STATE OF PUNJAB versus PRINCIPAL SECRETARY TO THE GOVERNOR OF PUNJAB AND ANOTHER on 28 February 2023

SUPREME COURT REPORTS[2023] 6 S.C.R. 532

[2023] 6 S.C.R.

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STATE OF PUNJAB

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PRINCIPAL SECRETARY TO THE GOVERNOR OF PUNJABAND ANOTHER

B(Writ Petition (Civil) No. 302 of 2023)

FEBRUARY 28, 2023

[DR. DHANANJAYA Y CHANDRACHUD, CJI ANDPAMIDIGHANTAM SRI NARASIMHA, J.]

Constitution of India – Art.174 – Governor addressed aCcommunication (dated 13.02.2023) to the Chief Minister (CM)highlighting his concern on certain issues to which the CM hadresponded through a letter and a ’tweet’ (not furnished the relevantinformation sought) – The Governor noted that the CM in hiscorrespondence underscored the mandate of Art. 167 of theDConstitution as per which the CM is bound to furnish full detailsand information sought by the Governor – On 22.02.2023, theCouncil of Ministers of the Government of Punjab recommendedthe summoning of the Budget Session of the Vidhan Sabha on03.03.2023 under Art. 174(1) – The Governor of Punjab addresseda communication to the CM, which referred to the prior exchangeEof correspondence between them and stated that only after takinglegal advice on the prior exchange between them, he will take adecision on the recommendation – State filed a writ petition u/Art.32on the inaction of the Governor in summoning the Assembly for theBudget Session – Held: In terms of the order dated 28.02.2023F(after the institution of petition), the Governor had summoned theVidhan Sabha to meet for its Fourth (Budget) Session on 03.03.2023,thus the reliefs sought have been substantially fulfilled – Further,that there was no occasion to seek legal advice on whether or notthe Budget Session of the Legislative Assembly should be convened,as per the constitutional provision the Governor was plainly boundGby the advice tendered to him by the Council of Ministers.

Constitution of India – Art.167 – Scope of – Held: The ChiefMinister has the duty to communicate and duty to furnish suchinformation relating to the administration of the affairs of the Stateand proposals for legislation as the Governor may require – TheH

STATE OF PUNJAB v. PRINCIPAL SECRETARY TO THE GOVERNOR OFPUNJAB AND ANOTHER

information that the Governor seeks under Art. 167 would enablethem to effectively discharge their duties – The Chief Minister isrequired to discharge their duties under Art. 167 to enable theGovernor to effectively discharge their duties stipulated in theConstitution.

Disposing of the petition, the Court

HELD:1. The Governor of Punjab has summoned theSixteenth Vidhan Sabha of the State of Punjab to meet for its Fourth(Budget) Session at 10 am on 3 March 2023. With the issuanceof the above order by the Governor, the reliefs which have beensought in the petition have been substantially fulfilled. [Paras15,16][538-G-H]

2. The Chief Minister has the duty to communicate to theGovernor all decisions of the Council of Ministers relating to theadministration of the affairs of the State and proposals forlegislation. Going beyond the duty to communicate, the ChiefMinister has a duty to furnish such information relating to theadministration of the affairs of the State and proposals forlegislation as the Governor may require. Moreover, if theGovernor so requires, the Chief Minister is duty bound to submitfor consideration to the Council of Ministers any matter on whichthe decision is taken by a Minister which has not been consideredby the Council of Ministers. [Para 18][539-E-F]

3. The power of the Governor to seek information underArticle 167 must be read holistically with reference to their dutiesas constitutional head under the Constitution. The informationthat the Governor seeks under Article 167 would enable them toeffectively discharge their duties. To illustrate, the Governor hasthe power to direct reconsideration of bills that are passed in theassembly. For the Governor to make this decision, it is necessarythat all the relevant information that would aid them in makingthe said decision must be made available. Similarly, the governorrequires all relevant information to identify if a decision has beentaken by a Minister individually without the consideration of thecouncil. The Governor might be unable to discharge their duty A

