR 644
followed
Para 8
(2020) 2 SCC 595
referred to
Para 24
[1978] 1 SCR 1
referred to
Para 31
[2018] 7 SCR 1
referred to
Para 37
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.
439 of 2020.
Under Article 32 of the Constitution of India
With
Writ Petition (Civil) No. 449 of 2020.
Tushar Mehta, SG, K.M. Nataraj, ASG, Prashant Kumar, AAG,
Ms. Prachi Mishra, Vaibhav Srivastava, Ms. Suman Rani, DAGs, Mukul
Rohatgi, Dushyant Dave, Devadatt Kamat, Dr. Abhishek Manu Singhvi,
Kapil Sibal, Vivek Tankha, Harin P. Raval, Maninder Singh, Sr. Advs.,
Mishra Saurabh, D.S. Parmar, Ms. Vanshaja Shukla, Ms. Anuja Pethia,
Ms. Anuradha Mishra, Rajesh Inamdar, Javedur Rahman, Pai Amit, Ali
Asghar Rahim, Nishanth Patil, Rahat Bansal, Ms. Jessica Khan, Sunil
Fernandes, Amit Bhandari, Varun K. Chopra, Avishkar Singhvi,
Muhammad Ali Khan, Sailesh Gopal Mhaske, Ms. Nupur Kumar, Prastut
Dalvi, Ms. Anju Thomas, K.C. Kaushik, Rahul Kaushik,
Ms. Bhuvneshwari Pathak, Ms. Shilpi Satya Priya Satyam, Ujjwal Prasad
Sharma, Prashant Shivrajan, Chaitanya, Aditya Kashyap, Chanakya
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Sharma, Ms. Tanvi Bhatnagar, Harsh Parashar, Shashank Shekhar,
Rajeev Ranjan, Sarath Nambiar, Shantanu Sharma, Bhuvan Kapoor,
Digvijay Dam, Rajesh Srivastava, Shubhranshu Padhi, Manindra Pal
Gupta, Sharath, Arjun Garg, S. Mahesh Sahasranaman, M. Vinod Kr.,
Ms. Rati Tandon, Devansh, Aakash Nandolia, Mahesh S., Gurtej Pal
Singh, Shubham Sharma, Rahul Khatri, M/s. VKC Law Offices, Advs.
for the appearing parties.
The Judgment of the Court was delivered by
DR DHANANJAYA Y CHANDRACHUD, J.
1. An imbroglio in the Madhya Pradesh Legislative Assembly over
the purported resignations of twenty-two Members and several
communications by the Governor to the Chief Minister to hold an
immediate floor test have given rise to these writ petitions under Article
32 of the Constitution.
2. The first writ petition has been instituted by ten Members of
the Madhya Pradesh Legislative Assembly seeking a writ directing the
Speaker, Chief Minister and Principal Secretary of the Legislative
Assembly to hold a floor test in accordance with the directions issued by
the Governor.1 The second writ petition has been instituted by the Madhya
Pradesh Congress Legislature Party2 through its Chief Whip seeking
diverse reliefs including:
(i)
A direction to the Union of India and the State of Karnataka
to grant access to the officer bearers of the MP Congress
Party to communicate with respondents five to nineteen (the
Members of the Madhya Pradesh Legislative Assembly who
have tendered their resignation);
(ii)
A declaration that respondents five to nineteen are in the
illegal confinement of the Union of India, the State of
Karnataka and the Bharatiya Janata Party3;
1 Prayer: Issue a writ of mandamus or any other appropriate writ or direction, directing
respondent nos 1 to 3 to hold the floor test in the Madhya Pradesh Legislative Assembly
within 12 hours of the passing of the order by this Hon'ble Court and as per directions
dated 14.3.2020 and 15.3.2020 issued by the Hon'ble Governor of Madhya Pradesh.
