Spanish writer Miguel de Cervantes wrote, “The good governor should have a broken leg and keep at home” which means the Governor of a state has to be above the game of politics and in discharge of his constitutional responsibilities, he must be seen impartial and fair. Had the Governor of Rajasthan, Kalraj Mishra, played by the rules, in the first instance, the state would have been saved an unsavory spectacle. The Governor, by rejecting thrice the Ashok Gehlot cabinet’s decision to convene a session of the Rajasthan Assembly, committed a cardinal mistake and acted in contravention of constitutional provisions.
The Governor, under the Constitution, has the power to summon and prorogue the House of the Legislature. Constitution (Article 174 read with Article 163) mandates that Governor acts, regarding summoning and proroguing the House, on the advice of the Council of Ministers. The Sarkaria Commission also recommended that so long as the Council of Ministers enjoys the confidence of the Legislative Assembly, the advice of the Council of Ministers in regard to summoning and proroguing a House of the Legislature, if such advice is not patently unconstitutional, should be deemed as binding on the Governor.
In 2016, the Constitution Bench of the Supreme Court in Nabam Rebia and Bamang Felix vs. Deputy Speaker, of the Arunachal Pradesh Assembly case, expressly said that the power to summon the House is not solely vested in the Governor and he/she is precluded to take an individual call on the issue at his/her own will, or in his/her own discretion. This simply means the Governor is bound to go by the recommendation of the Chief Minister. There was no reason for Kalraj Mishra to reject the request of the Chief Minister to summon the House and demand, instead, a 21 days’ notice period. It is also to be noted that the Rules of Procedure and Conduct of Business in the Rajasthan Legislative Assembly (Chapter II, Rule 3) provides for summoning of the Legislature at a short notice.
Further, by insisting that the Chief Minister provide to him the agenda for the session even before the House is convened, the Governor exceeded his mandate. Governor cannot decide the business of the House. It is the Chief Minister alone, who can provide the Assembly with business to transact.
The Governor erred in exercising his ‘discretion’ rather than performing his normal constitutional executive responsibility. It is my belief that political considerations rather than constitutional provisions guided him on the path of discretion. The Committee of the Governors appointed by the President on 26 November, 1970 had recommended that where the Governor has reason to believe that the Ministry no longer enjoys the majority, he may ask the Chief Minister to face the Assembly. If the Chief Minister neglects or refuses to summon the Assembly for holding a “Floor Test”, the Governor should summon the Assembly for the purpose only in order to ensure that the system of responsible government in the state works in accordance with the norms envisaged in the Constitution. There was no such issue in the case of Rajasthan’s Congress-led government, which enjoyed a comfortable majority in the House even in the face of the now dissipated crisis. Instead, it was the Governor who prevented the elected Government with a majority in the House from exercising its duties to the legislature and to the eight crore people of Rajasthan. By doing so, the Governor failed in his duty as the conscience keeper of the Constitution, thereby violating the oath he took under Article 159 “to preserve, protect and defend the Constitution and submit himself to the service and wellbeing people of the State”.
Democracy in Rajasthan has been saved for the time being and the Assembly will meet on 14 August, 2020. Those who were hoping to repeat their power grab machinations previously witnessed in Madhya Pradesh, Karnataka, Goa and other states, have been handed out a befitting reply. The Congress has emerged stronger after the deft handling of what was essentially an internal matter of the party that was resolved by the mature and pragmatic handling of the situation under the leadership of Rahul Gandhi and Priyanka Gandhi Vadra in consultation with other stakeholders.
However, it is predictable that neither will the BJP scotch its dirty tricks to somehow come to power in states where it has been democratically voted out nor will the Jaipur Raj Bhawan be the last slaughterhouse for democratically elected Governments. As a shark cannot stay away from blood, the BJP cannot stay away from power. Therefore, instead of depending on the judiciary every time a Governor attempts a constitutional sin, it would be appropriate to set the record straight for all time.
Where there is discretion, there is scope for arbitrariness. Since the line of control between ‘defined powers’ and ‘discretionary powers’ is blurred, Governors sometimes succumb to pressures and temptations from the Central Governments who have advised the President of India to appoint them. In order to protect Governors from machinations of political parties, the discretionary powers of Governors need to be reviewed in light of Uttarakhand, Karnataka, Goa, Madhya Pradesh and Rajasthan like incidents. Even the Constituent Assembly was aware of the potential of the discretionary powers of Governors. This is why Dr. B.R. Ambedkar put the following question to the Constituent Assembly: “Is the Governor going to have any power of interference in the working of a Ministry which is composed of a majority in the local Legislature?” Though the Constituent Assembly members had divergent views with regard to powers and functions of the Governor but the final word on the debate was Dr. Ambedkar’s. “The first thing I would like the House to bear in mind is this. The Governor under the Constitution has no functions which he can discharge by himself: no functions at all… Even under this article (Article 163), the Governor is bound to accept the advice of the Ministry.”
India’s political landscape is no longer what it used to be when our founding fathers administered the country or its states. The changing political realities, coupled with the lure of clinging on to power even among those who hold constitutional office, demand today that the powers of a Governor be redefined. A Governor should not have any discretion other than provisions relating to administration of Fifth Schedule Areas and reservation of Bills for presidential assent. On all other matters, he is bound by the advice of the Council of Ministers. Secondly, a mechanism should be in place for providing stability of tenure of Governors. Otherwise, ‘discretion’ of Governors and ‘pleasure’ of the Central Government has become a lethal combination against democratic spirit. The Parliament should debate and decide on these issues in the upcoming monsoon session so that democracy does not die an unnatural death in States where political parties other than the ruling party at the Centre are in power.
(The Author is a Supreme Court Lawyer and National Spokesperson, the Indian National Congress. Views expressed are personal.)