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Aunder Article 167(c) if the Chief Minister does not dischargetheir duty under Article 167(a) and Article 167 (b) by providingthe Governor with relevant information as requested. Thus, theChief Minister is required to discharge their duties under Article167 to enable the Governor to effectively discharge their dutiesstipulated in the Constitution. [Para 19][539-G-H; 540-A-B]

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4. While responding to the request by the Council ofMinisters for summoning the House, the communication of theGovernor dated 23 February 2023 referred to the Cabinetdecision. However, the Governor also referred to the tweet ofthe Chief Minister and to his letter dated 14 February 2023 andCthen proceeded to state that since both the tweet and the letterwere “patently unconstitutional” and “extremely derogatory”,he was compelled to take legal advice “on this issue” and that hewould decide on the request thereafter. There was no occasionto seek legal advice on whether or not the Budget Session of theDLegislative Assembly should be convened. The Governor wasplainly bound by the advice tendered to him by the Council ofMinisters. [Para 23][543-D-F]

5. The genesis of the controversy has required theintervention of this Court at two distinct levels: first, to ensureEthat the constitutional duty of the Governor to act on the aid andadvice of the Council of Ministers to summon the LegislativeAssembly is fulfilled without delay or demur; and second, toensure that the obligation of the Chief Minister to furnishinformation to the Governor in terms of Article 167(b) of theConstitution is fulfilled. There are two equally important aspectsFfor the functioning of a parliamentary democracy. First, the failureof a constitutional authority to fulfill its obligation under a distinctprovision of the Constitution does not furnish a justification toanother to decline to fulfill its own constitutional obligation.Second, while this Court is cognizant of the importance of freeGspeech and expression and the fundamental value embodied inArticle 19(1)(a), it becomes necessary to emphasize thatconstitutional discourse has to be conducted with a sense ofdecorum and mature statesmanship. [Para 25][544-C-E]

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Shamsher Singh v. State of Punjab (1974) 2 SCC 831 :[1975] 1 SCR 814; Nabam Rebia v. Dy. Speaker,Arunachal Pradesh Legislative Assembly (2016) 8 SCC1: [2016] 6 SCR 1 – followed.

Case Law Reference

[1975] 1 SCR 814followedpara 21[2016] 6 SCR 1followedpara 22

CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.302 of 2023.

Under Article 32 of The Constitution of India Shadan Farasat, AAG, Dr. Abhishek Manu Singhvi, Sr. Adv., AmitBhandari, Shourya Dasgupta, Ms. Hrishika Jain, Ms. Mreganka Kukreja,Aman Naqvi, Advs. for the Petitioner.

Tushar Mehta, SG, Satya Pal Jain, ASG, Kanu Agrawal, MadhavSinhal, Kartikay Aggarwal, Ajay Pal, Karan Sharma, Mayank Dahiya,Advs. for the Respondents.

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The Judgment of the Court was delivered by DR. DHANANJAYA Y CHANDRACHUD, CJI

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1. On 22 February 2023, the Council of Ministers of theGovernment of Punjab recommended the summoning of the BudgetSession of the Sixteenth Punjab Vidhan Sabha on 3 March 2023 underArticle 174(1) of the Constitution.

2. On 23 February 2023, the Governor of Punjab addressed acommunication to the Chief Minister of the State. The subject of the letterwas:

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“Cabinet decision on summoning of the house of the legislature ofthe State on 3[rd ]March 2023.”

3. The letter of the Governor refers to a prior exchange ofGcorrespondence between the Governor and the Chief Minister; theGovernor having addressed an earlier communication of 13 February 2023to which the Chief Minister had responded through a letter dated 14February 2023 and a ’tweet’ of the same date.

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A4. 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 toSingapore for training; and

(ii) The appointment of the Chairman of the Punjab InformationBand Communication Technology Corporation Limited.

5. The Governor noted that while the Chief Minister had in hisprevious correspondence underscored the mandate with which he hasassumed the office of Chief Minister, in terms of Article 167 of theConstitution, the Chief Minister is bound to furnish full details andCinformation sought by the Governor.

