Context: Constitution and legal experts are divided on whether the Rajasthan Governor is bound by the state cabinet recommendation to convene a special session of the Assembly chiefly to enable Chief Minister to prove his majority.
Background

• There has been a deadlock between Rajasthan Governor and Rajasthan Chief Minister over the summoning of an Assembly session for a floor test.
• While the Chief Minister has been demanding the summoning of an Assembly session at the earliest, the Governor has not been receptive of the demand.
• The article discusses a key Supreme Court judgment which could act as a guiding light during the current deadlock.

Nabam Rebia versus Deputy Speaker, 2016

• In the Nabam Rebia versus Deputy Speaker case of 2016, a Constitution Bench of the Supreme Court had held that a Governor is bound to convene a meeting of the Assembly for a floor test on the recommendation of the Cabinet. It held that the Governor cannot employ his/her discretion in this matter and should strictly abide by the aid and advice of the Cabinet.

Important observations made in the judgment
Constitutional provisions

• The judgment was based on the constitutional provision which states that 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.
• Article 163 of the Indian constitution notes that there shall be a council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions.

Limited discretionary power for the governor

• The Supreme Court has noted that despite the provision for some degree of discretion for the governor provided for under Article 163 (2) of the Indian Constitution, it does not mean a general discretionary power to act against or without the advice of his Council of Ministers.
• This judgment limits the Governor’s discretionary power to specific areas. It noted that the Governor’s discretionary powers are limited to specified areas like giving assent or withholding/referring a Bill to the President or appointment of a Chief Minister or dismissal of a government which has lost confidence but refuses to quit, etc.
• The judgment further held that even in areas where there is scope for discretion for the governor, the action should not be arbitrary or fanciful and must be dictated by reason, actuated by good faith and tempered by caution.

Responsible form of government

• India has a parliamentary democracy with a responsible form of government. In such a form of government, the Governor functions only as a Constitutional or formal head of the State and his/her powers cannot be enlarged at the cost of the Council of Ministers, who are the real executive.

Constituent assembly discussions

• The judgment noted the fact that even the Constituent Assembly was wary of extending the Governor’s discretion. Though the draft Constitution had vested the Governor with the discretion to summon and dissolve, it was later omitted by the framers of the Constitution.