The Hindu Explains | Why are questions being raised about the actions of Rajasthan Governor Kalraj Mishra?

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The story so far: In Rajasthan, Governor Kalraj Mishra repeatedly turned down the advice of the Council of Ministers to convene a session of the Rajasthan Assembly. He insisted that a 21-day notice is essential for a session, demanded to know the purpose of calling it, and put other conditions such as maintenance of social distancing norms and recording of proceedings. He agreed to summon the House on August 14, only after the Council of Ministers agreed to the 21-day notice. The Governor’s action has raised the question whether he has the power to turn down the recommendation of the Council of Ministers.

Comment | Staying away from political thickets

What are the powers of a Governor?

The controversy in Rajasthan now is around the Governor’s refusal to summon a session as desired by the Council of Ministers; in Arunachal Pradesh in 2015, the Governor changed the schedule of a session and set its agenda without a recommendation from the Chief Minister. In 2016, a five-judge constitution Bench of the Supreme Court dealt with questions arising out of the situation, which was comparable to Rajasthan today — rebellion in the ruling Congress and the Governor appearing eager to help the rebels. In the resulting Nabam Rebia, Bamang Felix v. Deputy Speaker and others case, the Supreme Court of India examined the powers of the Governor, particularly with reference to summoning an Assembly session. The top court reiterated that “the functions, duties and powers of the Governor by or under the Constitution are ‘cabined, cribbed, confined’.” The Bench explored the Governor’s powers vis-à-vis the executive and the legislature.

Analysis | Governor cannot employ his ‘discretion’, should strictly abide by ‘aid and advice’ of Cabinet

Who summons an Assembly session?

The Supreme Court held that the Governor’s power “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 [from taking] an individual call on the issue at his own will, or in his own discretion”. The “discretion given to the Governor in respect of his relations with the Legislative Assembly is not only limited and circumscribed by the Constitution but also by the Rules framed by the Legislative Assembly under Article 208 of the Constitution”.

Can the Governor direct the agenda or procedure of the legislature?

The proceedings of the legislature are guided by rules made by it, and the Governor cannot have any say in it, points out P.D.T. Achary, former Secretary General of the Lok Sabha. Courts have directed video recording of procedure on occasions, but Mr. Achary says that is an overreach. For instance, the rule of 21-day notice for the session was first set by the Lok Sabha and adapted by State legislatures. The Lok Sabha has since reduced it to 15 days. But the Speaker has the powers to call a session with a shorter notice.

When can the Governor act without the advice of the Council of Ministers?

In some States, the Governor has special powers to advance tribal welfare. A Governor can reserve a bill passed by the legislature for the consideration of the President of India, and he or she can recommend President’s rule in a State. If the Chief Minister and his Council of Ministers lose their majority, or they refuse to recommend a session in six months, or there is a reasonable doubt about their majority, the Governor could demand a session. The Governor invites a person who he thinks has the legislative majority to form a government, but the use of this power cannot be arbitrary. If there is a Council of Ministers with a majority, the Governor has to go by its recommendation to dissolve the legislature. In the event of a Chief Minister and his Council of Ministers losing the majority, the Governor can use his or her discretion to either explore the formation of a new government or dissolve the House.

Comment | Rajasthan developments: Getting ahead of constitutional practices

Is the Governor bound by people’s representatives?

The Constituent Assembly very consciously limited the Governor’s discretionary powers. The misuse of the Governor’s office by parties in power at the Centre to disturb State governments in control of the Opposition has remained a scourge. But the constitutional scheme is very clear, as stated in the 2016 Supreme Court judgment that a Governor “cannot have an overriding authority, over the representatives of the people, who constitute… the state legislature… and/or even the executive government functioning under the council of ministers with the Chief Minister as the head”.

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