Three Congress leaders, who have served as Union law ministers in the past, wrote to Rajasthan Governor Kalraj Mishra on Monday, asking him to convene an assembly session as per the advice of the state cabinet which, they claimed, would be the correct course of action as per the legal principles laid down by the Supreme Court (SC).
Salman Khurshid, Ashwani Kumar, and Kapil Sibal, who are also senior advocates at the SC, said that the apex court judgments in Shamsher Singh v. Union of India (1974) and Nabam Rebia v. Deputy Speaker (2016) limits the powers of Governor, who is obliged to defer to the wisdom of an elected government.
“Any deviation from the established constitutional position would be an avoidable negation of your oath of office and create a constitutional crisis,” they said.
In the Shamsher Singh case, a seven-judge SC bench had held that a Governor has to exercise his powers as per the aid and advice of the Council of Ministers except in spheres, where he is required by the Constitution to exercise discretion.
In the Nabam Rebia case, a five-judge SC bench had specifically dealt with the question of whether the Governor could use his discretion to summon or dissolve the state assembly. In that case, the then Arunachal Pradesh Governor Jyoti Prasad Rajkhowa had initially summoned the assembly session on January 14, 2016.
But, he later advanced the session to December 16, 2015, and also laid down the agenda for the House proceedings.
The Supreme Court held that the Governor can summon or dissolve the House, only on the aid and advice of the Council of Ministers and he cannot do so at his own discretion.
“Having served as Union ministers for law and justice at different periods and as students of constitutional law, we are of the clear view that the established legal position obliges a Governor to call an assembly session in accordance with the advice of the state cabinet,” the Congress leaders stated in their letter to Mishra.