The Black’s Law Dictionary defines a constitutional officer as “One whose tenure and term of office are fixed and defined by the constitution, as distinguished from the incumbents of offices created by the legislature.” The Governor is one such office holder whose conduct in summoning the House in Rajasthan will be scrutinized in this paper.
The Indian Constitution lays down that “There shall be a Governor for each state, in whom the executive power of the State will be vested. He is appointed by the President and is bound to act on the ‘aid and advice’ of the Council of Ministers led by the Chief Minister of the State, except when under the constitution, he has to exercise his functions in his discretion. The powers of summoning, proroguing and dissolving the House are also vested in him, and are to be exercised on the advice of Council of Ministers.”
Though Governor is not an agent of Central Government but a true advisor and well-wisher of the State Government but unfortunately, recently there have been numerous instances where concerns have been raised about the functioning and the decisions made by the Governors, like in the states of Rajasthan, Madhya Pradesh, Puducherry and Kerela. However, for this paper, the controversy in Rajasthan would be focused upon.
Governor Kalraj Mishra rejected the Council of Ministers’ recommendation to call a session of the Assembly thrice. He turned down the first call on 24th July, 2020 citing six reasons, including the lack of a date and agenda for the meeting, while the second time on 27th July, he insisted on a 21-day notice for a session unless a floor test was required, requested to know why it was being called, and imposed additional requirements like maintaining social distancing rules and recording the proceedings. The third time, on 29th July, it was rejected because a proper reply to the questions was not given. He consented to convene the House on 14th August 2020, only when the 21-day notice was agreed upon by the Council of Ministers on the evening of 29th July in the fourth proposal, with the days counted from 23rd July, when the first proposal was made.
It is striking that what was supposed to be a routine case of convening the Assembly, as the Council of Ministers conveyed their decision to the Governor, became a complex matter. Indeed, this was not the first time such an advice had been given by the Council of Ministers, but perhaps it might have been the first time that its execution was not only delayed by a Governor, but also questions were asked for clarification on the House’s agenda. This was done despite the fact that the decision regarding the agenda and the date of the session is made by the Council of Ministers, who are not answerable to the Governor for the same.
The framers of the Constitution, as can be seen from the Constituent Assembly Debates, feared that if the views of the Governor conflicted with those of the ruling party, he might abuse his powers and dissolve the House and thus re-elections would have to be held. Hence, they expressly and purposefully left out placing powers to summon or dissolve the House solely with the Governor.
Just like the founding Fathers of our Constitution, the judiciary has also been cautious regarding the Governor’s powers. In many cases, there has been an attempt to reduce the role of the Governor to being a nominal head only, who is bound to act on the advice of Council of Ministers led by the Chief Minister, like, Chief Justice Mukherjea, in Ram Jawaya Kapur v. State of Punjab, noted that there is a resemblance between the Crown’s powers and those of the Governor and the President. The Council of Ministers have the real executive powers, even though formally the Governor is the State’s executive head. The Council of Ministers led by the Chief Minister aids and advise the Governor in exercising his/ her functions. Also, the Supreme Court in Shamsher Singh v State of Punjab and Anr held that whenever there is the requirement of satisfaction of the Governor or the President, it is the satisfaction under the Cabinet system in the constitutional sense, and not their personal satisfaction. It also laid down that:
“The Governor has no right to refuse to act on the advice of the Council of Ministers. Such a position is antithetical to the concept of responsible government.”
he majority of the ruling party is in question, the opposition puts a lot of pressure to conduct the floor test while the incumbent government tries to delay the proceedings to buy time, so that it can stay in power. In such scenarios, the Governor may not wait for the advice of Council of Ministers, he can call the House at his discretion. However, in the instant case, the 19 MLAs did not defect, but just expressed their dissent, and the importance of the distinction between dissent and defection cannot be undermined. The Supreme Court in Shrimanth Balasaheb v. Speaker Karnataka Assembly specifically emphasised that:
“The separation between dissent (as represented by resignation) and defection requires to be made apparent, so that democratic values are upheld in balance with other constitutional considerations.”
Hence, the majority of the government was not in question and consequently, the Governor cannot exercise his discretion to summon the House.
In Nabam Rebia and Bamang Felix v Deputy Speaker, Arunachal Pradesh Legislative Assembly and Ors, the SC held that if the House’s majority was with the chief minister, then the Governor will not have any discretionary powers, but has to act on the advice given by Council of Ministers. It further emphasised that Governor is merely the President’s nominee and cannot override the elected representatives. If such a power was given to him, it would be in violation of the democratic values established in our Constitution, more so, because of the notion of ministerial responsibility. Hence, the Governor’s powers and functions are “cabined, cribbed and confined” under the Constitution.
For any healthy democracy, the Governor’s role is highly critical; therefore, true to his/her role the Governor must act impartially instead of either associating with any political party or tilting towards any political master(s). Here, his act of asking for reasons to summon the House was ultra vires his powers since he is legally bound to accept the advice the Council of Ministers gave when they enjoy a majority in the House. Moreover, the reasons given by the Governor for not convening the House were petty and tenuous, showing his arbitrariness. In the instant case, the correct course of action by the Governor should have been to accept the Cabinet’s advice with whom the decision-making power rests, but he miserably and repeatedly failed in discharging his duties which was not only a violation of established, judicially confirmed and oft-repeated principles of Constitutional Governance, but also a violation of the sacred oath sworn by him, in which he undertook to “preserve, protect and defend” the Constitution.
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