In Rajasthan, the political crisis created by the rebellion of some of the MLAs of the ruling party – the Indian National Congress – continues. Sachin Pilot, the sacked deputy chief minister, continues to be in some unknown resort in Haryana along with few other MLAs from the ruling party.
Council of Ministers headed by Ashok Gehlot, the beleaguered chief minister of Rajasthan, advised the Governor of Rajasthan, Kalraj Mishra, to summon the Legislative Assembly next week. The purpose of the proposed session of the Assembly by the chief minister was to prove his majority on the floor of the House. However, the Governor has not taken any decision on this advice rendered by the Council of Ministers. He is sitting over it and has not summoned the Assembly so far. This is leading to a constitutional crisis and political controversies.
Without entering into the jungle of political controversies, I am trying here to analyse the legal and constitutional question – can the Governor of a state refuse to summon the legislature despite advised by the chief minister and his council of ministers? Can Governor exercise his own discretion in such a matter?
Well, at the outset itself, let me highlight that it is a well-established legal principle that the fact whether the Government has majority support in the legislature can be proved on the floor of the House. Hotel/Resort politics and parading of MLAs before media, etc., cannot be a substitute for test of majority on the floor of the House.
In such circumstances, if the chief minister himself wants to prove his majority on the floor of the House, in order to end the political uncertainty, can he be stopped from doing so by not summoning the Assembly session?
To answer this question, first of all, let us understand who has the power to summon the legislature for a session. Article 174 of the Constitution of India deals with this issue:
“174. Sessions of the State Legislature, prorogation and dissolution.—(1) The Governor shall from time to time summon the House or each House of the Legislature of the State to meet at such time and place as he thinks fit, but six months shall not intervene between its last sitting in one session and the date appointed for its first sitting in the next session.
(2) The Governor may from time to time—
(a) prorogue the House or either House;
(b) dissolve the Legislative Assembly.”
It may thus be seen that the power to summon the legislature has been conferred on the Governor of the state.
However, it is well known that in a parliamentary democracy such as India, the Governor is required to act on the aid and advice of the council of ministers. He has very limited discretion of his own. In this regard, Article 163 of the Constitution is quite relevant:
“163. Council of Ministers to aid and advise Governor.—(1) There shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion.
(2) If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion.
(3) The question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired into in any court.”
It is thus clear that the Governor has to act as per the aid and advice of the council of ministers, except in certain rare situations where he is required to exercise his functions as per his own discretion as required by the Constitution.
Now, can the Governor exercise his discretion in the matter of summoning of the legislature, and ignore the advice of the council of ministers? Is this issue covered in the exceptions to the general rule that the Governor is bound to act as per the aid and advice of his ministers?
Well, this issue is no more res integra. In 2016, a Constitution bench of the Supreme Court has decided this issue in the case of Nabam Rebia & Bamang Felix v. Dy. Speaker, Arunachal Pradesh Legislative Assembly, (2016) 8 SCC 1. In this case, Justice Khehar, speaking for himself and for Justices Ghose and Ramana (with other two judges on the bench also delivering concurring decisions) held as under (para 166 of the SCC):
“…in ordinary circumstances during the period when the Chief Minister 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 to take an individual call on the issue at his own will, or in his own discretion. In a situation where the Governor has reasons to believe that the Chief Minister and his Council of Ministers have lost the confidence of the House, it is open to the Governor, to require the Chief Minister and his Council of Ministers to prove their majority in the House, by a floor test. Only in a situation, where the Government in power on the holding of such floor test is seen to have lost the confidence of the majority, it would be open to the Governor to exercise the powers vested with him under Article 174 at his own, and without any aid and advice.”
It is, thus, quite clear from this judgment that when the Chief Minister has the majority of the House, the Governor has to summon the House only in consonance with the aid and advice of the Council of Ministers. In such situation, the Governor is not allowed to take his personal call or to exercise his own discretion. He is bound by the advice of the council of ministers to summon the legislature.
As per the Supreme Court judgment, it is only in a situation where the Governor has reasons to believe that the Chief Minister has lost the majority of the House, that the Governor can exercise his discretion of summoning the House and require the Chief Minister to prove his majority in the House by a floor test.
It is pertinent to point out that even in this exceptional situation, where the Governor can exercise his discretion in this matter, the option before him is to summon the House and require the chief minister to prove his majority. It is not in any other way. So, the Governor’s discretion also, in the aforesaid exceptional situation, has to be exercised in favour of the summoning of the House and not otherwise.
But, in the present case of Rajasthan, the chief minister is himself asking for summoning of the legislature. So, in either scenario, the Governor is bound to summon the legislature.
Why?
Well, if the Governor feels that the chief minister has the majority, as at present, then he is bound by the advice of the council of ministers to summon the Assembly session, since such advice has already been given.
And, if the Governor has reasons to believe that the chief minister does not have majority at present, then the only discretion he has to exercise is to summon the Assembly session and require the chief minister to prove his majority on the floor of the House.
So, in both situations, the Governor is required to summon the Assembly session, given that the council of ministers has already advised him to summon the House for a floor test.
It is in the interests of the democracy and also in conformity with the mandate of the Constitution that the Governor should immediately summon the session of the Legislative Assembly in Rajasthan. He should not undermine the Constitution and the basic principles of democracy.
When the floor test is held in Assembly, the political crisis will be resolved this way or that way. If the chief minister Ashok Gehlot can prove his majority, then he survives. And, if he cannot prove his majority in the floor test, then his government has to resign.
So, let the matter be decided in the true spirits of the democratic principles and the constitutional ethos. This way or that way.
