Supreme Court Quashes Governor’s Order And Restores Sacked CM

Supreme Court Quashes Governor’s Order And Restores Sacked CM

Coming straight to the nub of the matter, let me begin by first and foremost pointing out that the Supreme Court in an unprecedented manner created a history of sorts on July 13, 2016 by reviving the Nabam Tuki-led Congress Government in Arunachal Pradesh and censuring the Governor for “humiliating the elected government of the day” and declared as “unconstitutional” all decisions of Governor Jyoti Prasads Rajkhowa that had first led to imposition of President’s rule in the State and later culminated in the formation of a new government led by the Congress breakaway faction. This is undoubtedly a very major setback for Centre. Let me recall here that the Nabam Tuki’s Government was dismissed on January 26 when the Centre imposed President’s rule in the State.

It goes without saying that the landmark judgment by a five-Judge Constitution Bench of the Apex Court has created an odd situation as the Centre revoked President’s rule in February to pave the way for a rebel Congress MLA Kalikho Pul to become Chief Minister in the State. The five-Judge Bench ordered status quo ante as it prevailed on December 15, 2015 – in effect, Chief Minister Kalikho Pul will have to step down to make way for the Congress government with Nabam Tuki to be reinstated at the helm once again. This is a big embarrassment for Centre who left red faced now will be compelled to think thousand times before recommending dismissal of a duly elected state Government and imposing President rule on the basis of Governor’s report alone. It is a no-brainer that since independence we have seen how Governors function more as agent of Centre than as an independent office except a few notable exceptions. This has severely tarnished the reputation of the high office of Governor and to restore it, Centre must start appointing non-political person as Governor who has no past link in any manner with ruling party in Centre.

For my esteemed readers exclusive benefit, let me jog my readers memory a little back. Let me recapitulate the entire sequence of events in which they proceeded. They are as follows which have been quoted from ‘The Economic Times’ dated 14 July 2016 : –

Dec 2014: Tuki drops state health and family welfare minister Kalikho Pul in Cabinet reshuffle.

Apr 2015: Pul alleges financial mismanagement within the government. Congress expels him alleging anti-party activity.

Jun1: Jyoti Prasad Rajkhowa takes charge as Governor.

Oct 21: Fifth session of Assembly concludes.

Nov: Congress MLAs demand resolution for removing Deputy Speaker. BJP MLAs demand resolution to remove Speaker.

Dec 9: Governor orders advancing assembly session to Dec 16, 2015 from Jan 14, 2016.

Dec 15: Speaker Nabam Rebia issues notice disqualifying 14 of the 21 rebel Congress MLAs.

Dec 15: Deputy Speaker quashes disqualification of 14 of the 21 MLAs.

Dec 16: Tuki government locks the Assembly. Corresponding assembly meeting held in another building, attended by 33 MLAs. The resolution for removal of Speaker Nabia is passed and a new Speaker is appointed.

Dec 17: Rebels hold assembly in hotel after community hall is razed, vote against Tuki; elect Pul as CM. Rabia moves Gauhati HC to keep assembly & related developments in abeyance.

Jan 5, 2016: HC stays disqualification of 14 Cong MLAs.

Jan 6: SC agrees to hear Rebia’s plea.

Jan 13: SC orders not to hold any proceedings in the Assembly till Jan 18.

Jan 14: SC refers Arunachal issue to Constitution bench, which starts examining constitutional scope of discretionary powers of the Governor.

Jan 18: Cong tells SC that Governor could not have acted on a resolution by opposition BJP MLAs and 2 Independents to advance session.

Jan 26: Union Cabinet recommends President’s rule in the state.

Jan 27: President’s rule in arunachal Pradesh comes under SC scrutiny. SC seeks the Governor’s report on recommending central rule in the state, saying “it is too serious a matter”.

Jan 28: Tuki files fresh plea in SC against Prez rule in Arunachal.

Jan 29: Centre files affidavit in SC justifying imposition of Prez rule in Arunachal, says complete breakdown in State, Governor in danger.