6. Besides the above two issues, the Governor sought a clarificationon the following matters:

“(a)About two lacs Scheduled Castes students were compelledDto discontinue their studies due to non disbursal of scholarshipby the Government. (letter No.Spl.Secy.Gov/2022/95 dated21-07-2022).

(b) To remove the illegally appointed Vice Chancellor of PAUvide letter No.5/1/2021-PRB-PAU-2G/6904 dated 23-11-22.

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(c) Inspite of my detailed letter dated 14-12-2022 you chose toignore all misdeeds of Sh. Kuldeep Singh Chahal, IPS. Youhave not only promoted him but also posted him asCommissioner of Jalandhar and that too the orders beingissued just before 26[th ]January, knowing very well thatFGovernor is to unfurl the national flag at Jalandhar. I had toinstruct the DGP that concerned officer should maintaindistance during ceremony. On this issue it seems that thisofficer was your blue eyed boy and you chose to ignore factsthat were brought to your notice by this office.

G(d)Vide letter dated 4-1-2023 I wrote about the presence ofSh. Naval Aggarwal in meetings of senior officers, wheresensitive and confidential matters of security of the countryare discussed. I have not received any reply till date.

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(e) My letters asking for details of advertisements where youwere asked for complete details, is also perhaps lying incold 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 themedia..all the subjects mentioned in the letter are all statesubjects...I and my government are accountable to 3 crore Punjabisaccording to the Constitution and not to any Governor appointedby the Central Government. Consider this as my reply.”

8. This was followed by another communication of the ChiefMinister dated 14 February 2023, in which he stated thus:

“DO No.CMO/CONFI-2023/132 Dated:14.02.2023

Honorable Governor Sahib,

I have received your letter No.Spl.Secy.Gov/2023/34 dated 13[th]February, 2023.

All the subjects mentioned in your letter are the subjects of the stategovernment. In this regard, I would like to clarify that according tothe Indian Constitution, I and my government are answerable to 3crore Punjabis.

You have asked me, on what basis the principals are selected fortraining in Singapore. The people of Punjab want to ask, on whatbasis are the Governors in different states elected by the CentralGovernment in the absence of any specific qualification in theIndian Constitution?

Please increase the knowledge of Punjabis by telling this.”

9. In the backdrop of the aforesaid communication by the ChiefMinister and his tweet, the Governor while responding to the request ofthe Cabinet for summoning the Budget Session of the Vidhan Sabha from3 March 2023 stated that:

“Since your tweet and letter, both are not only patentlyunconstitutional but extremely derogatory also, therefore, I amcompelled to take legal advice on this issue. Only after gettinglegal advice, I will take decision on your request”.

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538SUPREME COURT REPORTS

A10. The inaction of the Governor in summoning the Assembly forthe Budget Session has led to the invocation of the jurisdiction of thisCourt under Article 32 of the Constitution by the State of Punjab.

11. The Government of Punjab seeks (a) a declaration that theGovernor of Punjab is duty bound to act on the aid and advice of the CouncilBof Ministers in matters of summoning or proroguing of the Vidhan Sabhaof the State of Punjab; (b) a writ of certiorari quashing thecommunication of the Governor dated 23 February 2023 stating that adecision on the recommendation of the Council of Ministers for summoningthe Vidhan Sabha for its Budget Session would be taken only after obtaininglegal advice; and (c) a direction to the Principal Secretary to the GovernorCof Punjab to facilitate the issuance of appropriate orders for summoningthe Legislative Assembly for its Budget Session at 10 am on 3 March 2023.

12. Since the date for the convening of the Budget Session isbarely three days away, the petition was mentioned for urgent orders, onwhich it was directed to be listed at 3.50 pm today.D

13. Dr Abhishek Manu Singhvi, senior counsel has appeared onbehalf of the petitioner. Mr Tushar Mehta, Solicitor General of Indiaappears on behalf of the first respondent. Mr Ajay Pal, counsel hasappeared for the second respondent.

