Rajasthan Chief Minister Ashok Gehlot with State Governor Kalraj Mishra during a meeting at Governor house, in Jaipur.(PTI)
Rajasthan Chief Minister Ashok Gehlot with State Governor Kalraj Mishra during a meeting at Governor house, in Jaipur.(PTI)

Rajasthan crisis puts governors’ powers in the spotlight

Is Mishra bound by the advice of the chief minister-led council of ministers when it comes to convening the assembly session and to what extent can the governor exercise his discretion?
Hindustan Times, New Delhi | By Murali Krishnan
UPDATED ON JUL 26, 2020 03:31 AM IST

A governor’s powers and role in the state legislature’s affairs are back in focus amid the political crisis in Rajasthan. Congress legislators backing Rajasthan chief minister Ashok Gehlot staged a five-hour sit-in on Friday asking governor Kalraj Mishra to call a special assembly session for a floor test. They accused Mishra of acting under pressure and not listening to their demand even as Gehlot expressed confidence of winning the trust vote necessitated by his tussle with his former deputy Sachin Pilot.

Is Mishra bound by the advice of the chief minister-led council of ministers when it comes to convening the assembly session and to what extent can the governor exercise his discretion?

Also Read: BJP files complaint against Congress in Rajasthan, says protest violated Epidemic Act

Former Chief Justice of India P Sathasivam said normally, as per the Constitution, the advice is binding — but, he added, when there is a dispute about issues such as the number of lawmakers supporting a chief minister, then it is a special case.

“The governor can summon MLAs to Raj Bhavan [governor’s house], make inquiries, and have discussions with MLA groups, etc. The general rule that the governor is bound by aid and advice of the council of ministers might not be relevant here,” said Sathasivam, who has also served as Kerala governor.

What does the Constitution say?

The Constitution’s Articles 163 and 174 are relevant in the context of the governor’s powers to convene the state assembly. Article 163 says there shall be a CM-led council of ministers to aid and advise the governor except when he is required, under the Constitution, to exercise functions in his/her discretion. When can a governor exercise discretion disregarding the advice of the council of ministers? Can he do the same when convening assembly?

The answer to this lies in certain Supreme Court judgments and Article 174, which says the governor “shall from time to time summon the House of the state...as he thinks fit but six months shall not intervene between its last sitting in one session and the date appointed for first sitting in the next session”.

Also Read: Rajasthan political drama is back in the Supreme Court, hearing on Monday

Article 174 originates from Article 153 of the draft Constitution. The third clause of Article 153 said the governor’s power to summon the House should be exercised with discretion. When the article came up for discussion in the Constituent assembly, certain members including B R Ambedkar opposed the clause. Ambedkar sought its deletion stating it was inconsistent with the scheme of a constitutional governor. His resolution won and the clause was deleted. Draft Article 153 eventually became Article 174. Thus, the intention of the Constitution makers was not to vest the governor with the discretion when it comes to convening assembly.

There are judgements that reaffirm this. The 2016 Supreme Court judgment in the Nabam Rebia v Deputy Speaker reaffirmed this interpretation of Article 174 when a five-judge Constitution bench held that the governor’s power to summon, prorogue and dissolve the House should be on the advice of the council of ministers. In this case, Arunachal Pradesh governor Jyoti Prasad Rajkhowa had summoned the assembly on January 14, 2016. However, at least 20 rebel Congress MLAs joined hands with the BJP and met Rajkhowa expressing their displeasure with speaker Nabam Rebia.

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Rajkhowa rescheduled the session to December 16, 2015, after meeting the rebel Congress and BJP MLAs. This was done without the aid and advice of the council of ministers. Rebia moved the Supreme Court against Rajkhowa’s actions. The court held the omission of sub-article (3) of draft Article 153 was a matter of significance for determining the intent underlying Article 174. The inference that can be drawn is the Constitution’s framers altered their original intent, and decided not to vest discretion with the governor in the matter of summoning and dissolving the House, it court said. “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.”

Rajkhowa’s order of rescheduling the session was held to be in violation of Article 174 and quashed. Senior advocate Gopal Sankaranarayanan said if the council of ministers has the confidence of the House, there is no question that the governor is bound by its advice in convening the legislature. The Nabam Rebia judgment, however, also held that if the governor has reasons to believe the council of ministers has lost the confidence of the House, he can ask the chief minister to prove the majority.

Also Read: Rajasthan Congress stages demonstrations, protest rallies against ‘autocratic’ BJP

In ordinary circumstances, during the period when the council of ministers enjoys the confidence of the majority of the House, the power vested with the governor under Article 174 to summon or dissolve the House must be exercised in consonance with its aid and advice. “But 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,” the court said in the Nabam Rebia case.

But even there, the governor’s power is only to call for a floor test to determine the majority -- which would suit Gehlot and his supporters just fine because their urgency in calling for an assembly session is to get a floor test conducted immediately.

Going by these, Mishra can insist on constitutional provisions and established protocol be followed, and also insist on adequate safeguards given the pandemic, but eventually, according to the law, he has to summon the assembly.

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