In Focus: Provisions to summon a session of the Assembly

Governor’s role in calling an Assembly session: what the law, courts say

Context:

  • The Kerala Governor recently refused to accept the Kerala Cabinet’s request to summon (call) a special sitting of the Assembly to debate the new three central farm laws.
  • This provides the context to study about the provisions related to the Governor’s powers to summon an assembly.

In Focus: Provisions to summon a session of the Assembly

  • There are two provisions in the Constitution that deal with a governor’s power to summon an assembly.
  • Under Article 174, a Governor shall summon the House or each House of the Legislature of the State at a time and place, as he or she thinks fit.
    • The provision also puts the responsibility on the Governor to ensure that the House is summoned at least once every six months.

  • However, according to Article 163, the Governor is required to act on the aid and advice of the council of ministers, with the chief minister at its head.
    • So, when the Governor summons the House under Article 174, it is not based on his will but on the aid and advice of the council of ministers.

Power to refuse the advice of the Cabinet:

  • There are a few instances where the Governor can summon the House even if it is refused by the Chief Minister, who is the head of the council of ministers.
  • If the Chief Minister seems to have lost the majority in the House and the legislative members of the House propose a no-confidence motion against the Chief Minister, then the Governor can decide to summon the house on his/her own.
    • no-confidence motion is an attempt, usually by an opposition party, to ask the government to prove its majority in the House.

  • However, the actions of the Governor using this discretionary power can be challenged in court.

Court’s rulings on the issue

  • A number of rulings by the Supreme Court have clarified that the Governor cannot refuse the request of the council of ministers that has a majority in the House, unless the request is unconstitutional.
  • The latest SC ruling on the issue came in 2016, in which the Supreme Court looked into the constitutional crisis in Arunachal Pradesh after the Governor had imposed President’s Rule in the state.
  • The SC clearly stated that a Governor can summon, prorogue and dissolve the House, only on the aid and advice of the council of ministers, with the chief minister heading it.
    • Prorogation of the House, leads to an end of the session of the House. Unlike, the prorogation, dissolving the House ends the life of the existing House and a new House is constituted after the elections are held.

  • The SC held that summoning the House is a ‘function’ of the Governor and not a ‘power’ of the Governor.

Sarkaria Commission’s interpretation

  • The Sarkaria Commission of 1983, which reviewed the arrangements between the Centre and the states, had a similar view on the issue.
  • It said that, for summoning the House, the advice of the council of ministers is binding on the Governor.
  • It further held that the Governor can summon the house on his/her own, only if the council of ministers has lost its majority in the house or accepting the request would lead to a violation of a constitutional provision.

Way Ahead in Kerala

  • Kerala’s Cabinet is planning to approach the Governor again with the request to summon the House.
  • If the Governor refuses again, his decision can also be challenged in court.

 Polity & Governance

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