Holding

The Governor may, on the basis of objective material indicating loss of confidence, direct a floor test in a sitting assembly; this power is constitutionally valid and subject to judicial review.

Summary

In Madhya Pradesh, twenty‑two INC legislators tendered resignations, six of which were accepted by the Speaker. The Chief Minister, fearing loss of majority, sought a floor test, and the Governor, on the basis of material indicating a possible loss of confidence, directed a trust vote on 16 March 2020. The Assembly was adjourned, leading the INC and BJP to file writ petitions under Article 32 challenging the Governor’s direction. The Supreme Court held that the Governor may call a floor test when he has objective material suggesting loss of confidence, that such power is not ultra vires and is subject to judicial review, and that it does not encroach on the Speaker’s jurisdiction over resignations or disqualifications. The Court ordered the Assembly to reconvene on 20 March 2020 and conduct a floor test by show of hands, while dismissing the second petition.

Issues considered

The Governor’s constitutional power to call a floor test in a running legislative assembly under Article 174.
Whether the Governor’s exercise of that power is amenable to judicial review.
Whether the Governor must act on objective, relevant material before directing a trust vote.
The extent to which the Governor’s direction interferes with the Speaker’s authority under Article 190(3)(b) and the Tenth Schedule.
Whether a trust vote can be conditioned on the presence of all members or postponed until by‑elections.

Legislation cited

Constitution of Indias. Art.156, s. Art.163, s. Art.168, s. Art.172, s. Art.174, s. Art.175, s. Art.190(3)(b), s. Art.191, s. Tenth Schedule

Subjects

GovernorFloor testTrust voteLegislative AssemblyJudicial reviewArticle 174Article 163Confidence of governmentResignationTenth ScheduleAnti‑defectionPolitical crisisCOVID‑19

Judgment

[2020] 9 S.C.R. 787 787

SHIVRAJ SINGH CHOUHAN & ORS. A
v.
SPEAKER MADHYA PRADESH LEGISLATIVE
ASSEMBLY & ORS.
(Writ Petition (C) No. 439 of 2020) B
APRIL 13, 2020
[DR. DHANANJAYA Y CHANDRACHUD AND
HEMANT GUPTA, JJ.]
Constitution of India: Art.174 – Power of the Governor to C
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
D
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 E
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 F
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 G
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 –
H
787
788 SUPREME COURT REPORTS [2020] 9 S.C.R.

A 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
B
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
C 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
D 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
E 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
F 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
G 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
H
SHIVRAJ SINGH CHOUHAN v. SPEAKER M. P. LEGISLATIVE ASSEMBLY 789

political power, the trust vote should be convened at the earliest A
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 B
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 C
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 D
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 E
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 F
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 G
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.
H
790 SUPREME COURT REPORTS [2020] 9 S.C.R.

A 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
B 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
C 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
D 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
E 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
F 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]
G 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.
H
SHIVRAJ SINGH CHOUHAN v. SPEAKER M. P. LEGISLATIVE ASSEMBLY 791

After the elections have been held for the purpose of constituting A
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
B
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, C
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.
D
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 E
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
F
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 G
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 H
792 SUPREME COURT REPORTS [2020] 9 S.C.R.

A 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; 831-
A-B]
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
C 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
D 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
E 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
F 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
G 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
H represent either a political ideology or a political view. The
SHIVRAJ SINGH CHOUHAN v. SPEAKER M. P. LEGISLATIVE ASSEMBLY 793

Governor is expected to discharge the role of a constitutional A
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
B
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 C
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 D
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] E

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 F
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 G
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
H
794 SUPREME COURT REPORTS [2020] 9 S.C.R.

A 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
B
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
C 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
D 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
E 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
F 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
G 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][843-
G-H; 844-A]
8. The Governor does not decide whether the resignations
H that were submitted by the Members were genuine and voluntary.
SHIVRAJ SINGH CHOUHAN v. SPEAKER M. P. LEGISLATIVE ASSEMBLY 795

That is squarely a matter which lies within the domain of the A
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
B
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 C
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
D
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 E
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.
F
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 G
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
H
796 SUPREME COURT REPORTS [2020] 9 S.C.R.

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
B
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
C 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
D
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-A-
E H; 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
F 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 twenty-
G 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. These directions
are intended to sub-serve the purpose of ensuring that none of
H the Members are restrained in the exercise of their rights and
SHIVRAJ SINGH CHOUHAN v. SPEAKER M. P. LEGISLATIVE ASSEMBLY 797

liberties as citizens and that if any of them opt to attend the A
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 B
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 C
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 D
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 E
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 F
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 G
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]
H
798 SUPREME COURT REPORTS [2020] 9 S.C.R.

A 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.
B 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.
C 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
D (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.
E 439 of 2020.
Under Article 32 of the Constitution of India
With
Writ Petition (Civil) No. 449 of 2020.
F 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
G
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
H Sharma, Prashant Shivrajan, Chaitanya, Aditya Kashyap, Chanakya
SHIVRAJ SINGH CHOUHAN v. SPEAKER M. P. LEGISLATIVE ASSEMBLY 799

Sharma, Ms. Tanvi Bhatnagar, Harsh Parashar, Shashank Shekhar, A
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.
B
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 C
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 D
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: E
(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); F
(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;

G
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” H
800 SUPREME COURT REPORTS [2020] 9 S.C.R.

A (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
B 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
C (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

D 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
E
Indian Nationa l Congress 114

Bhartiya Janata Party 109

Bahujan Samaj Party 2

F Samajwadi Party 1

Independents 4

Total 230

G 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’’
H 6
“SP’’
SHIVRAJ SINGH CHOUHAN v. SPEAKER M. P. LEGISLATIVE ASSEMBLY 801
[DR DHANANJAYA Y CHANDRACHUD, J.]

formed the government. Mr. Kamal Nath who belongs to the INC was A
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 B
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 C
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 D
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 E
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.’’ F

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 G
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
H
802 SUPREME COURT REPORTS [2020] 9 S.C.R.

A 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
B 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:
C
‘‘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.
D
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
E 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
F 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
G 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
H
immediately after my speech on 16.03.2020.
SHIVRAJ SINGH CHOUHAN v. SPEAKER M. P. LEGISLATIVE ASSEMBLY 803
[DR DHANANJAYA Y CHANDRACHUD, J.]

In this regard, I by exercising the powers conferred by Article A
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. B
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.
C
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 D
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
E
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
F
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 G
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
7
(2016) 8 SCC 1 H
804 SUPREME COURT REPORTS [2020] 9 S.C.R.

