Apex court verdicts that may guide Maha governor’s actions
NEW DELHI: In September 2018, Telangana chief minister K Chandrashekar Rao advised the state’s governor ESL Narasimhan to dissolve the assembly. The governor accepted the resolution and dissolved the Telangana assembly with about six months of its term remaining, paving the way for holding early elections in the southern state. However, Rao’s proposal was honoured by the governor only because the two were on the same page – not because the latter was legally bound to do so.
A Supreme Court judgment in 2013 clearly rules that governors are not bound by the aid and advice of the council of ministers, headed by a CM, when they believe that dissolving the assembly is not in the interest of the nation. In State of Gujarat vs Justice RA Mehta (retired), (2013), a two-judge bench of the apex court held that it is up to a governor not to accept the advice of a CM and council of ministers to dissolve the assembly.
In the wake of the political crisis brewing in Maharashtra, where the Uddhav Thackeray-led Maharashtra Vikas Aghadi (MVA) government of the Shiv Sena-NCP-Congress alliance is finding it difficult to keep its flock together and save the government, it is important to review the powers of the governor when it comes to dissolving the state assembly – either the constitutional head of the state finds it expedient or when the CM so desires. That leads to the logical next question: Are gubernatorial powers of dissolution circumscribed by the CM’s authority and thus, the aid and advice of the council of ministers?
The Constitution has certain provisions that deal with governors’ power as regards the summoning and dissolution of a state assembly, besides their duty to act on aid and advise of the council of ministers led by a CM.
Article 163 states that a governor shall exercise their functions upon the aid and advice of the council of ministers but not in matters where the Constitution requires that they act at their discretion.
“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,” adds the provision.
How much discretionary power does a guv have
The Supreme Court defined the ambit of the discretionary power of a governor for the first time in 1974 in Samsher Singh vs State of Punjab. The court illustrated certain identified provisions in the Constitution under which a governor was authorised to exercise their powers of discretion. Apart from some provisions relating to north-eastern states and reserving bills for consideration, the apex court cited Article 356, which states that a 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, and hence a proclamation for Emergency may be issued. “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,” held the judgment.
The SC, in the subsequent judgment of Rameshwar Prasad & Ors vs Union of India & Anr (2006), clarified that the “discretion” that a governor could exercise under Article 163 obligated them to do so only if there is a compelling necessity. “The necessity to exercise such powers may arise from the express provision of the Constitution or by necessary implication,” said the court. On the governor’s recommendation for President’s Rule, it emphasised that a “drastic and extreme action under Article 356 cannot be justified on mere ipse dixit (an opinionated but unproven statement), suspicion, whims, and fancies of the governor”.
The Justice MM Puncchi Commission report on Centre-state relations, released in 2007, further laid down that Article 163 does not give the governor general discretionary power to act against or without the advice of the council of ministers.
“The area for the exercise of his discretion is limited. Even this limited area, his choice of action should not be arbitrary or fanciful. It must be a choice dictated by reason, actuated by good faith and tempered by caution,” it added.
Governors and dissolution of the House
Another crucial provision that dwells on the powers of a governor is enshrined under Article 174. Article 174 (1) lays down that a governor shall summon the House of a state legislature at a time and place as they think fit. Article 174(2)(a) authorises a governor to prorogue the House from “time to time” while Article 174 (2) (b) empowers them to dissolve the legislative assembly.
The scope of Article 174 was delineated by the Supreme Court in Nebam Rabia vs Deputy Speaker, Arunachal Pradesh (2016) when it asserted that the governor cannot be seen to have such powers and functions, as would assign to him a dominating position, over the state executive and the state legislature.
In ordinary circumstances, when the CM and his council of ministers enjoy the confidence of the majority of the House, the top court held, the power vested with the governor under Article 174, to summon, prorogue and dissolve the House, must be exercised in consonance with the aid and advice of the CM 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,” said the court.
Where a governor has reasons to believe that a state government has lost the confidence of the House, the court underlined, it is open to the governor to require the CM and his council of ministers to prove their majority 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 SC declared.
The supremacy of the floor test
That judgment took a cue from the landmark nine-judge Constitution bench ruling in the SR Bommai’s case in 1994 that unequivocally laid down the supremacy of the floor test in determining the support enjoyed by the party in power. The judgment underscored the necessity of a floor test before the governor makes any recommendation under Article 356 for presidential proclamation. “Wherever a doubt arises whether the council of ministers has lost the confidence of the House, the only way of testing it is on the floor of the House except in an extraordinary situation where because of all-pervasive violence, the governor comes to the conclusion and records the same in his report that for the reasons mentioned by him, a free vote is not possible in the House,” it held.
Besides its judgment highlighting the significance of the floor test in the Arunachal Pradesh case in 2016, the Supreme Court followed the same formula in 2018 and 2019 when it ordered floor tests in Karnataka and Maharashtra respectively within 48 hours. As a result, in 2018, BS Yeddyurappa admitted that he lacked a majority and resigned on the floor of the house before the floor test could even be held in Karnataka. In Maharashtra, the Shiv Sena-NCP-Congress alliance (MVA) proved its majority in the state assembly in 2019.
But if the Uddhav Thackeray government approaches governor Bhagat Singh Koshyari with a resolution for dissolving the assembly, Koshyari may choose to exercise his discretion in the light of the 2013 SC judgment in the Justice RA Mehta’s case.
The top court, in this verdict, referred to Article 163 and the provisions therein to point out that the Constitution empowers a governor to exercise his volition and to act without ministerial advice in several situations.
“There may also be circumstances when there are matters with respect to which the Constitution does not specifically require the governor to act in his discretion. But the governor, despite this, may be fully justified to act so; e.g., the council of ministers may advise the governor to dissolve a House, which may be detrimental to the interests of the nation. In such circumstances, the governor would be justified in refusing to accept the advice rendered to him, and act at his discretion,” ruled the top court unequivocally in the judgment.
It added there may even be circumstances where ministerial advice is not available at all, such as the decision regarding the choice of CM under Article 164(1), which involves choosing a CM after a fresh election; or in the event of the death or resignation of a CM; or dismissal of a CM, who loses majority in the House and yet refuses to resign, or agree to dissolution.
The judicial precedents shine light on the powers of a governor coupled with a duty to preserve the democratic process and will of the people in exercising his discretionary powers. Koshyari must be guided by the golden principles evolved by the highest court of the land in interpreting the Constitution when the moment arrives.