Dissolving a State Assembly – Key Insights – Part II

Sec. 62:
Sessions of the Legislature, Prorogation and dissolution -
(1) 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.]

Art. 153:
Sessions of the State Legislature, propagation 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 this article, the Governor may from time to time-
(a) summon the Houses 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.

Art. 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

Art. 356 of the Constitution of India, 1950: (Dissolution of the State Assembly) deals with Provisions in case of failure of constitutional machinery in State. That is, the proclamation of the President based upon the Governor’s Report has to be placed in both houses of Parliament and seek their consent, failing which, the dissolved house gets resurrected. This is definitely a ‘democratic safeguard’ which under Art. 174 is available to the Governor in the form of ‘discretionary power’.

From a plain reading of the above comparative chart, it is abundantly clear that the power of the President, varies from that of the Governor, with regard to the aid and advice of the Council of Ministers or even with regard to the dissolution of the peoples’ House under Art.356 vis-à-vis Art. 174 of the Constitution of India.

The President under Art. 74 can at most, send back a recommendation of the Union Cabinet, for re-consideration and when the reconsidered opinion comes back, the President is left with no option but to act on the advice of Union Council of Ministers.

Whereas with regard to the power of the State Governor under Art. 163, especially on the issue of dissolution, upon the advice of the State Cabinet this office is endowed with ‘a discretionary power’ under Art. 174 of the Constitution of India, so as, not to heed to the advice or recommendation of the State Council of Ministers, headed by the Chief Minister, in all circumstances. In fact, the Supreme Court in the matter of Justice R.A.Mehta (2013) 3 SCC 1) held as follows, on the discretionary power of the Governor.

“The Governor shall act with the aid and advice of the Council of Ministers, save in a few well-known exceptional situations. Without being dogmatic or exhaustive, this situation relates to the choice of the Chief Minister, dismissal of the Government, and dissolution of the House.”

Until the emergence of the case of S.R.Bommai (1994) 3 SCC 1, on the Indian Constitutional firmament, the decision of the Apex Court in the matter of Samsher Singh vs. State of Punjab [(1974) 2 SCC 831, 7 Judges] followed by State of Rajasthan vs. Union of India [(1977) 3 SCC 592, 7 Judges], held the field and still continue to hold, to the affect that the Governor is bound by the advice of the Council of Ministers, headed by the Chief Minister, unless the Chief Minister has lost the confidence/majority of the house.

The case of S.R.Bommai (9 Judges), in fact distinguished the earlier judgments of 1974 and 1977, on several counts, especially the joint opinions of Justice P.B.Sawant & Justice Kuldip Singh on the one hand and also that of Justice B.P. Jeevan Reddy & Justice S.C.Agarwal on the other hand.

And recently in the matter of Nabam Rabia (2016) 8 SCC 1, a Bench of 5 Judges of the Supreme Court, once again dwelt on the ‘discretionary power of the Governor’ in the following words:

“...... we are of the view, that in ordinary circumstances during the period when the Chief Minister and his Council of Ministers enjoy the confidence of the majority of the House, the power vested with the Governor under Article 174, to summon, prorogue and dissolve the House(s) must be exercised in consonance with the aid and advice of the Chief Minister and his Council of Ministers.

In the above situation, he is precluded to take an individual call on the issue at his own will, or in his own discretion. In a situation where the Governor has reasons to believe, that the Chief Minister and his Council of Ministers have lost the confidence of the House, it is open to the Governor, to require the Chief Minister and his Council of Ministers to prove their majority in the House, by a floor test.

Only in a situation, where the Government in power on the holding of such floor test is seen to have lost the confidence of the majority, it would be open to the Governor to exercise the powers vested with him under Article 174 at his own, and without any aid and advice.”

But, as stated by the earlier Supreme Court Judgment in the matter of Justice R.A.Mehta (2013), the list of exceptional circumstances where the Governor invokes his discretion in not heeding to the advice of the Cabinet, headed by the Chief Minister can be, other than, just the situation, where the leader of the house loses the confidence of the house.

Cutting across the maze of issues, set out briefly herein above, there is not an iota of doubt, that the Governor has discretionary power under Art. 174 of the Constitution of India (however minimal, the area may be), though it was more extensive and explicit in the 1935 Act, but curtailed in the 1950 Act, after the colonial era, so as not to heed the advice of the Council of Ministers, headed by the Chief Minister, in certain extra-ordinary circumstances. But, what could those extra-ordinary circumstances be? Here is the talisman, which the Governor can use in such trying circumstances, to save an electoral democracy.

A.When an advice or recommendation of Council of Minister headed by the Chief Minister, to the Governor, to dissolve the house, prematurely, even before the completion of its elected period, and upon the Governor weighing the ‘pros and cons’ of such an advice, should then test it on the a anvil ‘whether such a move imperils democracy’. If the conclusion is that it does, then the Governor should not heed to the advice of the Cabinet to dissolve the house, but instead invoke his discretionary power to summon the house and take it into confidence by placing the motion to dissolve before it.

B.When the Governor finds in his discretion that the advice of the Council of Ministers headed by the Chief Minister is not in consonance with the “democratic wishes of the majority in the house, then the Governor shall not heed to such an advice. In such a situation, the politically expedient move of the Chief Minister and his Cabinet cannot be weighed against the ‘wisdom of the house’ which shall be expressed only through deliberations of the house, when it is summoned by the Governor, though not upon the advise of the Cabinet.

A recent study of two Harvard Professors of Government, namely Steven Levitsky and Daniel Ziblatt have in their book entitled ‘How democracies die’ have set out a set of circumstances, from recent history, which could be fatal to democracies across the world and one such symptom that threatened to imperil democracy, is not honouring ‘the collective wisdom of an elected body’.

Since the Apex Court has held the democracy to be a part of the basic structure of the constitution, in the matter of Indira Gandhi’s case (1975) Supl. SCC 1 in the following words:

“............... All the seven Judges who constituted the majority were also agreed, that democratic set up was part of the basic structure of the Constitution. Democracy postulates that there should be periodical elections, so that people may be in a position either to re-elect the old representatives or, if they so choose, to change the representatives and elect in their place other representatives. Democracy further contemplates that the elections should be free and fair, so that the voters may be in a position to vote for candidates of their choice. ..............”

If the above ‘legal diktat’ is to be executed, then it becomes the bounden duty of every citizen of the Indian Republic to preserve Democracy, not only for the present but for posterity, as well. If Indian Democracy dies, then who lives?

(P Niroop Reddy - The author is an Advocate, Supreme Court of India,Former Addl. Advocate-General, State of Meghalaya)