What the law says about a governor’s power to summon, prorogue or dissolve an assembly

by Abbas Adil

New Delhi: Rajasthan Chief Minister Ashok Gehlot called upon Governor Kalraj Mishra Friday and reiterated his request to summon the House from Monday. This happened hours after the state high court barred assembly Speaker C.P. Joshi from deciding on the disqualification petitions against Sachin Pilot and 18 ‘rebel’ Congress MLAs.

Gehlot said his cabinet wanted to discuss issues such as the state’s political situation and dealing with the novel coronavirus pandemic, among other things.

When the chief minister did not receive any official response from the governor’s office for several hours, he went on to make a statement alleging that Mishra was acting under pressure to not call the session.

In a press conference held later in the day, Gehlot however said he was confident that Governor Mishra will accede to his request. Raj Bhawan sources, meanwhile, said the governor will act in accordance with the law.

Legal experts ThePrint spoke to said the governor has to act according to the aid and advice of the council of ministers. Therefore, he has no discretion to refuse but to act on the cabinet’s advice.


Constitution on a governor’s power

There are two provisions in the Constitution that deal with a governor’s power to summon, prorogue and dissolve an assembly.

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Under Article 174, a governor shall summon the House at a time and place, as she or he thinks fit. Article 174 (2) (a) says a governor may from “time to time” prorogue the House and 174 (2) (b) allows her or him to dissolve the Legislative Assembly.

Article 163 says the governor shall exercise her or his functions with the aid and advice of the council of ministers. But it also adds that she or he would not need their advice if the Constitution requires her or him to carry out any function at her/his discretion.

Usually, the two Articles — 174 and 163 — are read together to outline the governor’s powers in summoning, proroguing or dissolving the House.

Supreme Court advocate Gyanant Singh told ThePrint, “A Madras High Court judgment of 1973 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.”

Supreme Court on governor’s discretionary powers

A 2016 verdict of the Supreme Court in the Nabam Rebia case, which had resulted from a constitutional crisis in Arunachal Pradesh, had expressly stated that a “governor can summon, prorogue and dissolve the House, only on the aid and advice of the council of ministers”.

The ruling came when Rebia – then the Speaker of Arunachal Pradesh assembly – had approached the top court after the state’s governor preponed a session on the joint request of 20 ‘rebel’ Congress MLAs, 11 BJP and 1 independent legislator.

These lawmakers had expressed their displeasure with the speaker and the government.

In response, the governor had preponed an assembly session from 14 January 2016 to 15 December 2015 and listed the removal of the speaker on the agenda.

The top court had then ruled that in ordinary circumstances, the governor can summon the House only on the aid and advice of the council of ministers, with the chief minister heading it.

But the court also clarified that if the governor had reasons to believe that the chief minister and her or his council of ministers have lost the confidence of the House, a floor test could be ordered.

Senior Supreme Court advocate Gopal Sankaranaryanan told ThePrint that in the case of Rajasthan, Chief Minister Gehlot has said that he has the “confidence of the House”.

“The governor is bound by their (council of ministers) advice to convene the legislative assembly. There is no wriggle room available to the governor in our federal structure,” he added.

Constituent Assembly Debate on Article 174

To interpret Article 174, the constitution bench in the Nabam Rebia case had examined the constituent assembly debate on the said provision.

Then drafted as Article 153, the provision had three clauses. The first two clauses were similar to the ones mentioned in Article 174 in the present form. The third clause allowed the governor to exercise her or his discretion to summon, prorogue and dissolve the assembly.

However, during the debate, Jayaprakash Narayan suggested deletion of clause 3. He submitted that there was no reason why the governor, in her or his discretion, should be permitted to summon or dissolve the House, when no such discretionary power was being extended to the President (with regard to summoning and dissolution of the Parliament).

Later B.R. Ambedkar moved to omit clause 3, as the same was inconsistent with the scheme of a “constitutional” governor. When put to vote, the amendment suggested was adopted.

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