Dr Dhananjaya Y Chandrachud, CJI
1 On 22 February 2023, the Council of Ministers of the Government of Punjab
recommended the summoning of the Budget Session of the Sixteenth Punjab
Vidhan Sabha on 3 March 2023 under Article 174(1) of the Constitution.
2 On 23 February 2023, the Governor of Punjab addressed a communication to the
Chief Minister of the State. The subject of the letter was:
“Cabinet decision on summoning of the house of the legislature of
the State on 3rd March 2023.”
3 The letter of the Governor refers to a prior exchange of correspondence between
the Governor and the Chief Minister; the Governor having addressed an earlier
communication of 13 February 2023 to which the Chief Minister had responded
through a letter dated 14 February 2023 and a ’tweet’ of the same date.
4 In his communication of 13 February 2023 to the Chief Minister, the Governor
highlighted his concern on certain specific issues, namely:
(i) The basis on which Principals were selected for being sent to Singapore for
training; and
(ii) The appointment of the Chairman of the Punjab Information and
Communication Technology Corporation Limited.
5 The Governor noted that while the Chief Minister had in his previous
correspondence underscored the mandate with which he has assumed the
office of Chief Minister, in terms of Article 167 of the Constitution, the Chief Minister
is bound to furnish full details and information sought by the Governor.
6 Besides the above two issues, the Governor sought a clarification on the following
matters:
“(a) About two lacs Scheduled Castes students were compelled
to discontinue their studies due to non disbursal of scholarship
by the Government. (letter No.Spl.Secy.Gov/2022/95 dated
21-07-2022).
(b) To remove the illegally appointed Vice Chancellor of PAU
vide letter No.5/1/2021-PRB-PAU-2G/6904 dated 23-11-22.
(c) Inspite of my detailed letter dated 14-12-2022 you chose to
ignore all misdeeds of Sh. Kuldeep Singh Chahal, IPS. You
have not only promoted him but also posted him as
Commissioner of Jalandhar and that too the orders being
issued just before 26th January, knowing very well that
Governor is to unfurl the national flag at Jalandhar. I had to
instruct the DGP that concerned officer should maintain
distance during ceremony. On this issue it seems that this
officer was your blue eyed boy and you chose to ignore facts
that were brought to your notice by this office.
(d) Vide letter dated 4-1-2023 I wrote about the presence of Sh.
Naval Aggarwal in meetings of senior officers, where sensitive
and confidential matters of security of the country are
discussed. I have not received any reply till date.
(e) My letters asking for details of advertisements where you were
asked for complete details, is also perhaps lying in cold
storage.”
7 Responding to the above communication, the Chief Minister (@ Bhagwant Mann)
issued a tweet in the following terms:
“Hon’ble Governor Sir, your letter was received through the
media..all the subjects mentioned in the letter are all state
subjects...I and my government are accountable to 3 crore
Punjabis according to the Constitution and not to any Governor
appointed by the Central Government. Consider this as my reply.”
8 This was followed by another communication of the Chief Minister dated 14
February 2023, in which he stated thus:
Dated:14.02.2023
Honorable Governor Sahib,
I have received your letter No.Spl.Secy.Gov/2023/34 dated 13th
February, 2023.
All the subjects mentioned in your letter are the subjects of the state
government. In this regard, I would like to clarify that according to
the Indian Constitution, I and my government are answerable to 3
crore Punjabis.
You have asked me, on what basis the principals are selected for
training in Singapore. The people of Punjab want to ask, on what
basis are the Governors in different states elected by the Central
Government in the absence of any specific qualification in the
Indian Constitution?
Please increase the knowledge of Punjabis by telling this.”
9 In the backdrop of the aforesaid communication by the Chief Minister and his
tweet, the Governor while responding to the request of the Cabinet for
summoning the Budget Session of the Vidhan Sabha from 3 March 2023 stated
that:
“ Since your tweet and letter, both are not only patently
unconstitutional but extremely derogatory also, therefore, I am
compelled to take legal advice on this issue. Only after getting
legal advice, I will take decision on your request”.
10 The inaction of the Governor in summoning the Assembly for the Budget Session
has led to the invocation of the jurisdiction of this Court under Article 32 of the
Constitution by the State of Punjab.