E14. At the outset, the Solicitor General has placed on the record anorder dated 28 February 2023 of the Governor of Punjab. For convenienceof reference, the order is extracted below:

“In exercise of the powers conferred upon me by virtue ofClause(1) of Article 174 of the Constitution of India, I, BanwarilalFPurohit, Governor of Punjab, hereby summon the Sixteenth VidhanSabha of the State of Punjab to meet for its Fourth (Budget) Sessionat 10.00 am on Friday, the 3[rd ]March 2023 in the Punjab VidhanSabha Hall, Vidhan Bhavan, Chandigarh.”

15. In terms of the above order, the Governor of Punjab hassummoned the Sixteenth Vidhan Sabha of the State of Punjab to meetGfor its Fourth (Budget) Session at 10 am on 3 March 2023.

16. With the issuance of the above order by the Governor, thereliefs which have been sought in the petition have been substantiallyfulfilled. However, before disposing of the petition, there are certain facetswhich must be highlighted by this Court in the exercise of its constitutionalHduty.

STATE OF PUNJAB v. PRINCIPAL SECRETARY TO THE GOVERNOR OFPUNJAB AND ANOTHER [DR. DHANANJAYA Y CHANDRACHUD, CJI]

17. The institution of these proceedings has its genesis in thecommunications issued by the Governor for the disclosure of informationby the State government. Article 167 of the Constitution enunciates theduty of the Chief Minister to furnish information to the Governor. Theprovision is in the following terms:

“167. Duties of Chief Minister as respects the furnishing ofinformation to Governor, etc– It shall be the duty of the ChiefMinister of each State–

(a) to communicate to the Governor of the State all decisions of theCouncil of Ministers relating to the administration of the affairsof the State and proposals for legislation; (b)to furnish such information relating to the administration of theaffairs of the State and proposals for legislation as theGovernor may call for; and

(c) if the Governor so requires, to submit for the considerationof the Council of Ministers any matter on which a decisionhas been taken by a Minister but which has not been consideredby the Council.”

18. The Chief Minister has the duty to communicate to theGovernor all decisions of the Council of Ministers relating to theadministration of the affairs of the State and proposals for legislation.Going beyond the duty to communicate, the Chief Minister has a duty tofurnish such information relating to the administration of the affairs ofthe State and proposals for legislation as the Governor may require.Moreover, if the Governor so requires, the Chief Minister is duty boundto submit for consideration to the Council of Ministers any matter on whichthe decision is taken by a Minister which has not been considered by theCouncil of Ministers.

19. The power of the Governor to seek information under Article167 must be read holistically with reference to their duties as constitutionalhead under the Constitution. The information that the Governor seeksunder Article 167 would enable them to effectively discharge their duties.To illustrate, the Governor has the power to direct reconsideration ofbills that are passed in the assembly. For the Governor to make thisdecision, it is necessary that all the relevant information that would aidthem in making the said decision must be made available. Similarly, thegovernor requires all relevant information to identify if a decision has been

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Ataken 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 asrequested. Thus, the Chief Minister is required to discharge their dutiesunder Article 167 to enable the Governor to effectively discharge theirBduties stipulated in the Constitution. The framers of the Constitution wereprescient in incorporating the above provisions. They ensure that whileon the one hand the administration of the State is entrusted to ademocratically elected Chief Minister who heads the Council of Ministers,which in turn, owes collective responsibility to the state legislature, theCGovernor as a constitutional authority appointed by the President isentrusted 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 Ambedkaron Article 167 (draft Article 147) in the Constitution Assembly:[1]

