This article is written by Manish Aryan, pursuing a Diploma in M&A, Institutional Finance and Investment Laws (PE and VC transactions) from lawsikho.com.

Introduction

More often than not, we see the role of Governor in state politics as guided and governed by the ruling party at the centre. In the last few months, we saw how Governors of states like Karnataka, Madhya Pradesh, Kerala, Maharashtra, and of course Rajasthan have acted in a controversial manner without adding to the glory of the office and have attracted wide criticism from the public at large. This raises a serious question whether the Governor is an agent of the union. In the past, various attempts have been made to understand the significance of the Governor’s office in strengthening the centre-state relationship in federal set-up, for example, Administrative Reform Commission-1968, Sarkaria Commission-1988, Punchhi Commission-2010, etc. All these commissions identified that the office of Governor is an important link between centre and state to give effect to federal democracy and recommended to follow a fair procedure in the appointment of Governor so that the appointed Governor does not show allegiance to the political party ruling at the centre. The negative image of the office of Governor as ‘an agent of the centre’ will keep on popping time and again until Governor must start acting judiciously, impartially and efficiently while exercising his discretion and personal judgment. In the current political climate of Rajasthan, a constitutional question arose i.e., whether the Governor has discretionary power in summoning the assembly session.

Constitutional position of governor

Governor occupies the position of head of executive in the state similar to position of the President in Union. The Governor occupies a position in the state as a representative of the Union during the pleasure of the President. As per Article 163(1), there shall be a council of ministers headed by the chief minister of a state to aid and advise the Governor in discharging his function except the functions for which the Governor has been provided discretion. Article 163(2) gives the Governor power to decide whether any matter, in case of confusion, falls under the discretion of the Governor or not and the decision of the Governor shall be final and its validity cannot be challenged in the court. However, reference of the expression “in his discretion” for the Governor cast a special responsibility to the Governor. The discretion of the Governor is limited to reservation of bill for the consideration of the President, recommendation for the imposition of the President’s rule in the state, exercising functions as the administrator of adjoining union territory, seeking information from chief minister with respect to administrative and legislative matters of state. These are the discretion expressly mentioned in the constitution and had never been a point of conflict between the state government and the Governor. However, it is the implied discretion, which creates problems between the state government and the Governor. The implied discretion includes appointment of chief minister when there is no clear majority in state assembly election, dissolution of council of minister when it loses confidence of the state legislature or dismissal of council of minister when it cannot prove majority in assembly. In Samsher Singh v. State of Punjab, Hon’ble SC held that except in the situation where the Governor has to act in his discretion, the Governor has to act on aid and advice of the council of ministers. Having said so, the Governor can act against the aid and advice of council of minister under special laws such as Prevention of corruption Act, 1947. Additionally, in case of disciplinary action against the judge of the subordinate court under Article 235, the Governor must act on the advice of the High Court and not on the advice of the council of minister.

It is necessary to understand that Article 163 does not give the Governor general power to act without the aid and advice of the council of ministers rather the discretion is very limited and specific. Even in the limited capacity, the choice of action of discretion should not be arbitrary and fanciful.

Is summoning of an assembly session discretion of the governor

Amidst the tension between the Rajasthan cabinet and the Governor to call for an assembly session, a constitutional question arises i.e., whether it is the discretion of the Governor to call a session or is the Governor is bound by constitution to act on the advice of council of ministers. Under normal circumstances whenever the cabinet decides to call a session on a particular date, the decision is sent to the Governor and the Governor signs the summons and sends it back to cabinet on the same day or at maximum next day. But the question is, can the governor deny signing the summons against the advice of the council of minister and fix another date on his whims. First of all, why this question is relevant is because the office of Governor, being a constitutional office, is expected to show at most respect to the constitutional mandate and also the scenario in which the Governor defies the advice of the council. In a normal circumstance, if any delay happens in calling a session, it will not affect much the working of the assembly. However, if there is a situation, where the ruling party at the centre is attempting to topple the elected government in the state, in that case the Governor being the head of executive is expected to act more responsibly. By not acting on the advice of the council of minister, it would appear that the Governor is indirectly facilitating horse trading.  

As per Article 174 of the Constitution of India, the Governor shall summon the house from time to time, also the Governor is enabled to prorogue the house and dissolve the legislative assembly. The combined reading of Article 163(1) and Article 174, it is clear that the Governor shall always act on aid and advice of the council of ministers except for the situation under the Constitution, he is required to act in his discretion. The act of summoning the house is nowhere mentioned that it comes under the discretion of the Governor. So, the Governor is always bound by constitutional obligation to call a session of the house on the advice of the council of minister. In fact, Madras High Court has ruled in the case of K.A. Mathialagan v. Governor that the Governor should while proroguing the house always act on the aid and advice of the council of minister. Further, in Nabam Rebia and Baman Felix v. Deputy Speaker (2016) case, hon’ble Supreme Court has reaffirmed the position that the Governor can summon and prorogue and dissolve the House only on the aid and advice of the Council of Ministers. So there is clear judicial precedent and the law point is clear and settled that when can the governor use his discretion and when he has to definitely act on aid and advice of the council of ministers.

Not acting on the aid and advice of the council of ministers is antithetical to the Constitution. But the important question is why the Governors go against constitutional duty with which they are bound to. The obvious reason which appears the security of their tenure. A Governor is appointed by the President for five years subject to the sweet will of the President. In other words, the Governor stays in office till the pleasure of the central government only, as the president will act on the advice council of ministers of the central government. Also, the Constitution does not mention any ground for removal of the Governor. This gives a sense of insecurity of tenure of Governor and this way to secure their tenure, the Governors show allegiance to the central government and start acting on the direction of the central government. This is the reason, a negative image has been formed for the office of the Governor as ‘an agency of the central government’.

Way forward

Pluralist form of democracy is India’s greatest strength but the manner in which, currently democracy is running is a major source of weakness, where an elected government is being toppled down. The office of Governor has been seen as an important link between centre and state to promote the idea of cooperative federalism. Power hunger has plagued the political parties in India. In order to reaffirm ourselves as a largest democracy, the foremost requirement is to happily accept the mandate given by the people and in this perspective, centre and state should work in cooperation for the growth and development of our nation. Therefore, it becomes imperative that the Governor should act judiciously and impartially while exercising its discretion. An ‘agreed code of conduct’ approved by the state governments and the central government should be devised to enable the Governor to successfully discharge his functions. We have Bommai verdict where SC can review the malafide intention in Governor’s report under Article-356 of the Constitution, similar judicial intervention in malafide invitation to government formation can be a potential solution.

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: