Chittarvu Raghu
Of late, differences around selecting the CM or determining the timing for proving majority have projected a negative image of the Governor
After the Rajasthan High Court ordered status quo in relation to the notices issued by the Speaker, initiating proceedings against Congress rebels under the Tenth Schedule of the Constitution, Chief Minister (CM) Ashok Gehlot paraded more than 100 MLAs in front of the Governor. He requested him to convene the Assembly session but Kalraj Mishra exhibited reluctance to do so.
Article 163 of the Constitution says that there shall be a Council of Ministers with the CM as the head, to aid and advise the Governor in the exercise of his/her functions, except when the Governor is required by the Constitution to exercise any of his/her functions at his/her discretion.
Article 174 of the Constitution mandates that the Governor from time to time summon the House or each House of the Legislature of the State. The Constitution Bench of the Supreme Court (SC) in the Nabam Rebia vs Deputy Speaker case had examined the scope of the words “in his discretion” used in Article 163. The apex court held that in so far as the exercise of discretionary powers vested with the Governor is concerned, the same is limited to situations wherein constitutional provisions expressly provide that s/he should act at his/her own discretion. It was also held that the Governor can exercise his/her discretion in a situation where an interpretation of the constitutional provision concerned could not be construed otherwise. The SC held that the framers of the Constitution decided not to vest discretion with the Governor in the matter of summoning and dissolving the House or House of the State Legislature by omitting Article 153(3) of the Draft Articles, which envisaged that the power to summon and dissolve the House shall be exercised by the Governor at his/her discretion. Therefore, the Governor can summon, prorogue and dissolve the House only on the aid and advice of the CM and the Council of Ministers.
After examining the Justice Sarkaria Commission report, Justice MM Punchhi Commission report and the treaties by MN Kaul and SL Shakdher Practice and procedure of Parliament, published by the Lok Sabha Secretariat, the apex court had held that in ordinary circumstances, during the period when the CM and his/her Council of Ministers enjoy the confidence of the majority of the House, the power vested with the Governor under Article 174 to summon, must be exercised in consonance with the aid and advice of the CM and the Council of Ministers. If the Governor has reason to believe that they have lost the confidence of the House, it would require them to prove their majority in the House through a floor test and thereafter exercise his/her discretion if the Council of Ministers and the CM have lost the confidence of the majority.
In the light of the said judgment and the parading of 102 MLAs by Gehlot, the Governor invariably has to abide by the aid and advice of the Council of Ministers and summon the Assembly. Or, if s/he is in doubt with regard to the said majority, still s/he can summon the Assembly and direct the CM to prove majority. In either case, the Governor has to immediately summon the Assembly to resolve the face-off.
All constitutional functionaries have to act as per the mandate contained in the Constitution. It is an organic document that requires all its functionaries to observe, apply and protect the values spelt out by it, which make up constitutional morality. The SC, in Navtej Singh Johar's case, has observed that “it is the concept of constitutional morality that strives and urges the organs of the State to maintain such a heterogeneous fibre in society in multifarious ways and it is the responsibility of the three organs of the State to curb any propensity or proclivity of popular sentiment or majoritarianism.”
The Constitution Bench of the SC in the Government of NCT of Delhi Vs. Union of India case, has held that “constitutional morality is that fulcrum which acts as an essential check upon high functionaries and citizens alike, as experience has shown that unbridled power without any checks and balances would result in a despotic and tyrannical situation which is antithetical to the very idea of democracy. Any act to garner justification must possess potentiality in harmony with constitutional impulses.”
The SC further held that the concept of constitutional governance in a body polity like ours, where the Constitution is the supreme fundamental law, is neither hypothetical nor abstraction but is real, concrete and grounded. Governance should be consistent with the Constitution and shall operate under it. The apex court said that the parliamentary form of democracy, as envisaged by the Constitution, has its very base in the power bestowed upon the people to vote and make the legislature accountable for their functioning. Of late, the powers of and roles played by the Governors of Karnataka, Madhya Pradesh, Kerala, Maharashtra and now Rajasthan have become highly controversial. Differences around issues such as selecting the CM, determining the timing for proving majority and so on, have projected a negative image that the Governor is “an agent of the Centre.”
BR Ambedkar in his speeches had said that the discretionary power is in no sense a negation of a responsible Government and it is not a general clause giving the Governor power to disregard the advice of his Ministers in any manner. The SC, in the SR Bommai Vs Union of India case, while examining the invocation of Article 356(1) of the Constitution imposing President's Rule in Karnataka, had specifically held that the Governor is expected to conduct her/himself fairly and consciously and be circumspect.
(The writer is Advocate, Andhra and Telangana High Courts)
