Governor : Misuse of power during summoning assembly – UPSC GS2

Context: The West Bengal Governor returned the recommendation of the Chief Minister to summon the Assembly.
What is the Summoning of Assembly?
  • Summoning is the process of calling all members of the State Assembly to meet.
  • The power to summon each house of the State Assembly from time to time is given to the Governor of the state.
Constitutional Provisions on Governor’s Power to Summon the House:
  • Governor’s power to summon the House are derived from Article 174 and 163 of Constitution.
  • Article 174 states that “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.”
  • Article 163 says “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.”
Role of governor in summoning an assembly:
  • The Governor summons the assembly on the recommendation made by the Cabinet after due compliance with Rules of Business under article 166(3) of the constitution.
  • There are a few instances where the Governor can summon the House despite the refusal of the Chief Minister who heads the Cabinet.
  • The Governor can decide on his or her own on summoning the House;
    • When the Chief Minister appears to have lost the majority
    • Legislative members of the House propose a no-confidence motion against the Chief Minister.
  • Actions of the Governor can be challenged in court.
Discretionary Power of the Governor:
  • Article 163 states that “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.”
  • 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.
When can a Governor use his discretion?
  • The Governor’s discretionary powers are limited to specified areas like
    • giving assent or withholding/referring a Bill to the President
    • appointment of a Chief Minister or dismissal of a government which has lost confidence but refuses to quit, etc.
  • Only in a situation where the government in power is seen to have lost the confidence of the majority, would it be open to the Governor to exercise the powers vested with him under Article 174 at his own discretion.
Supreme Court on Governor’s power to summon the House:
  • 2016 Arunachal Pradesh Assembly case: In this case, SC concluded that in ordinary circumstances during the period when the CM 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.
  • Nabam Rebia versus Deputy Speaker 2016 verdict: In this case the Supreme Court had expressly stated that a “governor can summon, prorogue and dissolve the House, only on the aid and advice of the council of ministers”.
  • Madras High Court judgment of 1973: This judgment answered the question on the discretion of power over prorogation by reading Article 163 into Article 174 to hold that a governor was bound by the aid and advice of the council of ministers.
Sarkaria Commission on Governor’s Discretion
  • The Sarkaria Commission of 1983 had said that “so long as the Council of Ministers enjoys the confidence of the Assembly, its advice must be deemed as binding on the Governor.
  • It is only where such advice would lead to an infringement of a constitutional provision, or where the Council of Ministers has ceased to enjoy the confidence of the Assembly, that the question arises whether the Governor may act in the exercise of his discretion”.
Other examples that highlight the misuse of Governor’s Power to Summon the House:
  • In a tug-of-war between Kerala Governor and CM, the Governor had turned down a request to summon a special sitting of the Assembly to debate the new three central farm laws.
  • In Rajasthan’s case, despite requests from the chief minister, the Governor has used discretionary power twice and returned requests to call for a session.