“A distinction has been made between the functions of the GovernorDand the duties which the Governor has to perform. My submissionis that although the Governor has no functions still, even theconstitutional 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 Ministryis to hold office during his pleasure, he has to see whether andEwhen he should exercise his pleasure against the Ministry. Thesecond duty which the Governor has, and must have, is to advise theMinistry, to warn the Ministry, to suggest to the Ministry analternative and to ask for a reconsideration. I do not think thatanybody in this House will question the fact that the GovernorFshould have this duty cast upon him; otherwise, he would be anabsolutely unnecessary functionary: no good at all: He is therepresentative not of a party, he is representative of the people asa whole of the State. It is in the name of the people that he carrieson the administration. He must see that the administration is carried on a level which may be regarded as good, efficient, honestGadministration. Therefore, having regard to these two duties whichthe Governor has namely, to see that the administration is keptpure, without corruption, impartial, and that the proposals enunciated 1 Dr BR Ambedkar in response to Biswanath Das, Constituent Assembly of IndiaHDebates (Proceedings)- Volume VIII (2 June 1949)

by the Ministry are not contrary to the wishes of the people, andtherefore to advise them, warn them and ask them to reconsider-I ask the House, how is the Governor in a position to carry out hisduties unless he has before him certain information? I submit thathe cannot discharge the constitutional functions of a Governorwhich I have just referred to unless he is in a position to obtain theinformation.”

20. The power to summon, prorogue and dissolve the legislativeassembly is enshrined in Article 174 of the Constitution which is extractedbelow:

“174. Sessions of the State Legislature, prorogation anddissolution.–

(1) The Governor shall form time to time summon the House oreach House of the Legislature of the State to meet at such timeand place as he thinks fit, but six months shall not intervene betweenits last sitting in one session and the date appointed for its firstsitting 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 ShamsherSingh vs State of Punjab[2] has laid down that the Governor is aconstitutional or formal Head of the State and exercises powers andfunctions on the aid and advice of the Council of Ministers. The relevantextracts from the decision make the position of law clear:

“28. Under the Cabinet system of Government as embodied inour Constitution the Governor is the constitutional or formalhead of the State and he exercises all his powers and functionsconferred on him by or under the Constitution on the aidand advice of his Council of Ministers save in spheres wherethe Governor is required by or under the Constitution to exercisehis functions in his discretion.

32. It is a fundamental principle of English Constitutional law thatMinisters must accept responsibility for every executive act. In 2 (1974) 2 SCC 831

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England the Sovereign never acts on his own responsibility. Thepower of the Sovereign is conditioned by the practical rule thatthe Crown must find advisers to bear responsibility for his action.Those advisers must have the confidence of the House ofCommons. This rule of English Constitutional law is incorporated inour Constitution. The Indian Constitution envisages aParliamentary and responsible form of Government at theCentre and in the States and not a Presidential form ofGovernment. The powers of the Governor as theconstitutional 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 byproclamation upon States, are vast powers of profound significance.Indeed, even the power of summoning and proroguing anddissolving the House of the People and returning Bills passedby the Parliament belongs to him. If only we expand theratio of Sardari Lal and Jayantilal to every function whichthe various articles of the Constitution confer on thePresident or the Governor, Parliamentary democracy willbecome a dope and national elections a numerical exercisein expensive futility. We will be compelled to hold that there aretwo parallel authorities exercising powers of governance of thecountry, as in the dyarchy days, except that Whitehall is substitutedby Rashtrapati Bhavan and Raj Bhavan. The Cabinet will shrinkat Union and State levels in political and administrative authorityand, having solemn regard to the gamut of his powers andresponsibilities, the Head of State will be reincarnation of HerMajesty’s Secretary of State for India, untroubled by even theBritish Parliament — a little taller in power than the AmericanPresident. Such a distortion, by interpretation, it appears to us,would virtually amount to a subversion of the structure, substanceand vitality of our Republic, particularly when we remember thatGovernors are but appointed functionaries and the Presidenthimself is elected on a limited indirect basis. As we have alreadyindicated, the overwhelming catena of authorities of this Court haveestablished over the decades that the cabinet form of Governmentand the Parliamentary system have been adopted in India and the contrary concept must be rejected as incredibly allergic to ourpolitical genius, constitutional creed and culture.”