Feb 1: Supreme Court recalls notice to Governor, says they are immune.

Feb 5-9: SC questions Governor’s order to advance session. Rejects plea of 2 rebel MLAs against HC order upholding speaker’s action accepting their resignations.

Feb 10: Governor defends his actions in SC saying CM & Speaker were “hand-in-glove” and trying to remain in power despite losing majority.

Feb 11: Governor can’t take away Speaker’s powers: SC

Feb 16-19: SC refuses to pass interim order to restrain Governor from swearing-in new CM, satisfied with HC’s order staying disqualification of 14 MLAs, rejects floor-test plea.

Feb 19: President’s rule lifted.

Feb 20: Pul sworn in as CM.

Feb 22: Supreme Court reserves verdict on batch of petitions dealing with discretionary powers of Governor to summon or advance the assembly sessions, says it has the powers to undo the damage.

July 13: Supreme Court terms Governor’s decision unconstitutional, orders restoration of Cong government.

 While craving for the exclusive indulgence of my esteemed readers, let me inform them that the Bench of Apex Court comprising of Justices JS Khehar, Dipak Misra, Madan B Lokur, Pinaki Chandra Ghose and NV Ramana set the clock back to December 15, 2015 which is a crucial date when the Speaker of Arunachal Assembly last convened the House. The Court damned Governor Jyoti Prasad Rajkhowa’s order issued on December 9, 2015 directing the Speaker to prepone the session of the House from the scheduled January 14, 2016 to December 16, 2015. The Governor’s order advised the members of the House to decide first on a resolution to remove the Speaker and allow the Deputy Speaker to preside the House.

The judgment is historic from all angles since it is the first time the Supreme Court has restored a government after it was dismissed – on January 26 – and a new government was sworn in after a spell of President’s rule. Let me bring out here that on two occasions in the past, the Supreme Court had ruled against President’s rule but did not order the restoration of the previous government. However, this time it has ordered the restoration of the previous government and that too by a unanimous verdict which is generally very rare.

By a unanimous landmark verdict, the Constitution Bench circumscribed the powers of the Governor and held that Rajkhowa’s messages to advance the Assembly session in December and to decide the manner of conducting the Assembly proceedings were violative of constitutional provisions and that he could not have acted without the aid and advice of the council of ministers. It also must be brought out here that the Bench laid down that a Governor cannot have the freedom to determine when and in which situation can he take a decision at his own discretion without the aid and advice of the Chief Minister and his Council of Ministers. The Bench also made it clear that a Governor can act without the aid and advice only when a government has lost its majority in a floor test.

Needless to say, it is the bounden duty of every Governor to always abide by what the Supreme Court which is the highest court of our country has said in most unequivocal terms just recently in its landmark order so that it does not end up with eggs on its faces as we have seen now in the case of Rajkhowa who is the Governor of Arunachal Pradesh. The Bench also warned the Governor not to “embroil” himself in any “political thicket”. We all know very well how 21 Congress MLAs had turned rebel against the Nabam Tuki government calling him as corrupt and sided openly with 11 BJP MLAs who supported their demand to oust him from power. The Speaker had in the December 15 session disqualified 14 rebel MLAs.

The Bench also ruled that once MLAs have sought removal of a Speaker, it will be “constitutionally impermissible” for a Speaker to adjudicate upon disqualification petitions and disqualify MLAs. In this case, Speaker Nabam Rebia had disqualified 14 rebel Congress MLAs on December 15 even though a resolution pertaining to his own removal was pending. The Apex Court order has now brought back 58 MLAs in the 60-member House. Two Congress MLAs have resigned and their seats have been declared vacant.

