# Discretionary powers: the law, and SC rulings
Context: RAJASTHAN GOVERNOR Kalraj Mishra returning the government’s fresh proposal to convene an Assembly session on July 31 has raised fresh legal questions on the powers of the Governor.
Who has the power to summon the House?
Article 174 of the Constitution gives the Governor the power to summon from time to time “the House or each House of the Legislature of the State to meet at such time and place as he thinks fit...”
The phrase “as he thinks fit” is read as per Article 163 of the Constitution which says the Governor acts on the aid and advice of the cabinet. Article 163(1) essentially limits any discretionary power of the Governor only to cases where the Constitution expressly specifies that the Governor must act on his own and apply an independent mind.
What has the Supreme Court said about this power?
It is settled in law that the Governor cannot refuse the request of the Cabinet to call for a sitting of the House for legislative purposes or for the Chief Minister to prove his majority. On many occasions, including in 2016 in Uttarakhand, the court has clarified that when the majority of the ruling party is in question, a floor test must be conducted at the earliest available opportunity.
In 2016, a Constitution Bench in Nabam Rebia and Bamang Felix vs Deputy Speaker (Arunachal Pradesh Assembly case) expressly said that the power to summon the House is not solely vested in the Governor.
What did the court say in the Arunachal Pradesh case?
Referring to discussions in the Constituent Assembly, the court noted that the framers of the Constitution expressly left out vesting powers to summon or dis- solve the House solely with the Governor.
“The most significant feature of draft Article 153 [later Article 174] was expressed in sub-article (3) thereof, wherein it was provided, that... the power to summon and dissolve the House or Houses of the State Legislature ... shall be exercised by him (Governor) in his discretion,” the court noted.
After debating the intention of the framers, the court concluded that “the only legitimate and rightful inference, that can be drawn in the final analysis is, that the framers of the Constitution altered their original contemplation, and consciously decided not to vest discretion with the Governor, in the matter of summoning and dissolving the House, or Houses of the State Legislature...”
When can the Governor use his discretion?
Article 163(1) of the Constitution says “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.”
When the Chief Minister has lost the support of the House and his strength is debatable, the Governor need not wait for the advice of the council of ministers to hold a floor test. Generally, when such doubts are cast, the Opposition and the Governor would rally for a floor test and the ruling party would attempt to stall the process to buy time.
In Rajasthan’s case, despite requests from Chief Minister Ashok Gehlot, the Governor has returned these requests to call for a session. The 19 rebel MLAs have not defected from the Congress and have stated before the Rajasthan High Court that they are merely expressing their dissent and have not shifted to the BJP.
In the Arunachal Pradesh ruling, the court clarifies this question as well. “In ordinary circumstances during the period when the CM 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.
