Summoning of assembly

In News

• The West Bengal Governor returned the recommendation of the Chief Minister to summon the State Assembly.

Who can summon a session of the Assembly?

• There are two provisions in the Constitution that deal with a governor’s power to summon, prorogue and dissolve an assembly.
  • Article 174 of the Constitution: The Governor shall from time to time summon the House or each House of the Legislature of the State to meet at such time and place as he thinks fit.The provision also puts on the Governor the responsibility of ensuring that the House is summoned at least once every six months.
    • Article 174 (2) (a) says a governor may from “time to time” prorogue the House and 174 (2) (b) allows her or him to dissolve the Legislative Assembly.

• Article 163: Although it is the Governor’s prerogative to summon the House.

• The Governor is required to act on the “aid and advice” of the Cabinet.
• So, when the Governor summons the House under Article 174, this is not of his or her own will but on the aid and advice of the Cabinet.
  • The Constitution permits the Governor to summon the House on recommendation of the Cabinet.
• But it also adds that she or he would not need their advice if the Constitution requires her or him to carry out any function at her/his discretion.

• Usually, the two Articles 174 and 163 are read together to outline the governor’s powers in summoning, proroguing or dissolving the House.

Can the Governor refuse the aid and advice of the Cabinet?

• There are a few instances where the Governor can summon the House despite the refusal of the Chief Minister who heads the Cabinet.
• When the Chief Minister appears to have lost the majority and the legislative members of the House propose a no-confidence motion against the Chief Minister, then the Governor can decide on his or her own by summoning the House.
• But the actions of the Governor, when using his discretionary powers, can be challenged in court.
• A Madras High Court judgment of 1973 answered the question on the discretion of power over prorogation by reading Article 163 into Article 174 to hold that a governor was bound by the aid and advice of the council of ministers.

Supreme Court on governor’s discretionary powers

• Landmark 2016 Constitution Bench ruling: in which the Supreme Court looked into the constitutional crisis in Arunachal Pradesh after the Governor had imposed President’s Rule in the state.
• Nabam Rebia case: governor can summon, prorogue and dissolve the House, only on the aid and advice of the council of ministers.
  • The Supreme Court had then ruled that in ordinary circumstances, the governor can summon the House only on the aid and advice of the council of ministers, with the chief minister heading it.
  • Court also clarified that if the governor had reasons to believe that the chief minister and her or his council of ministers have lost the confidence of the House, a floor test could be ordered.

Sarkaria Commission’s recommendations:

• It reviewed the arrangements between the Centre and the states, had said that “so long as the Council of Ministers enjoys the confidence of the Assembly, its advice in these matters, unless patently unconstitutional, must be deemed as binding on the Governor.

Way forward

• Since the Governor’s powers are limited with regard to summoning the House, there can be no legal ground to deny a request for summoning the session.
• The political nature of the office of the Governor, especially in Opposition-ruled states, has been underlined in several instances by courts.
• The constitutional checks and balances and landmark court rulings account for this and limit the discretionary powers of the Governor.

Source:TH