Governor Bound by Gehlot’s Advice

The relevant provisions of the Constitution that apply in the question here are Articles 174 and 163.  

Article 174 reads as follows: (Emphasis supplied)

“174. Sessions of the State Legislature, prorogation and dissolution

(1) 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

(2) The Governor may from time to time

(a) Prorogue the House or either House;

(b) dissolve the Legislative Assembly.”

Article 163 reads as follows: (Emphasis supplied)

“163. Council of Ministers to aid and advise Governor

(1) 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

(2) 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

(3) The question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired into in any court.”

The question now is whether the power to summon the House under 174(1) is in Governor’s discretion under 163(1) and 163(2) or if he is bound by the advice of the Council of Ministers under 163(1).

The 7-Judge Bench of the Supreme Court in Samsher Singh v. State of Punjab, (1974) 2 SCC 831 traced the history of Article 163 and held that there are very few provisions that contemplate Governor acting under his discretion as opposed to being bound by the advice council of ministers.  It also mostly laid down what those provisions are.   The relevant extracts from that decision are as follows.

This extract is taken from Samsher Singh v. State of Punjab, (1974) 2 SCC 831 : 1974 SCC (L&S) 550 at page 837

“15. Article 163(1) states that 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 insofar as he is by or under this Constitution, required to exercise his functions or any of them in his discretion. Article 163(2) 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. Extracting the words “in his discretion” in relation to exercise of functions, the appellants contend that the Council of Ministers may aid and advise the Governor in executive functions but the Governor individually and personally in his discretion will exercise the constitutional functions of appointment and removal of officers in State Judicial Service and other State Services.

16. It is noticeable that though in Article 74 it is stated that there shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President in the exercise of his functions, there is no provision in Article 74 comparable to Article 163 that the aid and advice is except insofar as he is required to exercise his functions or any of them in his discretion.

17. It is necessary to find out as to why the words ‘in his discretion’ are used in relation to some powers of the Governor and not in the case of the President.

18. Article 143 in the Draft Constitution became Article 163 in the Constitution. The Draft Constitution in Article 144(6) said that the functions of the Governor under that article with respect to the appointment and dismissal of Ministers shall be exercised by him in his discretion. Draft Article 144(6) was totally omitted when Article 144 became Article 164 in the Constitution. Again Draft Article 153(3) said that the functions of the Governor under clauses (a) and (c) of clause (2) of the article shall be exercised by him in his discretion. Draft Article 153(3) was totally omitted when it became Article 174 of our Constitution. Draft Article 175 (proviso) said that the Governor “may in his discretion return the Bill together with a message requesting that the House will reconsider the Bill”. Those words that “the Governor may in his discretion” were omitted when it became Article 200. The Governor under Article 200 may return the Bill together with a message requesting that the House will reconsider the Bill. Draft Article 188 dealt with provisions in case of grave emergencies. Clauses (1) and (4) in Draft Article 188 used the words “in his discretion” in relation to exercise of power by the Governor. Draft Article 188 was totally omitted. Draft Article 285(1) and (2) dealing with composition and staff of Public Service Commission used the expression “in his discretion” in relation to exercise of power by the Governor in regard to appointment of the Chairman and Members and making of regulation. The words “in his discretion” in relation to exercise of power by the Governor were omitted when it became Article 316. In paragraph 15(3) of the Sixth Schedule dealing with annulment or suspension of Acts or suspension of Acts and resolutions of District and Regional Councils it was said that the functions of the Governor under the paragraph shall be exercised by him in his discretion. Sub-para 3 of para 15 of the Sixth Schedule was omitted at the time of enactment of the Constitution.

19. It is, therefore, understood in the background of these illustrative draft articles as to why Article 143 in the Draft Constitution which became Article 163 in our Constitution used the expression “in his discretion” in regard to some powers of the Governor.

