Context:

• Rajasthan Governor Kalraj Mishra’s has refused to accept the Ashok Gehlot government’s recommendation for convening a session of the Assembly.
• Parties have been accused of misusing the office of the Governor for political purposes.

Further Development:

• Governor has allowed re-convening of the assembly but with six caveats:

Power to Summon the House:

• Governor acts on the aid and advice of the cabinet.
• 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”.
• The phrase “as he thinks fit” is read as per Article 163 of the Constitution, which 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.

Six Reasons demanded by Governor:

• The reason to call a session of the Assembly for a floor test. As under the normal process, a 21-day notice is required for the session to be called.
• The date on which the assembly session is to be convened is not mentioned in the cabinet note.
• No approval has been given by the cabinet for the same.
• State government should ensure freedom and free movement of all the MLAs.
• Asked the government to take note of the COVID-19 crisis and suggest how the session should be held in the current situation.

Supreme Court Observation in such case:

• Nabamrabia case: Governor cannot employ his ‘discretion’, and should strictly abide by the “aid and advice” of the cabinet to summon the house.
• The constituent assembly was worried of extending the governor’s discretion. The draft constitution had vested the governor with the discretion to summon and dissolve, it was latter omitted by the framers of the constitution.
• In a parliamentary democracy, the powers of the governor as constitutional or formal head of the state should not be enlarged at the cost of the real executive, viz. The council of ministers.
• Governor’s discretionary powers are limited to:
  • Giving assent or withholding/referring a bill to the president
  • Appointment of a Chief minister
  • Dismissal of a government, which has lost of confidence but refuses to quit
• The area for the exercise of his discretion is limited.
• Even in this limited area, his [governor’s] 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.

Main Role of Governor:

• Oversee government formation
• Report on the breakdown of constitutional machinery in a state
• Maintain the chain of command between the centre and the state
• Reserve assent to bills passed by the state legislature
• Promulgate ordinances if the need arises.
• Further, under Article 355, the governor, being the central authority in a state, acts as an overseer in this regard.

Constitutional Provision Related to Governor:

Reference: https://indianexpress.com/article/explained/rajasthan-govt-crisis-explained-when-can-governor-use-discretion-how-sc-ruled-6525917/

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