Rajasthan Governor Must Act on the Aid and Advice of the Chief Minister to Uphold the Constitution

In spite of the Chief Minister of Rajasthan Shri Shekhawat's written letter dated 23rd July 2020 to the State Governor to summon the Assembly as per the provisions of the Constitution the Governor did not respond and sat over the letter almost for a day. This is a highly disturbing development unheard of in the annals of our Republic. It is mandated as per Article 163 of the Constitution that the Governor has to function on the aid and advice of the Chief Minister. And  Article 174 prescribes that a Governor of a State shall summon the Assembly  at a time and place, as she or he thinks fit. These two articles have to be read together for harmonious construction of the powers of Chief minister and Governor.  So when the Chief Minister sends a written letter to the Governor after the cabinet decision to summon the Assembly it amounts to advice of the Chief Minister and the Governor is constitutionally mandated to follow and implement it. It is tragic that the Governor of Rajasthan is not acting on the basis of the letter of the Chief Minister to summon the Assembly. In doing so a serious Constitutional crisis has been created. Inaction of the Governor on Chief Minister's letter is all the more perplexing when Governor himself is admitting that the Chief Minister is enjoying majority support and there is no need to convene the Assembly. Normally a Governor of a State can ignore the advice tendered by a Chief Minister only when the Chief Minister loses majority support of the Assembly Members. The Rajasthan Governor is admitting that the Chief Minister is enjoying the majority support and yet is not acting on his written request to summon the Assembly. 

Dr. Ambedkar in his last speech in the Constituent Assembly had cautioned that if constitutional methods would not be followed to pursue the objectives enshrined in the Constitution then grammar of anarchy would prevail. The failure of the Governor to follow and adhere to the constitutional method did indeed cause grammar anarchy and it was manifested in the avoidable conduct of MLAs, supporting Shri Shekhawat,  to sit in dharna inside the lawns of Raj Bhavan in Jaipur. 

The Sarkaria Commission in its monumental and path breaking report of early 1980s observed " It is a well-recognised principle that, so long as the Council of Ministers enjoys the confidence of the Assembly, its advice in these matters(Summoning, Proroguing and Dissolving the Legislative Assembly)—unless patently unconstitutional—must be deemed as binding on the Governor." It summed up the  debates of the Constituent Assembly on this issue and noted, "The Draft Constitution provided inter alia that both in the matter of summoning the Legislative Assembly or Council and dissolving the Assembly, the Governor would be required to act in his discretion. But this provision was subsequently deleted on the ground that a Governor would not exercise any function in his discretion and would follow the advice of his Ministry in all these matters."

So  the legislative intent of the Constituent Assembly enshrined in the Constitution and  mandated accordingly that  the Governor would have to act with regards to the matters concerning summoning the Assembly   on the advice of the Chief Minister enjoying support of the majority members of the State Assembly is sacrosanct and cannot be violated. Any attempt to breach it constitutes a breach of foundational norms of parliamentary democracy which is the basic structure of the  Constitution. 

 

In West Bengal on 6th November 1967 some eighteen MLAs including a Minister resigned from the ruling United Front. Such resignations was interpreted as a loss of majority for the United Front Government in the Assembly. The Governor wanted that Assembly session be convened on 23rd November to seek vote of confidence. But the Chief Minister advised the Governor to summon the Assembly on 18th December as scheduled. The Governor did not abide by the advice of the Governor and dismissed the Ministry. Thereupon the  Speaker of Lok Sabha convened an emergency session of the Presiding Officers Conference on 7th April 1968 when a resolution was adopted and it was  recommended that the Government of India should, in the light of the following observations, take urgent and suitable steps in regard to the powers of Governors to summon or prorogue the Legislatures and to dismiss Ministries:

"That a Governor shall summon or prorogue the Legislature on the advice of the Chief Minister. A convention shall be developed that the Chief Minister may fix the dates of summoning or prorogation after consulting the Presiding Officer concerned. The Governor may suggest an alternative date but it shall be left to the Chief Minister or the Cabinet to revise their decision or not. Where, however, there is undue delay in summoning a Legislative Assembly and the majority of members of the Legislative Assembly desire to discuss a Motion of No-confidence in a Ministry and make a request to that effect in writing to the Chief Minister, the Chief Minister shalladvise the Governor to summon the Assembly within a week of such request" 

Supreme Court in 2016 ruled out any discretion to Governor to summon Assembly except on the advice of Chief Minister 

In its unanimous judgement delivered on 13th July 2016  in Nabam Rebia vs Deputy Speaker of Arunachal Assembly the constitutional bench of the Supreme Court examined whether the Governor could  exercise the  power of summoning the Assembly  ‘in his discretion’ or on the ‘aid and advice’ of the Council of Ministers. The Court concluded that the Governor’s discretion did not extend to the powers conferred under Article 174 and hence he could not summon the House, determine its legislative agenda or address the legislative assembly without consulting the Chief minister or the Speaker.

