Context:  Kerala Governor has turned down a request by Chief Minister Pinarayi Vijayan to summon a special sitting of the Assembly to debate the new three central farm laws. This raises questions on the role of a Governor and the contours of the powers he or she has under the Constitution.
Governor and Assembly Session

• The Governor shall from time to time summon the House or each House of the Legislature of the State to meet at such time and place as he thinks fit…” says Article 174 of the Constitution.
• The provision also puts on the Governor the responsibility of ensuring that the House is summoned at least once every six months.
• Although it is the Governor’s prerogative to summon the House, according to Article 163, the Governor is required to act on the “aid and advice” of the Cabinet.
• So when the Governor summons the House under Article 174, this is not of his or her own will but on the aid and advice of the Cabinet.

Can the Governor refuse the aid and advice of the Cabinet?

• There are a few instances where the Governor can summon the House despite the refusal of the Chief Minister who heads the Cabinet.
• When the CM appears to have lost the majority and the legislative members of the House propose a no-confidence motion against the CM, then the Governor can decide on his or her own on summoning the House.
• But the actions of the Governor, when using his discretionary powers can be challenged in court.

Precursors set by the Supreme Court

• A number of rulings by the Supreme Court have settled the position that the Governor cannot refuse the request of a Cabinet that enjoys the majority in the House unless it is patently unconstitutional.
• The latest in the line of rulings is the landmark 2016 Constitution Bench ruling in which the Supreme Court looked into the constitutional crisis in Arunachal Pradesh.
• The Governor had imposed President’s Rule in the state of Arunachal.
• In ordinary circumstances during the period when the CM enjoy the confidence of the majority, the power vested under Article 174 must be exercised with the aid and advice of the CM and his CoM.
• In the above situation, he/she has precluded [from taking] an individual call on the issue at his own will, or in his own discretion, the verdict said.
• The court read: the power to summon the House as a “function” of the Governor and not a “power” he enjoys.

What Sarkaria Commission had said?

• The Sarkaria Commission of 1983, reviewed the arrangements between the Centre and the states, had said that so long as the CoM enjoys the confidence of the Assembly, its advice in these matters, unless patently unconstitutional must be deemed as binding on the Governor.
• It is only where such advice if acted upon, would lead to an infringement of a constitutional provision if the CoM has ceased to enjoy the confidence of the Assembly.

What happens if the Kerala government insists on holding the special session?

• Since the Governor’s powers are limited with regard to summoning the House, there can be no legal ground to deny a request for summoning the session.
• In such a political row, the Governor’s refusal can also be challenged in court.