(emphasis supplied)

22. This position was reiterated by a Constitution Bench in NabamRebia v. Dy. Speaker, Arunachal Pradesh Legislative Assembly[3].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 tothe Governor to summon the House or each House of the Legislature ofthe 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 toexercise his own discretion. In the present case, the Governor was notsummoning the House for the first time following a general election, butwas advised by the Council of Ministers to convene the Budget Session,at the behest of a government which has been duly elected in the generalelection. Plainly, the Governor was duty bound to do so.

23. While responding to the request by the Council of Ministersfor summoning the House, the communication of the Governor dated 23February 2023 referred to the Cabinet decision. However, the Governoralso referred to the tweet of the Chief Minister and to his letter dated 14February 2023 and then proceeded to state that since both the tweet andthe letter were “patently unconstitutional” and “extremely derogatory”,he was compelled to take legal advice “on this issue” and that he woulddecide on the request thereafter. There was no occasion to seek legaladvice on whether or not the Budget Session of the Legislative Assemblyshould be convened. The Governor was plainly bound by the advicetendered to him by the Council of Ministers.

24. Having said this, it would also be necessary to underscore thatboth the Chief Minister and the Governor are constitutional functionarieswho have specified roles and obligations earmarked by the Constitution.The Governor has a right to seek information from the Chief Minister interms of Article 167(b) on matters relating to the administration of theaffairs of the State and proposals for legislation. Once such information issought, the Chief Minister is duty bound to furnish it. The tone and tenor ofthe tweet and the letter by the Chief Minister leave much to be desired.Not furnishing the information which was sought by the Governor would 3 (2016) 8 SCC 1

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Abe plainly in dereliction of the constitutional duty which is imposed on theChief Minister in terms of Article 167(b). Yet on the other hand, thedereliction of the Chief Minister to do so would not furnish a justification forthe Governor not to comply with the constitutional obligation to summonthe House for its Budget Session in terms of the advice which was tenderedBby the Council of Ministers. It was after the institution of the petitionunder Article 32 that the Assembly was summoned.

25. The genesis of the controversy has required the interventionof this Court at two distinct levels: first, to ensure that the constitutionalduty of the Governor to act on the aid and advice of the Council of MinistersCto summon the Legislative Assembly is fulfilled without delay or demur;and second, to ensure that the obligation of the Chief Minister to furnishinformation to the Governor in terms of Article 167(b) of the Constitutionis fulfilled. There are two equally important aspects for the functioning ofa parliamentary democracy. First, the failure of a constitutional authorityto fulfill its obligation under a distinct provision of the Constitution doesDnot furnish a justification to another to decline to fulfill its own constitutionalobligation. Second, while this Court is cognizant of the importance offree speech and expression and the fundamental value embodied in Article19(1)(a), it becomes necessary to emphasize that constitutional discoursehas to be conducted with a sense of decorum and mature statesmanship.E

26. Political differences in a democratic polity have to be workedupon and sorted out with a sense of sobriety and maturity. The dialoguebetween constitutional functionaries cannot degenerate into a race tothe bottom. Unless these principles were to be borne in mind, the realizationof constitutional values may be placed in jeopardy. Such a situationFemerged before this Court, leading to the institution of a petition underArticle 32 of the Constitution for a direction to the Governor to summonthe Legislative Assembly. It is inconceivable that the Budget Session ofthe Legislative Assembly would not be convened. We can only hope thatmature constitutional statesmanship will ensure that such instances doGnot occur in the future as much as we reiterate our expectation thatconstitutional functionaries must be cognizant of the public trust in theoffices which they occupy. The public trust which is entrusted to them isintended to sub-serve the cause of our citizens and to ensure that theaffairs of the nation are conducted with a sense of equanimity so as toaccomplish the objects of the Preamble to the Constitution.H

STATE OF PUNJAB v. PRINCIPAL SECRETARY TO THE GOVERNOR OFPUNJAB AND ANOTHER [DR. DHANANJAYA Y CHANDRACHUD, CJI]

27. With these observations, the Petition shall stand disposed of.

28. Pending applications, if any, stand disposed of.

Ankit Gyan

Petition disposed of.

(Assisted by : Aarsh Choudhary, LCRA)

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