Onus on Rajasthan Governor to prove he means to preserve and defend the Constitution

Each time, Rajasthan Governor Kalraj Mishra meets Chief Minister Ashok Gehlot, he gives him hand sanitiser gel and nothing else. Never before in the history of the Indian legislature, a Chief Minister had to work so hard to convince a Governor on convening the House.

The Governor has been sending queries after querries about the Chief Minister’s request to convene the House. Chief Minister Gehlot has sent his third revised proposal with the hope that the Governor would agree to convene the Vidhan Sabha session from July 31.

Gehlot has reasons to convene the House on July 31 as Eid falls on July 30 and the Rakhee festival is due on August 3 and during these two days, the MLAs would like to be in their respective homes and constituencies.

The Governor, in his letter to the Chief Minister, wants to know whether the Gehlot government would seek Trust vote during the session. The Governor has cited media reports that suggest that Gehlot would use the opportunity to seek Trust vote on the floor of the House. To this hypothetical querry of the Governor, the Chief Minister, in his third reply, stated that whether there would be a floor test or not is not in the purview of the government. This is decided by the business advisory committee which is composed of legislators.

The Governor has been citing these reports as the reason for deferring the demand for convening the House. In his letter, the Governor expressed his concern over the way physical distancing will be maintained inside the Vidhan Sabha.

This is an answer that only the Speaker could provide. The House is conducted by the Speaker and not the Chief Minister as the leader of the House. Gehlot has categorically stated that this problem is to be addressed by the Speaker.

Usually, the Governor and the Chief Minister of a state does not confront each other even if the two come from different and opposite political backgrounds. But the Governor often has his say in such appointments like Vice-Chancellors where he, on the recommendations of the search committee, can nominate a person. But in the last few days, the Governor ignored the state government and appointed two Vice-Chancellors, who belong to Uttar Pradesh, in two universities of Rajasthan. The two Vice-Chancellors are persons from known saffron backgrounds. These appointments have also irked the Chief minister.

Rajasthan Governor Kalraj Mishra, a former RSS functionary and a leading light of the BJP in Uttar Pradesh and a former Union Minister, was sent packing to Rajasthan as the Governor to take him off from active politics. The powerful saffron party leader of Uttar Pradesh thus met the same fate that ageing or retired politicians meet.

What is surprising for the Governor’s camp is Gehlot’s confidence and insistence for convening the House. In spite of the rebellion by Sachin Pilot and his 21 loyalists, they have not insisted that they would not leave the party and were still with the Congress. This gave some hope to those who are trying for a workable truce between Gehlot and Pilot. But Gehlot has been successful in keeping his flock of 103 MLAs intact.

After this assurance, Gehlot's real intention could be to deal a final blow to Sachin Pilot and his loyalist MLAs. The rebel MLAs have dismissed all allegations of anti-party activities, saying their action is an expression of dissent within the party. Thus, he could serve a last and final call for the rebels to come back to the party’s fold. This would make Sachin Pilot weak and he would have no alternative left to either come back to the party’s fold or face disqualification.

According to lawyer Abhay Kumar Bhandari, a Governor convenes an Assembly session under Article 174 of the Constitution. Ordinarily, he or she has to abide by the aid and advice of the state cabinet, as mandated by Article 163.

But the same Article 163 also gives the Governor the power of discretion though the courts have repeatedly said the Governor is bound by the aid and advice of the Chief Minister-headed cabinet. The only exception is when the government does not have a majority.

In 2016, the Supreme Court examined the power of the Governor under Article 174 - relating to summoning, proroguing and dissolving the House. The Supreme Court had then ruled that the Governor is bound to summon the Assembly session "only on the aid and advice of the council of ministers with CM as the head. And, not on his own".

It is being argued that Governor Mishra would have been bound by the advice of the Gehlot government "ordinarily" but the Coronavirus pandemic has created an "extraordinary" situation. Under the extraordinary situation, some experts have argued, Governor Mishra needs to satisfy himself about the urgency of calling an Assembly session.

“If the Assembly session is held now and the Pilot camp defies the Congress whip, all 19 MLAs would be disqualified. The BJP camp has 76 MLAs on its side which is not enough to defeat the trust vote even if all rebel MLAs vote with it.Secondly, the disqualification of 19 MLAs would give the Gehlot government a bigger majority until bypolls are held,” said lawyer Anil Choudhry.

Senior Congress leader P Chidambaram said placing obstacles in calling the Assembly session will undermine the fundamental basis of parliamentary democracy and called for an intervention by President Ram Nath Kovind.

A Governor of a state is the President’s representative in a state. The Governor acts as the nominal head whereas the real power lies with the Chief Minister of the state and his council of ministers.The Governor of a state, before assuming office, swears to “preserve, protect and defend” the Constitution and the law to the best of his/her ability. The onus is now on Governor Kalraj Mishra to prove that he means to keep his oath.