A 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
B
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
C 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,
D 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. It was urged that the
anti-defection provisions contained in the Tenth Schedule of the
Constitution prescribe a 2/3rd requirement to sustain a valid break away
E or merger. Mr Dave has urged that twenty-two Members owing allegiance
to the INC have been highjacked and have been held in captivity in
Bengaluru. According to the submission, the process began on 3 / 4
March 2020 when three INC Members, one BSP Member and one
Independent Member, all of whom have supported the INC government
of Madhya Pradesh in the past, were taken away to a hotel at Manesar,
F Gurugram by the BJP. It has been urged that though the BSP Member
was rescued‘ by the INC, other Members of the Legislative Assembly
were taken to Bengaluru on a series of chartered flights arranged for by
the BJP and under the escort of BJP Members and office bearers. Mr
Dave submitted that on 9 March 2020 three chartered aircraft were
G arranged by the BJP to spirit away‘ nineteen Members belonging to the
INC including six Members who were Cabinet Ministers in the State
Government of Madhya Pradesh to Bengaluru. They were stated to
have been accompanied by Shri Hemant Khandelwal, Shri Uma Shankar
and Shri Sudarshan Gupta belonging to the BJP. In this context, reliance
has been placed on the manifest of the chartered aircraft. It has been
H
SHIVRAJ SINGH CHOUHAN v. SPEAKER M. P. LEGISLATIVE ASSEMBLY 805
[DR DHANANJAYA Y CHANDRACHUD, J.]

urged that the resignations of the Members were handed over to the A
Speaker not by the INC Members themselves in person but rather by
the leaders of the BJP in the Madhya Pradesh Legislative Assembly. In
the above background, Mr Dave submitted that:
(i) Neither the Governor nor the Speaker required the Members
who had been whisked away to Bengaluru to be brought B
back;
(ii) The Governor could not have addressed a communication
to the Chief Minister without ascertaining the voluntary
nature of the resignations, a matter which was within the
domain of the Speaker of the Legislative Assembly; C
(iii) In the alternative, even if the resignations of the Members
are to be accepted, the holding of the trust vote must await
by-elections being held for the purpose of filing up the
vacancies; and
(iv) If at all, a motion of no confidence may be moved by any D
political party which seeks to do so, but there is no basis or
justification for a government which was formed after the
elections to be required by the Governor to convene a trust
vote absent a motion of no confidence.
These submissions were buttressed by relying upon Articles 168, E
172, 175, 188 (read with the Third Schedule), 190,191 and the Tenth
Schedule (specifically paragraphs 2(1)(a), 4 and 6) of the Constitution.
Mr Dave has also placed reliance on the fundamental duties embodied
in Article 51A of the Constitution. The decision in Nebam Rebia was
relied upon in support of the proposition that the Governor has no F
constitutionally assigned role in relation to a disqualification under the
Tenth Schedule. Mr. Dave also relied on extracts from the Constituent
Assembly Debates to urge that, although the framers chose a system of
parliamentary democracy to ensure the continuous accountability of
government, minority Members of a legislative house should not sabotage
the working of a legitimately elected government. Lastly, the decision of G
the Constitution Bench in Kihoto Hollohan v Zachillhu8 has been
placed before the Court to emphasise the nature of the political party as
the primary political unit under the Constitution.

8
1992 (Supp.) 2 SCC 651 H
806 SUPREME COURT REPORTS [2020] 9 S.C.R.

A 9. Opposing the above submissions, Mr Mukul Rohatgi, learned
Senior Counsel who has appeared in support of the petition filed by
Shivraj Singh Chauhan and nine other BJP Members submitted that:
(i) Twenty-two Members no longer owing allegiance to the
INC resigned on 10 March 2020;
B (ii) The Governor had directed the Chief Minister to conduct a
floor test; and
(iii) The communication by the Governor has been flouted both
by the Speaker and by the Chief Minister.

C Mr Rohatgi urged that the view formed by the Governor in his
communication to the Chief Minister dated 14 March 2020 was based
on the:
(i) Information received in regard to the tendering of
resignations by the twenty-two Members;
D (ii) Coverage of the resignations in the print and electronic
media;
(iii) Receipt of separate letters addressed by the twenty-two
Members to the Governor in regard to their resignations;
and
E (iv) Acceptance by the Speaker of the resignations of six of
the twenty-two Members with no indication of why the six
Members were different from the larger group of twenty-
two Members.
In this backdrop, Mr Rohatgi submitted that the satisfaction of the
F Governor on the basis of which the communication was addressed to
the Chief Minister was based on relevant and germane material. It was
urged that in issuing the communication, the Governor has acted within
the scope of his constitutional authority as delineated in the decisions of
this Court in SR Bommai v Union of India9 (‘‘SR Bommai’’) and
G Nebam Rebia. As regards the writ petition which has been instituted
by the MP Congress Party, Mr Rohatgi urged that:
(i) A petition under Article 32 by a political party is not
maintainable;

9
(1994) 3 SCC 1
H
SHIVRAJ SINGH CHOUHAN v. SPEAKER M. P. LEGISLATIVE ASSEMBLY 807
[DR DHANANJAYA Y CHANDRACHUD, J.]

(ii) The reliefs which have been sought are not in the nature of A
a habeas corpus remedy;
(iii) The MP Congress Party is not entitled to seek access to
the Members in the face of their disinclination to meet any
leader of the MP Congress Party; and
(iv) Any direction to allow the office bearers of the MP Congress B
Party to access the twenty-two Members who have
resigned would only lead to further political bargaining.
10. Mr Maninder Singh, learned Senior Counsel appeared in an
application for impleadment10 moved on behalf of the sixteen Members
who had tendered their resignations to the Speaker (but whose C
resignations have not been accepted). On their behalf, Mr Maninder
Singh submitted that:
(i) An elected Member of a legislative assembly has an
absolute right to resign by virtue of the provisions of Article
190 of the Constitution; D
(ii) The Speaker of the Madhya Pradesh Legislative Assembly
accepted the resignations tendered by six Members, who
are part of the same group of twenty-two Members, within
the span of one day and in doing so has chosen not to make
any enquiry in regard to the remaining sixteen letters of E
resignation;
(iii) Resignation and disqualification are distinct concepts; and
(iv) The exercise of judicial review in regard to the advice
tendered by the Governor to the Chief Minister to convene
F
a trust vote is not warranted.
In urging these submissions, Mr Maninder Singh placed reliance
on the decision of the three judge Bench in Shrimanth Balasaheb Patil
v Speaker, Karnataka Legislative Assembly11.
11. Dr Abhishek Manu Singhvi, learned Senior Counsel appearing G
on behalf of the Speaker of the Madhya Pradesh Legislative Assembly,
submitted that:

10
IA No 45942 of 2020
11
(2020) 2 SCC 595 H
808 SUPREME COURT REPORTS [2020] 9 S.C.R.

A (i) The issue, in substance, is whether by a writ of mandamus
issued upon a petition under Article 32 this Court can issue
a direction to the Speaker to accept the resignations of the
sixteen Members of the Legislative Assembly;
(ii) There is a fallacy in the assumption that the Governor has
B any locus to direct the Chief Minister to conduct a floor
test to establish a majority on the floor of the house;
(iii) This Court ought not to enforce the direction for convening
a floor test as it will have the effect of short-circuiting‘ (as
it was described) the large discretion which is entrusted to
C the Speaker on matters of resignation by Members under
Article 190.;
(iv) Under Article 193(3)(b) of the Constitution, the determination
of whether a resignation is voluntary and genuine lies within
the discretion of the Speaker;
D (v) The role of the Speaker to determine matters of resignation
has been reinforced by the Constitution (Thirty-Third
Amendment) Act 1974 and the authority of the Speaker as
persona designata under the Tenth Schedule;
(vi) A wide and inevitable discretion is enjoyed by the Speaker
E in holding an enquiry in regard to a resignation which is
tendered by the Member of the Legislative Assembly;
(vii) While disqualification and resignation are distinct concepts,
the decision of the Speaker in accepting or rejecting a
resignation of a Member falls within the ambit of Article
F 212 of the Constitution;
(viii) The precedents of this Court in regard to the convening of
a trust vote have arisen in the context of fresh elections
held to the legislature and not in the context of a running‘
assembly; and
G (ix) The government under the auspices of Mr Kamal Nath,
Chief Minister has already faced three motions of no
confidence and another no confidence motion has been
moved.

H
SHIVRAJ SINGH CHOUHAN v. SPEAKER M. P. LEGISLATIVE ASSEMBLY 809
[DR DHANANJAYA Y CHANDRACHUD, J.]