20. Articles where the expression “acts in his discretion” is used in relation to the powers and functions of the Governor are those which speak of special responsibilities of the Governor. These articles are 371-A(1)(b), 371-A(1)(d), 371-A(2)(b) and 371-A(2)(f). There are two paragraphs in the Sixth Schedule, namely 9(2) and 18(3) where the words “in his discretion” are used in relation to certain powers of the Governor. Para 9(2) is in relation to determination of amount of royalties payable by licensees or lessees prospecting for, or extracting minerals, to the District Council. Paragraph 18(3) has been omitted with effect from January 21, 1972.

21. The provisions contained in Article 371-A(1)(b) speak of the special responsibility of the Governor of Nagaland with respect to law and order in the State of Nagaland and exercise of his individual judgment as to the action to be taken. The proviso states that the decision of the Governor in his discretion shall be final and it shall not be called in question.

22. Article 371-A(1)(d) states that the Governor shall in his discretion make rules providing for the composition of the Regional Council for the Tuensang District.

23. Article 371-A(2)(b) states that for periods mentioned there the Governor shall in his discretion arrange for an equitable allocation of certain funds, between the Tuensang District and the rest of the State.

24. Article 371-A(2)(f) states that the final decision on all matters relating to the Tuensang District shall be made by the Governor in his discretion.

…

27. Our Constitution embodies generally the Parliamentary or Cabinet system of Government of the British model both for the Union and the States. Under this system the President is the constitutional or formal head of the Union and he exercises his powers and functions conferred on him by or under the Constitution on the aid and advice of his Council of Ministers. Article 103 is an exception to the aid and advice of the Council of Ministers because it specifically provides that the President acts only according to the opinion of the Election Commission. This is when any question arises as to whether a Member of either House of Parliament has become subject to any of the disqualifications mentioned in clause (1) of Article 102.

28. Under the Cabinet system of Government as embodied in our Constitution the Governor is the constitutional or formal head of the State and he exercises all his powers and functions conferred on him by or under the Constitution on the aid and advice of his Council of Ministers save in spheres where the Governor is required by or under the Constitution to exercise his functions in his discretion.”

Notice that the power under Article 174 was specifically referred to in Para 18 quoted above and the aspect of gubernatorial discretion was first introduced and then omitted in respect of powers under Article 174. The Court in Shamsher Singh went on to lay down the law which holds true to this day as follows.

“54. The provisions of the Constitution which expressly require the Governor to exercise his powers in his discretion are contained in articles to which reference has been made. To illustrate, Article 239(2) states that where a Governor is appointed an administrator of an adjoining Union territory he shall exercise his functions as such administrator independently of his Council of Ministers. The other articles which speak of the discretion of the Governor are paragraphs 9(2) and 18(3) of the Sixth Schedule and Articles 371-A(1)(b), 371-A(1)(d) and 371-A(2)(b) and 371-A(2)(f). The discretion conferred on the Governor means that as the constitutional or formal head of the State the power is vested in him. In this connection, reference may be made to Article 356 which states that the Governor can send a report to the President that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of this Constitution. Again Article 200 requires the Governor to reserve for consideration any Bill which in his opinion if it became law, would so derogate from the powers of the High Court as to endanger the position which the High Court is designed to fill under the Constitution.

55. In making a report under Article 356 the Governor will be justified in exercising his discretion even against the aid and advice of his Council of Ministers. The reason is that the failure of the constitutional machinery may be because of the conduct of the Council of Ministers. This discretionary power is given to the Governor to enable him to report to the President who, however, must act on the advice of his Council of Ministers in all matters. In this context Article 163(2) is explicable that the decision of the Governor in his discretion shall be final and the validity shall not be called in question. The action taken by the President on such a report is a different matter. The President acts on the advice of his Council of Ministers. In all other matters where the Governor acts in his discretion he will act in harmony with his Council of Ministers. The Constitution does not aim at providing a parallel administration within the State by allowing the Governor to go against the advice of the Council of Ministers.

