Rajasthan: Why the Governor Can't Use His Discretion on When to Call Assembly Session

The Supreme Court held in 2016 that a governor decide when the house should meet only when the chief minister no longer enjoys a majority. But here, the argument the 19 rebel MLAs made in the high court is that they are still in the Congress.

New Delhi: A paradox of sorts is on display in Rajasthan. There have been many revolts within ruling parties in states leaving the incumbent chief minister’s majority support in the assembly uncertain. In all such instances, it is the governor or the opposition parties who are in the forefront demanding an immediate floor test in the assembly to establish the chief minister’s support.

But in Rajasthan, it is the other way round. Faced with the revolt by 19 MLAs of his party, and the fetters imposed by the Rajasthan high court on the assembly speaker going ahead with their disqualification, chief minister Ashok Gehlot wants to immediately summon the state assembly so that he can prove his majority. In a similar situation where there is  likelihood of the rebels voting against a confidence motion, any chief minister would hesitate to call a session of the assembly immediately for a floor test. Therefore, Gehlot’s willingness to face the assembly for a floor test even in the absence of a demand for it reveals his confidence that he will win the vote – if it is held now.

On Saturday, the state cabinet meeting, presided over by Gehlot, decided that the government would make a fresh submission to the governor for calling the assembly session, while responding to the latter’s queries over the previous proposal.

The governor reportedly was doubtful about the purpose of the session being called, because the chief minister himself has claimed that he has a majority. With neither the opposition nor the rebel faction of the Congress insisting that there be an immediate floor test, the purpose behind the immediate floor test remained unclear to the governor.

It appears as though the governor wants to await the outcome of the hearing in the Supreme Court on Monday of the speaker’s appeal against the Rajasthan high court directing maintenance of status quo. The speaker had issued notices to the 19 Congress MLAs asking why they could not be disqualified on the ground of defection under the 10th schedule to the constitution.

Rajasthan governor Kalraj Mishra meeting at Raj Bhavan, Jaipur with chief minister Ashok Gehlot. Photo: Twitter/@kalrajmishra

If the pendency of the rebels’ petition in the high court and the speaker’s petition in the Supreme Court is the reason behind the governor’s reluctance to call the session, as advised by the council of ministers, Mishra only has to read the Supreme Court’s 2016 unanimous judgment in Nabam Rebia and Bamang Felix v Deputy Speaker and others, delivered by the five-judge constitution bench. The main judgment, written by Justice J.S. Khehar, makes it clear that the governor ought not to be concerned about the disqualification petitions pending before the speaker, because it is not his domain.

In paragraph 171 of the judgment, the bench observed:

“It is apparent from a perusal of the provisions of the Tenth Schedule, that no role whatsoever has been assigned to the Governor, in the matter of removal of a member of the Assembly/Council.  In the above view of the matter, even where a petition is filed for disqualification of one or more MLAs under the Tenth Schedule, the Governor’s direct or indirect participation in the same is impermissible.

“The role of the Governor in such matters, would fall beyond the spectrum of constitutional sanction. Besides the fact that the Governor has no role whatsoever in the proceedings carried out under the Tenth Schedule, he cannot have any interest in the outcome of the disqualification proceedings under the Tenth Schedule. The Governor can, therefore, never be concerned with the proceedings under the Tenth Schedule, one way or the other. The fictional assumption, that the proceedings under the Tenth Schedule have a legislative flavour, and are akin to the proceedings before the State Legislature, further removes the Governor from any participatory role in the same.”

It may be argued that the bench made these observations in the context of the then Arunachal Pradesh governor, Jyoti Prasad Rajkhowa, sending a message to the speaker of the assembly that the party composition of the house should not be altered till the session was prorogued. However, in the ongoing crisis in Rajasthan, governor Kalraj Mishra would be committing the same error as Rajkhowa if he showed unnecessary concern about the pending proceedings in the high court and the Supreme Court, which have a bearing on the disqualification proceedings before the speaker, while performing the duties assigned to his office.

What happened in Arunachal Pradesh in 2015?

In 2015, the 47-member Congress Legislature Party in the 60-member Arunachal Pradesh assembly was facing a rebellion, with 21 of its dissident MLAs demanding a change in its leadership.  Some of the rebels had also requested the governor to advance the assembly session, scheduled to be held in January 2016 to December 2015, to enable taking up of the notice for the removal of the speaker.

Rajkhowa, without consulting the then chief minister, Nabam Tuki and his council of ministers, or even the speaker, Nabam Rebia, issued an order on December 9 advancing the session of the assembly, scheduled to be held on January 14, 2016 to December 16, 2015. The order was assailed by the then speaker and the chief minister first before the Gauhati high court and later in the Supreme Court.

The governor acted because he believed that a constitutional obligation was cast on him, to ensure that a pending notice of resolution for the removal of the speaker was expeditiously taken up for consideration. He also believed that any delay in taking up the notice for the speaker’s removal would damage the goals and ideals of the constitution, besides the Conduct of Business Rules. Therefore, he assumed that he was not obliged to seek the advice of the chief minister and his council of Ministers.

Thus on December 9, 2015, the governor issued a message under Article 175(2) inter alia fixing the resolution for the removal of the speaker as the first item of the house agenda, at the first sitting of its sixth session.

The governor even predetermined the procedure which the assembly was mandated to follow, particularly with reference to the notice of resolution for the removal of the speaker. The message also entailed that the party composition in the house would not be altered until the session was prorogued. As a result, the proceedings initiated by the chief whip of the Congress Legislature Party under the 10th schedule against 14 MLAs of the Congress was also put on hold till the session was prorogued.

