Chandigarh, September 22
The Governor’s decision to withdraw an order summoning a one-day special Assembly session a day after its issuance has generated a debate on the constitutional and legal validity of the move with no certainty or clarity on the issue among the experts.
The ambiguity primarily stems from the fact that the Constitution empowers the Governor to convene an Assembly session for moving a no-confidence motion, but is silent on the issue of “confidence motion” as sought by the ruling party in the state.
Point of conflict
The row has its genesis in a letter by the Principal Secy’s office, saying there was “no legal provision to convene a special session to move a “confidence motion” only in favour of the state”
However, Advocate-General Vinod Ghai says that the Guv has to act in accordance with the advice of the Council of Ministers
Governor has special powers
The House adjourned sine die can’t be convened without the Guv’s order. It’s also true that the Guv has to act on the advice of the Council of Ministers. But unlike the President, a Guv can act independently in certain situations. — Justice Ranjit Singh, ex-judge, Punjab and Haryana HC
The debate revolves around the powers of a Governor to ignore the advice of the Council of Ministers to convene a session in the absence of a specific bar on summoning the House for a “trust vote”. Also being debated upon is the power of a Governor to suo motu withdraw his earlier consent on summoning the House without the recommendation of the state Cabinet.
Advocate-General Vinod Ghai is clear. For him, the Governor clearly has to act in accordance with the advice of the state Cabinet. Referring to a 2016 judgment of Arunachal Pradesh, Ghai says the Governor has to act at the behest of the Council of Ministers. “He cannot make a distinction. He is only functioning, which means he has to act according to the Council of Ministers,” says Ghai, adding as of now “there was nothing” about moving the HC or the SC.
But an ex-Judge of the Punjab and Haryana High Court, Justice Ranjit Singh, said any decision had to be taken after complete application of mind for it to fall within the purview of “good” as an ill-advised move could result in a wrong precedent.
“A look at the provisions of the Constitution makes it clear that a session for vote on confidence motion can be convened. It is debatable if the Governor can ignore the advice of Council of Ministers in a situation where a session is called for confidence motion,” says Justice Ranjit.
“Whether the Governor can go against the advice of Council of Ministers, where the aim is political, will require debate as it may tend to give independent power to the Governor, which is rare.”
HC senior advocate SK Garg Narwana says a legal issue has, indeed, stemmed from the move. But it is not unprecedented. The Hemant Soren-led Jharkhand Government also won a trust vote in the state Assembly in a similar manner. “It will remain a matter of debate till adjudicated upon by the court.”
Another advocate, Hemant Kumar, says the Governor has to act on the aid and advice of the Council of Ministers, save in exceptional circumstances when the duly elected government no more commanded a majority in the House.
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