Constitutional overreach?

The latest scuffle between the Punjab Government and the Governor of Punjab over the summoning of the budget session of the Punjab Legislative Assembly has gained a spotlight after Banwari Lal Purohit, Hon’ble Governor of Punjab refused to summon the budget session citing a clumsy ground that Chief Minister has not replied to its letter where it asked the Government to satisfy the criteria of selecting the Principles of School for sending them abroad to receive training. This attracted a sharp reaction from the AAP-led State Government which advocated for the summoning of the house as the Governor has no inherent discretion to decide whether to summon the house or not when the government has a full majority in the house and there is no situation existing that outlines lack of confidence in the Council of Minister in the House. However, while hearing the Govt. of Punjab's plea against the said refusal, the Solicitor General informed the Bench led by CJI that the Governor has allowed the budget session of the Punjab Legislative Assembly beginning from March 3.

Constitutional position of a Governor

In State of Rajasthan v. Union of India, (1977) 3 SCC 592, the SC observed that as a constitutional head, the Governor has to act ordinarily on the aid and advice of the Council of Ministers, and on the other hand function as a watchdog of defending the Constitution and to report about the administrative functions of the State to the Centre. Further supplemented, in Rameshwar Prasad (6) v. Union of India, (2006) 2 SCC 1, the Supreme Court termed the office of Governor not merely an employee of the Centre but a Constitution head of the state who has an important constitutional function and duties to perform while noting that:

“In the sphere which is bound by the advice of the Council of Ministers, for the obvious reasons, the Governor must be independent of the Centre as there may be cases ‘where the advice of the Centre may clash with the advice of the State Council of Ministers’ and that in such cases the Governor must ignore the Centre's advice and act on the advice of his Council of Ministers.”

Finally, in B.P. Singhal v. Union of India, (2010) 6 SCC 331, the Supreme Court elaborated on the status of the Governor and clearly stated that the Governors are not merely rubber stamps of the Centre in the states and that their ideologies could not be discussed simply because they disagreed with the top bosses at the Centre because he is neither an employee of the Union Government nor an agent of the ruling party, nor is he bound by the dictates of political parties. There may be times when he must act as an impartial or neutral umpire when the Union Government's views are at odds as his unusual position stems from the Indian Constitution's quasi-federal nature.

Limitations of independent decision-making power

Article 163 further warrants that the Governor would exercise his functions, on the aid and advice of the Council of Ministers with the Chief Minister at its head. The above edict is not applicable in situations where the Governor is expressly required to exercise his functions, “…by or under this Constitution …”, “…in his discretion.” However, in this light the Supreme Court in Nabam Rebia & Bamang Felix v. Deputy Speaker, Arunachal Pradesh, (2016) 8 SCC 1, while elucidating on the exercise of the discretionary power of the Governor has made clear that the Governor cannot be perceived to possess any authority or perform any duties that would put him in a position of power over the State Executive and the State Legislature. This approach is untenable since it is obvious from a review of the surrounding constitutional provisions that the Governor is not given any important responsibilities for either the legislative or executive branches of the state government. Moreover, in his concurring judgment, Justice MB Lokur explained the origin of Article 163 of the Constitution by stating that Article 163 derives from Section 50 of the Government of India Act of 1935 and Article 143 of the Draft Constitution. Section 50 of the Government of India Act includes two key phrases: "in his discretion" and "in his individual judgement." The conspicuous absence of the phrase "in his individual judgement" indicates that there was no intention of allowing the Governor to exercise discretion or make decisions in his individual judgement after Independence. The Governor would always be bound by the Council of Ministers' assistance and advice.

Refusal to summon the House: Constitutional?

The Governor’s refusal to summon a budget session of the Punjab Legislative Assembly on the proper aid and advice of the Council of Ministers headed by the Chief Minister is a major misappropriation of discretionary power exercised by the Governor because as long as the state government enjoys confidence in the house, the governor on his own cannot summon, prorogue or dissolve the house, and he has to act only on the aid and advice of the Council of Ministers. Moreover, in Nabam Rebia, the Supreme Court held that the word “as he thinks fit” in Article 174 cannot be read to give the Governor an express discretion as provided for in Article 163 (1). Although the text "... shall be exercised by him in his discretion" appeared in the draft of Art. 153(3) (of the draft Constitution), the entire Cl. (3) of that Art. 153 was removed in the renumbered Art. 174. Hence, the Constitution's Framers did not intend to confer the Governor such power.

Conclusion

At the outset, it is clear from the constitutional end as well as the judgments of the SC that the Governor has no independent decision-making power barring a few circumstances such as where the Council of Ministers fail to render advice to the Governor or when it seems appropriate to the Governor that the government loses majority in the house, otherwise in all other circumstances the Governor is bound to act on the aid and advice of the Council of Ministers headed by the Chief Minister. Despite making the position crystal clear by the SC in several of its landmark precedents, it is disturbing to see that the constitutional heads of the state are reluctant to perform and function according to the realm of the provisions of the Constitution and are repeatedly creating unnecessary hurdles in the daily transactions of the state government to defunct the governance.

Views expressed are personal