Case: SHIVRAJ SINGH CHOUHAN  &amp; ORS.  Vs. SPEAKER, MADHYA PRADESH LEGISLATIVE ASSEMBLY &amp; ORS.

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. (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 Honble Court and as per directions dated 14.3.2020 and 15.3.2020 issued by the Honble Governor of Madhya Pradesh.) The second writ petition has been instituted by the Madhya Pradesh Congress Legislature Party (MP Congress Party) 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 Party (BJP) ;(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 Congress (INC) have resigned, the trust vote be postponed until by-elections are held for the vacant seats. The Facts leading up to the Writ Petitions3. 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:The INC staked the claim to form the government together with the support of four independents Members, two Members of the Bahujan Samaj Party (BSP) and one Member belonging to the Samajwadi Party (SP) . The INC, having the support of 121 Members (114 + 4 + 2 + 1 = 121), 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 House4. 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 16 th 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 BJP is seeking a floor test in the Assembly while holding many Congress MLAs hostage away from Madhya Pradesh5. 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 carefullyThese 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 SpeakerYou 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 membersFrom 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 16.03.2020In 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 16 th March, 2020 w.e.f. 11 a.m. in the morning, and after my speech, only one work will be done i.e. trust vote2. The Trust Vote shall be done by pressing button on the basis of division and same will not be done by any other method3. The videography of entire proceedings of Trust Vote will be conducted by Vidhan Sabha through independent personsAforesaid proceedings shall be started on 16 th March, 2020 in any case, and same shall not be adjourned delayed or suspendedOn 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 hands6. 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 Assembly (2016) 8 SCC 1  (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 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 Ministers 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.

Reasoning:
During the course of his submissions, Dr Singhvi placed on the record a copy of an affidavit submitted by 54 Members owing their allegiance to the BJP. It is evident from the contents and tenor of the affidavit that it has been prepared to support the position of the signatories that they will support the BJP and vote against the incumbent government. On a bare reading of the affidavit, it is evident that it does not postulate a request for convening a discussion on a motion of no confidence. Having concluded that there exists no parallel proceeding for convening a trust vote, we now turn to whether the Governor has acted within the scope of his constitutional authority in calling for a trust voteWe reject these submissions. Merely because the present dispute concerns the conduct of elected representatives, or the remedy sought is a democratic process, does not mean that the court will refuse to consider itThe present controversy arises out of a dispute between the Governor, as the titular head of the executive within the State of Madhya Pradesh, the Chief Minister, the de-facto head of the executive within the state and the Speaker of the Madhya Pradesh Legislative Assembly, who has supervisory jurisdiction over the legislative branch of the state. In hearing the present dispute, the court is tasked to determine whether the Governor, a constitutional functionary, acted within his constitutional authority in relation to the legislature by demanding a floor test. Merely because the prima facie determination made by the Governor was of the political support enjoyed by the incumbent government or the action demanded was a political process (the floor test) is not a reason for this Court not to hear the matter. There is no doubt that the present case is suitable for judicial determination by this Court. In fact it is eminently so39. The issue of whether a Governor can call for a trust vote in an already constituted legislative assembly is not entirely res integra41. As a matter of constitutional law, it would not be correct to proceed on the basis that the constitutional authority entrusted to the 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 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 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 floor test would have been an appropriate course of actionWe are unable to accept the submission of Mr Sibal 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 authority43. 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 considerations47. 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 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 governments 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 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, the exercise of power by the Governor to convene a floor test cannot be regarded as constitutionally improper49. 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 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 2020.51. 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 issuesThe 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 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 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.52. 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 in54. 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 arms 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 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 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 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 CourtConscious 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 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 so55. 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 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 misconceived56. 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.