Legal Topics

West Bengal Governor prorogues Assembly: A short-lived constitutional ‘crisis’

The ongoing tussle between West Bengal Governor Jagdeep Dhankhar and the Mamata Banerjee authorities – specifically, the West Bengal Legislative Assembly and the council of ministers – was once poised to spill over into a full-blown disaster with Governor Dhankhar’s tweet on Saturday.

The tweet had a letter that stated he had determined to prorogue the Assembly beneath his Constitution-given powers. With reviews speaking of a constitutional crisis, the Governor clarified in a tweet an hour later that it was once carried out at the suggestion of the West Bengal authorities to defuse rumour-mongers.

Proroguing a meeting is discontinuing, barring dissolving the House. The Governor, in his letter, referred to that his powers come via Article 174 of the Constitution of India. This act was once unprecedented, and the query used to be whether or not the powers have been justly used or misused. It is well-settled regulation that a Governor can use his discretionary powers given or envisaged in Article 174 of the Constitution, underneath real looking circumstances.

In his first tweet of the day, Governor Dhankhar wrote; “In exercising of the powers conferred upon me through sub-clause (a) of clause (2) of Article 174 of the Constitution, I, Jagdeep Dhankhar, Governor of the State of West Bengal, hereby prorogue the West Bengal Legislative Assembly with impact from 12 February 2022.”  An hour later he posted some other Tweet, stating; “WB Guv: because of inappropriate reporting in a part of media, it is indicated that taking the word of govt suggestion looking for proroguing of assembly, Guv in exercising of the powers conferred upon him by way of Article 174 (2)(a) the Constitution has prorogued WBLA w.e.f.  Feb 12,2022.”

So, what are the powers of a Governor, below the Constitution?

The powers of a Governor is described in Article 174 of the Constitution of India, which offers the strength to summon, prorogue and dissolve an assembly. Under Article 174, a Governor shall summon the House at a time and place, as she or he thinks fit. Article 174 (2) (a) says a governor can also from “time to time” prorogue the House and 174 (2) (b) lets in her or him to dissolve the Legislative Assembly. Article 163 of the Constitution defines the scope of the place the Governor might also workout positive features at his discretion, as supplied in Article 163(1). The first phase of Article 163(1) requires the Governor to act on the recommendation of his council of ministers. There is, however, an exception in the latter phase of the clause regarding things the place he is, below the Constitution, required to characteristic at his discretion. The expression “required” signifies that the Governor can work out his discretionary powers solely if there is a compelling necessity to do so. These two articles, examined together, explain the scope of a Governor’s powers.

Nabam Rebia judgment of the Supreme Court

The Supreme Court, in its latest judgment in the Nabam Rebia case (2016), settled the query of a Governor’s discretion and the ‘scope’ of judicial overview over the governor’s functions. The five-judge Constitution Bench had held that “a governor can summon, prorogue and dissolve the House, solely on the resource and recommendation of the council of ministers.” This explains the West Bengal Governor’s 2d Tweet. In that case, the Apex Court had clarified that if the Governor had motives to consider that the chief minister and she or his council of ministers have misplaced the self-belief of the House, a flooring takes a look at should be ordered. Instead, it looks the Governor acted in a manner hostile to the rule of regulation and therefore, arbitrarily and in a manner that in reality surprises “an experience of juridical propriety.”  That case had stemmed from a constitutional disaster in Arunachal Pradesh, which emerged when the Governor had superior the sixth session of the Legislative House from 14/01/2016 to 16/12/2015, via his order dated 09/12/2015, allegedly except the useful resource and recommendation of the council of ministers and the Chief Minister, and had listed the elimination of the speaker on the agenda, which constitutes the basis of a venture by using Speaker Nabam Rebia.

The plea moved in Calcutta High Court in search of elimination of Governor Jagdeep Dhankhar

Recently, a plea has been filed in the Calcutta High Court in search of instructions to the Central authorities to cast off Jagdeep Dhankhar, Governor, West Bengal, claiming that he used to be performing as the “mouthpiece of the Bharatiya Janata Party”. The plea alleged that he is bypassing the State council of ministers and is dictating without delay to State officers which is violative of the Constitution. Petitioner relied on B.P. Singhal v. Union of India, whereby the Supreme Court observed: “A Governor is neither the worker nor the agent of the Union government. It had been in addition discovered that like the President, Governors are predicted to be apolitical, discharging merely constitutional features irrespective of their in the past political backgrounds.”

Further, in the case of Rameshwar Prasad Vs. Union of India, whereby the Supreme Court had regarded that the Governor was once no longer excused from judicial evaluation certainly due to the fact he loved such immunity below Article 361 of the Constitution: “Immunity granted to the Governor beneath Article 361(1) does now not have an effect on the strength of the Court to judicially scrutinise the assault made to the proclamation issued beneath Article 361 (1) of the Constitution of India on the floor of mala fides or it being extremely vires”

Prorogation was held to be invalid, in the United Kingdom, in the case of R Vs Prime Minister by using a full bench of 11-justices Supreme Court

The Supreme Court of the United Kingdom on September 24, 2019, had dominated unanimously that prorogation was once each justiciable and unlawful, and consequently null and of no effect. The court docket observed that British Prime Minister Boris Johnson’s recommendation to Queen Elizabeth II to prorogue Parliament “was outdoor the powers of the Prime Minister”.

The choice got here in the case of “R Vs Prime Minister” the place the British Prime Minister suggested the Queen prorogue the Parliament. The UK Supreme Court had held, “The Court is sure to conclude, therefore, that the choice to recommend Her Majesty to prorogue Parliament was once illegal due to the fact it had the impact of irritating or stopping the capability of Parliament to lift out its constitutional features besides practical justification.”

This reference will become quintessential in the mild of the truth that the Indian Constitution used to be drafted with the structure and substance of current legal guidelines in the UK in mind, and with adaptations. Keeping these in mind, Governor Dhankhar’s 2nd tweet has good points of importance. If the government’s council of ministers had made this request to the governor, his act was once correct. If not, there would have been a court docket case in the offing. 

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