The Bench, headed by Justice JS Khehar was adjudicating upon Rajkhowa’s authority as he had advanced the Assembly session scheduled to take place from Jan 14-18, 2016 to December 16, 2015 and had further directed that the issue of disqualification of Speaker of Assembly should be taken up first in view of the notice for disqualification forwarded to him by 13 MLAs – 11 from BJP and two independents. While the petitions by Speaker Nabam Rebia and Deputy Chief Whip of Congress Bamang Felix submitted that it was an overt political act of the BJP MLAs, supported by the Governor, to undermine the democratic process in the State, Rajkhowa’s counsel defended the decision, contending that the political turmoil with Congress legislators breaking away had prompted these directions.

Rajkhowa’s counsel added that there was no need to consult the Council of Ministers, headed by the Chief Minister, since the Constitution empowered him to take decisions in certain cases without aid and advice. The Bench also comprising Justices Dipak Misra, Madan B Lokur, PC Ghose and NV Ramana ruled unequivocally that, “The Governor is not the conscience-keeper of the Legislative Assembly and that he had to stay away from the business of the Assembly besides steering clear of ‘political horse-trading’.”  The Supreme Court was of the unanimous view that Governor functions with aid and advice of Council of Ministers unless the Constitution specifically provides him to act in his discretion.

Underlining that “the exercise of executive power by the Governor, is by and large notional”, the Court said that the Constitution does not assign any role to a Governor to interfere in the activities of the Assembly and, therefore, it would be outside the domain of his powers to fix a date for an Assembly session or to decide how the Assembly functions. The Bench also rejected Rajkhowa’s arguments that he had to take note of the political turmoil and a spate of disqualification petitions filed by all sides – Congress, BJP and the breakaway faction of Congress.

The Bench minced no words in making it unequivocally clear that, “It needs to be asserted as a constitutional determination, that it is not within the realm of the Governor to embroil himself in any political thicket. The Governor must remain aloof from any disagreement, discord, disharmony, discontent or dissension, within individual political parties.” The Bench further made it clear that, “The activities within a political party, confirming turbulence, or unrest within its ranks, are beyond the concern of the Governor. The Governor must keep clear of any political horse-trading, and even unsavoury political manipulations, irrespective of the degree of their ethical repulsiveness. Who should or should not be a leader of a political party, is a political question, to be dealt with and resolved privately by the political party itself. The Governor cannot, make such issues, a matter of his concern.”

The Bench said that the Constitution does not enjoin upon the Governor the authority to resolve disputes within a political party, or between rival political parties. The Bench also sought to make it clear that, “The state legislature does not function under the Governor. In sum and substance, the Governor just cannot act as the Ombudsman of the state legislature. The Governor cannot be seen to have such powers and functions, as would assign to him a dominating position, over the state executive and the state legislature.”

The Bench held that the Rajkhowa exceeded his Constitutional limits by calling an early session of the House without aid and advice of the State Cabinet. The Judges held that by asking for Speaker’s removal to be decided first, he further crossed the line as this matter is to be determined by the legislators. The judgment written jointly by Justices Khehar, Ghose and Ramana was quite upfront in holding that, “The Governor just cannot act as the Ombudsman of the State legislature… He has no role whatsoever in the removal of the Speaker under Article 179. The message of the Governor dated December 9, 2015 was therefore beyond the Constitutional authority vested with the Governor.”

It would be imperative to mention here that the Modi government claimed the Governor had acted to preserve democracy when the Speaker, who was from Nabam Tuki’s party, had disqualified the rebels while facing a motion for his removal. The Bench held in no uncertain terms that, “It does not lie within the domain of the Speaker to interfere with the functions of the Speaker. The Governor is not a guide or mentor to the Speaker. The Governor cannot require the Speaker to discharge his functions in the manner he considers constitutionally appropriate. Both the Governor and the Speaker have independent constitutional responsibilities.” The legality of the Speaker’s decision to disqualify anybody under the anti-defection law could be challenged legally.

Pursuant to the Governor’s order, all decisions and proceedings initiated by Arunachal Pradesh Assembly were set aside by the court. There was even a rider on the Speaker as the Court held that in the event the House is to take up the disqualification petition of rebel Congress MLAs, the Speaker must refrain from deciding it as he himself faced a petition for removal already moved by 13 Opposition MLAs. Moreover, the Court viewed the rebellion to be an intra-party affair as neither was a no-confidence motion moved against Tuki nor was he facing a floor test.