Apart from the above submissions, Dr Singhvi submitted that there A
is a substantial question on the issue of whether the purported resignations
of the sixteen Members are genuine and voluntary and this issue requires
the urgent attention of the Governor. In particular, the following
circumstances were relied upon:
(i) None of the sixteen Members, who are (according to Dr B
Singhvi) confined in Bengaluru, are ready to leave the State
of Karnataka;
(ii) None of the Members have shown any inclination to meet
even their own relatives;
(iii) The resignation letters were not presented to the Speaker C
by the Members themselves, but rather were first sent by
email and subsequently presented by leaders of the BJP;
and
(iv) Three batches of resignations (seven, six and six) by the
Members had been scribed in the handwriting of three D
persons.
Dr Singhvi however clarified that while on 13 March 2020
disqualification notices were issued to the six Members who were
ministers, the Speaker eventually did accept their resignations on 14
March 2020. E
12. Elucidating on the above submissions, Dr Abhishek Manu
Singhvi urged that the object of the exercise undertaken by the BJP is to
find a way around the 2/3rd stipulation contained in the Tenth Schedule
by engineering the resignations of the twenty-two Members in a running‘
House. The submission is that if a trust vote were to be held before a F
decision has been taken by the Speaker on whether to accept the
resignations of the Members, this will pave the way for the sixteen
Members whose resignations have not been accepted till date to abstain
from voting. Their abstention, it has been urged, would alter the strength
of members present and voting, thus modifying the required majorities in
G
the house and impacting the outcome of the trust vote. If the present
government were to lose the confidence of the house, it is apprehended
that these sixteen Members may then be offered ministerial berths by
the new government. Dr Singhvi submitted that disqualification petitions
have been filed on which notices have been issued and if a Member of
the House stands disqualified, this would result in consequences as H
envisaged in law.
810 SUPREME COURT REPORTS [2020] 9 S.C.R.

A 13. The gravamen of the attack on the decision of the Governor is
that there is a clear distinction between the powers of the Governor in
relation to the constitution of the House in the aftermath of a new election
and those in relation to a duly constituted Assembly. There is,in the
submission, no precedent where the Governor has directed a floor test
to be conducted in a running‘ assembly. Dr Singhvi submitted that on 19
B
September 1976 the Rules of Business of the Madhya Pradesh Legislative
Assembly12 were amended, following the amendment of Article 190 by
the Constitution (Thirty-Third) Amendment Act 1974. Rule 276 (1) –
kha‘ contains the following provisions:

C ¼1&[k½- ;fn v/;{k dks R;kx&i= Mkd ls vFkok fdlh
vU; O;fDr fo”ks’k ds }kjk izkIr gks rks v/;{k viuk ;g
lek/kku djus ds fy;s fd R;kx&i= LosPNk ls fn;k x;k
rFkk ;FkkFkZ gS] ,slh tk¡p dj ldsxk tSlk fd og vko”;d
le>s] ;fn v/;{k dk Lo;a dk fo/kku lHkk lfpoky; ds
D vfHkdj.k }kjk vFkok ,sls vU; vfHkdj.k }kjk ftls og
mfpr le>s laf{kIr tkap djkus ds i”pkr~ ;g lek/kku gks
tk; fd R;kx&i= LosPNkiwoZd ugha fn;k x;k gS ;k ;FkkFkZ
ugha gS rks og R;kx&i= Lohdkj ugha djsxk A
E A translated copy of the note of publication issued under the
authority of Governor has been placed on the record.
Dr Singhvi urged that it is reasonable for the Speaker of the
Legislative Assembly to seek about two weeks to decide the issue of
resignation and disqualification. Dr Singhvi further submitted that when
F the recent constitutional dispute over the constitution of the government
of Karnataka reached this Court, an order was passed initially on 11 July
2019 directing the Members to appear before the Speaker and for the
Speaker to take a decision forthwith. Subsequently, however, by orders
dated 12 July 2019 and 17 July 2019, the earlier direction was suspended,
and this Court clarified that no fetter could be placed on the power of
G the Speaker to take a decision on matters of resignation.
14. The interim application for impleadment which has been filed
on behalf of the sixteen Members has been the subject matter of serious
criticism. The manner in which the affidavits in support of the IA have
12
H ‘‘Madhya Pradesh Assembly Rules’’
SHIVRAJ SINGH CHOUHAN v. SPEAKER M. P. LEGISLATIVE ASSEMBLY 811
[DR DHANANJAYA Y CHANDRACHUD, J.]

been filed and one of the signatures in the Vakalatnama have been A
questioned. Alternatively, it has been submitted by that a no-confidence
motion has been received by the Secretariat of the Madhya Pradesh
Legislative Assembly. Under Rule 143 of the Madhya Pradesh Assembly
Rules, a decision on a no confidence motion has to be taken within ten
days, which Dr Singhvi urged is an index of what is considered as a
B
reasonable period. Dr Singhvi submitted that in an ongoing session of
the legislature, the only way to test whether the government has a majority
is through a no confidence motion moved under Rule 143.
15. Assailing the communication of the Governor dated 14 March
2020, Dr Singhvi submitted that in requiring a trust vote to be undertaken
on the floor of the house, the Governor purported to rely upon Articles C
174 and 175(2), neither of which confer such a power on the Governor.
It was urged that the Governor sought a trust vote following an earlier
communication of the same day inter alia by the Chief Whip of the BJP
in the Madhya Pradesh Legislative Assembly. Dwelling on the judgment
in Nebam Rebia, it has been submitted that the Constitution Bench has D
held that any message by the Governor to the Legislative Assembly can
only be on the aid and advice of the Council of Ministers. The submission
is that absent a situation where the Council of Ministers has tendered its
aid and advice, it was not open to the Governor to intercede in the
legislative business of the Legislative Assembly, particularly having regard
to the provisions contained in Article 212 of the Constitution. The BJP, E
as the main opposition, would not (it was urged) be without a remedy
since it is open to it to move a motion of no confidence. In sum and
substance, it was of the submission of the Dr Singhvi on behalf of the
Speaker that if the intervention of the Governor were to be permitted in
the circumstances which have arisen in the present case, it would allow F
the Governor to become a supra legislative authority diluting the
constitutional position of the Legislative Assembly. In the present case,
it has been submitted that ongoing sessions of the Legislative Assemblies
in Rajasthan, Madhya Pradesh, Maharashtra, Chhattisgarh, Odisha and
Kerala have been recently adjourned as a result of the outbreak of
Coronavirus (Covid-19) and hence there was nothing untoward in the G
Speaker‘s decision to adjourn the Madya Pradesh Legislative Assembly
in the present case.
16. Lastly, it has been submitted that the decision of the nine judge
Bench in SR Bommai dealt with a situation where the Governor had
H
812 SUPREME COURT REPORTS [2020] 9 S.C.R.

