Governors lack the constitutional powers to question the validity of an assembly session convened by the elected arm of the state, the Supreme Court held on Friday, reproaching Punjab governor Banwarilal Purohit for keeping four bills pending and expressing unhappiness with the conduct of both the Raj Bhavan and the state government.
The top court underlined that “in a parliamentary form of democracy, real power vests in the elected representatives of the people” while the governor, as an appointee of the President, is just a “titular head” of the state. But it also criticised the state government, saying its actions of keeping the assembly in suspended animation indefinitely amounted to defeating the Constitution.
“If democracy has to work, it has to work in the hands of a chief minister as well as in the hands of governors,” the court commented.
The remarks came at a time when Raj Bhavans in several states have been locked in confrontation with the elected government. In the last few months, Telangana, Tamil Nadu and Kerala, besides Punjab, have approached the Supreme Court, seeking directives to their respective governors.
Directing that “the governor of Punjab must now proceed to make a decision” on the four bills in accordance with the Constitution, a bench, headed by Chief Justice of India Dhananjaya Y Chandrachud, declared the assembly sittings on June 19 and 20 to be “valid” and said it is not an option constitutionally open to a governor to raise disputes over the validity of a session.
{{/usCountry}}Directing that “the governor of Punjab must now proceed to make a decision” on the four bills in accordance with the Constitution, a bench, headed by Chief Justice of India Dhananjaya Y Chandrachud, declared the assembly sittings on June 19 and 20 to be “valid” and said it is not an option constitutionally open to a governor to raise disputes over the validity of a session.
{{/usCountry}}“There is no valid constitutional basis to cast doubt on the validity of the session of the Vidhan Sabha which was held on June 19 and 20, 2023. Any attempt to doubt on the session of the legislature would be fraught with perils to democracy. The speaker, who has been recognised to be the guardian of the privileges of the House, was acting in his jurisdiction in adjourning the house sine die. The legislative assembly comprises of duly elected members of the legislature. During the tenure of the assembly, the house is governed by the decisions which are taken by the speaker,” said the bench, which also comprised justices JB Pardiwala and Manoj Misra.
Disposing of Punjab government’s petition that challenged Purohit’s indisposition to clear the four bills, the court also recorded the state’s undertaking, given through senior advocate Abhishek Manu Singhvi, that the council of ministers, led by chief minister Bhagwant Mann, would advise the speaker to prorogue the current session and summon the winter session afresh, as per the settled convention and assembly rules.
It clarified that a state cannot keep a session in suspended animation indefinitely and that it was required to hold the three sessions of the House in a year.
Convened in March, the budget session of the Punjab assembly continues till date with intermittent adjournments. As the state government chose not to prorogue (terminate) the ongoing session but kept adjourning it, governor Purohit raised objection to the validity of a sitting of the session in June when the impugned bills were passed. An assembly is prorogued as well as summoned by the governor on the recommendation of the state cabinet. Not proroguing the budget session in Punjab meant not seeking Purohit’s nod afresh for a new session.
The court expressed unhappiness at this. While the governor is “playing with fire” by questioning the legality of an assembly session, the court said, the Punjab government is also defeating the Constitution by keeping a session on indefinitely.
“How can you say that bill which has been passed cannot be assented to because the session is invalid? You realise the gravity of what you are doing. You are playing with fire. How can the governor say this? These are bills passed by the elected members. If we give such power to the governor, will we continue to be a parliamentary democracy?” the bench asked senior counsel Satya Pal Jain, who appeared for the governor’s office.
It added that under Article 200 of the Constitution, the governor may either give assent to a bill, return it for reconsideration by the house or reserve the bill for the President’s assent.
“In the case of a money bill, the governor has no option of returning the bill. In any case, there is no option available to the governor to question the validity of the session,” emphasised the bench, adding that the Constitution and assembly rules clearly envisage that there can be more than one sitting of the legislature comprised in one and the same session and that the speaker has the authority to take calls in this regard.
At first, Jain, assisted by advocate Abhinav Mukerji, sought to defend the governor’s action by citing a legal opinion Purohit had sought to question the validity of the session and requesting the court to decide the issue. However, after solicitor general Tushar Mehta appeared on behalf of the Centre and urged the bench to adjourn the matter for a week to enable the Centre to resolve the issue, Jain also pleaded for a week’s time to come back with a solution.
But the bench proceeded to dictate the order, declaring that it was not open to Purohit to question the assembly session and that he must now take a call on crucial bills, including those pertaining to fiscal management and the administration of gurdwaras, that have been withheld by the Punjab governor since June. “Please don’t deflect the course of bills that have been passed by a duly elected legislature. It’s a matter of serious concern,” it told Jain.
Turning to the Mann government, the bench told Singhvi that while the governor’s actions of withholding assent could not be accepted, the state government was in wrong too.
“Please, advise your government. What your government is doing in Punjab is also defeating the Constitution. We are not happy with the governor, but we are not happy with you either. There is a lot to answer for your government too. We understand that it may be necessary to adjourn the house sine die between the budget session. But your budget session is now going into monsoon session, the monsoon session goes into the winter session...You cannot ignore the rules of the House that there have to be three sessions,” it told the senior lawyer.
Even as Singhvi banked on a bundle of Supreme Court judgments and the pertinent provisions to satisfy the bench that it was perfectly within the powers of the speaker to adjourn the budget session, he assured the bench that CM Mann would be advising the speaker to convene the winter session in the near future.
An assembly is prorogued by the governor on the recommendation of the state cabinet. Article 174 of the Constitution states that 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, but six months shall not intervene between its last sitting in one session and the date appointed for its first sitting in the next session. Clause 2(a) of Article 174 states that the governor may, from time to time, prorogue either House or dissolve the legislative assembly.
This was not the first time that the Aam Aadmi Party (AAP) government in the state had approached the Supreme Court against the governor. In February this year, the Punjab government moved the top court challenging a February 23 communication issued by the governor, seeking legal opinion on the cabinet’s proposal to summon the House. The state sought a direction from the court for summoning the Budget session.
Deciding the petition on February 28, the court had said: “It is inconceivable that the budget session of the legislative assembly would not be convened. We can only hope that mature constitutional statesmanship will ensure that such instances do not occur in the future as much as we reiterate our expectation that constitutional functionaries must be cognisant of the public trust in the offices which they occupy.”
During the hearing on Friday, the bench referred to its order in February, stressing that it made observations on mature political governance in a democracy.
The present petition, filed through advocate Nupur Kumar, claimed that delay to clear the bills is unconstitutional and sought an urgent direction from the court that the proposed bills be cleared forthwith. It stated that the governor has restricted powers under Article 200 of the Constitution where he cannot indefinitely sit on the bills forwarded for assent.