Anti Defection Law

When can a Governor use his discretion, how has the SC ruled?


From UPSC perspective, the following things are important :

Prelims level: Governor’s Discretionary Powers

Mains level: State legislature issues

Rajasthan Governor returning the fresh proposal by the state Cabinet – seeking to convene a session of the Assembly has raised fresh legal questions on the powers of the Governor.

Try this question for mains:

Q. “Time and again, the courts have spoken out against the Governor acting in the capacity of an all-pervading super-constitutional authority.” Analyse.

Who has the powers to summon the House?

  • It is the Governor acting on the aid and advice of the cabinet.
  • Article 174 of the Constitution gives the Governor the power to summon from time to time “the House or each House of the Legislature of the State to meet at such time and place as he thinks fit…”
  • However, the phrase “as he thinks fit” is read as per Article 163 of the Constitution which says that the Governor acts on the aid and advice of the cabinet.
  • Article 163(1) essentially limits any discretionary power of the Governor only to cases where the Constitution expressly specifies that the Governor must act on his own and apply an independent mind.

What has the Supreme Court said in the past about the Governor’s power to summon the House?

  • It is settled law that the Governor cannot refuse the request of the Cabinet to call for a sitting of the House for legislative purposes or for the chief minister to prove his majority.
  • In fact, on numerous occasions, including in the 2016 Uttarakhand case, the court has clarified that when the majority of the ruling party is in question, a floor test must be conducted at the earliest available opportunity.
  • In 2016, the Supreme Court in Nabam Rebia and Bamang Felix vs Deputy Speaker expressly said that the power to summon the House is not solely vested in the Governor.

What did the SC say in the Arunachal case?

  • Referring to discussions in the Constituent Assembly, the court noted that the framers of the Constitution expressly and consciously left out vesting powers to summon or dissolve the House solely with the Governor.
  • It said that the powers of the Governor were substantially altered to indicate that the framers did not want to give Governors the discretion.
  • The Governor can summon, prorogue and dissolve the House, only on the aid and advice of the Council of Ministers (CoM) with the Chief Minister as the head and not at his own, said the Court.

When can a Governor use his discretion?

  • Article 163(1) of the Constitution says that “there shall be a CoM with the CM at the head to aid and advice the Governor in the exercise of his functions, except some conditions for discretion.
  • However, in the 2016 case, the apex court has defined the circumstances if the aid and advice of CoM are binding on the Governor.
  • When the chief minister has lost the support of the House and his strength is debatable, then the Governor need not wait for the advice of the CoM to hold a floor test.

Novel situations are created these days

  • Generally, when doubts are cast on the chief minister that he has lost the majority, the opposition and the Governor would rally for a floor test.
  • The ruling party may attempt to stall the process to buy time and keep its flock together.
  • In a puzzling situation, in Rajasthan’s case, despite requests from CM, the Governor has returned requests to call for a session.
  • However, in the current case, the rebel MLAs have not defected from their party but have repeatedly stated before the Rajasthan HC that they are merely expressing their dissent within the party.

Back2Basics: Governor’s Discretionary Powers

The governor can use his/her discretionary powers:

  • When no party gets a clear majority, the governor has the discretion to choose a candidate for the chief minister who will put together a majority coalition as soon as possible.
  • He can impose president’s rule.
  • He submits reports on his own to the president or on the direction of the president regarding the affairs of the state.
  • He can withhold his assent to a bill and send it to the president for his approval.
  • During emergency rule per Article 353, he can override the advice of the council of ministers if specifically permitted by the president.

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