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Defining article 175

Article 175 does empower the Governor to address and send messages to the House or Houses (in states with a Legislative Council). The Governor can send messages “whether with respect to a Bill then pending in the Legislature or otherwise”, and the House “shall with all convenient dispatch consider any matter required by the message to be taken into consideration”.

However, as held by the Supreme Court in many cases, the power of the Governor is not absolute. He is bound to act on the advice of the state cabinet. In its landmark judgment in Union of India vs Valluri Basavaiah Chaudhary and Others, a Constitution bench of the Supreme Court in 1979 held that the Governor was a “constitutional had of the State Executive, and has, therefore, to act on the advice of the Council of Ministers”.

 

The court said: “The governor has a right of addressing and sending messages…under Arts. 175 and 176, and of summoning , proroguing and dissolving under Article 174, the State Legislature, just as the President has in relation to Parliament… In all these matters the Governor as the constitutional head of the State is bound by the advice of the Council of Ministers”.

The same judgment said: “…The right of the Governor to send messages…under Article 175(2), with respect to a Bill then pending in the Legislature or otherwise, normally arises when the Governor withholds his assent, to a Bill under Article 200, or when the President, for whose consideration a Bill is reserved for assent, returns the Bill…As already stated, a ‘Bill’ is something quite different from a ‘resolution of the House’ and, therefore, there is no question of the Governor sending any message under Article 175(2) with regard to a resolution pending before the House or Houses of the Legislature”.

Through this judgment, the court has set aside a judgment of the Andhra Pradesh High Court, which had, in the same matter, held that the term “legislature” in Article 252(1) referred to both Houses of Legislature – Assembly and Council – and the Governor.

More recently, in the context of the tussle between the then UPA – appointed Governor of Gujarat Kamla Beniwal and then Chief Minister Narendra Modi’s government over the appointment of Justice R A Mehta as Lokayukta, the SC held that the Governor enjoys complete immunity under Article 361(1) of the Constitution, and his actions can’t be challenged since he acts only upon the advice of the Council of Ministers.

“If this was not the case, democracy itself would be in peril. The Governor is not answerable to either House of State, or to the Parliament, or even to the Council of Ministers, and his acts cannot be subject to judicial review. In such a situation, unless he acts upon the aid and advice of the Council of Ministers, he will become all powerful and this is an anti-thesis to the concept of democracy,” the court held.

“Under…our Constitution, the Governor is synonymous with the State Government, and can take an independent decision upon his/her own discretion only when he/she acts as a statutory authority under a particular Act, or under the exception(s) provided in the Constitution itself,” it said.

The court also laid down the rules of conduct for all wings of government, including the Governor: “…Successful functioning of the Constitution depends upon democratic spirit, i.e. a spirit of fair play, of self restraint, and of mutual accommodation of different views, different interests and different opinions of different set of persons”.