THE SUPREME COURT’S VERDICT OF REINSTATING OF CONGRESS GOVERNEMENT IN ARUNACHAL PRADESH

Thirteenth of July, 2016 saw a historic judgment by aFive Judge Constitutional Bench (comprising Justices J.S. Khehar, DipakMisra, Madan B. Lokur, P.C. Ghose and N.V. Ramana) of the Supreme Court of India, which paved the way for the reinstatement of Congress-led NabamTukiGovernment to power. The crisis started on December 9 2015, when a group of rebel Congress MLAs approached Governor Jyoti Prasad Rajkhowa seeking impeachment of Speaker of Arunachal Pradesh Legislative Assembly, NabamRebia on the grounds that he is trying to get them disqualified from the Assembly because they had snapped their ties with Congress, by their refusal to respond to, or associate with the political leadership in the State, and for their having expressly refused to attend the meetings of the Party. The Governor agreed and preponed the Assembly session from January 14, 2016 to December 16, 2015 to initiate the impeachment motion of the Speaker. When this came to the knowledge of the Speaker, he disqualified those 14 Congress MLAs on December 15 and during the special session the impeachment motion was passed and Congress Dissident leader KalikhoPulwas ‘elected’ as the Leader of the House.

When the Gauhati High Court dismissed the plea of the Speaker, then he approached the Supreme Court. Meanwhile, President’ rule was imposed in the State by the Centre due to complete breakdown of law and order owing to which firstly, the Chief Minister, NabamTuki filed a separate petition in January in the apex court challenging it, secondly, the Governor appointed a new government so that the President’ rule is lifted, when in February 2016 “Pul” was sworn in as the ninth Chief Minister of Arunachal Pradesh.

The Supreme Court then observed that it was empowered to intervene in matters if there were constitutional violations say, in the manner in which the Arunachal Pradesh Governor issued orders that have eventually led to formation of a new government in the state. Therefore, it heard all the petitions and gave the following verdict:

1. Art 163 of the Constitution (Council of Ministers to aid and advise Governor)

Although the Governor has certain discretionary powers which are beyond scope of judicial review but it is not a general discretionary power to act against or without the advice of his Council of Ministers. In fact, the area for the exercise of discretion is limited where his actions should not be arbitrarily taken but be backed by good intent, reason and good faith and if it happens otherwise then any discretion exercised beyond the Governor’s jurisdictional authority, would certainly be subject to judicial review.

1. Art 174 of the Constitution (Governor’s power to summon, prorogue, dissolve House)

The Governor never called for a floor test, so inference that was drawn by the Court was that he did not have a doubt that the Chief Minister and his Council of Ministers were still enjoying the confidence of the majority, in the House. Nor was a motion of no confidence moved against the Government. So it was held that the Governor using his discretion to summon the House, preponed the Assembly session was beyond his jurisdiction or power as it was done without the aid and advice of the Council of Ministers with the Chief Minister as the head.

Art 175 and 200 of the Constitution (to give messages to the Assembly regarding pending Bills and assent to Bills pending in State Legislature respectively)

Governor’s functions under Art 175 and 200, do not include interference with State Legislative Assembly’s activities especially with regard to the disqualification of MLAs under Tenth Schedule.

1. Governor’s powers as under the Constitution

• He is an independent constitutional office which is not subject to the control of the Government of India.
• He is not an elected representative, but only an executive nominee whose powers flow from the aid and advice of the Cabinet.

(The then Vice-President of India, Shri G.S. Pathak, had remarked in 1970 that if there is a clash between the advice of the Centre and that of the State Council of Ministers, the Governor should act on the advice of the latter)

• The Governor is not the conscience keeper or the ombudsman of the Legislative Assembly, in the matter of removal of the Speaker.

So he can’t assume the position of advising and guiding the Legislative Assembly, on the question of removal of the Speaker (or Deputy Speaker) or to require the Legislative Assembly to follow a particular course.

Moreover, a challenge to an action beyond the authority of the Governor, would fall within the scope of the judicial review, and would be liable to be set aside.

1. Tenth schedule of the Constitution -Decision on questions as to disqualification on ground of defection

Justice Khehar wrote thata Governor must remain aloof from any disagreement, discontent or dissension, within political parties. The role of the Governor in such matters would fall beyond the spectrum of constitutional sanction.

On one hand, if the disqualification of MLAs petition under Tenth Schedule is heard first and they get disqualified then they won’t be able to participate in the motion for Speaker’s removal.

But if the removal of Speaker’s motion is held first and in case he does not survive the vote, then he would still be able to adjudicate upon the disqualification petitions filed under the Tenth Schedule. So, the court held that it would be constitutionally impermissible for a Speaker to adjudicate upon disqualification petitions under the Tenth Schedule, while a notice of resolution for his own removal from the office of Speaker, is pending.

Therefore, what the Court held was that Governor Rajkhowa used his constitutional authority to oust a group of rebel Congress MLAs disqualified under the Tenth Schedule which is unconstitutional and so the Congress government was reinstated in the State.

DALIPARTHY HARINI

LEGAL ASSOCIATE