Re-Visiting the powers of Governors in the light of Rajasthan Assembly crisis

On 27th July 2020 three former Union Law Ministers from the Congress regime wrote a letter to the Governor of Rajasthan stating that he is obliged to call the Assembly session. The letter carried the caveat that any deviation will result into constitutional crisis .

The letter pointed out the following legal proposition -

"We believe that as per established conventions of the Constitution, principles of parliamentary democracy, the relevant Articles of the Constitution and authoritative pronouncements of the Honourable Supreme Court, the Governor is bound to act on the aid and advice of the Council of Ministers in the matter of convening the State Assembly" , as laid down by the Apex Court in Shamsher Singh V. Union of India, a Seven Judges bench judgement from 1974 .

The position and power of the Governor vis-à-vis the Council of Ministers has always been an area of dispute in determining the extent of the discretion of the Governor.

We must also note that The Indian Constitution envisages a parliamentary and responsible form of Government at the center and in the States and not a Presidential form of Government. The powers of the Governor as the Constitutional head are not different.

In Shamsher Singh V. Union of India^[1] the Supreme 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.."

In the same case the court further went ahead to take note of the then Chief Justice Mukherjea's obiter in Ram Jawaya Kapur v. State of Punjab^[2] , where it was held that,

"This Court has consistently taken the view that the powers of the President and the powers of the Governor are similar to the powers of the Crown under the British Parliamentary system.....The executive power of the Union is vested in the President. The President is the formal or Constitutional head of the executive. The real executive powers are vested in the Ministers of the Cabinet. There is a Council of Ministers with the Prime Minister as the head to aid and advise the President in the exercise of his functions"...

The interpretation of the above-mentioned case laws, with any doubt clearly states one fact that is, the Constitution does not aim at providing a parallel Government within the State by allowing the Governor to go against the advice of the Council of Ministers, therefore neither the President, nor the Governor is to exercise executive functions at their own discretion.

Further in Rameshwar Prasad & Ors v. Union of India & Anr^[3] with reference to 'discretion' of President & Governor , the court was of the view 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"

The Sarkaria Commission's report again reiterated that such necessity may arise even from the rule and order made under the Constitution. Barring few exceptions, wherever the Constitution requires the satisfaction of the President and the Governor, it is not their personal satisfaction, but the satisfaction of the Council of Ministers on whose aid and advice, the President or the Governor has to exercise their powers and functions. Neither of them can exercise the usual Executive function individually or personally.

Another judgement as quoted by the three former Union Law Ministers in the letter addressed to the governor is Nabam Rebia v. Deputy Speaker^[4] involving 20 Congress MLAs who had rebelled against the Chief Minister Nabam Tuki. The said MLAs along with 11 BJP & 2 Independent MLAs met the Governor and communicated their displeasure with the Government & the Speaker .

The Governor, without seeking advice of the Chief Minister, called for the assembly session from 14 January 2016 to 15 December 2015 and put forth the removal of the Speaker on the legislative agenda. Further, the Speaker Nebam Rebua, disqualified the rebel MLAs on the grounds of defection before the assembly could even meet.

On 5th January 2016, the Gauhati High Court stayed the disqualification of Congress MLAs and speaker's plea was turned down. The matter then reached the Supreme Court.

The 5 Judge constitutional bench of Supreme Court reached a unanimous decision on 13th July 2016. The court identified two issues: first whether the Governor’s decision to advance the Assembly session was constitutional, and secondly, whether the Speaker’s disqualification of MLA’s when a motion for his removal was pending before the house was constitutional?

In its 329 pages judgement, the Supreme Court confirmed that the Governor does not enjoy wide discretionary powers and is always subject to constitutional standards. And the contention that Governor’s discretion was absolute and beyond judicial review was invalid and unconstitutional.

Further, with reference to Article 174, which confers the Governor with the power to summon, prorogue or dissolve the legislature of the State, the court went down to trace the historical background of Article 174. The court came to the conclusion that,

"The Governor cannot manufacture any business for the House to transact, through a so-called message or otherwise. If the Governor disregards the advice of the Council of Ministers for summoning the House, necessary consequences would follow.

In this regard, it may be mentioned that if the President disregards the advice of the Council of Ministers he can be impeached. As far as the Governor is concerned, if he disregards the advice of the Council of Ministers the pleasure of the President can be withdrawn since the Governor holds office during his pleasure."

Hence, the Governor’s discretion did not extend to the powers conferred under Article 174 and hence he could not summon the House, determine its legislative agenda or address the legislative assembly without consulting the Chief minister or the Speaker.

Lastly, with regards to disqualification of the 14 Congress MLAs, the Apex Court pointed that the act of disqualification by the Speaker was an attempt to overcome voting and is unconstitutional on the ground that the speaker willingly wrongfully interpreted the Article 179 (c) of the constitution.

Sadly, this decision by the court was reversed through political means and partially failed to create an impact and the practice of toppling the government is still ongoing.

It is about time for the Apex Court to set a strong precedent through the ongoing case of Rajasthan Assembly.

[1] AIR1974SC2192

[2] AIR 1955 SC 549

[3] Writ Petition (Civil) 257 of 2005

[4] CIVIL APPEAL NOS. 6203-6204 of 2016

The author is a fourth-year law student at the Vivekananda Institute of Professional Studies