Kalraj Mishra, the Governor of Rajasthan has been at the centre of the political storm still raging in the state. The Assembly session is yet to be called, even after the courts’ directives, and the sit-in protests by the elected legislators led by Chief Minister Ashok Gehlot. Now, three former law ministers have written to the Rajasthan governor on the issue and have reminded him that the delay in convening a session of the state Assembly “has resulted in an avoidable constitutional crisis.”
The three former ministers; Ashwani Kumar, Kapil Sibal and Salman Khurshid who are all well known legal experts, have stated that the “Governor’s office, as envisaged under the country’s constitutional scheme, is above and beyond the constraints and compulsions of partisan politics, ‘so that its holder can act freely and fairly to uphold the Constitution’”.
They wrote, “Having served as Union ministers of Law and Justice in different periods of time and as students of Constitutional law, we are of the clear view that established legal position obliges the Governor to call the assembly session in accordance with the advice of the state cabinet. Any deviation from established constitutional position in the present circumstances would be an avoidable negation of your oath of office and will create a constitutional crisis.”
The law is clear on the matter, and the former law ministers added that according to established conventions and the relevant articles of the Constitution, principles of parliamentary democracy and authoritative pronouncements of the Supreme Court, the governor is bound to act on the aid and advice of the council of ministers.
However, on Monday July 27, Rajasthan Governor Kalraj Mishra returned the cabinet note of CM Ashok Gehlot seeking an Assembly session, and sought additional information. This is the second time that he has returned the proposal and asked the state government for clarifications. This time, Ashwini Kumar, took to social media and commented that, “The Governor’s decision to not honour the State Cabinet’s decision to convene the Assembly session is contrary to established constitutional position & conventions and will escalate inter institutional conflict.”
The Governor’s decision to not honour the State Cabinet’s decision to convene the Assembly session is contrary to established constitutional position & conventions and will escalate inter institutional conflict.#RajasthanPoliticalCrisis @SachinPilot @ashokgehlot51 @RahulGandhi https://t.co/WZRhYaJUEk
— Dr. Ashwani Kumar (@DrAshwani_Kumar) July 27, 2020
Sachin Pilot, the former Deputy Chief Minister of Rajasthan had even approached the Rajasthan High Court against the notice of disqualification issued against him by the Speaker of the Assembly and the court accordingly granted stay. Then the Speaker, CP Joshi, approached the Supreme Court seeking a stay on the proceedings in the HC, which was rejected by the apex court.
Yet again, Joshi filed another petition for stay before the SC, which was then withdrawn as it was deemed infructuous by the petitioner. Kapil Sibal, however, weighed in on the possibility that they may approach the court again after reading detailed orders of the Rajasthan HC.
Kapil Sibal also questioned the delay and put the spotlight back on the Governor. He tweeted, “Has Kalraj Mishra : Taken an oath to uphold the Constitution and the Laws Or To uphold the political interests of the BJP ? Is the Rajasthan High Court not obliged to follow the Constitution Bench of the Supreme Court Or Is there some other law that binds it ?”
Has Kalraj Mishra :
Taken an oath to uphold the Constitution and the Laws
To uphold the political interests of the BJP ?
Is the Rajasthan High Court not obliged to follow the Constitution Bench of the Supreme Court
Is there some other law that binds it ?
— Kapil Sibal (@KapilSibal) July 28, 2020
In their letter, the former law ministers cited a order of the Supreme Court, and said, “The governor’s position, role and the limits of his circumscribed constitutional jurisdiction have been elaborated by the apex court in the “Shamsher Singh versus Union of India” case in 1974 and in the Nabam Rebia case of 2016.”
“As a holder of high public office, you are well aware that constitutional functionaries are charged by the oath of office to vindicate the Constitution in letter and spirit. This obliges the Governor, in accordance with established traditions of constitutional and parliamentary democracy, to defer to the wisdom of an elected government that expresses the will of the people,” “We hope earnestly that true to the demands of your high office, you will not act in any manner that will countenance such a result,” they said, adding, “The Governor is expected to defer to the established constitutional position that binds him to act in accordance with the advice of the Council of Ministers. Failure to do so has led to a constitutional stalemate and has made the Governor’s position untenable.”
The Congress government in Rajasthan, which is facing a political crisis following a rebellion by Sachin Pilot, and 18 other MLAs. Pilot has been seeking ‘recognition’ for his work in the state when he headed the state unit, and as reported in the media, had been hinting at being installed in the CM’s chair as a reward for the Congress’ win. But all the ‘rebel’ MLAs including Pilot say they remain members of the Congress, even if they do not have a ministerial portfolio anymore. On his part, CM Ashok Gehlot has been constantly seeking that an Assembly Session be called, and seems to be confident of winning a trust vote if that is called for as well. Hence, the delay in convening the session has fuelled concern in the civil society of the state in particular, and the country.
Meanwhile, over 200 representatives of 86 organisations from the state, and eminent citizens including Aruna Roy, Lad Kumari Jain, PL Mimroth, Dharam Chand Khair, Radha Kant Saxena, DK Changani, Mohammed Nazimuddin and others, have also written to the Governor of Rajasthan on the issue. They have expressed deep concern that the political crisis was ongoing at a time when the whole world was combating the public health crisis caused by Covid-19. “When the people of Rajasthan needed a stable Government and good and just governance and redressal systems, to cope with the health crisis and the adverse impact that Covid-19 had caused, the state was being led into a Constitutional Crisis, which was very disheartening,” they wrote.
The civil society representatives have urged that the Governor Kalraj Mishra, respect the cabinet decision to call an Assembly session “in order to give the people of the state political stability”.
They also presented the legal arguments provided by several Constitutional experts who had a consensus on the following issues. They are:
• According to the Article 174 of the Indian Constitution and the 3 Supreme Court judgments, in 1994, Bommai (Karnataka State), 2016. Rebiya (Arunachal State) and 2020, Shivraj Singh (Madhya Pradesh) only floor test in the vidhan sabha is the Constitutional permissible way of establishing the majority of any party.
• According to article 174 if the Assembly has to be convened the Governor “shall” act on the “aid and advise” of the Council of Ministers headed by the C.M.
• The only exception to this above process, where the cabinet has exclusive rights to call a session of the Assembly, at a timing of its choosing, is if the Governor believes based on an objective evaluation when it feels that party in power has lost its majority- the only way in which its majority can be tested is on the floor of the house and therefore, the Governor can use his discretion to call the assembly under such circumstances.
• Thus under all other circumstances the Governor is bound by the advice of the cabinet where he can neither deny nor delay their suggestion of calling a session of the Assembly.
The letter by the former law ministers may be read here:
The letter by civil society members may be read here: