Current Affairs

Cabinet decision binding on Governor

Rajasthan Governor has cited six reasons for his procrastination in calling an Assembly session. The CM has said the Governor is acting under pressure from the Centre. The Governor wants to ensure that all MLAs are free to move around before a session could take place.

  • However, the Governor can require the CM and the Council of Ministers to seek a trust vote if he or she has reasons to believe that they have lost the confidence of the Assembly. 
  • The State cabinet has reiterated its demand for a session, specifying a date and an agenda as demanded by the Governor.

Constitutional provisions:

Constitutional discretion

As per Article 163 there shall be a Council of Ministers (headed by Chief Minister) to aid and advise the Governor except in situations where he/she requires to act as per discretion, however if any question arises whether a matter falls within the governor’s discretion or not, the decision of the governor is final. 

  • Determining the amount payable as Royalty accruing from mineral exploration licences to autonomous Tribal District Council by the Government of Assam, Meghalaya, Tripura and Mizoram. 
  • Article 356 empowers him to recommend the imposition of President’s Rule in the state in case he feels that there is a breakdown of constitutional machinery in the state
  • Reservation of a bill for the consideration of the President: Situations are mentioned in Article 200, when the Governor will reserve the bill, yet he can use discretion regarding this matter.
  • As per Article 167 he can seek any information from the chief minister with regard to the administrative and legislative matters of the state.
  • While exercising his functions as the administrator of an adjoining union territory (in case of additional charge) 

Situational discretion

  • Appointment of chief minister: Discretion is exercised in appointment of CM when a hung assembly turns up after the elections or when coalition partner suddenly withdraws the support from the ruling party.   
  • Dismissal of the council of ministers: When it cannot prove their confidence in the legislative assembly, the governor can dismiss the ministry. But he cannot dismiss it until it loses majority support.
  • Dissolution of the state legislative assembly:  As per Article 174, the Governor may Dissolve the Assembly if he/she is satisfied that the government has lost the majority in legislative assembly. 
  • The above provisions give him discretionary powers but the ambit of the same is not very wide.
  • Nabam Rebia versus Deputy Speaker under which the SC held that – 
    • A Governor cannot employ his ‘discretion’, and should strictly abide by the “aid and advice” of the Cabinet to summon the House.
    • The Governor can summon, prorogue and dissolve the House only on the aid and advice of the Council of Ministers with the Chief Minister as the head. And not at his own.
    • It is an accepted principle that in a parliamentary democracy with a responsible form of government, 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.
    • The Supreme Court highlighted how Article 163 of the Constitution does not give the Governor a “general discretionary power to act against or without the advice of his Council of Ministers.
    • It has limited discretionary powers and 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
  • The judgment led to the restoration of the Congress-led Nabam Tuki government in Arunachal Pradesh.

Attempts to circumvent the Tenth Schedule through engineered defections cannot be allowed to succeed through the judicial process. If a party without a clear majority wins over members of the majority party to reduce it into a minority and then claims the right to form a government, the latter’s “majority” does not stand the test of constitutional morality.