A submitted a report under Article 356 of the Constitution and was not
applicable to a situation where a trust vote was directed by the Governor.
Dr Singhvi submitted that upon the declaration of President‘s rule in a
state, the limitations on the exercise of powers of the Governor are
substantially reduced. Hence, the decision in SR Bommai was sought
to be distinguished on the ground that it does not deal with the case
B
where the Governor has mandated a trust vote in a running‘ Assembly.
17. Mr Kapil Sibal, learned Senior Counsel appearing on behalf of
the Chief Minister of Madhya Pradesh, supported the arguments made
by Dr Singhvi and urged that the present situation is unique because:
C (i) No one has appeared before the Governor to claim a majority
in the Madhya Pradesh Legislative Assembly; and
(ii) This is the first case of its kind where the Governor has
sought a floor test when the House is in session.
Mr Sibal contends that the observations of the Constitution Bench
D in Nebam Rebia on the authority of the Governor to order a trust vote
to be conducted on the floor of an ongoing legislative assembly are purely
obiter. The case before the Constitution Bench in Nebam Rebia dealt
with a situation where the Governor had preponed the date for the meeting
of the Legislative Assembly to decide the question of the Speaker‘s
E removal. It was submitted that Nebam Rebia is not a precedent for the
proposition that the Governor is entitled to require a trust vote to be
conducted on the floor of a legislative assembly which has been duly
constituted and is in session. Mr Sibal submitted that the consequences
of upholding the power of the Governor would be to encourage both the
demolition of an elected government and of the democratic structures of
F governance. In Mr. Sibal‘s submissions, the Governor would have the
power to summon the House, where it is not in session. Since under
Article 168, the Governor is a part of the legislature, if the House is not
in session it is open to a Governor to seek a special session where facts
indicate that the existing government has lost its majority. However, in a
G similar vein to Dr Singhvi‘s submission, Mr Sibal urged that this course
of action is not open to the Governor when the House is in session and in
such an eventuality, the only remedy is to seek a motion of no confidence
to test whether the incumbent government is possessed of the confidence
of the House.
18. With respect to the exercise of the power of the Governor by
H
calling for a trust vote, it has been submitted that:
SHIVRAJ SINGH CHOUHAN v. SPEAKER M. P. LEGISLATIVE ASSEMBLY 813
[DR DHANANJAYA Y CHANDRACHUD, J.]

(i) There must exist an objective satisfaction of the Governor A
based on material in his possession;
(ii) Absent a physical verification, it cannot be said that the
mere tendering of resignations by Members led to a valid
exercise of power by the Governor to call for a trust vote;
(iii) The Governor had no material to conclude that sixteen B
Members had submitted their resignations voluntarily; and
(iv) Legislative history in the country indicates that minority
governments have survived and unless it is shown that the
mere tendering of resignations actually caused the loss of
confidence in the incumbent government, it is not open to C
the Governor to conclude that the actions of the sixteen
Members would result in a loss of confidence in the
government.
In sum and substance, while both Dr Singhvi and Mr Sibal denied
the existence of the power of the Governor to call for a trust vote in an D
ongoing legislative assembly, this limb of Mr Sibal‘s submissions is that
even if the Governor possesses such a power, his exercise of the power
was ultra vires the scope of that power. It is the submission of Mr Sibal
that the Governor was not in possession of any facts that would
demonstrate that the incumbent government had suffered a loss of E
majority. Lastly, Mr Kapil Sibal also submitted that sixteen Members
have been whisked away‘ on a chartered flight from a high security
zone of the Delhi Airport to Bengaluru, where they have been held at a
resort. Mr Sibal submitted that the statement made before this Court on
behalf of the sixteen Members, that they are not prepared to appear
before the Speaker or to participate in the proceedings in the House, is a F
strong indicator of their being held in captivity.
19. Mr Vivek Tankha, learned Senior Counsel appearing on behalf
of the State of Madhya Pradesh, has supported the submissions which
were urged by Dr Abhishek Manu Singhvi and by Mr Kapil Sibal, learned
Senior Counsel. Apart from relying on certain observations contained in G
the report of the Sarkaria Commission, Mr Vivek Tankha submitted that
the letter of the Governor was premature since the resignations of the
sixteen Members were yet to be accepted by the Speaker. Absent a
decision by the Speaker, it was urged that the Governor should not have
formed an opinion that the government is in a minority.
H
814 SUPREME COURT REPORTS [2020] 9 S.C.R.

A 20. Adopting the same line of submissions, Mr Harin P Raval,
learned Senior Counsel appearing on behalf of the Secretariat of the
Madhya Pradesh Legislative Assembly, submitted that the affidavit which
has been filed before the Madhya Pradesh Legislative Assembly by
fifty-four Members belonging to the BJP is likely to be treated as a
motion of no confidence.
B
21. Mr Tushar Mehta, Solicitor General of India, appeared on
behalf of the Governor of Madhya Pradesh and submitted that:
(i) The question of whether an incumbent government enjoys
the support of the majority of the Members of a state
C legislative assembly is the sole prerogative of the Governor
of that state;
(ii) The satisfaction of the Governor as to whether an incumbent
government continues to enjoy the support of the majority
in the legislative assembly is beyond judicially manageable
D standards of review and this Court should guard against
entering the ‘‘political thicket’’;
(iii) The Governor has not taken a decision as to which political
party enjoys a majority in the legislative assembly but has
merely come to a prima facie determination that there exists
E a doubt over whether the incumbent government continues
to enjoy the support of the majority in the House; and
(iv) It is a well-recognised principle that a floor test within the
shortest possible time is the appropriate measure where
any doubt arises over whether an incumbent government
F continues to enjoy the support of the majority in the legislative
assembly.
Constitutional Provisions concerning State Legislatures
22. Part VI of the Constitution of India deals with the States.
Chapter III of Part VI contains provisions relating to the state legislatures.
G Article 168(1) postulates that in every state ‘‘there shall be a legislature
which shall consists of the Governor’’and of two Houses in certain states
(including Madhya Pradesh) and one House in others. Article 174(1)
entrusts to the Governor, the authority to summon each House of the
legislature of a state, ‘‘to meet at such time and place as it thinks fit’’.
However, the duration between the end of a session and the
H
SHIVRAJ SINGH CHOUHAN v. SPEAKER M. P. LEGISLATIVE ASSEMBLY 815
[DR DHANANJAYA Y CHANDRACHUD, J.]

commencement of the next session shall not exceed six months. Article A
174(2) entrusts the Governor with the authority to (i) prorogue the House;
and (ii) dissolve the legislative assembly. Article 175(1) permits the
Governor to address the legislative assembly. Article 175(2) contemplates
that the Governor may send messages to the House or Houses of the
legislatures of the states. Article 176 makes provisions for a special
B
address by the Governor to the legislative assembly at the commencement
of the session after the general election and at the commencement of
the first session of each year. The powers which have been entrusted to
the Governor are, generally speaking, exercised on the basis of the aid
and advice of the Council of Ministers in terms of the provisions of
Article 163(1). Article 163(1) stipulates that the Council of Ministers C
with the Chief Minister as its head would ‘‘aid and advise the Governor
in the exercise of his functions’’ except where the Constitution requires
the Governor to exercise ‘‘his functions or any of them in his discretion’’.
23. Article 190 contains provisions for the ‘‘vacation of seats’’.
Clause (3) of the Article states: D
‘‘(3) If a member of a House of the Legislature of a State—
(a) becomes subject to any of the disqualifications mentioned in
clause (1) or clause (2) of article 191; or
(b) resigns his seat by writing under his hand addressed to the E
speaker or the Chairman, as the case may be, and his
resignation is accepted by the Speaker or the Chairman, as
the case may be, his seat shall thereupon become vacant:
Provided that in the case of any resignation referred to in sub-
clause (b), if from information received or otherwise and after F
making such inquiry as he thinks fit, the Speaker or the Chairman,
as the case may be, is satisfied that such resignation is not
voluntary or genuine, he shall not accept such resignation.’’
Sub-clause (b) of clause (3) of Article 190 indicates that a seat
‘‘shall thereupon become vacant’’ when a Member ‘‘resigns his seat’’and
G
the resignation is accepted by the Speaker and the Chairman, as the
case may be. The provisions of sub-clause (b) of clause (3) of Article
190 were amended by the Constitution (Thirty-Third Amendment) Act
1974 to incorporate a specific provision for the acceptance of the
resignation of a Member by the Speaker. The expression ‘‘shall thereupon
become vacant’’ indicates that a vacancy arises only upon the H
816 SUPREME COURT REPORTS [2020] 9 S.C.R.

