Row after Maharashtra governor refuses nod for speaker's election

The rift between the Maharashtra government and Governor Bhagat Singh Koshyari has further escalated as the latter has refused to give nod for holding the state Assembly Speaker’s election.

In this article, we propose to deal with the powers of the Speaker and the Governor as envisaged under the Constitution of India.

Understanding the ‘legal’ position

State Legislature

• The Constitution of India enumerates the formation of legislatures in States under Article 168, comprising of the
  • “Governor”
  • two Houses or one House as in maximum of the States

In this regard it is pertinent to dive into the constitutional provisions guiding the office of the Governor. 

Governor

• Article 163 mandates that there shall be a Governor in each State and such person must be a citizen of India and have completed thirty-five years of age, who under Article 154 shall be vested with the executive power of the State to be exercised by him directly or through officers subordinate to him in accordance with the Constitution.
• The term of the office of the Governor bridges on the pleasure of the President of India which shall be for a maximum period of five years at a stretch from the date of his entering upon his office.

Speaker

• Article 178 of the Constitution mandates that there shall be a Speaker and Deputy Speaker of the State Legislative Assembly.
• The office of the Speaker denotes the values on which parliamentary system of the Government is based.  
• The Speaker is conferred with the powers and privileges of the State Legislature.
• The Constitution of India lays down the powers and duties of the Speaker under Articles 96(2), 120(1), 100(4), 189(4), 195(1) and 210(1) of the Constitution of India.
• The Speaker derives his power from the rules of procedure of respective houses framed under the powers enshrined under the Constitution upholding the concept of constitutional morality.
• Accordingly, he is responsible for the conduct of the proceedings of the assembly in the manner of a guardian.
• The Speaker of the House is in charge and command of the proceedings of the House and such exercise of powers are normally protected under the concept of parliamentary privileges under Articles 122 and 212 of the Constitution of India.
• It will not be wrong to state that he is a link between the House and the executive Government and the Governor, the three pillars of a State Legislature.  
• The fundamental principle is that the House is sovereign in the matter to frame its own rules of procedure and the conduct of business.

How the Governor exercises his functions?

• The manner in which Governor can exercise his functions under the Constitution is enumerated under Article 163 of the Constitution of India.
• It provides that the Governor shall be advised by the Council of Minister with the Chief Minister as the head in the exercise of his functions save and except where the Governor is empowered to use his discretionary powers by or under the Constitution or, any law framed thereunder.
  • Thus, where the Governor acts as the Head of the State, except in relation to areas which are earmarked under the Constitution as giving discretion to the Governor, the exercise of power by him, must only be upon the aid and advice of the Council of Ministers, for the reason that the Governor, being the custodian of all executive and other powers under various provisions of the Constitution, is required to exercise his formal constitutional powers, only upon, and in accordance with, the aid and advice of his Council of Ministers.
• He is, therefore, bound to act under the Rules of Business framed under Article 166(3) of the Constitution.
• However, Article 163(2) empowers the Governor to act in his discretion, “except insofar as he is by or under this Constitution required to exercise his functions or any of them in his discretion.”
• This discretionary power has put the position of Governor at a much higher pedestal, thus sometimes leading to an arbitrary and lenient exercise of this power.