11 The Government of Punjab seeks (a) a declaration that the Governor of Punjab is
duty bound to act on the aid and advice of the Council of Ministers in matters of
summoning or proroguing of the Vidhan Sabha of the State of Punjab; (b) a writ
of certiorari quashing the communication of the Governor dated 23 February
2023 stating that a decision on the recommendation of the Council of Ministers
for summoning the Vidhan Sabha for its Budget Session would be taken only after
obtaining legal advice; and (c) a direction to the Principal Secretary to the
Governor of Punjab to facilitate the issuance of appropriate orders for summoning
the Legislative Assembly for its Budget Session at 10 am on 3 March 2023.
12 Since the date for the convening of the Budget Session is barely three days away,
the petition was mentioned for urgent orders, on which it was directed to be listed
at 3.50 pm today.
13 Dr Abhishek Manu Singhvi, senior counsel has appeared on behalf of the
petitioner. Mr Tushar Mehta, Solicitor General of India appears on behalf of the
first respondent. Mr Ajay Pal, counsel has appeared for the second respondent.
14 At the outset, the Solicitor General has placed on the record an order dated 28
February 2023 of the Governor of Punjab. For convenience of reference, the order
is extracted below:
“In exercise of the powers conferred upon me by virtue of
Clause(1) of Article 174 of the Constitution of India, I, Banwarilal
Purohit, Governor of Punjab, hereby summon the Sixteenth Vidhan
Sabha of the State of Punjab to meet for its Fourth (Budget) Session
at 10.00 am on Friday, the 3rd March 2023 in the Punjab Vidhan
Sabha Hall, Vidhan Bhavan, Chandigarh.”
15 In terms of the above order, the Governor of Punjab has summoned the Sixteenth
Vidhan Sabha of the State of Punjab to meet for its Fourth (Budget) Session at 10
am on 3 March 2023.
16 With the issuance of the above order by the Governor, the reliefs which have
been sought in the petition have been substantially fulfilled. However, before
disposing of the petition, there are certain facets which must be highlighted by
this Court in the exercise of its constitutional duty.
17 The institution of these proceedings has its genesis in the communications issued
by the Governor for the disclosure of information by the State government. Article
167 of the Constitution enunciates the duty of the Chief Minister to furnish
information to the Governor. The provision is in the following terms:
“167. Duties of Chief Minister as respects the furnishing of
information to Governor, etc– It shall be the duty of the Chief
Minister of each State–
(a) to communicate to the Governor of the State all decisions of
the Council of Ministers relating to the administration of the
affairs of the State and proposals for legislation;
(b) to furnish such information relating to the administration of the
affairs of the State and proposals for legislation as the
Governor may call for; and
(c) if the Governor so requires, to submit for the consideration of
the Council of Ministers any matter on which a decision has
been taken by a Minister but which has not been considered
by the Council.”
18 The Chief Minister has the duty to communicate to the Governor all decisions of
the Council of Ministers relating to the administration of the affairs of the State and
proposals for legislation. Going beyond the duty to communicate, the Chief
Minister has a duty to furnish such information relating to the administration of the
affairs of the State and proposals for legislation as the Governor may require.
Moreover, if the Governor so requires, the Chief Minister is duty bound to submit
for consideration to the Council of Ministers any matter on which the decision is
taken by a Minister which has not been considered by the Council of Ministers.
19 The power of the Governor to seek information under Article 167 must be read
holistically with reference to their duties as constitutional head under the
Constitution. The information that the Governor seeks under Article 167 would
enable them to effectively discharge their duties. To illustrate, the Governor has
the power to direct reconsideration of bills that are passed in the assembly. For
the Governor to make this decision, it is necessary that all the relevant information
that would aid them in making the said decision must be made available.
Similarly, the governor requires all relevant information to identify if a decision has
been taken by a Minister individually without the consideration of the council. The
Governor might be unable to discharge their duty under Article 167(c) if the Chief
Minister does not discharge their duty under Article 167(a) and Article 167 (b) by
providing the Governor with relevant information as requested. Thus, the Chief
Minister is required to discharge their duties under Article 167 to enable the
Governor to effectively discharge their duties stipulated in the Constitution. The
framers of the Constitution were prescient in incorporating the above provisions.
They ensure that while on the one hand the administration of the State is entrusted
to a democratically elected Chief Minister who heads the Council of Ministers,
which in turn, owes collective responsibility to the state legislature, the Governor
as a constitutional authority appointed by the President is entrusted with the duty
to ensure a just, fair, and honest administration. In this context, it is important to
refer to the speech of Dr. BR Ambedkar on Article 167 (draft Article 147) in the
Constitution Assembly:1
“A distinction has been made between the functions of the
Governor and the duties which the Governor has to perform. My
submission is that although the Governor has no functions still, even
the constitutional Governor, that he is, has certain duties to
perform. His duties, according to me, may be classified in two parts.