A acceptance of the resignation by the Speaker, or as the case may be, the
Chairman of the House. The proviso to clause (3) of Article 190 indicates
that a resignation shall not be accepted if the Speaker or Chairman is not
satisfied that the resignation is ‘‘voluntary or genuine’’. Before this
satisfaction is arrived at, the proviso requires the Speaker or the Chairman
(as the case may be) to make an enquiry as is thought to be fit. These
B
provisions were introduced through a constitutional amendment to
safeguard the membership of elected members of the legislature being
forfeited by coercion or misrepresentation. The Statement of Objects
and Reasons accompanying the constitutional amendment explained its
purpose in the following terms:
C ‘‘…In the recent past, there have been instances where coercive
measures have been resorted to for compelling members of a
Legislative Assembly to resign their membership. If this is not
checked, it might become difficult for Legislatures to function in
accordance with the provisions of the Constitution. It is, therefore
D proposed to amend the above two articles to impose a requirement
as to acceptance of the resignation by the Speaker or the Chairman
and to provide that the resignation shall not be accepted by the
Speaker or the Chairman if he is satisfied after making such inquiry
as he thinks fit that the resignation is not voluntary or genuine.’’
E 24. The role of the Speaker in accepting resignations and
determining disqualifications was the subject of a three judge Bench
decision of this Court in Shrimanth Balasaheb Patil v Karnataka
Legislative Assembly13. While elaborating on the provisions of Article
190(3)(b) as amended, the judgment lays down the following principles:

F (i) A Member of the legislature is vested with the sole
prerogative to determine whether or not to continue in
office;
(ii) A Member who seeks to resign cannot be compelled to
continue in office;
G (iii) A resignation is required to be accepted by the Speaker or
the Chairman, as the case may be;
(iv) The seat occupied by the Member falls vacant only upon
acceptance of the resignation;
13
H (2020) 2 SCC 595
SHIVRAJ SINGH CHOUHAN v. SPEAKER M. P. LEGISLATIVE ASSEMBLY 817
[DR DHANANJAYA Y CHANDRACHUD, J.]

(v) The role of the Speaker is to determine whether a resignation A
is ‘‘voluntary or genuine’’;
(vi) The satisfaction of the Speaker should be based on the
information received or otherwise and upon making such
enquiry as is considered to be fit;
(vii) Though, the term ‘‘genuine’’ has not been defined, what is B
meant is the authenticity of the letter of resignation; and
(viii) Though, the expression ‘‘voluntary’’ has not been defined,
it would mean that a resignation should not be a result of
threat of force or coercion.
C
Justice N V Ramana speaking for the three-judge bench of this
Court elaborated on the role which has been entrusted to the Speaker,
stating:
‘‘79. Third, the Speaker can reject the resignation, if the Speaker
is satisfied that the resignation was ‘‘not voluntary or genuine’’. D
Herein, our attention is drawn to the Chapter 22, Rule 202(2) of
the Rules of Procedure and Conduct of Business in Karnataka
Legislative Assembly […] Reading the rule in consonance with
Article 190(3)(b) of the Constitution and its proviso, it is clear that
the Speaker’s satisfaction should be based on the information
received and after making such inquiry as he thinks fit. The E
aforesaid aspects do not require a roving inquiry and with the
experience of a Speaker, who is the head of the House, he is
expected to conduct such inquiry as is necessary and pass an
order. If a Member appears before him and gives a letter in writing,
an inquiry may be a limited inquiry. But if he receives information F
that a Member tendered his resignation under coercion, he may
choose to commence a formal inquiry to ascertain if the resignation
was voluntary and genuine.
The three judge Bench of this Court finally held:
‘‘83. In view of our above discussion we hold that the Speaker G
can reject a resignation only if the inquiry demonstrates that it is
not ‘‘voluntary’’ or ‘‘genuine’’. The inquiry should be limited to
ascertaining if the Member intends to relinquish his membership
out of his free will. Once it is demonstrated that a Member is
willing to resign out of his free will, the Speaker has no option but
H
818 SUPREME COURT REPORTS [2020] 9 S.C.R.

A to accept the resignation. It is constitutionally impermissible for
the Speaker to take into account any other extraneous factors
while considering the resignation. The satisfaction of the Speaker
is subject to judicial review.
It is in the above context that the inquiry by the Speaker or
B Chairman (as the case may be) has to be understood. The Court cannot
fetter the discretion of the Speaker to conduct an inquiry into whether a
resignation is ‘‘voluntary’’ or ‘‘genuine’’. However, neither can the
Speaker exceed the terms of the mandate and conduct an overbroad
inquiry into the underlying motives of the Member. It is sufficient that
the Speaker is satisfied that the Member’s resignation is ‘‘voluntary’’and
C ‘‘genuine’’.
25. The court further held that both a resignation as well as a
disqualification arising on account of the defection under a Tenth Schedule
results in a vacancy of the seat held by the Member in the legislature,
but the consequences which emanate are distinct. As a result of Article
D 164(1B) a Member who is disqualified by the Speaker on account of
defection is barred from being appointed as a Minister or from holding
any remunerative political post from the date of disqualification till the
date on which the term of their office would expire or until re-election to
the legislature, whichever is earlier. The court held that under the Tenth
E Schedule, the Speaker does not have an explicit power either to specify
the period of disqualification or to bar a Member from contesting elections
after disqualification until the end of the term of the Legislative Assembly.
The Actions of the Governor and the Legal Challenge
26. The heart of the dispute in the present case is whether the
F Governor was acting within the bounds of his constitutional authority in
ordering a trust vote to be conducted on the floor of the Madhya Pradesh
Legislative Assembly on 16 March 2020. The factual background to this
question has been adverted to in the prefatory part of the judgment. To
recapitulate, twenty-two Members belonging to the INC tendered their
G resignations on 10 March 2020. Alleging the complicity of the BJP in
engineering these resignations, the Chief Minister of Madhya Pradesh
in his letter to the Governor dated 13 March 2020 stated that as a
responsible leader‘ he would invite and would welcome a floor test‘ of
his government in the forthcoming Budget Session of the Legislative
Assembly notified to commence on 16 March 2020. This, according to
H
SHIVRAJ SINGH CHOUHAN v. SPEAKER M. P. LEGISLATIVE ASSEMBLY 819
[DR DHANANJAYA Y CHANDRACHUD, J.]

the Chief Minister, was the minimum a constitutional authority could A
offer to address the ongoing turmoil’. The Speaker of the Legislative
Assembly furnished an opportunity on 13 March 2020 and 14 March
2020 to all the twenty-two Members (including six Cabinet Ministers
among them) to appear before him but they did not do so. On 13 March
2020, notices of disqualification were issued to the six Members who
B
were members of the Cabinet. The Governor acting on the aid and advice
of the Chief Minister dismissed these six individuals from the State
Cabinet. On 14 March 2020, the Speaker of the Legislative Assembly
acting pursuant to Rule 276 of the Madhya Pradesh Assembly Rules,
accepted their resignations. In a communication dated 14 March 2020
the Governor called upon the Chief Minister to undertake a floor test to C
determine whether the latter‘s to determine whether the government
commanded the confidence of the legislature. The communication stated
that the floor test was to take place at the inception of the forthcoming
Budget Session immediately after the address of the Governor.
27. The letters sent by the Governor to the Chief Minister indicate D
that the Governor relied on the following circumstances in coming to the
conclusion that a floor test was urgently required:
(i) Receipt of information by the Governor that twenty-two
Members who had previously supported the incumbent
government had submitted their resignations to the Speaker E
of the Legislative Assembly;
(ii) The Members who had tendered their resignations had
communicated their decision through the print and electronic
media;
(iii) Copies of the letters of resignations had been submitted by F
the twenty-two Members to the Governor;
(iv) The twenty-two Members had asked the Governor to
provide security to facilitate their appearing before the
Speaker;
G
(v) Among the group of twenty-two Members who had
tendered their resignations were six Cabinet Ministers
whose resignations had been accepted by the Speaker;
(vi) The Chief Minister‘s letter dated 13 March 2020 indicating
the desire to conduct a floor test in the Legislative Assembly;
and H
820 SUPREME COURT REPORTS [2020] 9 S.C.R.

