After a hiatus, the political situation in Rajasthan has brought into focus the question of the Governor’s role in India’s federal polity. It does appear that the direction in which events are moving does not bode well for the constitutional framework and established conventions.
In the wake of the "rebellion" by Congress MLA Sachin Pilot and 18 other legislators, the arithmetic in the Rajasthan Legislative Assembly has obviously changed. It has a total strength of 200. Without Pilot and his adherents, the Congress has 88 members; the Bharatiya Janata Party (BJP) and its ally the Rashtriya Loktantrik Party account for 75 seats; there are 13 Independent members in the House; and the Bharatiya Tribal Party (2), the CPI (M) (2) and the Rashtriya Lok Dal (1) have a combined strength of five.
Upfront, there is no way of telling, as things stand, which way the Independents and the five members of the smaller party will jump if matters come to the crunch in the form of a floor test, but up until now the Congress government headed by Ashok Gehlot has had the support of most of these 18 MLAs.
That’s not the point, however. The point is the conduct of Rajasthan governor Kalraj Mishra, who was, till 2017, a minister in Prime Minister Narendra Modi’s previous ast government. Mishra has been sent proposals thrice by Gehlot and his cabinet advising that he should convene a session. He stalled it twice. The third ‘advisory’ was sent to him on Tuesday, with a date being mentioned for the commencement of the session, which is 31 July.
The first letter was sent to Mishra on 23 July. He had replied saying, among other things, that no agenda had been mentioned, a 21-day notice been provided for and a date not set for the commencement of the session. Faced with a list of queries, Gehlot sent a revised Cabinet proposal to the governor for a session starting 27 July.
Mishra stalled again. On 27 July, he said that ‘Raj Bhavan has no intention not to call the session’, but specified three conditions that would have to be first satisfied before a session was called: a 21-day notice; mention of whether a trust vote would be tabled, in which case a session could be called at short notice; and, an indication of the precautions, including social-distancing measures, that would be taken in view of the Covid crisis.
Gehlot then sent the third notice for a session beginning 31 July. Spokespersons for the government have pointed out that a governor cannot set the kind of conditions that Mishra has specified. The agenda for the session falls within the remit of the Business Advisory Committee of the House; the manner of conducting the proceedings, in this case with regarding to social-distancing measures, is within the Speaker’s jurisdiction and not the governor’s; and, the governor, to put it simply, cannot unilaterally decide on the scheduling of the session.
The situation in Rajasthan is governed by a fundamental proposition. Once the Cabinet has proposed that a session be convened, the governor has only one option open to him: He must follow the advice tendered by the Cabinet and convene a session unless there is a question of majority involved, which, in turn, can only be decided on the floor of the House in accordance with Supreme Court pronouncements. It’s not particularly complicated.
Both the Constitution and the Supreme Court’s judgements make this abundantly clear. Legal experts are clear that in keeping with Article 174 of the Constitution and the Supreme Court’s judgement of 2016, the Governor cannot refuse to comply with the ‘advice’ of the Cabinet by setting conditions.
Some experts had argued a few days ago that while this is usually non-negotiable, the pendency of petitions in the Rajasthan High Court and Supreme Court gave the governor room for manoeuvre. Conceding the point for argument’s sake, with the judicial decks now cleared, Mishra has to convene the session. In any case, he has not till now offered this particular argument.
What is clear is that Mishra is misusing gubernatorial office to keep the situation fluid in the hope that the BJP can turn a few more Congress MLAs to make sure that Gehlot’s government falls and it can form a government in the state. It also appears, therefore, that the scales are still tilted in favour of the Congress, which would explain why the BJP has jettisoned its demand for a floor test, which it had raised on 14 July, in the immediate aftermath of Pilot’s rebellion. Some of Pilot’s camp followers, too, had made this demand, but seem now to have decided that discretion is, indeed, the better part of valour.
As the BJP’s confidence has grown over the past few years, the representatives of the Centre in various states seem to have been given the leeway to provoke confrontations with state governments in order to destabilise them. Particularly egregious have been the constant provocations offered by West Bengal governor Jagdeep Dhankar. Ever since he fetched up at the Raj Bhavan in Kolkata in July 2019, he has been engaged in a campaign of interference that has few parallels. Even the pandemic and Cyclone Amphan has failed to stop him.
It is extremely doubtful whether any canon of gubernatorial propriety allows a Governor to say that the chief minister of the state which he ceremonially heads is running a ‘police state’ as Dhankar did early in May this year.
A different order of partisanship has been consistently displayed by GC Murmu, the Lieutenant-Governor of Jammu and Kashmir. The former IAS officer does not, of course, have to deal with a Legislative Assembly because none exists at the moment. But his conduct with respect to a number of issues, particularly the implementation of a draconian media policy, has hardly been exemplary. On Tuesday, the Election Commission was prompted to take the extraordinary step of pulling up a lieutenant-governor, when it practically censured Murmu for repeatedly making public statements about the timing of prospective Assembly polls in Jammu and Kashmir, a matter purely under its jurisdiction.
Mishra has now been provided with a date of commencement. In the second proposal, Gehlot had provided an agenda as well – discussion on the Covid situation, taking stock of finances and the tabling of some Bills. The governor must now convene an Assembly session, failing which he will be doing incalculable harm to the constitutional and federal structure of the country’s democracy. Dhankar and Murmu’s actions may not be immediately consequential, but they are not doing the polity any favours by egregiously lowering the bar for gubernatorial conduct.
These are not merely matters of partisan concern. They are fundamental to the health of liberal democracy in this country. While, they must be addressed institutionally, the citizenry, too, must hold the relevant authorities to account.
July 29, 2020 at 05:04PM
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