Maharashtra crisis: Governor not bound by advise of council of ministers to dissolve house

The Supreme Court has on several occasions said that the Governor is not bound by the advise of the council of ministers

New Delhi, Jun 23: The role of the Governor and the advise of the council of ministers is back in the narrative as Maharashtra faces a political crisis.

If Uddhav Thackeray decides to dissolve the assembly and go in for fresh elections, the question arises whether the Governor is bound by that decision. The decision to dissolve the assembly can take place only if the Chief Minister and Governor are on the same page like we saw in the case of Telangana Chief Minister K Chandrashekar Rao in 2018.

Rao had advised the Governor E S L Narasimhan to dissolve the assembly when six months of its term was remaining. The Governor agreed to the same and the assembly was dissolved as both were on the same page.

IN the State of Gujarat vs Justice R A Mehtra case, the Supreme Court held that it is the decision of the Governor whether or not to accept the advise of a chief minister and council of ministers to dissolve the government.

In this context one would have to look at Article 163 of the Indian Constitution which deals with the advise of the council of ministers to the Governor of a state.

There shall be a council of Ministers with the chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this constitution required to exercise his functions or any of them in his discretion, the Article states.

If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion, it also states while making it clear that it is the Governor who shall have the final say.

The question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired into in any court, the Article also states while clearing defining the powers of a Governor.

In the Rameshwar Prasad and Ors vs Union of India and Anr judgment, the Supreme Court clarified that the discretion a Governor could exercise under Article 163 obligated them to do so only if there is a situation that requires a compelling necessity. The court said that the necessity to exercise such powers may arise from the express provision of the Constitution or necessary implication.

When it comes to the powers of a Governor in dissolving the house one has to read into Article 174(1) of the Indian Constitution. 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 says Article 174(1).

The Governor may from time to time prorogue the house or either house and dissolve the Legislative Assembly, Article 174 (2) (a) (b) states.

In the S R Bommai landmark nine judge verdict the Supreme Court clearly defined the supremacy of a floor test. The floor test shall determine the support enjoyed by the party in power.

"Wherever a doubt arises whether the council of ministers has lost the confidence of the House, the only way of testing it is on the floor of the House except in an extraordinary situation where because of all-pervasive violence, the governor comes to the conclusion and records the same in his report that for the reasons mentioned by him, a free vote is not possible in the House," the Supreme Court said in 1994.

Hence in this case if Uddhav Thackeray approaches the Governor and recommends dissolution of the House, then it is the discretion of the Governor to act upon it or not.