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Is Constitutional Morality Eroding...?
By: Tupaki Desk | 28 July 2020 9:09 AM IST
After the Rajasthan High Court ordered 'status quo' in relation to the rnnotices issued by the Speaker initiating the proceedings under the Tenthrn Schedule of the Constitution, Chief Minister Mr. Ashok Gehlot paraded rnmore than 100 MLAs in front of the governor and requested the governor rnto convene the session but the governor exhibited reluctant to convene rnthe session of the Assembly.
Article 163 of the Constitution rnIndia contemplates that there shall be a council of Ministers with the rnChief Minister as the head to aid and advice the governor in exercise ofrn the functions, except insofar as he is by or under the constitution rnrequired to exercise his functions or any of them in his discretion. rnThis shows that the governor can exercise discretion only in certain rncases specifically contemplated under the constitution.
Article rn174 of the constitution of India contemplates that the governor from rntime to time summons the house or each house of the legislature of the rnState. The constitutional bench of the Apex Court in Nabam Rebia vs. rnDeputy Speaker's case had examined the scope of the words 'in his rndiscretion' used in Article 163 of the Constitution. The Apex court heldrn that in so far as the exercise of the discretionary powers vested with rnthe governor is concerned, the same is limited to situations, wherein rnconstitutional provisions expressly so provide that the governor should rnact in his own discretion. It was also held that the governor can rnexercise his discretion in a situation where an interpretation of the rnconcerned constitutional provision could not be construed otherwise. Thern Apex Court also further held that the framers of the constitution rndecided not to vest discretion with the governor in the matter of rnsummoning and dissolving the house or house of the State legislature by rnomitting Article 153(3) of the Draft Articles which contemplated that rnthe power to summon and dissolve the house shall be exercised by the rngovernor at his discretion and therefore the governor can summon, rnprorogue and dissolve the house only on the aid and advise of the rncouncil of Ministers with the Chief Minister as the head.
After rnexamining Justice Sarkaria Commission report, Justice MM Punchhi rnCommission report and the treaties by M.N.Kaul and S.L.Shakdhar - rn'practice and procedure of Parliament' published by the Lok Sabha rnsecretariat, the Apex Court had held that in ordinary circumstances rnduring the period when the Chief Minister and his council of Minister rnenjoy confidence of the majority of the house, the power vested with thern governor under Article 174 to summon must be exercised in consonance rnwith the aid and advise of the Chief Minister and his council of rnMinisters and if the governor has reason to believe that they have lost rnconfidence of the house, it would be open to him to require them to rnprove their majority in the house by a floor test and thereafter rnexercise his discretion if the council of Ministers and the Chief rnMinister loose the confidence of the majority.
In the light of rnthe said judgment and the parading of 102 MLAs by Mr. Ashok Gehlot, the rngovernor invariably has to abide by the aid and advise of the council ofrn Ministers and summon the Assembly or if the governor is in doubt with rnregard to the said majority, still he can summon the Assembly and directrn the Chief Minister to prove his majority. In either case the governor rnhas to immediately summon the Assembly to resolve the face off.
Allrn the constitutional functionaries have to act as per the mandate rncontained in the constitution. The constitution of India is an organic rndocument that requires all its functionaries to observe, apply and rnprotect the constitutional values spelt out by it which constitute the rnconstitutional morality. The Hon'ble Apex Court in Navtej Singh Johar's rncase has observed that the concept of constitutional morality strives rnand adjusts the organs of the State to maintain such heterogeneous fibrern in the society in multifarious ways and it is the responsibility of thern three organs of the State to curb any propensity or proclivity of rnpopular sentiment or majoritarianism.
The Constitutional bench rnof the Apex Court in Government of NCT of Delhi Vs. Union of India has rnheld that constitutional morality is that fulcrum which acts as an rnessential check upon the high functionaries and the citizens alike, as rnexperience has shown that unbridled power without any checks and rnbalances would result in a despotic and tyrannical situation which is rnantithetical to the very idea of democracy. Any act to garner rnjustification must possess the potentiality in harmony with the rnconstitutional impulses.
The Apex Court also held that the rnconcept of constitutional governance in body polity like ours, where thern constitution is the supreme fundamental law, is neither hypothetical rnnor an abstraction but is real, concrete and grounded. The governance rnshould be consistent with the constitution and shall operate under the rnaegis of the constitution.
The Apex Court also held that the rnparliamentary form of democracy as envisaged by the constitution has itsrn very base the power bestowed upon people to vote and make the rnlegislature accountable for their functioning to the people.
In rnthe recent past the governor's role and powers have become a rncontroversial issue in the Indian politics. The roles played by the rngovernors of Karnataka, Madhya Pradesh, Kerala, Maharashtra and now rnRajasthan have become highly controversial. The controversies around thern issues such as selecting the Chief Minister, determining the timing forrn proving the majority etc., have projected a negative image that he is rn'an agent of the centre'. Dr. Ambedkar in his speeches had said that thern discretionary power is no sense a negation of responsible government rnand it is not a general clause giving the governor power to disregard rnthe advice of his Ministers in any manner in which he finds he ought to rndisregard.
