Rajasthan crisis: A constitutional perspective

The Rajasthan political crisis doesn’t seem to be ending anytime soon. The Chief Minister is requesting the Governor to summon the Legislative Assembly after allegations of horse trading and attempts to topple a popular government surfaced against the BJP. However, for reasons best known to him, the Governor has yet not relented, whereas the state government is consistently telling the Governor that it is his constitutional duty to call the session.

It is not that the current crisis in Rajasthan is unprecedented. Since 2014, the BJP has always made use of constitutional post holders. We live in times when the post of a Governor has become a highly politicised and sought-after position by seasoned politicians, ranging from Kalyan Singh to Kalraj Mishra. Therefore, it should not come as a shock to anyone if the allegations of working under the clutches of the central government are leveled on the governors of states. It is very obvious that there will always be a presumption that a Governor is working under the instructions of the party at the Centre when appointments are becoming more and more political with each passing day. A similar allegation has been leveled on H.E. Kalraj Mishra by the current Congress government in Rajasthan. While the truth behind this may never be known to the public at large, the context of the current political crisis in Rajasthan is that a request from Chief Minister Gehlot to the Governor for summoning a special session of the Assembly has not been accepted.

In this context, it becomes relevant to understand the powers of the Governor and the Chief Minister of a state, which emanate from the Constitution of India. It further becomes important to analyse if the Governor has a discretion in summoning the Legislative Assembly or if he has to adhere to the request of the Chief Minister and the Council of Ministers.

While the Governor is the Executive Head of a state, much like the President of India, his position is also mostly titular. The functions and power of the Governor can be divided into two broad categories. The first category is Discretionary Functions. There are several functions which the Governor is supposed to take on his own and can exercise the same without the aid and advice of the Council of Ministers. Some of the discretionary powers of the Governor are, to send report to the President on failure of constitutional machinery in a state under Article 356 of the Constitution (for imposition of the President’s rule) and to withhold his assent from a bill, etc. However, many powers of the Governor are only exercisable on the aid and advice of the Council of Ministers as per Article 163 of the Constitution of India. Article 163 of the Constitution envisages that except in so far as the Governor is by or under the Constitution required to exercise his functions at his discretion, he must function as per the aid and the advice of the Council of Ministers headed by the Chief Minister. The idea behind this Article is to give legitimacy to the government elected through popular vote than the Governor who is generally a political appointee of the Spoils System.

In the Constituent Assembly, while discussing an amendment to Article 163 (then Draft Article 143 of the Constitution), T. T. Krishnamachari said, “Governor has normally to act on the advice of his ministers except in so far as the exercise of his discretions covered by those Articles in the Constitution in which he is specifically empowered to act in his discretion.” This statement by a member of the Constituent Assembly establishes that the rule is that the Governor must act on the aid and advice of the Council of Ministers and the exercise of discretion is an exception.

Further, the question arises whether the aid and advice of the Council of Ministers is binding upon the Governor? This question was also answered by our Constitution makers in the Constituent Assembly. Pt. Hirday Kunzru of the United Provinces said in the Constituent Assembly that, “The Article in which these words occur does not lay down that the Governor shall be guided by the advice of his ministers but it is expected that in accordance with the Constitution prevailing in all countries where responsible government exists, the Governor will in all matters accept the advice of his ministers.” This statement clearly shows that except where the Governor is free to exercise his own discretion, he must always accept the aid and advice of the Council of Ministers. This statement is further lent support by the statement of Alladi Krishnaswami Ayyar who said, “In the first place, the general principle is laid down in Article 143 namely, the principle of ministerial responsibility that the Governor in the various spheres of executive activity should act on the advice of his ministers.” Therefore, it is clear that wherever the Governor is supposed to take advice from the Council of Minister and not act upon his own discretion, it also becomes mandatory for the Governor to act on that advice and not ignore it. Needless to mention, that the idea behind these Constituent Assembly debates and the current Article 163 was to allow a popularly elected state government to act independently within its sphere, without any interference from the Governor who is generally a political appointee. This is also in consonance with the principles of federalism, as just like in the present scenario, the party at the Centre may be tempted to interfere with the functioning of the state government through the Governor, hence the safeguard of ‘lesser’ discretion to the Governor was introduced in the Constitution. This is also the interpretation of Article 163 of the Constitution of India read with Article 174 of the Constitution (the power of the Governor to summon the Assembly) approved by the Hon’ble Supreme Court of India in the case of NabamRebia v. Deputy Speaker (2016).

From a reading of Article 163 of the Constitution along with Article 174 and the judgment of the Hon’ble Supreme Court of India, as well as the enlightening discussions of our Constitution makers, it becomes quite evident that the Constitution requires the Governor to ‘necessarily’ summon the Assembly once the Chief Minister has requested him to do so. Moreover, not just the constitutional interpretation, but even morality dictates that a politician with a career as glorious as that of Kalraj Mishra must heed to the democratic demands of a popular government, as not doing so may further complexify the current political impasse and decimate the lustre and dignity of the Governor's constitutional position.

(Amrish Ranjan Pandey is national secretary of the Indian Youth Congress and Ambuj Dixit is the spokesperson of Delhi State Youth Congress)