As the focus is on whether Rajasthan Governor Kalraj Mishra will summon the assembly session as desired by the Ashok Gehlot government, both the Congress regime and the Raj Bhawan are bound to be closely studying Article 174 of the Constitution, which deals with the governor's powers to summon and dissolve the house.
While the Congress is not too keen to approach the court on the issue of the 'delay' on part of Mishra to call an assembly session despite the state cabinet having sent a proposal regarding it to him and wants to first exhaust all political means, the party's legal team has pulled out a judgment of the Supreme Court passed in 2016 to stress on the lack of discretion of the governor in the matter of summoning or dissolving the house.
The judgment being cited by the party is the Supreme Court's order of 2016 in the Nabam Rebia and Bamang Felix vs Deputy Speaker, Arunachal Pradesh Legislative assembly case. The court had stated that the drafters of the Constitution had amended Article 153, which originally dealt with the governor's role in summoning or dissolving the house and which got renumbered as Article 174 in the final version, to consciously not vest discretion with the governor.
“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...by omitting clause (3),” the judgment read.
The court noted that Article 174 reveals that clause (3) contained in the draft Article 153, which authorised the governor to summon or dissolve the house or houses of legislature at his own, by engaging the words “...shall be exercised by him in his discretion” was omitted.
The court said that in such a view of the matter, it came to the conclusion that the governor can summon, prorogue and dissolve the house only on the aid and advice of the council of ministers.
However, those arguing in favour of the governor's discretionary powers in the matter could well cite Article 153(2), which has been retained in Article 174, and which through the words “as he thinks fit” vested discretion with the governor to choose the time and place at which the house was to be summoned. “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,” reads Article 174.
However, Congress sources emphasised that the court did take note of this and in its final analysis said that the manner in which draft Article 153(3) was originally drawn, it would have left no room for any doubt that the governor would definitely have had the discretion to summon or dissolve the house without any aid or advice.
In the hectic interplay of politics and law in the tussle for power in Rajasthan, expect Article 174 to be analysed threadbare.