So there is no ambiguity in constitutionally enshrined provision that the summoning of the State Assembly by the Governor has to be done on the advice of the Chief Minister. 

It is interesting to note that Shri Kalyan Singh, predecessor of the present Governor of Rajasthan, had violated model code of conduct in 2019 by openly campaigning for Prime Minister Modi. The Election Commission recommended to the President of India that action should be taken against Governor of Rajasthan for violating the Code of Conduct. The President of India forwarded the recommendation of the Election Commission to the Home Ministry for imitating action.  But tragically no action was taken against Shri Kalyan Singh for such brazen violations. 

In the present context the President of India who appoints the Governors should intervene to uphold the Constitution. Both the President of India and Governors take oath to preserve, protect and defend the Constitution of India. The actions of the Governor of Rajasthan not to act on the advice of the Chief Minister to summon the Assembly and the  clarifications sought by him to find out the  purpose  for which the session is being convened when Chief Minister is enjoying the support of the majority of the Members of the Assembly or his query  as to how the Assembly session would be organised in face of the COVID pandemic seem to be compromising the Constitution which he is oath bound to uphold. President of India must intervene to defend the Constitution. 

While addressing the Conference of Governors in Rashtrapati Bhavan in July 2000 then President of India Shri K R Narayanan had quoted Mahatma Gandhi and it is worthwhile to reproduce  Gandhiji's words:

"While I would resent much power of interference to be given to Governors, I do not think that they should be mere figureheads. They should have enough power, enabling them to influence ministerial policy for the betterment. In their detached position, they would be able to see things in their proper perspective, and thus prevent mistakes by their Cabinets. Theirs must be an all-pervasive moral influence in their provinces."

It is all the more perplexing that the President of India is doing precious little in dealing with the errant incumbents of gubernatorial posts.With sadness  one notes that during the last two decades actions of some of the incumbents of the office of the President of India  were in conflict with the Constitution of our Republic. When President of India APJ Abdul Kalam approved the decision of the cabinet sent to him by Prime Minister Manmohan Singh to dissolve Bihar Assembly and when the Supreme Court held that dissolution as unconstitutional, Shri Kalam thought of resigning from the highest office. President Pranab Mukherjee approved the proclamation of President's rule in Uttarakhand and Arunachal Pradesh by dismissing the Congress Governments in those States. The Supreme Court annulled the President's rule by holding that it was against the Constitution and law laid down in Bommai judgment.  President Kovind's decision to approve disqualification of 31 MLAs of Delhi Assembly belonging to the Aam Admi Party without hearing them and the decision of the Delhi High Court that such disqualifications were not consistent with the principles of natural justice yet again proved the point that the Constitution and law get violated because of lack of serious application of mind. Such violations of the Constitution and constitutional methods by the decisions of the Government and President of India  pose a serious danger to our Republic. 

Cultivation of Constitutional Morality Required to Uphold Constitution 

At a time when the Constitution and institutions of our republic are in mortal danger from authoritarian leaders promoting majoritarianism and endangering the idea of India, it is a categorical imperative to cultivate constitutional morality in a comprehensive manner to save our Republic. Application of constitutional method based on the clarion call of Dr. Ambedkar "Educate, Organise and Agitate" constitutes the method to deepen public reasoning for the purpose of awakening consciousness of people to remain ever vigilant to defend our Constitution.  

The  Sarkaria Commission thoughtfully stated that "The part which the Governor plays to help maintain the democratic form of Government in accordance with the Constitution is of vital importance. In the ultimate analysis, due observance of the Constitutional provisions is the soundest guarantee of enduring unity and integrity of the nation."

.The author served as Officer on Special Duty and Press Secretary to President of India late Shri K R Narayanan and had a tenure in Prime Minister’s Office and Joint Secretary in Rajya Sabha Secretariat. Views expressed in the article are in his personal capacity.