In another tug of war between the Governor of Kerala, Arif Mohammad Khan, and the Chief Minister, Pinarayi Vijayan, the The governor has rejected a request call a special session of the Assembly to debate the new three central agricultural laws. The state government cabinet had written to the governor last week and, after the denial, is considering approaching him again with the same request. The episode raises questions about the role of a governor and the contours of the powers he has under the Constitution.
Who can convene a session of the Assembly?
“The Governor shall periodically convene the Chamber or each Chamber of the State Legislature to meet at the time and place he deems appropriate …” says Article 174 of the Constitution. The provision also assigns the Governor the responsibility of ensuring that the House is convened at least once every six months.
Although it is the prerogative of the Governor to convene the House, in accordance with Article 163, the Governor is obliged to act with the “help and advice” of the Cabinet. So when the Governor convenes the House under Article 174, it is not of his own free will but with the help and advice of the Cabinet.
Can the governor refuse the help and advice of the cabinet?
There are some cases in which 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 motion of no confidence against the Chief Minister, then the Governor can decide for himself on the convening of the House.
But the governor’s actions, when he uses his discretionary powers, can be challenged in court.
How have the courts ruled?
Several decisions of the Supreme Court have resolved the position that the governor cannot reject the request of a cabinet that enjoys a majority in the House unless it is manifestly unconstitutional. Last in the line of rulings is the landmark 2016 Constitutional Bank ruling in which the Supreme Court examined the constitutional crisis in Arunachal Pradesh after the governor imposed the president’s rule on the state.
“In ordinary circumstances, during the period in which the Chief Minister and his council of ministers enjoy the confidence of the majority of the House, the power conferred on the Governor by virtue of article 174 to convene, extend and dissolve the house (s) (s) must be exercised in consonance with the assistance and advice of the prime minister and his council of ministers. In the above situation, it is excluded [from taking] an individual calls on the matter at their own will, or at their own discretion, ”the verdict read.
The court interpreted the power to convene the House as a “function” of the Governor and not as a “power” he enjoys.
“If the functions of the Governor were interpreted as his power, and without hindrance (in view of Article 163 of the Constitution, as it is held), then the Governor has the power to literally summon the Assembly to meet ‘in in the time and place that it deems convenient ‘that is in any city and in any place other than the Legislative Assembly building and at any strange moment. This is nothing more than arbitrary and surely, an arbitrary exercise of power is not what our creators of the Constitution contemplated in the hands of the Governor or imagined that it would be exercised by any constitutional authority, ”said the court.
Even the 1983 Sarkaria Commission, which reviewed the agreements between the Center and the states, had said that “as long as the Council of Ministers enjoys the confidence of the Assembly, its advice on these matters, unless it is manifestly unconstitutional, should be considered binding on the governor. Only when such advice, if taken into account, would lead to a violation of a constitutional provision, or when the Council of Ministers has ceased to enjoy the confidence of the Assembly, does the question arise whether the Governor can act in the exercise of your discretion ”.
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What happens if the Kerala government insists on holding the special session?
Since the Governor’s powers are limited with respect to the convening of the House, there can be no legal basis to deny a request for convocation. Governor Arif Mohammad has in the past criticized the Kerala Assembly resolution against the Citizenship Amendment Law of the Center of 2019. In the political fight, the governor’s refusal can also be challenged in court.
The political nature of the governor’s office, especially in opposition-ruled states, has been underlined in several cases by the courts. Constitutional checks and balances and historic court decisions account for this and limit the discretionary powers of the Governor.
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