Governors Discretionary Power | UPSC

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IASbhai Daily Editorial Hunt | 31st July 2020

“Success does not consist in never making mistakes but in never making the same one a second time.” –George Bernard Shaw

Dear Aspirants
IASbhai Editorial Hunt is an initiative to dilute major Editorials of leading Newspapers in India which are most relevant to UPSC preparation –‘THE HINDU, LIVEMINT , INDIAN EXPRESS’ and help millions of readers who find difficulty in answer writing and making notes everyday. Here we choose two editorials on daily basis and analyse them with respect to UPSC MAINS 2020.

EDITORIAL HUNT #111 :“Governors Discretionary Power | UPSC

Governors Discretionary Power | UPSC

P.D.T. Achary

P.D.T. Achary is former Secretary General, Lok Sabha

(Governors Discretionary Power | UPSC)

      HEADLINES:

Getting ahead of constitutional practices

      CENTRAL THEME:

If constitutional principles and practices no longer excite the citizens, but new political norms do, democracy is in trouble

SYLLABUS COVERED: GS 2 : Governor

      MAINS QUESTION:

Governor overruling the decision of the Cabinet yields a politically helpless government . Substantiate -(GS 2)

      LEARNING: 

  • Powers of Governor
  • Jurisdiction of Governor
  • Different cases and interpretations.

      INTRODUCTION: 

The Rajasthan HC order of July 24 staying the anti-defection proceedings initiated by the Assembly Speaker  raises important constitutional issues.

  • A simple petition challenging the issuance of notices by the Speaker to the rebel MLAs was turned into a very complex issue
  • The petition challenged the constitutionality of the Tenth Schedule to the Constitution.

      BODY: 

STAYING THE SPEAKER’S ACTION

  • THE SIMPLE PLEA : The rebels plea – the notice issued by the Speaker was bad in law and should be quashed.

SHOW CAUSE NOTICE/PETITION

  • FRAMING A PETION : These rules were first framed by the Lok Sabha Speaker in 1985 and adopted by more or less all the State Legislatures.
  • FILING A PETITION : Rule 6 of the Lok Sabha rules deals with the filing of the petition and the forwarding of the same by the Speaker to the member concerned.

Rule 6 (4) – Before making a petition seeking the disqualification of a member, the petitioner shall satisfy himself that there are reasonable grounds

  • MORE IN RULE 6 : Thus petitioner believes that the member concerned has become subject to disqualification.
  • PETITIONERS ROLE : Thus, the rule requires the petitioner, and not the Speaker, to satisfy himself about the reasonableness of the ground for disqualification.
  • ULTIMATE RESPONSIBILITY : This responsibility is discharged by the petitioner by appending a brief statement to the petition.
  • BROADCASTING A PETITION : Rule 7 says that on receipt of the petition, the Speaker shall consider whether the petition complies with the requirements of Rule 6.
  • REJECTION OF PETITION : If Governor finds that the petition does not meet all the requirements, he shall dismiss it.
  • FORWARDING A PETITION : If it complies with all the requirements, Governor shall forward the copy of the petition to the member concerned.
  • RESPONSE TO A PETITION : Member is required to submit his comments within seven days of the receipt of the copy of the petition.

SPEAKERS JURISDICTION

  • REASONABLENESS : The Speaker cannot go into the reasonableness of the grounds cited in the petition .

Only through a proper hearing will the Speaker be able to know whether reasonable grounds exist for disqualification.

KIHOTO HOLLOHAN V. ZACHILLHU (1992)

Supreme Court held that a challenge is not barred if there is an imminent threat of disqualification/ suspension before the Speaker takes a final decision.

  • In the Tenth Schedule proceedings, there is no disqualification/ suspension of a member in the interim period.

DATE OF THE ASSEMBLY SESSION

  • SESSION COMMENCEMENT : Cabinet yielding to the Governor’s demand that there should be a 21-day gap between the summoning and commencement of the session.

SUMMONING THE ASSEMBLY

  • ROUTINE FUNCTION : Summoning the Assembly is a routine constitutional function of the Governor.
  • NORMAL TIMES : As per the normal procedure, once the Cabinet decides to call the session on a particular date, that decision is conveyed to the Governor who signs the summons order and sends it back the same day or the next day.
  • SUMMONS ISSUED : Thereafter, the summons is issued to individual members by the Assembly Secretary. 

Under Article 174 of the Constitution, the Governor summons the Assembly. But the Governor can act only on the advice of the Council of Ministers.

  • VESTED POWER : The Cabinet form of government presupposes that the executive power of the state vests in the elected government headed by the Chief Minister.

NABAM REBIA CASE

As long as Chief Minister enjoys majority support in the Assembly, the Governor has no discretional powers.
 

  • Governor is bound to accept the decisions of the Cabinet in regard to the date of commencement of the session.

SHAMSHER SINGH V. STATE OF PUNJAB (1974)

The Governor has no right to refuse to act on the advice of the Council of Ministries.

  • Such a position is antithetical to the concept of ‘responsible government’.
  • The decision to convene the Assembly session is taken by the Cabinet; the Governor has to merely sign the summons order.

The Governor and the Chief Minister should be able to resolve such crisis without damaging the integrity of institutions.

      IASbhai Windup: 

THE 21-DAY PERIOD

  • THE GAP : In 1969, the Rules Committee of the Lok Sabha recommended that the gap between the date of summons and of the commencement of the House should be 21 days.
  • USAGE OF GAP : This was thought of as necessary as the collection, collation and scrutiny of information relating to Questions, at different levels of bureaucracy.
  • APPLICATION : Although Parliament changed it to 15 days later, many State Legislatures continue with the 21-day period.

It is not an inflexible rule, and says “unless the Speaker otherwise decides”.

  • URGENCY : If the government feels the urgency, it is well within its power to convene the House at shorter notice.

These are well-established constitutional principles and practices.

“Constitutional principles and practices do no longer excite the citizens, but new political norms do, then democracy is in trouble.”

       SOURCES:   THE HINDU EDITORIAL | Governors Discretionary Power | UPSC

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