The Rajasthan situation is becoming curiouser and curiouser with each passing day.
What should have been a simple routine case of summoning the assembly has become one of the most complex problems, which drives even the most accomplished constitution experts to scratch their heads.
This is not the first time in the history of independent India that a state cabinet has decided to convene the assembly and communicated that decision to the governor to sign the order of summons. But it is perhaps the first time in the history of the country that the governor has kept it pending and has kept sending series of questions to the government seeking clarifications on the agenda of the house, etc.
There has, thus, arisen a question of great significance in relation to the powers and function of the governor vis-à-vis the elected government of a state and legislature.
Article 174 of the constitution empowers the governor to summon, prorogue and dissolve the house. These functions are performed by him on the advice of his council of ministers. The council of ministers is the creation of the elected assembly, so, it is called an elected government whereas the governor is an appointee of the president of India.
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Since we have adopted the Westminster system of cabinet form of government, the executive power is vested in the council of ministers which is responsible to the legislature. The governor is a constitutional head, which in simple term means that he exercises the executive functions only on the advice of the council of ministers.
The governor cannot exercise these powers without the aid and advice of the council of ministers. It would simply mean that governor is a figurehead and the real power is exercised by the elected government. So, the governor is not personally responsible for the consequences of the governmental action.
Rajasthan CM Ashok Gehlot with Governor Kalraj Mishra, on July 18. Photo: Twitter/@ashokgehlot51
The elected government is responsible for whatever it does. However, the governor has been given some discretionary powers. This, in short, is the constitutional scheme governing the relationship between the governor of a state and his government headed by the chief minister. From Dr. Ambedkar to the Supreme Court of India, this matter has been clarified, affirmed and reaffirmed beyond a shadow of doubt.
Now, let us come to the question of summoning the assembly. Under Article 174, the governor summons the assembly.
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There is a well established procedure for the summoning of the assembly. The cabinet or chief minister decides that the assembly shall meet on a particular date. In the case of parliament, after the cabinet or prime minister has decided that parliament should meet on a certain date, the Ministry of Parliamentary Affairs, a wing of the government of India dealing with the government business in the houses of parliament, writes to the speaker and enquires whether he is in agreement with the date.
On the Speaker agreeing to the date, the file containing the decision of the cabinet is sent to the speaker’s office for onward submission thereof to the president. The secretary general of the Lok Sabha sends the file to the office of the president along with an office note indicating the speaker’s agreement to the date, as well as a draft order of summons to be signed by the president.
Rajasthan: Assembly Speaker CP Joshi meets Governor Kalraj Mishra at Raj Bhavan. pic.twitter.com/gsuQMFnoTK
— ANI (@ANI) July 29, 2020
The president’s office sends the file back with the president’s signature on the summons order either the same day or the next day at the latest. The secretary general, thereafter, sends individual summons to the members which includes the president’s order, authenticated by the secretary general. This, in short, is the process and the procedure for summoning the houses of parliament. The same procedure is followed by the state legislatures and the governments.
In the context of the political as well as the constitutional conundrum in Rajasthan, the first question that needs to be clarified is who decides to call the session of the assembly on a particular date and whether the governor has any discretion in the matter. In other words, can the governor ask the government to change the date and not sign the summons order till the government agrees?
The answers to these questions will be found in Nabam Rabia and Banan Felix v. Deputy Speaker (2016) decided by the Constitution Bench of the Supreme Court. In its judgment, the Supreme Court has made two points clear, one, the governor has no discretion in the matter of summoning the house if the chief minister enjoys majority in the house and, therefore, is bound to act on the advice of the cabinet. Two, in case the governor has reason to believe that the chief minister has lost his majority, the governor can use his discretion in fixing the date for summoning the assembly where the chief minister has to test his majority.
Also read: Why the Governor Can’t Use His Discretion on When to Call Assembly Session
In this context, one important point needs to be clarified so that a key issue namely, status of the decision of the cabinet in the matter of calling the session of the assembly gains clarity. It is the prerogative of the cabinet to decide to call the session. The communication from the Ministry of Parliamentary Affairs to the Lok Sabha referred to earlier, invariably says that the cabinet has decided that the next session of Lok Sabha should be summoned on a certain date.
The date is decided by the cabinet. In case the government decides to prepone or postpone it after the president has signed the summons order, the government sends the revised date and the president signs it as decided by the government. This is the practice followed in parliament and all the legislatures.
The cabinet is not even bound to state the agenda for the session to the governor. The point to note is that it is the government and government alone which decides the date and the business of the proposed session. Even if the governor suggests another date, if the government sticks to its own date, the Governor has to sign the summons order.
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It may also be said here that the option of refusal to act on the advice of the council of ministers just does not exist. In Shamsher Singh v. State of Punjab (1974), a seven judge Constitution Bench of the Supreme Court said,
“The Governor has no right to refuse to act on the advice of the Council of Ministers. Such a position is antithetical to the concept of responsible government.”
From the above analysis, it is clear that the actual decision to call the session of the assembly is taken by the government and the governor performs the rather technical act of summoning the house. It is more or less analogous to the governor’s address to the state legislature which is prepared by the government and the governor delivers it. He has no authority to make a change in the address.
The 21 days’ period for calling the session has become another subject of debate.
What is the sanctity of 21 days and why should the governor suggest it? Twenty one days used to be the notice period for questions in parliament long ago.
As per the recommendation of the Rules Committee of the Lok Sabha in 1967, the maximum period of notice for asking the starred questions was fixed at 21 clear days. Accordingly, the date of the communication of session used to be fixed keeping in view the requirement of 21 clear days for asking questions.
Representative image. Photo: PTI
In other words, the commencement of session would be on a date which would be more than 21 days later than the date of summons. Later, this was changed to 15 days in both houses of parliament.
But on a number of occasions, sessions of parliament and of assemblies were called within shorter period of notice. In such cases, either there was no question hour for a few days or the speaker would decide to accept notices of questions at shorter notice period. Rules provide that the speaker can shorten the notice period.
In any case, the notice period of questions was not an inhibiting factor for convening the house at short notice. It always depended on the sense of urgency the government felt in a particular situation.
On many occasions, parliament was convened at shorter notice than 21 days. Just a few examples:
Summons for in fifth session of the ninth Lok Sabha were issued on November 12, 1990. The houses met on November 16.
Similarly, summons for the first session of the 10th Lok Sabha which commenced on May 22 were issued on May 18, 1996.
Summons for the first session of the 12th Lok Sabha which started on March 23, 1998 were issued on March 21.
Many such instances can be quoted. In fact, the Rules of Procedure of the Legislatures has provisions for summoning session on short notice. In the case of Rajasthan, proviso to Rule 3(2) provides that the session can be called on a shorter notice and the notice period of 21 clear days is not required.
It must be noted that the period of 21 days notice was fixed so that the government could collect information relating to questions from different parts of the country and sufficient time was needed for this purpose. But, with the great improvement in the communications, this factor is no longer relevant.
Yet, the notice period is 15 days at present, but sessions are sometimes held at shorter notice. In any case, this matter is not within the domain of the governor. Same applies to the agenda of the house which is decided by the Business Advisory Committee presided over by the speaker. The governor cannot have a say in finalising it.
The Supreme Court has said in the Arunachal case that the role of the governor ends with the summoning of the house so far as the assembly is concerned. That should settle the Rajasthan issue.
P.D.T. Achary is former secretary general of the Lok Sabha.