A (vii) A letter received from the BJP (the principal opposition in
the Legislative Assembly) adverting to the above
circumstances. The BJP complained that undue pressure
was being brought on the Members who have tendered
their resignations.
B It was on the basis of the above material and circumstances that
the Governor informed the Chief Minister of his having formed the opinion
prima facie that the government had been reduced to a minority in the
House, making it necessary to conduct a floor test immediately after the
address of the Governor at the Budget Session. The agenda which was
circulated to the Members of the House did not include a floor test.
C Instead, soon after the House convened, it was adjourned until 26 March
2020 on account of the outbreak of Coronavirus (Covid-19).
28. The action of the Governor requiring a trust vote be carried
out has essentially been assailed on three broad grounds of challenge. It
has been submitted that:
D
(i) The Governor had no power to order a trust vote in the
course of an ongoing Legislative Assembly or at any rate
while the Legislative Assembly was in session;
(ii) If the Governor did possess such a power then the exercise
E of the power by the Governor in ordering a trust vote
impinged upon the authority entrusted to the Speaker under
the proviso to Article 190(3)(b) and the Tenth Schedule of
the Constitution to determine matters of resignation and
disqualification respectively; and

F (iii) The Governor had no objective basis or material to form
the prima facie opinion that the incumbent government had
lost its majority in the Madhya Pradesh Legislative
Assembly.
29. Before we deal with the constitutional issues raised by the
above submissions, it is necessary to consider the submission that a motion
G
of no confidence has been received by the Speaker and that there was
no justification for the Governor to impede that process. 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
H support the position of the signatories that they will support the BJP and
SHIVRAJ SINGH CHOUHAN v. SPEAKER M. P. LEGISLATIVE ASSEMBLY 821
[DR DHANANJAYA Y CHANDRACHUD, J.]

vote against the incumbent government. On a bare reading of the A
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 vote.
B
Questions before the Court
30. The present controversy raises two separate but intertwined
constitutional questions. First, whether the Governor is entrusted with
the authority to call for a trust vote in the course of a ‘‘running assembly’’,
and second whether the Governor exercised this authority correctly. If C
the Governor does not possess the authority, the action of calling for an
immediate floor test is ultra vires and unconstitutional. Alternatively, if
the Governor does possess the authority to call for a floor test, this Court
must determine the contours of such power and answer the question of
whether the Governor acted within those contours.
D
31. It was briefly contended before us that this Court should be
wary of entering the realm of politics‘ where no judicially manageable
standards‘ can be maintained, and the outcome prescribed by the court
is likely to tilt the political balance. We reject these submissions. Merely
because the present dispute concerns the conduct of elected
representatives, or the remedy sought is a democratic process, does not E
mean that the court will refuse to consider it. In State of Rajasthan v
Union of India14 it was contended that whether the government of a
state could continue to operate in accordance with the Constitution was
a political question not justiciable in courts of law. Rejecting this submission
at the outset, Justice Bhagwati (as the learned Chief Justice then was) F
speaking for himself and Justice A C Gupta held:
‘‘[The Additional Solicitor General] urged that having regard to
the political nature of the problem, it is not amenable to judicial
determination and hence the Court must abstain from inquiring
into it. We do not think we can accept this argument. Of course, G
it is true that if a question brought before the Court is purely a
political question not involving determination of any legal or
constitutional right or obligation, the Court would not entertain it,
since the Court is concerned only with adjudication of legal rights
14
(1977) 3 SCC 592 H
822 SUPREME COURT REPORTS [2020] 9 S.C.R.

A and liabilities. But merely because a question has a political
complexion, that by itself is no ground why the Court should
shrink from performing its duty under the Constitution if it
raises an issue of constitutional determination. Every
constitutional question concerns the allocation and exercise
of governmental power and no constitutional question can,
B
therefore, fail to be political. A constitution is a matter of purest
politics, a structure of power and as pointed out by Charles Black
in ‘Perspectives in Constitutional Law’ ‘‘constitutional law
symbolizes an intersection of law and politics, wherein issues of
political power are acted on by persons trained in the legal tradition,
C working in judicial institutions, following the procedures of law
thinking as lawyers think’’.
(Emphasis supplied)
Elucidating on the role of the court in such situations, the learned
judge observed:
D
‘‘This Court is the ultimate interpreter of the Constitution and to
this Court is assigned the delicate task of determining what is the
power conferred on each branch of Government, whether it is
limited, and if so, what are the limits and whether any action of
that branch transgresses such limits. It is for this Court to uphold
E the constitutional values and to enforce the constitutional limitations.
That is the essence of the rule of law. … Where there is
manifestly unauthorised exercise of power under the
Constitution, it is the duty of the Court to intervene. Let it
not be forgotten, that to this Court as much as to other
F branches of Government, is committed the conservation
and furtherance of democratic values. The Court’s task is to
identify those values in the constitutional plan and to work them
into life in the cases that reach the Court.’’
(Emphasis supplied)
G Since the adoption of the Constitution, this Court has on several
occasions adjudicated upon whether the actions of the legislative and
executive branches adhere to the democratic processes created by the
Constitution. As the ultimate arbiter of the constitutional text, this Court
is tasked with ensuring that each branch of government operates within
the limits placed upon it by the Constitution, including in the realm of
H
SHIVRAJ SINGH CHOUHAN v. SPEAKER M. P. LEGISLATIVE ASSEMBLY 823
[DR DHANANJAYA Y CHANDRACHUD, J.]

democratic politics. The present controversy arises out of a dispute A
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
B
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 C
doubt that the present case is suitable for judicial determination by this
Court. In fact it is eminently so.
Constitutional Role of the Governor
32. We must consider the constitutional scheme in operation
between the state legislature and the office of the Governor. As a matter D
of constitutional principle, the state legislature comprises of the Governor
and the legislative assembly (and in the case of a bicameral legislature,
this also includes the legislative council). The Governor is not an elected
member of the state legislature. The Governor is appointed by the
President and is the head of the executive branch in whom, under Article E
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. 15
33. Prior to the adoption of the Constitution, the discretion of the F
Governor to supervise the legislative processes of the (then) provinces
was enshrined in Section 50 of the Government of India Act 1935. The
provision stated that the Governor would act on the aid and advice of the
Council of Ministers for a province ‘‘except in so far as he is by or under
this Act required to exercise his functions or any of them in his discretion’’.
G
15
Article 158. Conditions of Governor’s office.—(1) The Governor shall not be a
member of either House of Parliament or of a House of the Legislature of any State
specified in the First Schedule, and if a member of either House of Parliament or of a
House of the Legislature of any such State be appointed Governor, he shall be deemed
to have vacated his seat in that House on the date on which he enters upon his office as
Governor. H
824 SUPREME COURT REPORTS [2020] 9 S.C.R.