2 "MP Congress Party"
3 "BJP"
SHIVRAJ SINGH CHOUHAN v. SPEAKER M. P. LEGISLATIVE ASSEMBLY
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(iii)
A direction permitting and enabling respondents five to
nineteen to participate in the ongoing Budget Session of the
Madhya Pradesh Legislative Assembly;
(iv)
A direction that a trust vote should be held only in the
presence of all the elected Members of the Madhya Pradesh
Legislative Assembly;
(v)
A declaration that the communications of the Governor of
Madhya Pradesh to the Chief Minister under Articles 174
and 175 of the Constitution of India are unconstitutional;
and
(vi)
A direction that if the twenty-two Members belonging to
the Indian National Congress4 have resigned, the trust vote
be postponed until by-elections are held for the vacant seats.
The Facts leading up to the Writ Petitions
3. Elections for the fifteenth Legislative Assembly of the State of
Madhya Pradesh were held on 28 November 2018. The results were
declared on 11 December 2018. There are 230 seats in the Legislative
Assembly. The party position upon the declaration of the results is
indicated in the following tabulation:
Party
No. of Seats
Indian National Congress
114
Bhartiya Janata Party
109
Bahujan Samaj Party
2
Samajwadi Party
1
Independents
4
Total
230
The INC staked the claim to form the government together with
the support of four independents Members, two Members of the Bahujan
Samaj Party5 and one Member belonging to the Samajwadi Party6. The
INC, having the support of 121 Members (114 + 4 + 2 + 1 = 121),
4 "INC''
5 "BSP''
6 "SP''
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formed the government. Mr. Kamal Nath who belongs to the INC was
appointed Chief Minister. Two seats have fallen vacant from amongst
the 109 seats held by the BJP. The current strength of the Legislative
Assembly is 228 Members of which the BJP has 107 Members in the
House.
4. At about 5:30 PM on 10 March 2020, leaders of the BJP met
the Speaker of the Madhya Pradesh Legislative Assembly and handed
over what purported to be the resignation letters of twenty-two Members
belonging to the INC. Three days later, on 13 March 2020, the Chief
Minister addressed a communication to the Governor alleging that
following a foiled attempt on 3 / 4 March 2020 to allure Members owing
allegiance to the INC, the BJP had on 8 March 2020 arranged three
chartered aircraft to whisk away' nineteen Members to Bengaluru.
Since then, the nineteen Members, of whom six are Cabinet Ministers,
were alleged to have been held incommunicado in a resort arranged for
by the BJP. The letter adverted to the fact that the resignations of these
nineteen Members had not been handed over by the Members themselves
but rather by leaders of the BJP and that subsequently on 12 March
2020, an unsuccessful attempt was made by two Cabinet Ministers to
meet one of the Members. The Chief Minister recorded:
''We expect the enquiry and investigation on the resignation letters
submitted by BJP allegedly of the captive Congress MLAs, is
acted upon and completed early. As a responsible leader of Indian
National Congress, I invite and would welcome a floor test of my
Government in the forthcoming Session of Madhya Pradesh
Legislative Assembly already notified from 16th March 2020, on a
date fixed by the Speaker. This is the minimum a Constitutional
Authority, can offer to address the ongoing turmoil.''
The letter ended with a request to the Governor to ensure the
release of the Members ''held in captivity'' in Bengaluru by taking the
matter up with the Union Home Minister.
The above letter was followed by a communication dated 14 March
2020 by the Chief Minister to the Union Home Minister. In his letter, the
Chief Minister stated:
''You will agree that any demand of a floor test in the Assembly
has little meaning with 22 of my MLAs being kept captive outside
Madhya Pradesh. This is an unprecedented situation where the
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BJP is seeking a floor test in the Assembly while holding many
Congress MLAs hostage away from Madhya Pradesh.''
5. On 14 March 2020, the INC issued a three-line whip to ensure
the presence of all its Members in the forthcoming Budget Session and
to vote for and support the government. As noted above, amongst the
Members who had purportedly tendered their resignations, six were
Cabinet Members of the incumbent Madhya Pradesh government. Acting
on the aid and advice of the Chief Minister, the Governor accepted the
resignations of these six Members. On the same day, a communication
was addressed by the Governor to the Chief Minister with the following
contents:
''I have received information that 22 MLAs of Madhya Pradesh
Vidhan Sabha, have sent their resignation letters to the Speaker,
Vidhan Sabha. These MLAs have also informed regarding their
resignation through Electronic and Print Media. In this regard, I
have watched the media coverage carefully.
