Article 174 of the Constitution
Article 174 reads thus-
174. Sessions of the State Legislature, prorogation and dissolution
(1)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, but six months shall not intervene between its last sitting in one session and the date appointed for its first sitting in the next session.
(2)The Governor may from time to time-
(a) prorogue the House or either House;
(b) dissolve the Legislative Assembly.
Section 62 of the Government of India Act, 1935
Article 174(1) of the Constitution has its historical origin in Section 62 of the Government of India Act, 1935. This section reads as follows:
62. (l) The Chamber or Chambers of each Provincial Legislature shall be summoned to meet once at least in every year, and twelve months shall not intervene between their last sitting in one session and the date appointed for their first sitting in the next session
(2) Subject to the provisions of this section, the Governor may in his discretion from time to time-
(a) summon the Chambers or either Chamber to meet at such time and place as he thinks fit ;
(b) prorogue the Chamber or Chambers;
(c) dissolve the Legislative Assembly.
(3) The Chamber or Chambers shall be summoned to meet for the first session of the Legislature on a day not later than six months after the commencement of this Part of this Act.
In the Government of India Act, 1935 the Governor of a Province had vast powers, including for example, the power to preside over a meeting of the Council of Ministers.
Article 153 of the draft Constitution
In the Constituent Assembly, Article 153 of the draft Constitution as on 21st February, 1948 substituted Section 62 of the Government of India Act, 1935 with the following:
153. (1) The House or Houses of the Legislature of the State shall be summoned to meet twice at least in every year, and six months shall not intervene between their last sitting in one session and the date appointed for their first sitting in the next session.
(2) Subject to provisions of this article, the Governor may from time to time –
(a) summon the House or either House to meet at such time and place as he thinks fit;
(b) prorogue the House or Houses;
(c) dissolve the Legislative Assembly.
(3) The functions of the Governor under sub-clauses (a) and (c) of clause (2) of this article shall be exercised by him in his discretion.
The expression “in his discretion” finds mention in clause (3) of Article 153 of the draft Constitution. It could be said, on a consideration of the debate on this expression in the House of Commons and in the Constituent Assembly, that the Governor’s powers under Article 153 of the draft Constitution were sought to be kept outside the purview of the Council of Ministers and exercisable “in his discretion”.
In other words, it could be said that while exercising his powers under Article 153 of the draft Constitution, the Governor was not obliged to consult or take the aid and advice of his Council of Ministers.
Debate in Constituent Assembly
This Article was very briefly debated in the Constituent Assembly on 2nd June, 1949 and Dr. Ambedkar moved for the omission of clause (3) in this Article. The amendment proposed by Dr. Ambedkar was adopted without much discussion. Thereby, the Governor was disentitled from summoning the House or either House “in his discretion”. Article 153 as amended was then adopted and formed a part of the Constitution. What was the reason for this omission? The answer is to be found in the debate on Article 69 of the draft Constitution on 18th May, 1949 (to which a reference was made in the debates).
Article 69 of the draft Constitution
Article 69 of the draft Constitution is more or less similar to Article 153 of the draft Constitution [except as regards the omitted clause (3)] and it provides as follows:
69. (1) The Houses of Parliament shall be summoned to meet twice at least in every year, and six months shall not intervene between their last sitting in one session and the date appointed for their first sitting in the next session.
(2) Subject to provisions of this article, the President may from time to time –
(a) summon the Houses or either House of Parliament to meet at such time and place as he thinks fit;
(b) prorogue the Houses;
(c) dissolve the House of the People.
During the course of the debate on Article 69 of the draft Constitution, Prof. K.T. Shah suggested two amendments. Dr. Ambedkar responded to the amendments proposed by stating, inter alia, that the business of the House has to be provided by the Executive and if the President does not summon the House, the necessary implication is that the Executive has no business to place before the House for transaction. Therefore, if anybody other than the Prime Minister required the President to summon the House, there would be no business to transact and summoning the House without any business to transact would be a futile operation.
I would imagine that for the same reason, the President cannot suo moto summon the House, for there would be no business to transact and suo moto summoning the House without any business to transact would also be a futile operation. On the other hand, if the Prime Minister proposed to the President to summon the Legislature and he did not do so, the President would be violating the Constitution and would need to be displaced.
Dr. Ambedkar
This is what Dr. Ambedkar said:
“Then I take the two other amendments of Prof. Shah (Nos. 1473 and 1478). The amendments as they are worded are rather complicated. The gist of the amendments is this. Prof. Shah seems to think that the President may fail to summon the Parliament either in ordinary times in accordance with the article or that he may not even summon the legislature when there is an emergency.
Therefore he says that the power to summon the legislature where the President has failed to perform his duty must be vested either in the Speaker of the lower House or in the Chairman or the Deputy Chairman of the Upper House. That is, if I have understood it correctly, the proposition of Prof. K.T. Shah. It seems to me that here again Prof. Shah has entirely misunderstood the whole position.
First of all, I do not understand why the President should fail to perform an obligation which has been imposed upon him by law. If the Prime Minister proposes to the President that the Legislature be summoned and the President, for no reason, purely out of wantonness or cussedness, refuses to summon it, I think we have already got very good remedy in our own Constitution to displace such a President. We have the right to impeach him, because such a refusal on the part of the President to perform obligations which have been imposed upon him would be undoubtedly violation of the Constitution.
There is therefore ample remedy contained in that particular clause. But, another difficulty arises if we are to accept the suggestion of Professor K.T. Shah. Suppose for instance the President for good reasons does not summon the Legislature and the Speaker and the Chairman do summon the Legislature. What is going to happen? If the President does not summon the Legislature it means that the Executive Government has no business which it can place before the House for transaction. Because, that is the only ground on which the President, on the advice of the Prime Minister, may not call the Assembly in session.
Now, the Speaker cannot provide business for the Assembly, nor can the Chairman provide it. The business has to be provided by the Executive, that is to say, by the Prime Minister who is going to advise the President to summon the Legislature.
Therefore, merely to give the power to the Speaker or the Chairman to summon the Legislature without making proper provisions for the placing of business to be transacted by such an Assembly called for in a session by the Speaker or the Chairman would to my mind be a futile operation and therefore no purpose will be served by accepting that amendment.”
Keeping the debate on Article 69 of the draft Constitution in mind (particularly since the business of the House is to be provided by the Executive) Article 153 of the draft Constitution did not provide for any discretion to the Governor, as proposed by Dr. Ambedkar, to summon the House for a “futile operation”.
Article 69 of the draft Constitution was adopted as Article 85 of the Constitution. Similarly, Article 153 of the draft Constitution was adopted as Article 174 of the Constitution in the following form:
“174. Sessions of the State Legislature, Prorogation and dissolution –
(1) The House or Houses of the Legislature of the State shall be summoned to meet twice at least in every year, and six months shall not intervene between their last sitting in one session and the date appointed for their first sitting in the next session.
(2) Subject to the provisions of clause (1), the Governor may from time to time –
(a) summon the House or either House to meet at such time and place as he thinks fit ;
(b) prorogue the House or Houses;
(c) dissolve the Legislative Assembly.”
The absence of any discretion in the President to summon or prorogue the House or dissolve the House of the People and the deletion of clause (3) in Article 153 of the draft Constitution makes it quite clear that the President and the Governor can act under Article 85 of the Constitution and Article 174 of the Constitution respectively only on the aid and advise of the Council of Ministers. No independent authority is given either to the President or the Governor in this regard.
Reference
Nabam Rebia v. Deputy Speaker (2015)