A Section 50 also gave the Governor of a province the power to
preside at meetings of the Council of Ministers. During the framing of
our Constitution, once a decision was taken that the post of the Governor
would be filled by nomination and not election, it was widely accepted
that the Governor should not be permitted to preside at meetings of the
Council of Ministers. However, the drafting committee thought it wise
B
to retain the discretionary powers of the Governor in draft article 143
(what ultimately became Article 163 of the Constitution). However, this
decision was not taken lightly. When the motion to adopt the article was
tabled, H V Kamath took objection to the Article and suggested an
amendment in the following speech:
C ‘‘When you, Sir, raised a very important issue, the other day, Dr.
Ambedkar clarified this clause by saying that the President is
bound to accept the advice of his ministers in the exercise of all of
his functions. But here Article 143 vests certain discretionary
powers in the Governor, and to me it seems that even as it was, it
D was bad enough, but now after having amended Article 131
regarding election of the Governor and accepted nominated
Governors, it would be wrong in principle and contrary to the
tenets and principles of Constitutional Government, which you
are going to build up in this country. It would be wrong I say, to
invest a Governor with these additional powers, namely,
E discretionary powers. I feel that no departure from the
principles of Constitutional Government should be favoured
except for reasons of emergency and these discretionary
powers must be done away with. I hope this Amendment of
mine will commend itself to the House. I move, Sir.’’ 16
F (Emphasis supplied)
The amendment proposed by H V Kamath sought to strip the
Governor of all discretionary powers except in the case of an emergency.
Crucially, the reason given by H V Kamath for doing away with the
discretionary powers of the Governor was that the decision had recently
G been taken that the Governor would be nominated and not elected. Thus,
granting discretionary powers to an unelected constitutional authority
was, to the mind of H V Kamath, ‘‘a departure from the principles of
Constitutional Government’’.

16
H Constituent Assembly of India, Volume VIII (debate of 1 June 1949)
SHIVRAJ SINGH CHOUHAN v. SPEAKER M. P. LEGISLATIVE ASSEMBLY 825
[DR DHANANJAYA Y CHANDRACHUD, J.]

34. Opposing the above amendment to divest the Governor of A
discretionary powers, Brajeshwar Prasad took the floor and stated:
‘‘I feel that the Governor should be vested with the power of
special responsibilities which the Governors under the British
regime were vested in this country. I feel that there is a dearth
of leadership in the provinces. Competent men are not B
available and there are all kinds of things going on in the
various provinces. Unless the Governor is vested with large
powers it will be difficult to effect any improvement in the
Provincial administration. Such a procedure may be
undemocratic but such a procedure will be perfectly right
in the interest of the country. I feel there is no creative energy C
left in the middle-class intelligentsia of this country. They seem to
have become bereft of initiative and enterprise. The masses who
ought to be the rulers of this land are down-trodden and exploited
in all ways. Under these circumstances there is no way left open
but for the Government of India to take the Provincial D
administrations in its own hands. I feel that we are on the
threshold of a revolution in this country. There will be
revolution, bloodshed and anarchy in this country. I feel
that at this juncture it is necessary that all powers should
remain centralised in the hands of the Government of India.
In certain provinces the machinery of law and order seems to E
have completely broken down. Dacoities, arson, loot, murder and
inflationary conditions are rampant. I am opposed to this Article,
because I am convinced that federalism cannot succeed in a
country which is passing through a transitory period.’’17
(Emphasis supplied) F

In defending the discretionary powers of the Governor, the
Member acknowledged that the grant of discretionary powers to the
Governor ran counter to the principles of democracy. However, the
Member saw two key historical circumstances that in his view
necessitated the grant of such powers: first, the lack of competent G
administrators in the provinces to facilitate the democratic processes
envisioned by the Constitution and second, the need for centralised and
coordinated governance at a time when the unity and integrity of India
was still in doubt.
17
Constituent Assembly of India, Volume VIII (debate of 1 June 1949) H
826 SUPREME COURT REPORTS [2020] 9 S.C.R.

A 35. It is pertinent to advert to the remarks made by Rohini Kumar
Chaudhury in the Constituent Assembly Debates for they are particularly
prescient in light of the present controversy. In supporting the amendment
put forth by H V Kamath to restrict the discretionary powers of the
Governor, the Member observed:
B ‘‘Sir, I know to my cost and to the cost of my Province what
‘acting by the Governor in the exercise of his discretion’ means.
It was in the year 1942 that a Governor acting in his discretion
selected his Ministry from a minority party and that minority was
ultimately converted into a majority. I know also, and the House
will remember too, that the exercise of his discretion by the
C Governor of the Province of Sindh led to the dismissal of one of
the popular Ministers— Mr. Allah Bux. Sir, if in spite of this
experience of ours we are asked to clothe the Governors with the
powers to act in the exercise of their discretion, I am afraid we
are still living in the past which we all wanted to forget. ’’18
D In granting the Governor a supervisory jurisdiction over the
legislative assemblies of the states, there exists a risk that the unelected
office of the Governor can alter democratically achieved electoral
outcomes. The examples highlighted above show that the framers of the
Constitution had themselves been subject to the abuse of the discretionary
E powers of the Governor under the Government of India Act 1935 and
were acutely aware of the risks associated with the office of the
Governor.
36. In interpreting the Constitution, it would be not be correct to
rely on the speeches made by individual members of the Constituent
F Assembly. Each speech represents the view of one individual in the
Assembly which taken as a whole formed a kaleidoscope of competing
political ideologies. There may arise instances where the court is of the
independent opinion that the views raised by individual Members of the
Constituent Assembly in their speeches lay down considerations that
warrant examination and approval by the Court. The general rule however,
G would be to examine the decisions taken by Constituent Assembly taken
by majority vote. The votes of the Constituent Assembly represent equally
the views of all the members of the Assembly and are the final and
dispositive expressions of the constitutional choices taken in framing our
Constitution. On the question of whether the Constitution should grant
H 18
Constituent Assembly of India, Volume VIII (debate of 1 June 1949)
SHIVRAJ SINGH CHOUHAN v. SPEAKER M. P. LEGISLATIVE ASSEMBLY 827
[DR DHANANJAYA Y CHANDRACHUD, J.]

certain discretionary powers to the Governor, the question was put to A
the Assembly:
‘‘The question is: “That in clause (1) of Article 143, the words
‘except in so far as he is by or under this Constitution required
to exercise his functions or any of them in his discretion be
deleted.” B
The Amendment was negatived.
The Constituent Assembly thus decided to vest the office of the
Governor with certain discretionary powers under the Constitution. In
taking this decision, the Constituent Assembly was aware that there
were certain associated risks in granting the Governor discretionary C
powers, including in questions of the formation, disruption and dissolution
of democratically elected governments. However, the framers felt that
this decision was necessitated by unique historical factors that existed at
the time of adopting the Constitution and it was hoped that with the
maturing of our polity, a level of constitutional statesmanship and trust D
would paper over the cracks of constitutional choices necessitated by
more violent times.
37. The discretionary powers ultimately vested in the Governor
under Article 163 of the Constitution represent an exception to the general
rule of aid and advice. The Constitution embodies the principle of aid E
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. The Council of Ministers is
collectively responsible to the legislative assembly of the state. In
discussing the principle of collective responsibility, a Constitution Bench
of this Court in State (NCT of Delhi) v Union of India19 observed: F
‘‘321. Collective responsibility of Ministers to Parliament is
comprehended in two aspects: (i) collective responsibility of
Ministers for the policies of the Government; and (ii) individual
responsibility of Ministers for the work of their governments. The
idea behind this bifurcation, as explained by Birch, is to hold a G
Government continuously accountable for its actions, so that it
always faces the possibility that a major mistake may result in a
withdrawal of parliamentary support’…
…
19
(2018) 8 SCC 501 H
828 SUPREME COURT REPORTS [2020] 9 S.C.R.

