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Tags Current Affairs

Governor’s discretion

Date: 28 July 2020 Tags: Constitution

Issue

Rajasthan Governor has returned the fresh proposal by the state Cabinet to convene a session of the Assembly on 31 July. This has raised fresh legal questions on the powers of the Governor.

 

Background

This is the second time that the Governor has put off the request, which would allow the Chief Minister to prove his strength on the floor of the House.

 

Details

  • Article 174 of the Constitution gives the Governor the power to summon from time to time the House or each House of the Legislature of the State to meet at such time and place as he thinks fit.

  • Article 163 of the Constitution says that the Governor acts on the aid and advice of the cabinet. Article 163(1) essentially limits any discretionary power of the Governor only to cases where the Constitution expressly specifies that the Governor must act on his own and apply an independent mind.

  • It is settled law that the Governor cannot refuse the request of the Cabinet to call for a sitting of the House for legislative purposes or for the chief minister to prove his majority.

  • In fact, on numerous occasions, including in the 2016 Uttarakhand case, the court has clarified that when the majority of the ruling party is in question, a floor test must be conducted at the earliest available opportunity.

  • In 2016, a Constitution Bench of the Supreme Court in Nabam Rebia and Bamang Felix vs Deputy Speaker, the Arunachal Pradesh Assembly case, expressly said that the power to summon the House is not solely vested in the Governor.

  • When the chief minister has lost the support of the House and his strength is debatable, then the Governor need not wait for the advice of the council of ministers to hold a floor test.

  • Generally, when doubts are cast on the chief minister that he has lost the majority, the opposition and the Governor would rally for a floor test and the ruling party would attempt to stall the process to buy time and keep its flock together.

 

Constitutional Discretion of Governor

  • When they have to reserve the bill for the consideration of the President of India, Governors can decide on their own without the advice of the Council of Ministers.

  • When he has to recommend for the President’s rule in the state, he can act at his own discretion.

  • When he is given an additional charge as the administrator of the Union Territory, he can take actions at his own discretion.

  • When he has to determine the amount payable by the Government of Assam, Meghalaya, Tripura, and Mizoram to an autonomous Tribal District Council as royalty accruing from licenses for mineral exploration.

  • When he calls upon the Chief Minister to seek information regarding administrative and legislative affairs.

 

Situational Discretion of the Governor

  • When he has to appoint a Chief Minister after no party has a clear majority in the election or when the incumbent dies in the office.

  • When he dismisses the council of ministers on an inability to prove confidence in the state legislative assembly.

  • When he dissolves the state legislative assembly on time when it loses its majority.

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