Supreme Court of India in ‘Nabam Rebia v. Deputy Speaker (2015)’ considered the question of Governor’s Power to summon the legislative assembly. After giving a background of Constituent Assembly, the Court said,
The historical background and the debates pertaining to Article 174 (and Article 85) of the Constitution lead to the conclusion that it is only the Governor who may summon the Legislative Assembly, but only on the advice of the Council of Ministers and not suo moto. In other words, the Governor cannot summon the Legislative Assembly “in his discretion”. If the Governor does so, there would be no business to transact and summoning the House in such a situation would be a futile operation.
The Governor cannot manufacture any business for the House to transact, through a so-called message or otherwise. If the Governor disregards the advice of the Council of Ministers for summoning the House, necessary consequences would follow. In this regard, it may be mentioned that if the President disregards the advice of the Council of Ministers he can impeached. As far as the Governor is concerned, if he disregards the advice of the Council of Ministers the pleasure of the President can be withdrawn since the Governor holds office during his pleasure.
On a different note, if the Legislative Assembly does not meet once in six months, there would be a breach of the Constitution requiring severe sanction.
Decisions of the Court
Rai Sahib Ram Jawaya Kapur v. The State of Punjab
The first decision that needs to be referred to is Rai Sahib Ram Jawaya Kapur v. The State of Punjab.[1955] The Constitution Bench of Supreme Court acknowledged the difficulty in framing an exhaustive definition of ‘executive function’ or ‘executive power’. While acknowledging that the separation of powers in our Constitution is not rigid, Supreme Court observed that one organ of the State cannot assume the functions or powers of another organ. It was held:
“It may not be possible to frame an exhaustive definition of what executive function means and implies. Ordinarily the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away.
The Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the Government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to another.”
Proceeding further in this regard, the functions and responsibilities of the Executive were briefly mentioned in the following words:
“Our Constitution, though federal in its structure, is modelled on the British Parliamentary system where the executive is deemed to have the primary responsibility for the formulation of governmental policy and its transmission into law though the condition precedent to the exercise of this responsibility is its retaining the confidence of the legislative branch of the State. The executive function comprises both the determination of the policy as well as carrying it into execution.”
With reference to the interplay between the Legislature and the Executive, Supreme Court acknowledged the supremacy of the Legislature over the Executive and held that, under the Constitution, the Governor who exercises executive power is nevertheless a formal or constitutional head of the Executive, with the real executive power vested in the Council of Ministers. This is what was said:
“In India, as in England, the executive has to act subject to the control of the legislature; but in what way is this control exercised by the legislature? Under article 53(1) of our Constitution, the executive power of the Union is vested in the President but under article 75 there is to be a Council of Minister with the Prime Minister at the head to aid and advise the President in the exercise of his functions.
The President has thus been made a formal or constitutional head of the executive and the real executive powers are vested in the Ministers or the Cabinet. The same provisions obtain in regard to the Government of States; the Governor or the Rajpramukh, as the case may be, occupies the position of the head of the executive in the State but it is virtually the Council of Ministers in each State that carries on the executive Government.
In the Indian Constitution, therefore, we have the same system of parliamentary executive as in England and the Council of Ministers consisting, as it does, of the members of the legislature is, like the British Cabinet, “a hyphen which joins, a buckle which fastens the legislative part of the State to the executive part.”
The Cabinet enjoying, as it does, a majority in the legislature concentrates in itself the virtual control of both legislative and executive functions; and as the Ministers constituting the Cabinet are presumably agreed on fundamentals and act on the principle of collective responsibility, the most important questions of policy are all formulated by them.”
The significance of this view is that it recognized that the Governor is only a formal or constitutional head. His executive functions are, therefore, dependent on the aid and advice given by the Council of Ministers. Since there is no provision enabling the Governor to act in “his individual judgment” the Governor is bound by the advice of the Council of Ministers with whose aid he acts. This is completely in harmony and consonance with the views of the Constituent Assembly.
Moreover, there is a recognition and acceptance that since the Council of Ministers enjoys a majority in the Legislature, it is in virtual control of both the executive and legislative functions of the Governor. Therefore, the Governor has little or no authority over the Executive or the Legislature, except to the extent specifically provided for in the Constitution.
