Rajasthan governor Kalraj Mishra has no option but to accept the recommendation of the chief minister Ashok Gehlot Cabinet to convene the assembly session, legal experts said on Friday.
Referring to Constitution schemes on power and duties of governor, they were of the common view that the governor is duty-bound by the advice of the Cabinet.
Amid high political drama unfolding in the state, Gehlot accused Mishra on Friday of being under pressure not to call the assembly session.
Gehlot, whose government is facing challenge from 19 rebel Congress MLAs, including his sacked deputy chief minister Sachin Pilot, said the state government requested the governor to call the session, but he had not yet issued the order.
Referring to the 5-judge Constitution Bench judgement in Nabam Rebia (Arunachal Pradesh) case, senior advocates Rakesh Dwivedi and Vikas Singh said the Supreme Court has clearly stated that Governor is bound by the advice of the Cabinet and he has to convene the Assembly.
Dwivedi said the Governor has no discretion and at best he can confer with the chief minister for change of date to hold the session.
Another senior lawyer, who refused to be named, said that once the Cabinet sends a recommendation, the governor is bound to convene a meeting of the assembly for the floor test.
Singh said: "In Nabam Rebia matter, the Supreme Court has clearly said that governor is bound by the advice of the Cabinet. He can't say no and he has to call the house whenever the chief minister asks him to do so.
The senior lawyer said it is for the chief minister to see whether there is a threat of coronavirus or not.
"It is not for the governor. He can direct people to follow rules and do social distancing. But he cannot refuse the chief minister," Singh said.
Referring to Article 163(1) of the Constitution, the apex court in its judgement had said that governor is bound by the advice of his Council of Ministers.
"Governor is only a formal or constitutional head. His executive functions are, therefore, dependent on the aid and advice given by the Council of Ministers. Since there is no provision enabling the Governor to act in 'his individual judgment' the Governor is bound by the advice of the Council of Ministers with whose aid he acts," the top court had said.
The Rajasthan high court on Friday morning ordered maintaining status quo on disqualification notices issued by assembly speaker C P Joshi to the 19 dissident Congress MLAs, including Sachin Pilot.
The notices were served by the Assembly speaker to the MLAs on July 14 after the party complained to him that the legislators had defied a whip to attend two Congress Legislature Party meetings last week.
Rajasthan Congress MLAs in the Ashok Gehlot camp have begun a ‘dharna' at the Raj Bhawan, saying they will stay put till the Governor summons the session of the state assembly.
