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Overstepping His Authority?

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Article 174 confers a governor with the power to summon, prorogue or dissolve an assembly. But has the Rajasthan impasse shown that this constitutional authority has misused his discretionary powers?

By Vivek K Agnihotri

In Rajasthan, the legislative action seamlessly, albeit temporarily, shifted from the judiciary to the executive. From the corridors of courts, it spilled over to the lawns of the Raj Bhawan. As a matter of fact, all manner of constitutional celebrities were roped into the arena to produce a pot-boiler. The bone of contention was the summoning of a session of the Rajasthan legislative assembly, and that too, at a notice much shorter than the statutory 21 days. Incidentally, this notice period of 21 days was originally prescribed in the rules of procedure and conduct of business in the two Houses of Parliament in order to facilitate inviting of questions from Members and processing them for tabling their answers. With the advancement of technology, it was subsequently reduced to 14 days.

The governor did not agree. He took the stand that if the government wants to call the session at shorter notice, it should explain the urgency as well as the reasons for it in view of the prevailing circumstances, namely, the Covid-19 pandemic. He was, however, agreeable to the House being called at shorter notice if the government gave a written undertaking that the agenda was to seek a vote of confidence. He also directed video recording and live proceedings of the floor test and precautions against the spread of Covid-19 during the sitting.

The impasse was, however, resolved when the parties in conflict met halfway, in a manner of speaking, after a phone call by the chief minister to the prime minister and a petition to the president, but not necessarily because of them. The governor agreed to count the notice period of 21 days from the day the proposal was first mooted by the cabinet; the government agreed not to insist on holding the session from July 31. On July 29, the governor approved the cabinet proposal to convene a session of the assembly from August 14, the deliverance day. The proposal of the cabinet to summon the House from July 31 was earlier returned three times as the government had refrained from stating that a confidence vote would be sought during the session.

Against the backdrop of the case of disqualification of Sachin Pilot, the deputy chief minister, and 18 MLAs pending before the Rajasthan High Court, the state government perhaps felt that it would be on a surer footing to buttress the ground for disqualification if the rebels defied the whip in the House. It was, therefore, being speculated that the government, in the first instance, wanted to convene a session of the assembly in which some legislative business may be listed. As a matter of fact, in its request to the governor to summon the assembly, the cabinet had listed six Bills and discussion on the Covid-19 situation. If the whip issued to the ruling party MLAs to vote in favour of any of the Bills was flouted by the rebels, there would be a clear case under the anti-defection law, leading to their disqualification. The confidence vote may have been sought thereafter.

Article 174 confers the governor with the power to summon, prorogue or dissolve the legislature of the state. Article 163 of the Constitution requires him to act on the aid and advice of the council of ministers headed by the chief minister “in the exercise of his functions”, unless the Constitution requires him to act “in his discretion”.

The government’s view, therefore, was that the governor was bound by the advice of the cabinet and had no right to know the reason for its decision. In support of its contention, the government sought the protection of the judgment of the Supreme Court in Nabam Rebia, and Bamang Felix vs Deputy Speaker and others, 2016. In November 2015, a constitutional crisis arose in Arunachal Pradesh when 20 Congress MLAs rebelled against Chief Minister Nabam Tuki. Thirty-three members of the assembly—including 20 rebel Congress MLAs, 11 BJP ones and 2 Independents—met the governor to communicate their displeasure with the Speaker and the government. The governor, independently, without the advice of the chief minister, advanced the assembly session from January 14, 2016 to December 15, 2015 and listed the removal of the Speaker on the legislative agenda. The Speaker, Nabam Rebia, pre-emptively disqualified the rebel MLAs on the grounds of defection before the assembly could meet.

On January 5, 2016, the Gauhati High Court stayed the disqualification of the Congress MLAs. On January 15, the Supreme Court referred the entire batch of petitions filed by the Speaker to a constitution bench, which was examining the discretionary powers of the governor.

The Court, in its order dated July 13, 2016, held that the functions, duties and powers of the governor by and under the Constitution are “cabined, cribbed, confined”. The governor can summon, prorogue and dissolve the House only on the advice of the council of ministers. Hence, he cannot summon the House or determine its legislative agenda without consulting the chief minister or the Speaker.

The governor’s discretionary powers, in the normal course, are limited to specified areas such as giving or withholding assent to a Bill, referring a Bill to the president, appointment of a chief minister, dismissal of a government which has lost confidence but refuses to quit and recommending President’s Rule (Article 356). Thus, it is only in a situation where the governor has reason to believe that the chief minister and his council of ministers have lost the confidence of the House that he can require the chief minister to prove his majority in the House by a floor test. Only on holding such a floor test and on the government losing the confidence of the majority is it open to the governor to exercise the power vested with him under Article 174 of his own accord.

It is, however, intriguing that the governor of Rajasthan chose to exercise his so-called “discretion” in a routine matter like fixing the date of summoning the assembly as well as to pry into the prerogative of the Business Advisory Committee of the House to decide the agenda for its sitting. If he had reason to believe that the government had lost its majority in the House, he could have asked the chief minister to prove his majority by a particular date. This is what the governor of Maharashtra did in 2019 when he realised his mistake, although he gave a longer rope than necessary and the Supreme Court had to intervene to cut it short.

That was also the ratio of the seminal judgment of the nine-judge Constitutional Bench in SR Bommai vs Union of India (1994) which inter alia gave the governor the power to direct a government to prove its majority within a given timeframe in the assembly. However, it also held that the Speaker enjoyed overwhelming powers in running the business of the assembly.

The story of the tussle between the Speaker and the High Court has, in the meanwhile, resurfaced. After having ostensibly withdrawn on July 27 his case in the Supreme Court against the High Court for stonewalling his decision to proceed with the show-cause notice of disqualification against Pilot and 18 MLAs, he returned on July 29 to launch a sharper attack on the High Court for acting beyond the apex court’s judgment in Kihoto Hollohan vs Zachilhu and Ors (1992).

The Speaker has petitioned the Supreme Court to ensure that the authorities under the Constitution, including the judiciary, exercise their jurisdiction within their respective “Lakshman Rekha” adumbrated in the Constitution. He has averred that the division bench of the High Court could not have acted as an appellate authority to correct the decision of the Supreme Court in the Kihoto Hollohan case (supra).

Meanwhile, Mayawati decided to teach a lesson to Ashok Gehlot, the Rajasthan chief minister, for the unconstitutional merger of BSP MLAs with the Congress party. She expressed her intention to approach the Supreme Court in pursuit of the disqualification of the six legislators, who had crossed over to the treasury benches last year. The Rajasthan High Court had earlier dismissed a petition filed by the BJP against the merger of the BSP legislature party of six MLAs with the Congress party.

Mayawati has asked her “merged” MLAs to vote against the trust vote, if it takes place, failing which their party membership would be cancelled. She has also demanded President’s Rule in Rajasthan.

The evolutionary scenario in Rajasthan has all the ingredients of a superhit—a furious interplay of varied interests hurtling towards an inexorable dénouement.  There is a strong likelihood of another landmark judgment from the Supreme Court overriding at least its Zachillu Khusantho vs State of Nagaland (1993) decision, if not the ruling in the Kihoto Hollohan case (supra).

Governors in the past have often played ducks and drakes with floor tests. They cannot help but try to govern, but do not always cover themselves in glory in the process.

—The writer was Secretary, Parliamentary Affairs from 2003-2005 and Secretary General of Rajya Sabha from 2007-2012

Lead picture: Twitter

Lead caption: Rajasthan Governor Kalraj Mishra (left) with CM Ashok Gehlot at Raj Bhawan

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