Samsher Singh v. State of Punjab (1974)
The powers of the Governor, including his discretionary powers, came up for consideration in Samsher Singh v. State of Punjab which decision is of considerable importance. The question before a Bench of seven judges was whether the Governor exercises his power of appointment and removal of members of the Subordinate Judicial Service under Article 234 of the Constitution personally or on the aid and advice of the Council of Ministers.
The appellant Samsher Singh contended that the Governor could exercise his power only personally and relied on Sardari Lal v. Union of India as well as Article 163(3) of the Constitution. 63. Chief Justice A.N. Ray (speaking for himself and four other learned Judges) held that the expression “in his discretion” is used in those Articles of the Constitution that confer special responsibilities on the Governor.
In this context, it was concluded in paragraph 28 of the Report: “Under the Cabinet system of Government as embodied in our Constitution the Governor is the constitutional or formal head of the State and he exercises all his powers and functions conferred on him by or under the Constitution on the aid and advice of his Council of Ministers save in spheres where the Governor is required by or under the Constitution to exercise his functions in his discretion.”
Explaining this, and referring to English constitutional law, which is incorporated in our Constitution, it was held in paragraph 32 of the Report:
“It is a fundamental principle of English Constitutional law that Ministers must accept responsibility for every executive act. In England the Sovereign never acts on his own responsibility. The power of the Sovereign is conditioned by the practical rule that the Crown must find advisers to bear responsibility for his action. Those advisers must have the confidence of the House of Commons. This rule of English Constitutional law is incorporated in our Constitution.
The Indian Constitution envisages a Parliamentary and responsible form of Government at the Centre and in the States and not a Presidential form of Government. The powers of the Governor as the constitutional head are not different.”
A minor point of departure was noticed in paragraph 44 of the Report wherein it was held that there is no distinction between functions of the Union (or State) and the functions of the President (or Governor) except in respect of those functions that the Governor has to exercise in his discretion. This reads as follows:
“The distinction made by Supreme Court between the executive functions of the Union and the executive functions of the President does not lead to any conclusion that the President is not the constitutional head of Government. Article 74(1) provides for the Council of Ministers to aid and advice the President in the exercise of his functions. Article 163(1) makes similar provision for a Council of Ministers to aid and advise the Governor. Therefore, whether the functions exercised by the President are functions of the Union or the functions of the President they have equally to be exercised with the aid and advice of the Council of Ministers, and the same is true of the functions of the Governor except those which he has to exercise in his discretion.”
In this background and context, it was noted that when the Governor exercises his functions and powers with the aid and advice of the Council of Ministers, he does so by making rules for the more convenient transaction and allocation of business in accordance with Article 166(3) of the Constitution. Consequently, the decision rendered in Sardari Lal was required to be overruled (and it was overruled) and it was held in paragraph 48 of the Report after referring to Rai Sahib Ram Jawaya Kapur:
“The President as well as the Governor is the constitutional or formal head. The President as well as the Governor exercises his powers and functions conferred on him by or under the Constitution on the aid and advice of his Council of Ministers, save in spheres where the Governor is required by or under the Constitution to exercise his functions in his discretion.
Wherever the Constitution requires the satisfaction of the President or the Governor for the exercise by the President or the Governor of any power or function, the satisfaction required by the Constitution is not the personal satisfaction of the President or Governor but the satisfaction of the President or Governor in the constitutional sense in the Cabinet system of Government, that is, satisfaction of his Council of Ministers on whose aid and advice the President or the Governor generally exercises all his powers and functions.
The decision of any Minister or officer under Rules of Business made under any of these two Articles 77(3) and 166(3) is the decision of the President or the Governor respectively. These articles did not provide for any delegation. Therefore, the decision of a Minister or officer under the Rules of Business is the decision of the President or the Governor.”
On the issue of discretionary powers of the Governor, paragraph 54 of the Report is important and the shift in bearing responsibility is referred to in paragraph 55 of the Report in the context of Article 356 of the Constitution with the final decision on the report of the Governor being with the President acting on the aid and advice of his Council of Ministers. In this overall context, it was, in a sense, reiterated that:
“The Constitution does not aim at providing a parallel administration within the State by allowing the Governor to go against the advice of the Council of Ministers.”
Reference
Nabam Rebia v. Deputy Speaker (2015)