Courting controversy in Rajasthan

Courting controversy in Rajasthan

Context

• The Governor of Rajasthan, Kalraj Mishra repeatedly turned down the advice of the Council of Ministers to convene a session of the Rajasthan Assembly.
• He insisted that a 21-day notice is essential for a session.
• He laid out other conditions such as maintenance of social distancing norms and recording of proceedings.
• The request to summon the House was agreed to by the Governor, only after the Council of Ministers agreed to the 21-day notice.
• The Governor’s action has raised the question whether he has the power to turn down the recommendation of the Council of Ministers.

Powers of the Governor

• In 2016, in the Nabam Rebia, Bamang Felix v. Deputy Speaker and others case, the Supreme Court of India (5 judge Constitution bench) examined the powers of the Governor, particularly with reference to summoning an Assembly session.
• The SC held that the Governor’s power 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.
• The Governor is prevented from taking an individual call on the issue at his own will, or in his own discretion.
• The “discretion given to the Governor in respect of his relations with the Legislative Assembly is not only limited and restricted by the Constitution but also by the Rules framed by the Legislative Assembly under Article 208 of the Constitution.

Can the Governor direct the agenda or procedure of the legislature?

• According to a former Secretary-General of the Lok Sabha – D.T. Achary, the proceedings of the legislature are guided by rules made by it, and the Governor cannot have any say in it.
• He states that the rule of 21-day notice for the session was first set by the Lok Sabha and adapted by State legislatures. The Lok Sabha has since reduced it to 15 days. But the Speaker has the powers to call a session with a shorter notice.

When can the Governor act without the advice of the Council of Ministers?

• The Governor has special powers to advance tribal welfare, in some states.
• A Governor can reserve a bill passed by the legislature for the consideration of the President of India, and he or she can recommend President’s rule in a State.
• If the Chief Minister and his Council of Ministers lose their majority, or they refuse to recommend a session in six months, or there is a reasonable doubt about their majority, the Governor could demand a session.
• The Governor invites a person who he thinks has the legislative majority to form a government, but the use of this power cannot be arbitrary.
• If there is a Council of Ministers with a majority, the Governor has to go by its recommendation to dissolve the legislature.
• In the event of a Chief Minister and his Council of Ministers losing the majority, the Governor can use his or her discretion to either explore the formation of a new government or dissolve the House.

Conclusion:

• The misuse of the Governor’s office by parties in power at the Centre, to disturb State governments in control of the Opposition has remained a scourge.
• However, The Constituent Assembly very consciously limited the Governor’s discretionary powers.
• According to the 2016 Supreme Court judgment, a Governor cannot have an overriding authority, over the representatives of the people, who constitute the state legislature and/or even the executive government functioning under the council of ministers with the Chief Minister as the head.