One is, that he has to retain the Ministry in office. Because the
Ministry is to hold office during his pleasure, he has to see whether
and when he should exercise his pleasure against the Ministry. The
second duty which the Governor has, and must have, is to advise
the Ministry, to warn the Ministry, to suggest to the Ministry an
alternative and to ask for a reconsideration. I do not think that
anybody in this House will question the fact that the Governor
should have this duty cast upon him; otherwise, he would be an
absolutely unnecessary functionary: no good at all: He is the
representative not of a party, he is representative of the people as
1 Dr BR Ambedkar in response to Biswanath Das, Constituent Assembly of India Debates (Proceedings)- Volume VIII (2 June 1949)
a whole of the State. It is in the name of the people that he carries
on the administration. He must see that the administration is carried
on a level which may be regarded as good, efficient, honest
administration. Therefore, having regard to these two duties which
the Governor has namely, to see that the administration is kept
pure, without corruption, impartial, and that the proposals
enunciated by the Ministry are not contrary to the wishes of the
people, and therefore to advise them, warn them and ask them to
reconsider-I ask the House, how is the Governor in a position to
carry out his duties unless he has before him certain information? I
submit that he cannot discharge the constitutional functions of a
Governor which I have just referred to unless he is in a position to
obtain the information.”
20 The power to summon, prorogue and dissolve the legislative assembly is enshrined
in Article 174 of the Constitution which is extracted below:
“174. Sessions of the State Legislature, prorogation and dissolution.–
(1) The Governor shall form time to time summon the House or each
House of the Legislature of the State to meet at such time and
place as he thinks fit, but six months shall not intervene between its
last sitting in one session and the date appointed for its first sitting in
the next session.
(2) The Governor may from time to time–
(a) prorogue the House or either House;
(b) dissolve the Legislative Assembly.”
21 The decision of a seven-Judge Constitution Bench in Shamsher Singh vs State of
Punjab2 has laid down that the Governor is a constitutional or formal Head of the
State and exercises powers and functions on the aid and advice of the Council
2 (1974) 2 SCC 831
of Ministers. The relevant extracts from the decision make the position of law clear:
“28. Under the Cabinet system of Government as embodied in our
Constitution the Governor is the constitutional or formal head of the
State and he exercises all his powers and functions conferred on
him by or under the Constitution on the aid and advice of his
Council of Ministers save in spheres where the Governor is required
by or under the Constitution to exercise his functions in his
discretion.
32. It is a fundamental principle of English Constitutional law that
Ministers must accept responsibility for every executive act. In
England the Sovereign never acts on his own responsibility. The
power of the Sovereign is conditioned by the practical rule that the
Crown must find advisers to bear responsibility for his action. Those
advisers must have the confidence of the House of Commons. This
rule of English Constitutional law is incorporated in our Constitution.
The Indian Constitution envisages a Parliamentary and responsible
form of Government at the Centre and in the States and not a
Presidential form of Government. The powers of the Governor as the
constitutional head are not different.
142. The extraordinary powers of legislation by ordinances,
dispensing with enquiries against public servants before dismissal,
declaration of emergency and imposition of President's rule by
proclamation upon States, are vast powers of profound
significance. Indeed, even the power of summoning and
proroguing and dissolving the House of the People and returning
Bills passed by the Parliament belongs to him. If only we expand
the ratio of Sardari Lal and Jayantilal to every function which the
various articles of the Constitution confer on the President or the
Governor, Parliamentary democracy will become a dope and
national elections a numerical exercise in expensive futility. We will
be compelled to hold that there are two parallel authorities
exercising powers of governance of the country, as in the dyarchy
days, except that Whitehall is substituted by Rashtrapati Bhavan
and Raj Bhavan. The Cabinet will shrink at Union and State levels in
political and administrative authority and, having solemn regard to
the gamut of his powers and responsibilities, the Head of State will
be reincarnation of Her Majesty's Secretary of State for India,
untroubled by even the British Parliament — a little taller in power
than the American President. Such a distortion, by interpretation, it
appears to us, would virtually amount to a subversion of the
structure, substance and vitality of our Republic, particularly when
we remember that Governors are but appointed functionaries and
the President himself is elected on a limited indirect basis. As we
have already indicated, the overwhelming catena of authorities of
this Court have established over the decades that the cabinet form
of Government and the Parliamentary system have been adopted
in India and the contrary concept must be rejected as incredibly
allergic to our political genius, constitutional creed and culture.”
