In yet another tug-of-war between Kerala Governor Arif Mohammad Khan and Chief Minister Pinarayi Vijayan, the Governor has turned down a request to summon a special sitting of the Assembly to debate the new three central farm laws. The state government’s Cabinet had written to the Governor last week and, after the denial, is mulling approaching him again with the same request. The episode raises questions on the role of a Governor and the contours of the powers he or she has under the Constitution.
Who can summon a session of the Assembly?
“The Governor shall from time to time summon the House or each House of the Legislature of the State to meet at such time and place as he thinks fit…” says Article 174 of the Constitution. The provision also puts on the Governor the responsibility of ensuring that the House is summoned at least once every six months.
Although it is the Governor’s prerogative to summon the House, according to Article 163, the Governor is required to act on the “aid and advice” of the Cabinet. So when the Governor summons the House under Article 174, this is not of his or her own will but on the aid and advice of the Cabinet.
Can the Governor refuse the aid and advice of the Cabinet?
There are a few instances where the Governor can summon the House despite the refusal of the Chief Minister who heads the Cabinet. When the Chief Minister appears to have lost the majority and the legislative members of the House propose a no-confidence motion against the Chief Minister, then the Governor can decide on his or her own on summoning the House.
But the actions of the Governor, when using his discretionary powers can be challenged in court.
How have the courts ruled?
A number of rulings by the Supreme Court has settled the position that the Governor cannot refuse the request of a Cabinet that enjoys majority in the House unless it is patently unconstitutional. The latest in the line of rulings is the landmark 2016 Constitution Bench ruling in which the Supreme Court looked into the constitutional crisis in Arunachal Pradesh after the Governor had imposed President’s Rule in the state.
“In ordinary circumstances during the period when 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 [from taking] an individual call on the issue at his own will, or in his own discretion,” the verdict said.
The court read the power to summon the House as a “function” of the Governor and not a “power” he enjoys.
“If the functions of the Governor were to be read as his power, and an untrammelled one at that (in view of Article 163 of the Constitution, as contended), then the Governor has the power to literally summon the Assembly to meet ‘at such time and place as he thinks fit’ that is in any city and at any place other than the Legislative Assembly building and at any odd time. This is nothing but arbitrary and surely, an arbitrary exercise of power is not what our Constitution makers either contemplated in the hands of the Governor or imagined its wielding by any constitutional authority,” the court said.
Even the Sarkaria Commission of 1983, which reviewed the arrangements between the Centre and the states, had said that “so long as the Council of Ministers enjoys the confidence of the Assembly, its advice in these matters, unless patently unconstitutional must be deemed as binding on the Governor. It is only where such advice, if acted upon, would lead to an infringement of a constitutional provision, or where the Council of Ministers has ceased to enjoy the confidence of the Assembly, that the question arises whether the Governor may act in the exercise of his discretion”.
What happens if the Kerala government insists on holding the special session?
Since the Governor’s powers are limited with regard to summoning the House, there can be no legal ground to deny a request for summoning the session. Governor Arif Mohammad has in the past criticised the Kerala Assembly’s resolution against the Centre’s Citizenship Amendment Act of 2019. In the political slugfest, the Governor’s refusal can also be challenged in court.
The political nature of the office of the Governor, especially in Opposition-ruled states, has been underlined in several instances by courts. The constitutional checks and balances and landmark court rulings account for this and limit the discretionary powers of the Governor.
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