A government restored

IT was the most unusual political development resulting from a judgment of the Supreme Court. On July 16, three days after he was restored as Chief Minister of Arunachal Pradesh by the Supreme Court, Nabam Tuki resigned from the post to pave the way for the coming together of two warring factions in the State unit of the Congress. Pema Khandu, leader of the rebel faction, assumed office as Chief Minister after he was duly elected leader of the Congress Legislature Party.

The rival factions had fought a bitter legal battle, first in the Gauhati High Court and then in the Supreme Court, over the past seven months. During this period, the Centre imposed President’s Rule in the State and then revoked it to pave the way for the swearing-in of Congress dissident and former Finance Minister Kalikho Pul as Chief Minister with the support of BJP members.

Article 356 of the Constitution is a thorn in the side of India’s federal structure. Titled “Provisions in case of failure of constitutional machinery in States”, it enables the Centre to dismiss a democratically elected government in a State on the basis of a report from the State’s Governor or otherwise and assume direct control of the State’s administration in the name of the President.

The provision has been used more than 100 times by governments at the Centre cutting across party lines. The loss of majority support for a government or its likelihood, leading to the phenomenon of horse-trading of legislators by rival factions or the principal political parties, is a recurrent feature that has resulted in the imposition of President’s Rule in several States.

Arunachal Pradesh in 2015-16 was no different. The State came under President’s Rule on January 26 this year after a month-long period of political instability. Although President’s Rule was revoked on February 19, the ousted Chief Minister remained out of office, seemingly having lost the support he had in the Assembly before the dismissal of his government. Thus, when the Supreme Court restored him as Chief Minister on July 13, his numerical strength in the Assembly was in doubt. Tuki was seen as having just 15 MLAs in a house of 60, with two vacancies. The rebel faction, comprising 30 members, had the support of 11 BJP MLAs and two independents as well.

Tuki sensed that the restoration of his position as Chief Minister would be short-lived if he did not seek peace with the rebels and so wooed them back to the party. Tuki’s success in forging unity in the party at the cost of his own leadership must, therefore, be seen as a result of factors precipitated by the Supreme Court’s July 13 judgment in Nabam Rebia and Bamang Felix vs Deputy Speaker and others .

Both the imposition and the revocation of President’s Rule took place amidst the hearing of this case in the Supreme Court. The former Speaker of the Assembly, Nabam Rebia, challenged the action of Governor Jyoti Prasad Rajkhowa in advancing the State Assembly session by one month from January 14, 2016 to December 16, 2015. Rajkhowa did so without the aid and advice of the Council of Ministers, triggering political instability and a crisis within the ruling party.

Thus, in the beginning of the hearing of the case, the imposition of President’s Rule was never an issue before the court. It was raised once President’s Rule was imposed and the State Assembly was kept under suspended animation. The five-judge Constitution Bench of the Supreme Court hearing the matter remained focussed on the Governor’s action of advancing the Assembly session.

Its reasoning was that if it quashed the Governor’s action of advancing the Assembly session, the clock would inevitably be turned back and all subsequent events would be unconstitutional in the eyes of the law. Therefore, the bench did not have to examine the merits of the decision to impose President’s Rule—whether it was bona fide or whether the President had the relevant materials before him while taking the decision, and so on.

Thus, rather than decide the legality of the imposition of President’s Rule, the bench addressed its root cause, that is, the Governor’s exercise of his discretion to advance the Assembly session and whether it was justified.

The result is the bench’s lucid exposition of a Governor’s responsibilities and his domain. Justice J.S. Khehar delivered the main judgment for himself and for his brother judges, Justices Pinaki Chandra Ghose and N.V. Ramana. The two other judges on the bench, Justices Dipak Misra and Madan B. Lokur, delivered two separate but concurring judgments.

Salient aspects

The factual matrix dates back to December 9, 2015, when the Governor advanced the date of the Assembly session from January 14, 2016, to December 16, 2015, at his own discretion and without the aid and advice of the Council of Ministers as required under the Constitution.

The bench held that the Governor could have legally done so only when he was doubtful about the majority support of the Chief Minister and not otherwise. The fact that he did not call for a floor test while advancing the session shows that he neither had the jurisdiction nor the power to do so, the bench reasoned.

To reach this conclusion, the bench rejected a significant contention advanced by the respondents that the Governor’s exercise of discretion under Article 163(2) was final and beyond the scope of judicial review. The bench held that the discretionary power of the Governor was limited to the scope postulated therefor under Article 163(1). In other words, it is only when a constitutional provision expressly requires the Governor to act in his own discretion can he do so and not otherwise.

