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WHEN CAN A GOVERNOR USE HIS DISCRETION?

Focus: GS-II Governance, Polity

Why in news?

Rajasthan Governor returning the fresh proposal by the state Cabinet – seeking to convene a session of the Assembly – has raised fresh legal questions on the powers of the Governor.

Who has the powers to summon the House?

  • It is the Governor acting on the aid and advice of the cabinet.
  • Article 174 of the Constitution gives the Governor the power to summon from time to time “the House or each House of the Legislature of the State to meet at such time and place as he thinks fit.”
  • However, the phrase “as he thinks fit” is read as per Article 163 of the Constitution which says that the Governor acts on the aid and advice of the cabinet.
  • Article 163(1) essentially limits any discretionary power of the Governor only to cases where the Constitution expressly specifies that the Governor must act on his own and apply an independent mind.

What has the Supreme Court said in the past about the Governor’s power to summon the House?

  • It is settled law that the Governor cannot refuse the request of the Cabinet to call for a sitting of the House for legislative purposes or for the chief minister to prove his majority.
  • In fact, on numerous occasions, including in the 2016 Uttarakhand case, the court has clarified that when the majority of the ruling party is in question, a floor test must be conducted at the earliest available opportunity.
  • In 2016, a Constitution Bench of the Supreme Court in Nabam Rebia and Bamang Felix vs Deputy Speaker, the Arunachal Pradesh Assembly case, expressly said that the power to summon the House is not solely vested in the Governor.

What did the SC say in the Arunachal case?

  • Referring to discussions in the Constituent Assembly, the court noted that the framers of the Constitution expressly and consciously left out vesting powers to summon or dissolve the House solely with the Governor.
  • In paragraph 162 of the judgment, the court discussed that draft Article 153 (which later became Article 174), that dealt with the powers of the Governor, was substantially altered to indicate that the framers did not want to give Governors the discretion.
  • After debating the intention of the framers, the court concluded that the only legitimate and rightful inference, that can be drawn in the final analysis is, that the framers of the Constitution decided not to vest discretion with the Governor, in the matter of summoning and dissolving the House, or Houses of the State Legislature.
  • The Supreme concluded that the Governor can summon, prorogue and dissolve the House, only on the aid and advice of the Council of Ministers with the Chief Minister as the head. And not at his own.

-Source: Indian Express

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September 2022
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