News Analysis | Governor cannot employ his ‘discretion’ and should strictly abide by the ‘aid and advice’ of the Cabinet to summon House: Supreme Court

Even the Constituent Assembly was wary of extending the Governor’s discretion, said Constitution Bench judgment of the Supreme Court in 2016.

July 25, 2020 07:25 pm | Updated 09:46 pm IST - NEW DELHI:

Head-to-head: Congress workers staging a demonstration against the BJP in Jaipur on Saturday.

Head-to-head: Congress workers staging a demonstration against the BJP in Jaipur on Saturday.

A Constitution Bench judgment of the Supreme Court has held that a Governor is bound to convene a meeting of the Assembly for a floor test on the recommendation of the Cabinet.

Also read | Governor’s discretion

The five-judge Constitution Bench judgment of the Supreme Court in Nabam Rebia versus Deputy Speaker on July 13, 2016 held that a Governor cannot employ his ‘discretion’, and should strictly abide by the “aid and advice” of the Cabinet to summon the House.

Significant in deadlock in Rajasthan

The judgment is significant in the present deadlock between Rajasthan Governor Kalraj Mishra and Chief Minister Ashok Gehlot over the summoning of an Assembly session for a floor test.

“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,” the unanimous judgment by the Bench led by then Chief Justice J.S. Khehar held.

The Nabam Rebia judgment was a consequence of then Arunachal Pradesh Governor J.P. Rajkhowa’s decision to advance the Assembly session, a move which led to unrest in the State and culminated in the President’s rule. The Constitution Bench held Mr. Rajkhowa’s decision to be a violation of the Constitution. The judgment led to the restoration of the Congress-led Nabam Tuki government .

The judgment said even the Constituent Assembly was wary of extending the Governor’s discretion. Though the draft Constitution had vested the Governor with the discretion to summon and dissolve, it was latter omitted by the framers of the Constitution.

“It is an accepted principle that in a parliamentary democracy with a responsible form of government, the powers of the Governor as Constitutional or formal head of the State should not be enlarged at the cost of the real executive, viz. the Council of Ministers,” it said.

The Supreme Court highlighted how Article 163 of the Constitution does not give the Governor a “general discretionary power to act against or without the advice of his Council of Ministers”.

Limited to specified areas

The court said the Governor’s discretionary powers are limited to specified areas like giving assent or withholding/referring a Bill to the President or appointment of a Chief Minister or dismissal of a government which has lost of confidence but refuses to quit, etc.

“The area for the exercise of his discretion is limited. Even in this limited area, his [Governor’s] choice of action should not be arbitrary or fanciful. It must be a choice dictated by reason, actuated by good faith and tempered by caution,” the court said.

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