Governor has discretion if majority in doubt, say legal experts

The Governor has to act on the aid and advice of the council of ministers if the chief minister continues to enjoy majority, but can exercise discretionary powers in ordering floor test, dissolution of house or exploring possibilities for government formation if he has doubts over the majority of the ruling dispensation, according to legal experts on Thursday.

The gubernatorial powers including the discretionary ones have taken centre stage in the wake of the ongoing political crisis in the Shiv Sena, one of the three constituents of the Uddhav Thackeray-led Maharashtra Vikas Aghadi (MVA) government in Maharashtra, amid speculation that the Governor may be advised to dissolve the state Assembly.

Rebel Shiv Sena leader and state minister Eknath Shinde, who claims to have the support of 46 MLAs, including independents, has given a letter to the deputy speaker of the Assembly, signed by 35 Sena MLAs, replacing Sunil Prabhu with Bharat Gogavale as the chief whip of the Shiv Sena legislature party.

Senior lawyer and constitutional law expert Rakesh Dwivedi and senior advocate and SCBA president Vikas Singh were of the view that the Governor has some discretionary powers if he has reasonable belief that the government does not enjoy the majority support in the Assembly and in that situation, he is not bound by the aid and advice of the council of ministers and may ask the chief minister to take up the floor test.

Another senior lawyer Ajit Kumar Sinha said a floor test is the main test to ascertain as to who has the majority support.

Referring to the ongoing crisis in Maharashtra, Vikas Singh, however, said that in the current situation Governor Bhagat Singh Koshyari would be bound by the aid and advice of the council of ministers as presently, “this is purely an internal party squabbling and it has nothing to do with the Governor”.

“This is not the case where he (Thackeray) has lost the majority. This is the case where his leadership is under challenge inside his own party... Unless the three constituents elect another leader of the MVA, he (Uddav Thackeray) continues to remain the leader. Internal differences do not change the leadership of the government. The Governor will be bound by the advice of the council of ministers,” Singh said.

“Unless, these 36 (rebel) MLAs write to the Governor saying that we withdraw the support only then the Governor will have some role...,” Singh added.

Dwivedi said that under the Constitution, normally the Governor has to act only on the aid and advice of the council of the ministers but on the assumption that the chief minister is continuing to enjoy the majority in the House. "That is the underlined assumption. The Governor is not bound by the advice of a ministry which has lost majority and the confidence of the house”.

He said the Governor will have some choices in this state of affairs if the chief minister loses “confidence, majority” of the assembly.

“The Governor has to satisfy himself whether the government continues to enjoy a majority. He can call the chief minister either personally or digitally or telephonically. And, if the CM claims that he continues to have the majority and the Governor has doubts then the Governor will ask him to establish his majority on the floor of the House,” Dwivedi added.

Referring to the constitutional provisions, Sinha said the Governor has the power to invite any stakeholder who comes forward with the claim of having the requisite number and if he finds the claim “credible” then he would ask the Speaker to hold the floor test.

Article 174(2)(b) of the Constitution gives powers to the Governor to dissolve the Assembly on the aid and advice of the Cabinet. However, the Governor can apply his mind when the advice comes from a chief minister whose majority is under reasonable suspicion.

Dwivedi said if Chief Minister Uddhav Thackeray admits that he has lost the majority then the Governor will have a choice either to dissolve the assembly or to then call for the meeting with the leader of the opposition Devendra Fadanvis and to enquire whether the BJP leader is willing to form a government or not.

“If he finds that the other formation is unwilling to form the government then the Governor will have no option but to dissolve the assembly." The Maharashtra assembly has 288 seats and the ruling MVA has 169 lawmakers including 56 MLAs of the Shiv Sena. The opposition BJP has 106 MLAs. (With inputs from PTI)