- The two prorogation orders signed by the governor on April 16 and July 13 although mention prorogation of first session and second (budget) session but not the house
- As per article 174(2)(a) of constitution of india, it is the house & not the session which should be prorogued by the governor - advocate Hemant
CHANDIGARH - A controversy has erupted owing to sudden withdrawal of an earlier summoning Order by the Punjab Governor Banwarilal Purohit pertaining to Special Session of current 16th Vidhan Sabha just a day after he on Sep 20, 2022 signed an Order in exercise of the powers conferred upon him by virtue of Clause (1) of Article 174 of the Constitution of India for summoning the Vidhan Sabha to meet for its third (Special) Session on 22 Sep 2022.
However, on 21 Sep 2022, the Governor, by issuance of another Order (although Article 174(1) of Constitution is not quoted therein) withdrew the earlier Order on summoning by quoting absence of the specific Rules regarding summoning of the Assembly for consideration of the Confidence Motion only by the House.
Amidst all this a debate has kick-started in legal and political circles over if indeed the Governor can do so i.e. withdraw his earlier consent granted on summoning the House and that too on his own means in other words, without the recommendation of the State Cabinet (Council of Ministers).
Meanwhile, an Advocate at Punjab and Haryana High Court, Hemant Kumar, while expressing utter surprise over the withdrawal Order issued by the Governor quoted that in a Parliamentary System of Government, it is a well established convention that the President and the Governor has to act on the aid and advice of the respective Union/State Council of Ministers save in exceptional circumstances which only include when the duly elected Government in power no more commands a majority in the House which however is not the case in Punjab where Bhagwant Mann led AAP (Aam Aadmi Party) has 92 MLAs in 117 member Punjab Vidhan Sabha and no one has questioned this fact. If the Government of the day desires to reaffirm its majority in the House even suo-motu (on its own), there is no legal impediment in the same. Earlier this month, Hemant Soren led Jharkhand Government also won a trust vote in the State Assembly in similar manner.
Hemant also recalls a similar withdrawal Order means an Order issued to rescind the earlier summoning Order as issued by then Haryana Governor, Kaptan Singh Solanki, on Aug 16, 2018 due to demise of former Prime Minister, AB Vajpayee the same day and since the Haryana Vidhan Sabha Monsoon Session was scheduled with effect from Aug 17, 2018 but because a seven day State Mourning was announced, hence Session could not be conducted during such period. However, the summoning Order was rescinded not by the Governor on his own but only after the recommendation of Chief Minister, ML Khattar, who was then duly authorised by the State Cabinet to make such a proposal.
Be that as it may, Hemant raises another interesting but serious legal (rather Constitutional) point. He asserts that although it has been over 6 months since current 16th Punjab Vidhan Sabha got constituted in March this year and its First Session was convened with effect from March 17 to March 22 which was firstly adjourned by the Speaker sine dine but was reconvened to meet again on April 1 after which it was again adjourned sine die. Thereafter, the prorogation Order was signed by the Governor under Article 174(2)(a) of the Constitution on April 16. However, the catch is that that Order mentioned prorogation of first Session of Punjab Vidhan Sabha and not the House.
Similarly on July 13, an Order signed by the Governor of Punjab mentions that he prorogues the Second (Budget) session of 16th Punjab Vidhan Sabha which was adjourned sine-die by the Speaker at the conclusion of its sitting held on 30th June 2022.
Hemant questions the above two Prorogation Order(s) as issued by the State Governor since in both it has been being erroneously mentioned that the Governor hereby prorogues the respective Session(s) of Punjab Vidhan Sabha because actually (read constitutionally) it is not the Session but rather the House which is to be prorogued by the Governor under Article 174 (2)(a) of Constitution of India.
The Advocate explains that prorogation means formal discontinuance of sittings of the House by the State Governor by issuing an Order under Article 174 (2)(a) of Constitution of India that is different from adjourning the House sine-dine, which however is ordered by the Speaker at the conclusion of all the Sittings of the House.
Although the House is summoned and prorogued by the Governor under Article 174(1) and Article 174(2)(a) of Constitution of India respectively, in reality such summoning and prorogation is actually decided by the ruling executive ( read the leader of the House i.e. the Chief Minister post approval by Cabinet/Council of Ministers) and thereafter a recommendation is made to the State Governor for issuing the formal Order.
Hemant asserts that even when both Houses of Parliament viz. Lok Sabha and Rajya Sabha are adjourned sine-dine by the Speaker and Chairperson of the House respectively, thereafter the President of India in exercise of the powers conferred upon him under Article 85(2)(a) of Constitution of India prorogues the both Houses viz. Lok Sabha and Rajya Sabha and not the Session(s) of both Houses. Similar is the situation in all other States in the country including the neighbouring State of Haryana.
Two months back on July 20, Hemant wrote in this regard to the Governor of Punjab, Speaker of Punjab Assembly, Chief Minister, State Parliamentary Affairs Minister, Chief Secretary etc. but unfortunately the above Orders have not been rectified till date which legally (constitutionally) means that as on date the Punjab Vidhan Sabha (House) is not prorogued. If that is so, there is no literally no need itself for sending any recommendation to the State Governor for summoning of the House.