Supreme Court Slams Punjab Government and Governor in Explosive Showdown over Assembly Summons

Facts

The Hon’ble Supreme Court of India in its recent judgment, tried to resolve a tussle between the Chief Minister of Punjab and the Governor of Punjab. The case, State of Punjab v. Principal Secretary to the Governor of Punjab & Another, revolves around a Constitutional crisis between the Governor of Punjab, Mr. Banwari Lal Purohit, and the Chief Minister of Punjab, Mr. Bhagwant Mann. The Council of Ministers of the Government of Punjab advised to summon the Budget Session of the Vidhan Sabha on March 3, 2023. The Governor expressed his concern on certain issues before summoning the Budget session. The Chief Minister responded to the Governor’s communication through a tweet and a letter. The Governor considered them to be “patently unconstitutional” and “extremely derogatory,” and sought legal advice on this issue before summoning the Budget Session. The failure of the Governor to summon the Budget Session’s Assembly has resulted in the State of Punjab invoking the jurisdiction of the Supreme Court under Article 32 of the Constitution. Their prayer is to seek a declaration that the Governor of Punjab, Banwari Lal Purohit is legally obligated by the aid and advice of the Council of Ministers in matters of proroguing or summoning of the Vidhan Sabha.

Issues

The questions before the Hon’ble Court were as follows:

• Whether the Governor holds the right to seek information and if the Government is obligated to provide the information sought?

• Whether the advice of the Council of Ministers, irrespective of the circumstances, binding on the Governor.

The decision of the Supreme Court

The Hon’ble Supreme Court in order to answer the first question,  held that under Article 167, the power of the Governor to seek information is to be read ingeniously because it empowers the Governor to carry out their duties effectively. Further, Article 174 of the Constitution provides the Governor, the authority to summon, prorogue, and dissolve the legislative assembly on the advice of the Council of Ministers. In this particular constitutional domain, the Governor is bound by the Council of Ministers’ aid and advice and is not free to exercise his discretion. To answer the second question, the Court referred to the case of Shamsher Singh v. State of Punjab and Nabam Rebia v. Dy. Speaker, Arunachal Pradesh, where the Hon’ble Court opined that the Governor of a state can be seen as the constitutional or formal head who exercises the responsibilities on the advice of the Council of Ministers.

In the present case, the Court held that it is the constitutional duty of the Governor to call the Assembly on the advice of the Council of Ministers and that he was not required to consult with legal experts to summon the Budget Session of the Vidhan Sabha. Further, it was pointed out by the Court that the Governor has the power to seek information from the Chief Minister under Article 167(b) of the Constitution, with regard to the administration of state affairs and legislative proposals. And  to do the same, the Chief Minister is under a constitutional duty to provide the information sought.

The Court criticized the “tone” and “tenor” of the letter and the tweet by the Chief Minister stating that the Chief Minister’s failure to furnish the information constituted neglect of his constitutional duty under Article 167. However, the Court clarified that this was not a valid reason for the Governor to abstain from summoning the House. Therefore, the Court stated that both the Governor and Chief Minister were in dereliction of their duty and advised that constitutional functionaries should handle political disagreements  calmly and responsibly.

Analysis of the Decision of the Court

The  judgment excessively narrowed down the power of the Governor as it did not consider how the Governor has been granted discretionary powers and its discretionary power has been termed in rather broader terms than the discretionary powers of the President. The provision related to the Governor’s power must be understood in light of Article 163(1) and (2) of the Constitution, and cannot be compared to the power given to the President in every situation because the Constitution does not expressly grant the position of the President any discretion. The said distinction can never be neglected.

Dr. B.R. Ambedkar, justifying this vesting of power in the Constituent Assembly expressed the view that, “the provincial governments are required to work in subordination to the Central Government, the Governor will reserve certain things to give the President an opportunity to see that these rules under the provincial governments are supposed to act according to the Constitution or in subordination to the Central Government”.

The President is obligated to adhere to ministerial advice in all aspects of their duties, whereas the Governor only receives “aid  and advice” from the Council of Ministers for functions beyond their discretionary authority. This distinction highlights the Governor’s potential to act independently of ministers, a possibility that does not exist for the President. Additionally, following the 42nd Constitutional Amendment, ministerial advice was made binding on the President, however, the provision did not extend to the Governor. In contrast to the role of the President, the Governor is required to have a rather active role.

Article 163 of the Constitution is silent about the dynamics between the Governor and his Council of Ministers in the non-discretionary area. The opinion of the Governor’s Committee favoured the discretionary power of the Governor and emphasized that he is not obligated to blindly follow the advice of the Council of Ministers, even in matters where they are bound to act on their advice.

A discussion between the Governor and their Council of Ministers is important, and the Governor can raise objections to a proposed course of action and can ask for reconsideration. While the Governor is ultimately required to accept the final advice of the Council of Ministers, he  has to advise the Ministry on what they deem to be the correct course of action and to warn them if they believe they are taking an incorrect or arbitrary step. Therefore, such discretionary power is of vital importance which has been ignored by the Hon’ble Supreme Court in this case.

Conclusion

There are currently many conflicts between the elected governments and their respective governors in various states across India. A tussle between the Governor and the Chief Minister can lead to a situation where decisions are delayed or blocked, and policies and projects are not implemented. To maintain respectful and productive discourse between constitutional functionaries, it’s crucial to approach political differences in a democratic society with maturity and sobriety. Therefore, exercising the original jurisdiction of the Supreme Court on such petty issues that can be solved through discussions should strictly be avoided.

Further, constitutional statesmanship needs to prevail to prevent such instances from occurring in the future, while keeping in mind the public trust placed in these officials to serve the citizens and conduct national affairs with equanimity, in line with the goals of the Preamble. Hence, the decision delivered by the bench headed by Chief Justice of India DY Chandrachud, which criticized the actions of both Governor Purohit and Chief Minister Bhagwant Mann for allowing their political disagreements to interfere with the fulfilment of their constitutional obligations applies not only to the state of Punjab but other states who are facing similar tussles between the Chief Minister and the Governors but at the same time, the Hon’ble Court missed an opportunity to make the scope of discretionary power of the Governor lucid and explicit.

State of Punjab v. Principal Secretary to the Governor of Punjab and Another, 2023 SCC OnLine SC 243.

India Const. art. 32.

India Const. art. 167.

India Const. art. 174.

Samsher Singh v. State of Punjab, (1974) 2 SCC 831.

Nabam Rebia v. Dy. Speaker, Arunachal Pradesh Legislative Assembly, (2016) 8 SCC 1.

Samsher Singh v. State of Punjab, (1974) 2 SCC 831.

The Constitution (Forty- second Amendment) Act, 1975.

M.P. Jain, Indian Constitutional Law 883 (8th ed. 2018).

Supra, Note, 9.