The Supreme Court eventually set aside the governor’s order advancing the assembly session, and the message sent to the speaker without the aid and advice of the chief minister and his council of ministers. As a result, the deposed chief minister, Nabam Tuki, was restored to his office.

What was the Supreme Court’s reasoning?

The governor is required to summon the house or houses of state legislature, or to prorogue or dissolve them under Article 174.  The Supreme Court reasoned that the governor does not have such powers and functions, as would assign to him a dominating position, over the state executive and the state legislature.  The governor has not been assigned any significant role either in the executive or the legislative functioning of the state, the bench held.

“We, therefore hereby reject the contention advanced on behalf of the respondents that the governor has the freedom to determine when and in which situation, he should take a decision in his own discretion, without the aid and advice of the chief minister and his council of ministers”, the bench categorically held.

Under Article 163(1) the discretionary power of the governor extends to situations wherein a constitutional provision expressly requires the governor to act in his own discretion.

Why Gehlot’s advice should be heeded by the governor

The process of summoning the assembly can never be considered as anti-democratic.  Summoning a legislature can only further the democratic process, as it opens the house for carrying out legislative activity. An action which prorogues or dissolves the legislature can be taken to be actions whereby the democratic/legislative process is either temporarily stalled, or brought to an end.

The words “as he thinks fit” in Article 174(1), the governor’s side had contended in the Arunachal Pradesh case, would signify and imply that the governor could exercise his discretion and power to summon the assembly on his own – without any aid or advice. But the court, after going into the Constituent Assembly Debates in connection with Article 174, the historical background depicting the manner in which Article 174 came to be drafted, and treatises on the issue, clearly reached the conclusion that such an argument cannot be accepted.

The framers of the constitution altered their original draft and consciously decided not to vest discretion with the governor in the matter of summoning and dissolving the house, or houses of state legislature. Accordingly, a third clause authorising the governor to summon or dissolve, the house or houses of legislature at his own:

(3) the functions of the Governor [to summon or dissolve the assembly] shall be exercised by him in his discretion.

was deleted. As a result, Article 174 ( or Article 153 as it was numbered in the Constituent Assembly) now has only two clauses.

A governor is not an elected representative. A governor is an executive nominee, and his appointment flows from the aid and advice tendered by the council of ministers with the prime minister as the head, to the president. The president, on receipt of the above advice, appoints the governor.  “In our considered view, such a nominee, cannot have an overriding authority, over the representatives of the people, who constitute the house or houses of the state legislature (on being duly elected from their respective constituencies) and/or even the executive government functioning under the council of ministers with the chief minister as the head.  Allowing the governor to overrule the resolve and determination of the state legislature or the state executive would not harmoniously augur with the strong democratic principles enshrined in the provisions of the constitution.  Specifically so, because the constitution is founded on the principle of ministerial responsibility”, the bench ruled.

When the Governor’s use of his discretion is justified

The chief minister and his council of ministers lose their right to aid and advise the governor to summon or prorogue or dissolve the house, when the issue of the government’s support by a majority of the members of the house, has been rendered debatable.

“What is of significance and importance in the opinion expressed by M.N.Kaul and S.L.Shakdher (authors of Practice and Procedure of Parliament, 5th edition, published by the Lok Sabha Secretariat) which needs to be highlighted is that the mere fact that some members of the ruling party have defected, does not necessarily prove that the party has lost confidence of the house”, the bench held. And in such a situation, if there is a no-confidence motion against the chief minister, who instead of facing the assembly, advises the governor to prorogue  or dissolve the assembly, the governor need  not accept such advice, the bench clarified.

In the ongoing crisis in Rajasthan, even this situation has not arisen as the 19 Congress-I MLAs have merely revolted, not defected. Their plea in the high court, in fact, is that they remain Congressmen who have merely exercised their freedom of speech.

In paragraph 153 of the Rebia judgment, the bench observed:

“In ordinary circumstances during the period when the CM and his council of ministers enjoy the confidence of the majority of the house, the power vested with the governor under Article 174 to summon, prorogue and dissolve the house(s) must be exercised in consonance with the aid and advice of the chief minister and his council of ministers. In the above situation, he is precluded [from taking] an individual call on the issue at his own will, or in his own discretion. Only in a situation where the government in power – on holding of such floor test – is seen to have lost the confidence of the majority, would it be open to the governor to exercise the powers vested with him under Article 174 at his own, and without any aid and advice.”

In paragraph 154, the bench explained further:

“Since it is not a matter of dispute that the governor never called for a floor test, it is reasonable for us to infer, that the governor did not ever entertain any doubt, that the CM and his council of ministers were still enjoying the confidence of the majority, in the house. Nor was a motion of no confidence moved against the government. In the above situation, the governor just could not have summoned the house, vide his order dated December 9, 2015, in his own discretion, by preponing the sixth session of the assembly from January 14, 2016 to December 16, 2015.”

No doubt, there are differences in the factual matrix between Arunachal Pradesh in 2015 and Rajasthan. today.  If in Arunachal Pradesh, the question was whether the governor could use his discretion to advance the assembly session, in Rajasthan, the question is whether the governor could deny a legitimate request from the chief minister to call an assembly session at a timing of his choice merely on the basis of his discretion. The answer in both the situations is a clear ‘No’, if the Supreme Court’s 2016 judgment in the Arunachal Pradesh case is of any guidance.