Marking the imprecise territory of gubernatorial discretion to call for a trust vote

Abstract

ABSTRACT The Indian Constitution obligates the Governors to act with the aid and advise of their Council of Ministers except in those matters where discretionary powers have been explicitly conferred upon them. Despite the absence of an explicit power to order a state government to face a floor test before the House, Governors have been using their discretion to make such directions. While defining the ambit of this discretion, several Inter-State Council reports and judicial pronouncements have assented to this practice. This paper argues against this trend and asserts that the process of summoning the assembly for a “floor test” must be driven by the choice of elected legislators rather than the Governors’ subjective satisfaction. Towards this end, this paper proposes a four-level formula, with certain rights for the opposition parties, which must be followed by the Governors when the confidence of the House in the incumbent government is questioned.