The Hon'ble Supreme Court in SR Bommai Vs. Union of rnIndia while examining the invocation of Article 356(1) of the rnConstitution imposing the President Rule in the State of Karnataka, had rnspecifically held that the governor is a high constitutional functionaryrn and he is expected to conduct himself more fairly, consciously and rncircumspectly.
Article 163 of the Constitution rnIndia contemplates that there shall be a council of Ministers with the rnChief Minister as the head to aid and advice the governor in exercise ofrn the functions, except insofar as he is by or under the constitution rnrequired to exercise his functions or any of them in his discretion. rnThis shows that the governor can exercise discretion only in certain rncases specifically contemplated under the constitution.
Article rn174 of the constitution of India contemplates that the governor from rntime to time summons the house or each house of the legislature of the rnState. The constitutional bench of the Apex Court in Nabam Rebia vs. rnDeputy Speaker's case had examined the scope of the words 'in his rndiscretion' used in Article 163 of the Constitution. The Apex court heldrn that in so far as the exercise of the discretionary powers vested with rnthe governor is concerned, the same is limited to situations, wherein rnconstitutional provisions expressly so provide that the governor should rnact in his own discretion. It was also held that the governor can rnexercise his discretion in a situation where an interpretation of the rnconcerned constitutional provision could not be construed otherwise. Thern Apex Court also further held that the framers of the constitution rndecided not to vest discretion with the governor in the matter of rnsummoning and dissolving the house or house of the State legislature by rnomitting Article 153(3) of the Draft Articles which contemplated that rnthe power to summon and dissolve the house shall be exercised by the rngovernor at his discretion and therefore the governor can summon, rnprorogue and dissolve the house only on the aid and advise of the rncouncil of Ministers with the Chief Minister as the head.
After rnexamining Justice Sarkaria Commission report, Justice MM Punchhi rnCommission report and the treaties by M.N.Kaul and S.L.Shakdhar - rn'practice and procedure of Parliament' published by the Lok Sabha rnsecretariat, the Apex Court had held that in ordinary circumstances rnduring the period when the Chief Minister and his council of Minister rnenjoy confidence of the majority of the house, the power vested with thern governor under Article 174 to summon must be exercised in consonance rnwith the aid and advise of the Chief Minister and his council of rnMinisters and if the governor has reason to believe that they have lost rnconfidence of the house, it would be open to him to require them to rnprove their majority in the house by a floor test and thereafter rnexercise his discretion if the council of Ministers and the Chief rnMinister loose the confidence of the majority.
In the light of rnthe said judgment and the parading of 102 MLAs by Mr. Ashok Gehlot, the rngovernor invariably has to abide by the aid and advise of the council ofrn Ministers and summon the Assembly or if the governor is in doubt with rnregard to the said majority, still he can summon the Assembly and directrn the Chief Minister to prove his majority. In either case the governor rnhas to immediately summon the Assembly to resolve the face off.
Allrn the constitutional functionaries have to act as per the mandate rncontained in the constitution. The constitution of India is an organic rndocument that requires all its functionaries to observe, apply and rnprotect the constitutional values spelt out by it which constitute the rnconstitutional morality. The Hon'ble Apex Court in Navtej Singh Johar's rncase has observed that the concept of constitutional morality strives rnand adjusts the organs of the State to maintain such heterogeneous fibrern in the society in multifarious ways and it is the responsibility of thern three organs of the State to curb any propensity or proclivity of rnpopular sentiment or majoritarianism.
The Constitutional bench rnof the Apex Court in Government of NCT of Delhi Vs. Union of India has rnheld that constitutional morality is that fulcrum which acts as an rnessential check upon the high functionaries and the citizens alike, as rnexperience has shown that unbridled power without any checks and rnbalances would result in a despotic and tyrannical situation which is rnantithetical to the very idea of democracy. Any act to garner rnjustification must possess the potentiality in harmony with the rnconstitutional impulses.
The Apex Court also held that the rnconcept of constitutional governance in body polity like ours, where thern constitution is the supreme fundamental law, is neither hypothetical rnnor an abstraction but is real, concrete and grounded. The governance rnshould be consistent with the constitution and shall operate under the rnaegis of the constitution.
The Apex Court also held that the rnparliamentary form of democracy as envisaged by the constitution has itsrn very base the power bestowed upon people to vote and make the rnlegislature accountable for their functioning to the people.
In rnthe recent past the governor's role and powers have become a rncontroversial issue in the Indian politics. The roles played by the rngovernors of Karnataka, Madhya Pradesh, Kerala, Maharashtra and now rnRajasthan have become highly controversial. The controversies around thern issues such as selecting the Chief Minister, determining the timing forrn proving the majority etc., have projected a negative image that he is rn'an agent of the centre'. Dr. Ambedkar in his speeches had said that thern discretionary power is no sense a negation of responsible government rnand it is not a general clause giving the governor power to disregard rnthe advice of his Ministers in any manner in which he finds he ought to rndisregard.
The Hon'ble Supreme Court in SR Bommai Vs. Union of rnIndia while examining the invocation of Article 356(1) of the rnConstitution imposing the President Rule in the State of Karnataka, had rnspecifically held that the governor is a high constitutional functionaryrn and he is expected to conduct himself more fairly, consciously and rncircumspectly.