(emphasis supplied)
22 This position was reiterated by a Constitution Bench in Nabam Rebia v. Dy.
Speaker, Arunachal Pradesh Legislative Assembly3. In view of the constitutional
provision and the judgments of this Court, there can be no manner of doubt that
the authority which is entrusted to the Governor to summon the House or each
House of the Legislature of the State is to be exercised on the aid and advice of
the Council of Minsters. This is not a constitutional arena in which the Governor is
entitled to exercise his own discretion. In the present case, the Governor was not
summoning the House for the first time following a general election, but was
advised by the Council of Ministers to convene the Budget Session, at the behest
of a government which has been duly elected in the general election. Plainly, the
Governor was duty bound to do so.
23 While responding to the request by the Council of Ministers for summoning the
House, the communication of the Governor dated 23 February 2023 referred to
the Cabinet decision. However, the Governor also referred to the tweet of the
3 (2016) 8 SCC 1
Chief Minister and to his letter dated 14 February 2023 and then proceeded to
state that since both the tweet and the letter were “patently unconstitutional”
and “extremely derogatory”, he was compelled to take legal advice “on this
issue” and that he would decide on the request thereafter. There was no occasion
to seek legal advice on whether or not the Budget Session of the Legislative
Assembly should be convened. The Governor was plainly bound by the advice
tendered to him by the Council of Ministers.
24 Having said this, it would also be necessary to underscore that both the Chief
Minister and the Governor are constitutional functionaries who have specified
roles and obligations earmarked by the Constitution. The Governor has a right to
seek information from the Chief Minister in terms of Article 167(b) on matters
relating to the administration of the affairs of the State and proposals for
legislation. Once such information is sought, the Chief Minister is duty bound to
furnish it. The tone and tenor of the tweet and the letter by the Chief Minister leave
much to be desired. Not furnishing the information which was sought by the
Governor would be plainly in dereliction of the constitutional duty which is
imposed on the Chief Minister in terms of Article 167(b). Yet on the other hand,
the dereliction of the Chief Minister to do so would not furnish a justification for the
Governor not to comply with the constitutional obligation to summon the House
for its Budget Session in terms of the advice which was tendered by the Council
of Ministers. It was after the institution of the petition under Article 32 that the
Assembly was summoned.
25 The genesis of the controversy has required the intervention of this Court at two
distinct levels: first, to ensure that the constitutional duty of the Governor to act on
the aid and advice of the Council of Ministers to summon the Legislative Assembly
is fulfilled without delay or demur; and second, to ensure that the obligation of
the Chief Minister to furnish information to the Governor in terms of Article 167(b)
of the Constitution is fulfilled. There are two equally important aspects for the
functioning of a parliamentary democracy. First, the failure of a constitutional
authority to fulfill its obligation under a distinct provision of the Constitution does
not furnish a justification to another to decline to fulfill its own constitutional
obligation. Second, while this Court is cognizant of the importance of free speech
and expression and the fundamental value embodied in Article 19(1)(a), it
becomes necessary to emphasize that constitutional discourse has to be
conducted with a sense of decorum and mature statesmanship.
26 Political differences in a democratic polity have to be worked upon and sorted
out with a sense of sobriety and maturity. The dialogue between constitutional
functionaries cannot degenerate into a race to the bottom. Unless these
principles were to be borne in mind, the realization of constitutional values may
be placed in jeopardy. Such a situation emerged before this Court, leading to the
institution of a petition under Article 32 of the Constitution for a direction to the
Governor to summon the Legislative Assembly. It is inconceivable that the Budget
Session of the Legislative Assembly would not be convened. We can only hope
that mature constitutional statesmanship will ensure that such instances do not
occur in the future as much as we reiterate our expectation that constitutional
functionaries must be cognizant of the public trust in the offices which they
occupy. The public trust which is entrusted to them is intended to sub-serve the
cause of our citizens and to ensure that the affairs of the nation are conducted
with a sense of equanimity so as to accomplish the objects of the Preamble to the
Constitution.
27 With these observations, the Petition shall stand disposed of.
28 Pending applications, if any, stand disposed of.
[Dr Dhananjaya Y Chandrachud]
[Pamidighantam Sri Narasimha] New Delhi; February 28, 2023 CKB