The bench further concluded that the messages addressed by the Governor to the Houses of legislature had to be in consonance with the aid and advice tendered to him by the Council of Ministers. The Governor justified his sending the message to the Assembly on the grounds that there was a motion of no confidence pending against the Speaker and that through his message he wanted the Assembly to consider it immediately after the expiry of 14 days, under Article 179 of the Constitution.

The bench, however, held that the Governor had no express or implied role under Article 179 on the subject of “the removal of Speaker or Deputy Speaker”, which squarely rests under the jurisdictional authority of the Members of the Legislative Assembly.

The bench also disapproved of the Governor’s message to the presiding officer of the House, asking the latter not to alter the composition of the House until the session was prorogued. The bench reminded the Governor that he had no role in the disqualification of members of the Assembly. Under Paragraph 6 of the Tenth Schedule, only the Speaker of the Assembly had exclusive jurisdiction over the matter, the bench held.

Saying that the Governor was not a mentor or guide to the Speaker, the bench held that the Governor could not require the Speaker to discharge his functions in the manner he [Governor] considers constitutionally appropriate. “The Governor just cannot act as the Ombudsman of the State legislature,” said the bench.

The bench held that the message the Governor issued to the Speaker on December 9, 2015, was beyond the constitutional authority vested with the Governor and, therefore, set it aside.

The bench held that the Governor was not the conscience-keeper of the Legislative Assembly in the matter of removal of the Speaker. Holding that the Governor’s order and the message he sent to the Assembly on December 9, 2015, were actuated by a constitutionally impermissible consideration, the bench set them aside.

Ironically, the bench agreed with the real basis of the Governor’s order and message of December 9, 2015. The Governor, it appeared, was prompted to issue that order and the message because the Speaker was about to decide the disqualification petitions under the Tenth Schedule to the Constitution while a notice of resolution for his own removal from the office of Speaker was pending.

The bench held that only the Speaker who enjoyed the confidence of the Assembly could decide the disqualification petitions under the Tenth Schedule. The bench interpreted Article 179(c) of the Constitution to mean that the Speaker or Deputy Speaker may be removed from his office by a resolution of the Assembly passed by a majority of all the then (emphasis added) members of the Assembly. The bench found that the words “all the then members” included in this Article are a conscious adage.

The bench made it clear that any change in the strength and composition of the Assembly by disqualifying sitting MLAs for the period during which the notice of resolution for the removal of the Speaker (or the Deputy Speaker) was pending would be in conflict with the express mandate of Article 179(c), which required all “the then members” to determine the right of the Speaker to continue.

On December 9, 2015, when the Governor sent a message to the Assembly (without the aid and advice of the Council of Ministers) not to change the party composition of the House, there were two resolutions pending—one for the removal of the Speaker and the other for the removal of the Deputy Speaker, although the Supreme Court itself disputed the factual position with regard to the latter.

A petition seeking disqualification of 14 dissident MLAs of the Congress, including Deputy Speaker Tenzing Norbu Thongdok, on account of their anti-party activities was also before the Speaker.

Disregarding the edict of the Governor, the Speaker disqualified the 14 MLAs on December 15, 2015. On the same day, the Deputy Speaker quashed the order of disqualification of the 14 MLAs, including his own.

In the Assembly session advanced to December 16, 2015, the resolution for the removal of Speaker Nabam Rebia was adopted, with the 14 disqualified MLAs voting in its favour.

Recounting the sequence of facts, the bench held that the Governor’s actions, based on feuds and wrangles of a breakaway group, which was not recognised under the Tenth Schedule, could not be “constitutionally condescended”. “The Governor must keep away from all that goes on within the House,” the bench observed in its judgment.

As the 14 MLAs who were disqualified by the Speaker on December 15, 2015, approached the Gauhati High Court, which stayed the order of their disqualification, the Governor should not have involved himself in issues which are within the realm of other constitutional authorities, the bench said. “The Indian Constitution provides for checks and balances and a regime of redressal for all situations,” the bench observed.

The severe indictment of the Governor in Justice Lokur’s separate judgment, according to observers, left no scope for him to continue in office. Justice Lokur found that the Governor humiliated the elected government of the day, and the result was a “thrashing given to the Constitution, and a spanking to governance”.

Justice Lokur said this was because he found that the Governor ignored a Cabinet resolution denouncing his December 9, 2015, order and message to the Assembly advancing its session by one month. The Governor should have engaged with the Council of Ministers to discuss the possibility of advancing the session instead of contributing to a communication breakdown with the Chief Minister, Justice Lokur opined.

A milder indictment of the Governor than this in the Supreme Court’s judgment in 2006, declaring the imposition of President’s Rule in Bihar unconstitutional, had led to the resignation of the then Governor of Bihar, Buta Singh.