Jul28,2020 #Rajasthan

By Anushka Arora-

The constant tussle between the Governor and the ruling parties has been a topic of debate since a long time in the history of the nation. The misuse of the office of the Governor to fulfill political agendas leads to adversial impacts on the democracy and governance of a State. In Shamsher Singh V. Union of India[1] the Court held that –

“Wherever the Constitution requires the satisfaction of President or the Governor for the exercise of any power or function by the President or the Governor, as the case may be, as for example in Articles 123, 213, 311(2) proviso (c), 317, 352(1), 356 and 360 the satisfaction required by the Constitution is not the personal satisfaction of the President or of the Governor but is the satisfaction of the President or of the Governor in the Constitutional sense under the Cabinet system of Government..”

Recently, when the Chief Minister of Rajasthan, Ashok Gehlot requested the Governor, Kalraj Mishra to summon the House to prove his majority, the same was objected and denied on the ground that there was no specified agenda.[2]The pertinent question which arises is whether the Governor bound to act on the aid and advise of the Council of Ministers or does he enjoy discretion in calling the session.

Article 174(1) of the Constitution of India, mandates 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”

This was dealt by the Constitutional Bench of the Supreme Court in the case of Nabam Rebia and Bamang Felix v Deputy Speaker[3] wherein it was held 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. It was further reiterated that the Governor is merely a nominee of the President (Nominal Head) and cannot have an overriding authority over the representatives of the people, who constitute the House, or Houses of the State Legislature.

In the Constituent Assembly, when the drafting of the Constitution was in process, Article 153 was similar to that of Article 174 of the Constitution of India which mandated that the power of the Governor to summon and dissolve the Houses of the State Legislature shall be exercised by him in his discretion. Therefore, it is pertinent to say that had it been the intention of the Legislature to give the power only to the Governor to act in his own discretion, it would never have been amended in the final draft by the Framers of the Constitution.

Article 163 of the Constitution clearly states 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.”

In the case of Rameshwar Prasad & Ors v. Union of India & Anr[4] the Hon’ble Court held that “the expression required found in Article 163(1) is stated to signify that the Governor can exercise his discretionary powers only if there is a compelling necessity to do so . The necessity to exercise such powers may arise from the express provision of the Constitution or by necessary implication”

Thus, it is correct to say that since it is expressly stated that the Governor is bound to take aid and advice from his Council of Ministers, he is not empowered to enjoy discretion in taking decisions regarding summoning and dissolving of House or Houses of the State Legislature unless expressly specified. However, if he decides to use his discretionary powers in such situations, this would lead to instability in the governance which hampers the principles of rule of law and democracy that are enumerated through our Constitution!

[1] AIR1974 SC 2192

[2] Manu Sebastian, Rajasthan Crisis : Can Governor’s Discretion Override Govt Demand To Summon Assembly Session.

[3] C.A No. 6203-6204 of 2016

[4] Writ Petition (Civil) 257 of 2005

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