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Is constitutional morality eroding after Rajasthan fiasco?

After the Rajasthan High Court ordered ‘status quo’ in relation to the notices issued by the Speaker initiating the proceedings under the Tenth Schedule of the Constitution, Chief Minister Mr. Ashok Gehlot paraded more than 100 MLAs in front of the governor and requested the governor to convene the session but the governor exhibited reluctant to convene the session of the Assembly.

Article 163 of the Constitution India contemplates that there shall be a council of Ministers with the Chief Minister as the head to aid and advice the governor in exercise of the functions, except insofar as he is by or under the constitution required to exercise his functions or any of them in his discretion. This shows that the governor can exercise discretion only in certain cases specifically contemplated under the constitution.

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Article 174 of the constitution of India contemplates that the governor from time to time summons the house or each house of the legislature of the State. The constitutional bench of the Apex Court in Nabam Rebia vs. Deputy Speaker’s case had examined the scope of the words ‘in his discretion’ used in Article 163 of the Constitution. The Apex court held that in so far as the exercise of the discretionary powers vested with the governor is concerned, the same is limited to situations, wherein constitutional provisions expressly so provide that the governor should act in his own discretion. It was also held that the governor can exercise his discretion in a situation where an interpretation of the concerned constitutional provision could not be construed otherwise. The Apex Court also further held that the framers of the constitution decided not to vest discretion with the governor in the matter of summoning and dissolving the house or house of the State legislature by omitting Article 153(3) of the Draft Articles which contemplated that the power to summon and dissolve the house shall be exercised by the governor at his discretion and therefore the governor can summon, prorogue and dissolve the house only on the aid and advise of the council of Ministers with the Chief Minister as the head.

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After examining Justice Sarkaria Commission report, Justice MM Punchhi Commission report and the treaties by M.N.Kaul and S.L.Shakdhar – ‘practice and procedure of Parliament’ published by the Lok Sabha secretariat, the Apex Court had held that in ordinary circumstances during the period when the Chief Minister and his council of Minister enjoy confidence of the majority of the house, the power vested with the governor under Article 174 to summon must be exercised in consonance with the aid and advise of the Chief Minister and his council of Ministers and if the governor has reason to believe that they have lost confidence of the house, it would be open to him to require them to prove their majority in the house by a floor test and thereafter exercise his discretion if the council of Ministers and the Chief Minister loose the confidence of the majority.

In the light of the said judgment and the parading of 102 MLAs by Mr. Ashok Gehlot, the governor invariably has to abide by the aid and advise of the council of Ministers and summon the Assembly or if the governor is in doubt with regard to the said majority, still he can summon the Assembly and direct the Chief Minister to prove his majority. In either case the governor has to immediately summon the Assembly to resolve the face off.

All the constitutional functionaries have to act as per the mandate contained in the constitution. The constitution of India is an organic document that requires all its functionaries to observe, apply and protect the constitutional values spelt out by it which constitute the constitutional morality. The Hon’ble Apex Court in Navtej Singh Johar’s case has observed that the concept of constitutional morality strives and adjusts the organs of the State to maintain such heterogeneous fibre in the society in multifarious ways and it is the responsibility of the three organs of the State to curb any propensity or proclivity of popular sentiment or majoritarianism.

The Constitutional bench of the Apex Court in Government of NCT of Delhi Vs. Union of India has held that constitutional morality is that fulcrum which acts as an essential check upon the high functionaries and the citizens alike, as experience has shown that unbridled power without any checks and balances would result in a despotic and tyrannical situation which is antithetical to the very idea of democracy. Any act to garner justification must possess the potentiality in harmony with the constitutional impulses.

The Apex Court also held that the concept of constitutional governance in body polity like ours, where the constitution is the supreme fundamental law, is neither hypothetical nor an abstraction but is real, concrete and grounded. The governance should be consistent with the constitution and shall operate under the aegis of the constitution.

The Apex Court also held that the parliamentary form of democracy as envisaged by the constitution has its very base the power bestowed upon people to vote and make the legislature accountable for their functioning to the people.

In the recent past the governor’s role and powers have become a controversial issue in the Indian politics. The roles played by the governors of Karnataka, Madhya Pradesh, Kerala, Maharashtra and now Rajasthan have become highly controversial. The controversies around the issues such as selecting the Chief Minister, determining the timing for proving the majority etc., have projected a negative image that he is ‘an agent of the centre’. Dr. Ambedkar in his speeches had said that the discretionary power is no sense a negation of responsible government and it is not a general clause giving the governor power to disregard the advice of his Ministers in any manner in which he finds he ought to disregard.

The Hon’ble Supreme Court in SR Bommai Vs. Union of India while examining the invocation of Article 356(1) of the Constitution imposing the President Rule in the State of Karnataka, had specifically held that the governor is a high constitutional functionary and he is expected to conduct himself more fairly, consciously and circumspectly.   

About the author: By Chittarvu Raghu, Advocate,  High Court’s of A.P. & T.S. [email protected]

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