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Thursday, August 13, 2020

Explained: When can a Governor use his discretion, how has Supreme Court ruled?

The Rajasthan government crisis has brought into the spotlight the role of the Governor. When can a Governor summon the House? What are the powers vested in the office of the Governor, and what has the Supreme Court said?

Written by Apurva Vishwanath , Edited by Explained Desk | New Delhi | Updated: July 29, 2020 8:46:24 am
rajasthan, rajasthan ashok gehlot, rajasthan government, kalraj mishra, rajasthan congress govt crisis, rajasthan floor test, supreme court governor's powers, india governors powers, indian express explained, With the Rajasthan government in a crisis, we explain the role of the Governor

Rajasthan Governor Kalraj Mishra returning the fresh proposal by the state Cabinet – seeking to convene a session of the Assembly on 31 July – has raised fresh legal questions on the powers of the Governor. This is the second time that the Governor has put off the request, which would allow Congress Chief Minister Ashok Gehlot to prove his strength on the floor of the House. In 2016, in a different case, the Supreme Court dealt with the issue of powers of the Governor to summon, dissolve the House.

Who has the powers to summon the House?

It is the Governor acting on the aid and advice of the cabinet.

Article 174 of the Constitution gives the Governor the power to summon from time to time “the House or each House of the Legislature of the State to meet at such time and place as he thinks fit…”

However, the phrase “as he thinks fit” is read as per Article 163 of the Constitution which says that the Governor acts on the aid and advice of the cabinet. Article 163(1) essentially limits any discretionary power of the Governor only to cases where the Constitution expressly specifies that the Governor must act on his own and apply an independent mind.

Also in Explained | Governor’s role, in review

What has the Supreme Court said in the past about the Governor’s power to summon the House?

It is settled law that the Governor cannot refuse the request of the Cabinet to call for a sitting of the House for legislative purposes or for the chief minister to prove his majority. In fact, on numerous occasions, including in the 2016 Uttarakhand case, the court has clarified that when the majority of the ruling party is in question, a floor test must be conducted at the earliest available opportunity.

In 2016, a Constitution Bench of the Supreme Court in Nabam Rebia and Bamang Felix vs Deputy Speaker, the Arunachal Pradesh Assembly case, expressly said that the power to summon the House is not solely vested in the Governor.

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What did the SC say in the Arunachal case?

Referring to discussions in the Constituent Assembly, the court noted that the framers of the Constitution expressly and consciously left out vesting powers to summon or dissolve the House solely with the Governor.

In paragraph 162 of the judgment, the court discussed that draft Article 153 (which later became Article 174), that dealt with the powers of the Governor, was substantially altered to indicate that the framers did not want to give Governors the discretion.

“The most significant feature of draft Article 153 was expressed in sub-article (3) thereof, wherein it was provided, that the functions of the Governor with reference to sub-clauses (a) and (c), namely, the power to summon and dissolve the House or Houses of the State Legislature “… shall be exercised by him in his discretion,” the court noted.

“The manner in which draft Article 153(3) was originally drawn, would have left no room for any doubt, that the Governor would definitely have had the discretion to summon or dissolve the House or Houses of the State Legislature, without any aid or advice. After the debate, draft Article 153 came to be renumbered as Article 174. Article 174 reveals, that sub-article (3) contained in draft Article 153 was omitted. The omission of sub-article (3) of draft Article 153, is a matter of extreme significance, for a purposeful confirmation of the correct intent underlying the drafting of Article 174,” it added.

After debating the intention of the framers, the court concluded that “the only legitimate and rightful inference, that can be drawn in the final analysis is, that the framers of the Constitution altered their original contemplation, and consciously decided not to vest discretion with the Governor, in the matter of summoning and dissolving the House, or Houses of the State Legislature, by omitting sub-article (3), which authorized the Governor to summon or dissolve, the House or Houses of Legislature at his own, by engaging the words “… shall be exercised by him in his discretion…”. In such view of the matter, we are satisfied in concluding, that the Governor can summon, prorogue and dissolve the House, only on the aid and advice of the Council of Ministers with the Chief Minister as the head. And not at his own.”

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When can a Governor use his discretion?

Article 163(1) of the Constitution says that “there shall be a council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this constitution required to exercise his functions or any of them in his discretion.”

When the chief minister has lost the support of the House and his strength is debatable, then the Governor need not wait for the advice of the council of ministers to hold a floor test. Generally, when doubts are cast on the chief minister that he has lost the majority, the opposition and the Governor would rally for a floor test and the ruling party would attempt to stall the process to buy time and keep its flock together. In a puzzling situation, in Rajasthan’s case, despite requests from chief minister Gehlot, the Governor has returned requests to call for a session.

However, in the current case, the 19 rebel MLAs have not defected from the Congress Party and have repeatedly stated before the Rajasthan HC that they are merely expressing their dissent within the party and have not shifted to the BJP.

The court in Paragraph 153 the 2016 Arunachal Pradesh ruling, clarifies this question as well. “In ordinary circumstances during the period when the CM 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 [from taking] an individual call on the issue at his own will, or in his own discretion. Only in a situation where the government in power – on holding of such floor test – is seen to have lost the confidence of the majority, would it be open to the Governor to exercise the powers vested with him under Article 174 at his own, and without any aid and advice,” the court said.

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