In the United Kingdom’s parliamentary system, the legislature enjoys primacy over other government institutions. While India broadly borrows its system from the British, it ends up largely inverting this power structure, with the legislature often being dictated to by other parts of the system.

A stark example of this tendency is now visible in the state of Rajasthan, which has been in a state of political crisis ever since 19 MLAs from the ruling Congress party raised the banner of revolt against their own government earlier this month. Led by Sachin Pilot, who was deputy chief minister until the rebellion, they say they do not want to join another party but only want a change of leadership in the state Congress unit.

The first blow to the freedom of the legislature came when judiciary prevented the speaker – the presiding officer of Rajasthan assembly – from moving to disqualify the rebel MLAs under the anti-defection law. To add to that, the state governor is now delaying calling for a session of the legislature. A confidence vote in the legislature would have forced the rebel MLAs to declare to which party they owed allegiance.

Governor versus his own ministers

But on Thursday, Kalraj Mishra rejected a request from Chief Minister Ashok Gehlot that the legislature should be called. Mishra pointed to technical flaws in Gehlot’s letter – it did not suggest a specific date for the session date and lacked the approval of the cabinet. However, he did not limit himself to that. He also declared why he thought that a session is not needed right now at all.

“Neither justification nor any agenda has been proposed to call the session on such a short notice,” the governor said. “In the normal process, 21 days notice is required for the session to be called.”

However, when Gehlot submitted a reworked proposal on Sunday, the governor stalled this too, refusing to call an immediate session and instead asking for a “21-day notice”. To add to the confusion, the governor again asked the chief minister about the purpose of the session.

“Do you want to move Motion of Confidence?” the governor said. “It is not mentioned in the proposal but you have been speaking about it in media.”

While governors calling for floor tests and chief ministers evading them has happened many times in modern India’s history, this is the first time the reverse is happening.

A Bharatiya Janata Party delegation led by Rajasthan unit President Satish Poonia and leader of the Opposition Gulab Chandra Kataria meet with state Governor Kalraj Mishra on July 25. Credit: PTI

Overstepping boundaries

Experts on how Indian legislatures works say that the governor exercising his discretion with regard to summoning the assembly has no basis in law. “Calling a session of the legislature is the sole prerogative of the government,” explained PDT Acharya, former Secretary General of the Lok Sabha. “The governor has no discretion. He has to go by the advice of the council of the ministers.”

Acharya added: “That is the constitutional practise all through. The Supreme Court has laid down the lay many times, governor has no discretion in these matters.”

This was most recently seen in 2015, when the governor of Arunachal Pradesh, without any instruction from the cabinet, advanced the assembly session from January 14, 2016, to December 15, 2015. Like in Rajasthan, the crisis was precipitated by a rebellion of Congress MLAs against their own government.

The Supreme Court soon held that the governor’s actions were illegal. While the “Constitution provides that the Governor shall summon the Legislative Assembly from time to time and may prorogue and dissolve the Legislative Assembly,”, the judgment said, it noted that this act “cannot be performed except on the aid and advice of the Council of Ministers”. Any violation of this “would be doing violence to all canons of interpretation if the discretion of the Governor”.

As it turns out, in the late 1940s, when the Drafting Committee of the Constituent Assembly drew up the first draft of the powers of the governor, they did grant the governor discretion – separate from the cabinet – to summon and dissolving the assembly. This was opposed by Congress stalwart Jayaprakash Narayan from outside the house, who pointed out in a written submission that there was little reason to give this power to the governor in the states when the president did not have it at the federal level.

As a result BR Ambedkar, Chairman of the Drafting Committee, moved an amendment in June 1949 to remove this clause altogether, as it was “inconsistent with the scheme for a Constitutional Governor”.

Colonial hangover

Chakshu Roy, head of outreach at the PRS legislative think tank, argues that the genesis of this confusion stems from the Indian Constitution following too closely the governance scheme laid out in the Government of India Act, 1935 – the final colonial constitution before independent India adopted its own in 1950. “Under colonial rule, legislatures were summoned by the executive and had very little role to play,” said Roy. “Unfortunately, we replicated this scheme even in independent India.”

This fear – that India was too closely following colonial norms when it came to powers of the legislature – was expressed in the Constituent Assembly itself. HV Kamath criticised the draft powers of the Indian parliament as a case of the Drafting Committee “not [being] able to shake off the incubus of the Government of India Act”.

Representing Bihar, KT Shah presciently argued that “Presidents there have been in the history of other countries, if not our own, who have taken the law into their own hands; and have by the very power of the Constitution so to say subverted utterly, and undone the intent and purpose of the Constitution”.

A Constituent Assembly Of India meeting in 1950. Credit: Unknown author / Public domain

As a solution, Shah proposed that the speaker also be allowed to summon Parliament. Since federal powers are mostly duplicated at the state level, this would have meant that the speaker could have been able to summon the Rajasthan Assembly – thus providing a quick, democratic way to end this current crisis.

RK Sidhva, a member from the Central Provinces, also suspicious of a scheme where the executive could summon the legislature, argued that rather than taking this from the Government of India Act, 1935, “there should be a rule, as in England that Parliament should sit continuously throughout the year”.

False hope

However, Ambedkar argued that there was little need to change the colonial law because with Independence, “the political atmosphere at the time of the passing of the Act of 1935 was totally different from the atmosphere which prevails now”.

Rather than change the law, Ambedkar sought to repose faith that the new conditions would create a more ethical politics. “We thought and personally I also think that the atmosphere has completely changed and I do not think any executive would hereafter be capable of showing this kind of callous conduct towards the legislature,” Ambedkar argued. “Hence we thought it might be desirable as a measure of extra caution to continue the same clause [as the Government of India Act, 1935] in our present Constitution.”

As a result, when it comes to matters like summoning a legislature, the modern Indian Constitution more or less replicates the Government of India Act, 1935.

If the arguments of prescient legislators such as Shah, Kamath or Sidhva had been seriously considered and the Constituent Assembly drastically reworked the Government of India Act, 1935, the Rajasthan crisis would not have come to pass and the assembly could simply have met of its own free will.

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