The bench of Justices J B Pardiwala and R Mahadevan invoked Article 142 to take over the role vested with the Governor in the lawmaking process. The extraordinary power to pass orders to do “complete justice” is sparingly used by the Court, especially when it involves other Constitutional authorities.
The Court has also redrawn the contours of the Governor’s powers by prescribing a one-month time limit to exercise his lawmaking powers. The ruling is likely to have an impact on a similar case challenging the then Kerala Governor Arif Mohammad Khan’s powers in withholding assent to Bills passed by the state Assembly.
Although there have been multiple instances of another Constitutional body, the Speaker of an Assembly, delaying action in deciding disqualification cases under the Tenth Schedule, the Court has been wary of setting similar timelines.
The setting of time limits to exercise powers, however, is the latest in a series of rulings that have reined in the powers of the Governor. In Shamsher Singh v State of Punjab, a landmark 1974 ruling, the Supreme Court stated that the Governor is bound by the aid and advice of the Council of Ministers as a rule and can only exercise discretionary powers as an exception.
In the 2006 landmark ruling in Rameshwar Prasad v. Union of India, the Court held that the individual opinion of the Governor cannot be a ground for imposing President’s Rule.
Even when it comes to the judicial powers of the Governor in granting pardons and mercy, the Supreme Court in 2006 said that the decisions will be subject to limited judicial scrutiny.
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Again in 2016, a Constitution Bench of the Supreme Court in Nabam Rebia and Bamang Felix vs Deputy Speaker — the Arunachal Pradesh Assembly case — expressly said that the power to summon the House is not solely vested in the Governor.
The Punjab government in 2023 had moved the Supreme Court against Governor Banwarilal Purohit over his refusal to summon the Budget session of Vidhan Sabha.
“When the House is in session, it is the Speaker who can call for a floor test. But when the Assembly is not in session, the Governor’s residuary powers under Article 163 allow him to call for a floor test,” the Court had said.
However, there are two politically fraught areas where the role of the Governor is likely to be judicially scrutinised: the power to grant sanction for prosecution against state government officials; and the power to invite political parties to form a government.
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On the issue of granting sanction, the Karnataka case, where Governor Thawar Chand Gehlot granted sanction to prosecute Chief Minister Siddharamaiah in the MUDA case, is likely to bring up these issues before the Court.
The Governor’s role in government formation has also come under scrutiny several times before the Supreme Court. In 2017, then Karnataka Governor Vaju Bhai Vala was questioned over his decision to invite the BJP, the single largest party, to form the government over the numerically stronger post-poll alliance of Congress and JD (S). While the Court has called for floor tests as an immediate solution, the larger questions of law are still pending before the Court.