56. Similarly Article 200 indicates another instance where the Governor may act irrespective of any advice from the Council of Ministers. In such matters where the Governor is to exercise his discretion he must discharge his duties to the best of his judgment. The Governor is required to pursue such courses which are not detrimental to the State.

      …

154. We declare the law of this branch of our Constitution to be that the President and Governor, custodians of all executive and other powers under various articles shall, by virtue of these provisions, exercise their formal constitutional powers only upon and in accordance with the advice of their Ministers save in a few well-known exceptional situations. Without being dogmatic or exhaustive, these situations relate to (a) the choice of Prime Minister (Chief Minister), restricted though this choice is by the paramount consideration that he should command a majority in the House; (b) the dismissal of a Government which has lost its majority in the House, but refuses to quit office; (c) the dissolution of the House where an appeal to the country is necessitous, although in this area the head of State should avoid getting involved in politics and must be advised by his Prime Minister (Chief Minister) who will eventually take the responsibility for the step. We do not examine in detail the constitutional proprieties in these predicaments except to utter the caution that even here the action must be compelled by the peril to democracy and the appeal to the House or to the country must become blatantly obligatory.”

The one exceptional situation where the Governor is justified in acting as per discretion to summon the house under Article 174 even against the advice of the council of ministers has been recognised by several subsequent decisions of the supreme court, inline with the law laid down in Shamsher Singh.  That one situation arises in a case where the Governor is of the opinion that the Government has lost the confidence of the House i.e. has lost majority.  In such a case, Governor can summon the House for a floor test even if it is against the advice of the Council of Ministers. The following extracts from the 2020 decision in Shiv Raj Singh Chouhan v Speaker, which follows the 9J bench decision in SR Bommai & 5J Bench decision in Nabam Rebia, throw light on the point. (Emphasis supplied)

“42. The principle which has been laid down in the nine judge Bench decision in SR Bommai has been reaffirmed by the Constitution Bench in Nebam Rebia. The judgment of the Constitution Bench arose when the Governor of Arunachal Pradesh, on the aid and advice of the Council of Ministers, summoned the Legislative Assembly of the state on 3 November 2015 to meet on 14 January 2016. Subsequently, the session of the Arunachal Assembly was preponed by the Governor to 16 December 2015 and by an order dated 19 December 2015, the Governor indicated the manner in which the proceedings of the House should be conducted. A notice for the removal of the Speaker dated 19 November 2015 was addressed by thirteen Members of the House to the Secretary of the Legislative Assembly. One of the primary reasons for the message of the Governor dated 9 December 2015 was the understanding of the Governor that it would be an act of constitutional impropriety if the issue of the removal of the Speaker was not taken up for consideration forthwith. Dealing with this aspect, Justice J.S. Khehar (as the learned Chief Justice then was) observed that in contradiction to the provisions of Section 53 of the Government of India 1935 (which permitted the Governor to address messages to the House at his discretion) Article 175 does not contain a similar expression. Hence, the Court observed that the messages of the Governor to the House “must be deemed to be limited to the extent considered appropriate by the Council of Ministers headed by the Chief Minister”. Dr Abhishek Manu Singhvi, learned Senior Counsel appearing for the Speaker, placed emphasis on this facet of the decision in Nebam Rebia and urged that that the relationship of the Governor with the legislative assembly must be bound by the principle of aid and advice. Mr Kapil Sibal, learned Senior Counsel appearing for the Chief Minister, urged that any observations beyond this in the judgment of the Constitution Bench are obiter. Justice J.S. Khehar, while dwelling upon the powers of the Governor adverted to the treatise of MN Kaul and SL Shakdher, noting that:

“165. … The Governor would summon or prorogue the House or Houses of the State Legislature, on the Aid and advice of the Chief Minister. The narration by the authors reveals that it would be open to the Governor to suggest an alternative date for summoning or proroguing the House or Houses of the State Legislature, but the final determination on the above issue rests with the Chief Minister or the Cabinet, which may decide to accept or not to accept, the alternate date suggested by the Governor. The opinion of M.N Kaul and S.L. Shakdher is in consonance with the Constituent Assembly Debates. The position only gets altered, when the Government in power loses its majority in the House. With reference to prorogation, the opinion expressed by the authors is that the same is also to be determined by the Council of Ministers with the Chief Minister as the head, except in a situation wherein the Government’s majority in the House, is under challenge. From the above exposition it emerges that the Chief Minister and his Council of Ministers lose their right to aid and advise the Governor, to summon or prorogue or dissolve the House, when the issue of the Government’s support by a majority of the Members of the House, has been rendered debatable. We have no hesitation in endorsing the above view. But, what is of significance and importance in the opinion expressed by M.N. Kaul and S.L. Shakdher, which needs to be highlighted is, that the mere fact that some members of the ruling party have defected, does not necessarily prove that the party has lost confidence of the House. And in such a situation, if there is a no-confidence motion against the Chief Minister, who instead of facing the Assembly, advises the Governor to prorogue or dissolve the Assembly, the Governor need not accept such advice. In the above situation, the Governor would be well within his right, to ask the Chief Minister to get the verdict of the Assembly, on the no-confidence motion.”

(Emphasis supplied)

Having adverted to the above treatise, Justice J.S. Khehar (as the learned Chief Justice then was) held:

“166. In view of the consideration recorded hereinabove, we are of the view that in ordinary circumstances during the period when the Chief Minister 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. In the above situation, he is precluded to take an individual call on the issue at his own will, or in his own discretion. In a situation where the Governor has reasons to believe that the Chief Minister and his Council of Ministers have lost the confidence of the House, it is open to the Governor, to require the Chief Minister and his Council of Ministers to prove their majority in the House, by a floor test. Only in a situation, where the Government in power on the holding of such floor test is seen to have lost the confidence of the majority, it would be open to the Governor to exercise the powers vested with him under Article 174 at his own, and without any aid and advice.”

 

The court held that since it was not in dispute that the Governor “never called for a floor test”, it was reasonable to infer that the Governor did not ever entertain any doubt about the Chief Minister and the Council of Ministers continuing to enjoy the confidence and the majority in the House. Nor was there any motion of no confidence moved against the government. We are unable to accept the submission of Mr Sibal that the observations of the Constitution Bench in Nebam Rebia are obiter. The observations in Nebam Rebia are consistent with the formulation of principle in the nine judge Bench decision in SR Bommai, as we have discussed earlier. The power under Article 174 of the Constitution to summon the House and to prorogue it is one which is exercised by the Governor on the aid and advice of the Council of Ministers. But in a situation where the Governor has reasons to believe that the Council of Ministers headed by the Chief Minister has lost the confidence of the House, constitutional propriety requires that the issue be resolved by calling for a floor test. The Governor in calling for a floor testcannot be construed to have acted beyond the bounds of constitutional authority.

Exercise of Power by the Governor

43. The powers which are entrusted to constitutional functionaries are not beyond the pale of judicial review. Where the exercise of the discretion by the Governor to call a floor test is challenged before the court, it is not immune from judicial review. The court is entitled to determine whether in calling for the floor test, the Governor did so on the basis of objective material and reasons which were relevant and germane to the exercise of the power. The exercise of such a power is not intended to destabilise or displace a democratically elected government accountable to the legislative assembly and collectively responsible to it. The exercise of the power to call for a trust vote must be guided by the over-arching consideration that the formation of satisfaction by the Governor is not based on extraneous considerations.”

From the above, it is fairly clear that the Governor is bound by the aid and advice of the council of ministers when exercising powers and functions under Article 174 to summon the House.  The only recognised exception to this rule is when Governor may summon the House even absent the advice of the Council of Ministers when he is of the view that the Govt. has lost the majority.  This recognised exception does not apply in the case here.  

Governor Kalraj Mishra is acting wholly unconstitutionally in refusing to summon the House despite the advice from the Council of Ministers to summon the House.

The position expressed above is the editorial view of Project Constitutionalism on the issue concerned.