These 22 MLAs have sent their resignation letters also to me
vide separate letters dated 10.03.2020 respectively and the same
MLAs vide their separate letters dated 13.03.2020 have also
requested to provide security during their presence before the
Vidhan Sabha Speaker. Today, out of these 22 MLAs, the
resignation total 6 MLAs who were Ministers in your Government,
who were removed from the post of Minister on your
recommendations, has also been accepted by Vidhan Sabha
Speaker.
You vide your letter dated 13.03.2020 has also granted consent
for getting done the Floor Test and I have also received a
Memorandum from the main Opposition Party of Vidhan Sabha
i.e. Bhartiya Janta Party, wherein, they have mentioned the
aforementioned circumstances. They have also stated that the
undue pressure is being created by the State Government on the
Members who have resigned as well as other members.
From the above, I am confident that your Government has lost
the trust of house and your Government is in minority. This situation
is very serious, therefore, it has become mandatory as per
Constitution and for the safeguarding the democratic value, it is
necessary for you to gain the trust vote in Vidhan Sabha
immediately after my speech on 16.03.2020.
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In this regard, I by exercising the powers conferred by Article
174 r/w 175(2) of the Constitution and other Constitutional powers
vested in me, I do hereby issue the following directions:-
1. Session of Madhya Pradesh Vidhan Sabha will on 16th March,
2020 w.e.f. 11 a.m. in the morning, and after my speech, only
one work will be done i.e. trust vote.
2. The Trust Vote shall be done by pressing button on the basis of
division and same will not be done by any other method.
3. The videography of entire proceedings of Trust Vote will be
conducted by Vidhan Sabha through independent persons.
Aforesaid proceedings shall be started on 16th March, 2020 in
any case, and same shall not be adjourned delayed or suspended.
On 15 March 2020, the Governor addressed a further
communication to the Chief Minister that since the facility for mechanically
recording votes (through the press of a button') was not available, the
trust vote should be taken by the raising of hands.
6. The Budget Session of the Madhya Pradesh Legislative
Assembly commenced on 16 March 2020. The agenda which was
circulated on 15 March 2020 covered (i) The speech of the Governor;
and (ii) the motion of thanks by the Governor. The agenda did not include
a provision for a trust vote in terms of the communication of the Governor
dated 14 March 2020. Eventually, the proceedings of the Legislative
Assembly were adjourned to 26 March 2020 on account of public health
concerns arising from the recent outbreak of Coronavirus (Covid-19).
7. On 16 March 2020, the Chief Minister addressed a
communication to the Governor. While adverting to the decision of this
Court in Nebam Rebia and Bamang Felix v Deputy Speaker,
Arunachal Pradesh Legislative Assembly7 (''Nebam Rebia''), the
Chief Minister stated that the messages addressed by the Governor
to the Legislative Assembly must abide by the mandate of Article 163(1)
and that any such communication can only be on the aid and advice of
the Council of Ministers. The Chief Minister stated that the directions
which had been issued by the Governor touched upon issues which lay
in the exclusive domain of the Speaker of the Legislative Assembly. In
his response to the Chief Minister dated 16 March 2020, the Governor
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recorded that despite his earlier letter dated 14 March 2020, the Chief
Minister did not initiate the process of proving his majority on the house
floor and the proceedings of the Legislative Assembly were adjourned
to 26 March 2020. The Governor requested the Chief Minister to have
the floor test carried out on 17 March 2020 and to establish his majority,
failing which the Governor would have to assume that the Chief
Minister's government did not command the support of a majority in the
Legislative Assembly. It was at this constitutional impasse that the present
writ petitions were instituted before this Court.
Submissions
8. The submissions in the writ petition which has been moved by
the MP Congress Party are addressed first. Mr Dushyant Dave, learned
Senior Counsel having led the challenge, urged that the writ petition
under Article 32 is founded on the need to maintain (i) constitutional
morality; (ii) constitutional ethos; and (iii) constitutional principles. The
submission is that the Constitution contemplates, in the ordinary course,
a fixed term of five years for the Legislative Assembly and as a necessary
incident, a voter is entitled to expect to be represented by their duly
elected representative for a period of five years.