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NEW DELHI: As Rajasthan Congress MLAs sit on dharna demanding summoning of the Assembly, questions arise whether the Governor, in exercise of his powers under Article 174, could defy or delay in heeding to the advice rendered by council of ministers headed by chief minister Ashok Gehlot.
With the Congress is disinclined to engage further in legal battles, which has not accrued any favourable decision either from the Rajasthan High Court or the Supreme court, and is keen on making a point with the electorate by taking the fight to the street, the spotlight has turned on the Raj Bhawan.
Sources said, the Speaker and Chief Whip of the Congress legislature party are not ready to take the legal battle against an unfavourable HC decision to the Supreme Court.
Article 174 of the Constitution provides that “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.” Does this mean, the Governor has discretion to summon the House as per his discretion disregarding the advice of the council of ministers headed by the CM?
A five-judge bench of the Supreme Court in Nabam Rebia judgment (July 2016) had scrutinised the provision in the draft constitution and its final version as Article 174 and ruled – “we are satisfied in concluding, that the Governor can summon, prorogue and dissolve the House, only on the aid and advice of the Council of Ministers with the Chief Minister as the head. And not on his own.”
Further down the judgment, the 5-judge bench appeared to attach a significant explanation to its terse interpretation of the Governor’s powers on summoning the House. It had said, “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 from taking 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 a floor test is seen to have lost the confidence of the majority, would it be open to the Governor to exercise the powers vested with him under Article 174 at his own, and without any aid and advice,” it had ruled.
Does the Rajasthan Governor think that the Gehlot government has lost its majority and that he is not bound by its advice to summon the House as has been advised? Even then, the Governor has to instruct the Chief Minister to prove his majority on the floor of the House and there are numerous judgments of the SC which bars the Governor from taking a decision in Raj Bhawan on whether a government enjoyed the confidence of the House or not. The SC has repeatedly ruled that test of strength has to be on the floor of the House.

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