Discretionary powers of Governor
Rajasthan Governor Kalraj Mishra returning the fresh proposal by the state Cabinet – seeking to convene a session of the Assembly on 31 July – has raised fresh legal questions on the powers of the Governor.
Who has the powers to summon the House?
- It is the Governor acting on the aid and advice of the cabinet.
- Article 174 of the Constitution gives the Governor the power to summon from time to time “the House or each House of the Legislature of the State to meet at such time and place as he thinks fit…”
- However, the phrase “as he thinks fit” is read as per Article 163 of the Constitution which says that the Governor acts on the aid and advice of the cabinet. Article 163(1) essentially limits any discretionary power of the Governor only to cases where the Constitution expressly specifies that the Governor must act on his own and apply an independent mind.
View of the Supreme Court
- It is settled law that the Governor cannot refuse the request of the Cabinet to call for a sitting of the House for legislative purposes or for the chief minister to prove his majority. In fact, on numerous occasions, including in the 2016 Uttarakhand case, the court has clarified that when the majority of the ruling party is in question, a floor test must be conducted at the earliest available opportunity.
- In 2016, a Constitution Bench of the Supreme Court in Nabam Rebia and Bamang Felix vs Deputy Speaker, the Arunachal Pradesh Assembly case, expressly said that the power to summon the House is not solely vested in the Governor.
- The most significant feature of draft Article 153 (later made Article 174 of the Constitution) was expressed in sub-article (3) thereof, wherein it was provided, that the functions of the Governor with reference to sub-clauses (a) and (c), namely, the power to summon and dissolve the House or Houses of the State Legislature “… shall be exercised by him in his discretion. Article 174 reveals, that sub-article (3) contained in draft Article 153 was omitted. The omission of sub-article (3) of draft Article 153, is a matter of extreme significance, for a purposeful confirmation of the correct intent underlying the drafting of Article 174.
- In Arunachal Pradesh case, the court observed that the only legitimate and rightful inference, that can be drawn in the final analysis is, 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, by omitting sub-article (3), which authorised the Governor to summon or dissolve, the House or Houses of Legislature at his own, by engaging the words “… shall be exercised by him in his discretion…”. In such view of the matter, 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.”