The Telegraph
Since 1st March, 1999
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Debate set up on power of governor

New Delhi, Sept. 7: The Bahujan Samaj Party’s writ petition challenging the Uttar Pradesh governor’s invitation to Mulayam Singh Yadav to form the government will be “mentioned” tomorrow in the Supreme Court.

BSP MP Rasheed Alvi said the petition would be taken up during the “mentioning hour” of the apex court as the registry has not yet “numbered it for hearing”. Mulayam Singh is slated to seek a vote of confidence on Monday.

Alvi’s petition contested governor Vishnu Kant Shastri’s invitation to Mulayam Singh, terming it an “unconstitutional act” which violated Article 174 of the Constitution.

Under Article 174, the governor “dissolves” the Assembly after the chief minister recommends so, as was advised by Mayavati. The chief minister can advise the governor to dissolve the House even without a cabinet decision.

The aspect that will come up for debate in the apex court is the power of a chief minister to recommend dissolution and whether the governor should pay heed or explore whether an alternative government could be formed.

Alvi’s petition contends that the governor should have acted on the advice of the council of ministers headed by the chief minister as the President acted on the advice of the council of ministers headed by the Prime Minister.

The example cited here is the recommendation of Prime Minister Chandra Shekhar in 1991 to then President R. Venkataraman for the dissolution of the House.

However, Venkataraman did explore the possibility of an alternative government which could not materialise and then the Lok Sabha was dissolved.

Alvi said he had filed the writ petition and, “being a practising lawyer, I myself would mention the petition on Monday”. “If need be”, a senior counsel would also be fielded, he added.

“I have filed a writ petition in the Supreme Court contending that after the chief minister had recommended dissolution, the governor could not invite any other person to form the government. Therefore, Shastri’s invitation to Mulayam Singh to form the government is unconstitutional,” Alvi said.

He said Article 174 of the constitution “enjoins” a duty on the governor to act according to the advice of the chief minister who had recommended dissolution.

According to Justice Rajinder Sachar, a retired chief justice of Delhi High Court, a chief minister could recommend dissolution without even the cabinet having to take a collective decision on the matter.

“However, if the governor is of the opinion that an alternative could be tested, a party or coalition likely to prove majority in the House is invited to form the government,” he said.

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