A 324. Granville Austin observes that the Framers of India‘s
Constitution conceived that the democratic values of the
Constitution would be achieved if the institutions of direct,
responsible Government‘ The Members of the Constituent
Assembly borrowed the Parliamentary-Cabinet form of
Government from British constitutional theory and adopted it into
B
our Constitution. Though the Constituent Assembly did not adopt
the British constitutional conventions in the written form, collective
responsibility of the Cabinet was specifically incorporated into
India‘s constitutional framework.
The legislative assembly is a democratically elected body and the
C 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
D 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 a constitutional affliction. In making the Council of
Ministers answerable to the legislative assembly and in entrusting to the
E 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.
38. The Constitution employs distinct expressions in relation to
F 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. After the elections have been held for the purpose
of constituting a legislative assembly, the legislature is summoned by the
G 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
H
SHIVRAJ SINGH CHOUHAN v. SPEAKER M. P. LEGISLATIVE ASSEMBLY 829
[DR DHANANJAYA Y CHANDRACHUD, J.]

172 is brought to an end either on the expiry of this period counted from A
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
B
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 C
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
D
legislature is maintained by the gubernatorial office.
The Power of the Governor
39. 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 E
which came up for consideration included the dispute emanating from
the State of Karnataka. In the State of Karnataka, following elections to
the Assembly in March 1985, the Janata Legislature Party emerged
with the majority. Shri Ramakrishna Hegde was elected as the leader of
the party and was sworn-in as Chief Minister. Following his resignation,
Shri Bommai was elected as leader of the party and was sworn-in as F
Chief Minister on 30 August 1988. In September 1988, there was a
merger of the Janata Party with the Lok Dal (B) resulting in the formation
of Janata Dal. On 17 April 1989, a legislator defected from the party and
presented a letter to the Governor of Karnataka withdrawing his support
from the Janata Dal government. The legislator met the Governor on G
the next day and presented nineteen letters purportedly of seventeen
Janata Dal legislators, an independent and a BJP legislator withdrawing
support from the Janata Dal government. On 19 April 1989, the Governor
sent a report to the President opining that as a result of the withdrawal
of support, the ruling party had been reduced to the minority in the
H
830 SUPREME COURT REPORTS [2020] 9 S.C.R.

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
E 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
F 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
G 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
SHIVRAJ SINGH CHOUHAN v. SPEAKER M. P. LEGISLATIVE ASSEMBLY 831
[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.
40. 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 D
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 E
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 F
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
832 SUPREME COURT REPORTS [2020] 9 S.C.R.

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
B
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
C 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
G 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
H confidence of the House must be determined only on the
SHIVRAJ SINGH CHOUHAN v. SPEAKER M. P. LEGISLATIVE ASSEMBLY 833
[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.
41. 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 F
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 G
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
834 SUPREME COURT REPORTS [2020] 9 S.C.R.

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.
42. 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
D 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
E 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
F 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
G 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
SHIVRAJ SINGH CHOUHAN v. SPEAKER M. P. LEGISLATIVE ASSEMBLY 835
[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
B
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 C
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
D
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
836 SUPREME COURT REPORTS [2020] 9 S.C.R.

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
F 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
G authority.
Exercise of Power by the Governor
43. The powers which are entrusted to constitutional functionaries
are not beyond the pale of judicial review. Where the exercise of the
H discretion by the Governor to call a floor test is challenged before the
SHIVRAJ SINGH CHOUHAN v. SPEAKER M. P. LEGISLATIVE ASSEMBLY 837
[DR DHANANJAYA Y CHANDRACHUD, J.]

court, it is not immune from judicial review. The court is entitled to A
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
B
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.
44. 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

45. 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
838 SUPREME COURT REPORTS [2020] 9 S.C.R.

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
D
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,
E by the people and for the people would not be denuded by those who
were designed to act as its sentinels.
46. 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
F 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
G 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
SHIVRAJ SINGH CHOUHAN v. SPEAKER M. P. LEGISLATIVE ASSEMBLY 839
[DR DHANANJAYA Y CHANDRACHUD, J.]

47. In the present case, the facts which have come on the record A
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
B
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 C
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.
48. 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
840 SUPREME COURT REPORTS [2020] 9 S.C.R.

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
SHIVRAJ SINGH CHOUHAN v. SPEAKER M. P. LEGISLATIVE ASSEMBLY 841
[DR DHANANJAYA Y CHANDRACHUD, J.]

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.

H
842 SUPREME COURT REPORTS [2020] 9 S.C.R.

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
F 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
G 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
SHIVRAJ SINGH CHOUHAN v. SPEAKER M. P. LEGISLATIVE ASSEMBLY 843
[DR DHANANJAYA Y CHANDRACHUD, J.]

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.

49. The idea underlying the trust vote in the ultimate analysis, is to D
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 E
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 F
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 G
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
844 SUPREME COURT REPORTS [2020] 9 S.C.R.

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
B 50. 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
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 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
SHIVRAJ SINGH CHOUHAN v. SPEAKER M. P. LEGISLATIVE ASSEMBLY 845
[DR DHANANJAYA Y CHANDRACHUD, J.]

have embarked upon a voluntary act of resignation or have incurred the A
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
B
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 C
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
D
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 E
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
F
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 G
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
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846 SUPREME COURT REPORTS [2020] 9 S.C.R.

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.
52. During the course of his submission, Dr Singhvi fairly accepted
B 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
C 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
53. An area on which rival submissions have been urged before
this Court is the issue of captivity. The petition by the INC on which
E 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
F 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
G 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
SHIVRAJ SINGH CHOUHAN v. SPEAKER M. P. LEGISLATIVE ASSEMBLY 847
[DR DHANANJAYA Y CHANDRACHUD, J.]

have tendered their resignation have no desire to interact with any A
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.
54. The spectacle of rival political parties whisking away their
political flock to safe destinations does little credit to the state of our B
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
848 SUPREME COURT REPORTS [2020] 9 S.C.R.

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
B
should not be prevented from doing so.
55. 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
C 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
E 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
F with law. These reliefs are patently misconceived.
56. 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
G 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
SHIVRAJ SINGH CHOUHAN v. SPEAKER M. P. LEGISLATIVE ASSEMBLY 849
[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.
57. 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 E
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 F
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;
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850 SUPREME COURT REPORTS [2020] 9 S.C.R.

A (ii) The meeting to be convened in pursuance of (i) above shall
be confined to a single agenda, namely, whether the
government of the incumbent Chief Minister continues to
enjoy the confidence of the House;
(iii) Voting on agenda (ii) above shall take place by show of
B hands (the Governor having clarified by his letter dated 15
March 2020 that there is no provision for recording the
division by press of button‘);
(iv) The proceedings before the Legislative Assembly shall be
video graphed and, if a provision exists for live telecast of
C the proceedings, this shall in addition be ensured;
(v) All authorities, including the Legislative Secretary, shall
ensure that there is no breach of law and order in the course
of the proceedings and that the floor test is conducted in a
peaceful manner;
D (vi) The floor test in pursuance of the above directions shall be
concluded by 5.00 pm on 20 March 2020; and
(vii) The Director General of Police, Karnataka as well as the
Director General of Police, Madhya Pradesh shall ensure
that there shall be no restraint or hindrance whatsoever on
E any of the sixteen MLAs taking recourse to their rights and
liberties as citizens. In the event that they or any of them
opt to attend the session of the Legislative Assembly,
arrangements for their security shall be provided by all the
concerned authorities.
F Reasons shall follow.’’
Our reasons for the above directions are contained in the text of
this judgment. We affirm the above directions as final operative directions
of this Court. Writ Petition No. 439 of 2020 shall stand disposed of in
terms of the above directions. Writ Petition No. 449 of 2020 shall stand
G dismissed. Impleadment applications shall accordingly stand disposed
of.
Pending application(s), if any, shall stand disposed of.

Devika Gujral Writ Petitions disposed of.
H