The Governor, it seemed, acted on a letter written by the rebel MLAs complaining against Tuki’s high handedness. The Congress had already disqualified two MLAs and issued show-cause notices to remaining 19. In this scenario, the Apex Court rebuked the Governor for supporting an “invalid breakaway group” and adopting a constitutional recourse of recommending President’s rule in the state, that he could take only in the case of a constitutional crisis. The Court further quashed all decisions taken by the Arunachal Pradesh Assembly subsequent to Governor’s order, giving clear indication that the new Government in the State had no legal sanctity.

Likening the events in the State to a “political circus”, Justice Lokur, one of the Judges who penned a separate judgment, said what was witnessed in the State was “lack of cordiality” between constitutional functionaries, that resulted in “thrashing” of the Constitutional mechanism that requires interpersonal relationship and “spanking” to governance in the State. The Judge went on to set aside the parallel proceedings conducted by the Deputy Speaker in a community hall where decision was taken to quash the disqualification of 14 rebel MLAs and remove the Speaker for siding with the Chief Minister.

We thus see that the Supreme Court has drawn a clear line for Governors and Speakers which they must follow under all circumstances. While restoring the Congress government in Arunachal Pradesh, the Supreme Court has stated unambiguously that a governor must keep away from any disagreement or discontent within individual parties and not get embroiled in political controversies. The five-Judge Bench of Apex Court underscored that a governor must function within the country’s constitutional framework.

The landmark judgment also ruled that Assembly Speakers – when faced with a precarious situation such as a resolution for removal – must demonstrate their right to continue in office by winning support in the state legislature. It held that, “When there is an expression of intention to move a resolution for removing him (the Speaker), it is requisite that he stand the test and then proceed.” It also added that the Speaker’s conduct must not only be impartial, but also perceptible in its impartialty. The Court said “Both the Governor and the Speaker have independent constitutional responsibilities”.

Thus we see that the Apex Court has heavily and substantially downsized the discretionary powers of Governors and told them in clear terms that they were to shut their eyes and ears to political developments, and even horse-trading, as long as the council of ministers headed by the Chief Minister enjoyed majority in the Assembly. Congress has welcomed the judgment as it is a morale booster as it was reeling from repeated electoral defeats. On the contrary, BJP ostensibly appeared critical of the verdict saying it is a very strange order that the leader with the majority support is being asked to sit in the Opposition and also wondered if the verdict “weakens” the democratic spirit. Nabam Tuki has been reinstated but will have to prove his majority in the House which is a Herculean task given the number composition.

It is high time and Centre must stop misusing Governors as their own agent. The blatant abuse of Article 356 of the Constitution must be put to an end which is possible only if adequate safety measures are inserted. As for instance, the President’s rule must be approved by High Court within a short span of time and finally by Supreme Court. Since independence we have seen how Centre has repeatedly misused Article 356 as a sharp weapon to stab Opposition ruled State Governments whenever they want. This must end once and for all. We all know how the nine-Judge Bench of Apex Court in the historic SR Bommai judgment condemned the arbitrary use of Article 356 invoking President’s rule but in that landmark case also no ousted government had been restored as we see in this latest landmark case!

The appointment procedure of Governors must also be changed. Politicians under no circumstances should be allowed to become Governors as they take sides and are very famous for it. Secondly, Governors must be made to study Constitution and a senior, eminent advocate of Supreme Court along with a Constitutional expert must enlighten them on how they should discharge their duties and how they should not act as agent of Centre for which they have become so notorious that the gubernatorial office of Governor is fast losing its credibility.

The Governor’s role and powers have come under judicial scrutiny as we all have seen in this landmark case. Appropriate measures must be taken to stem the rot within instead of accusing judiciary of indulging in “overreach”. Defining the contours of the Governor’s role vis-à-vis the House and the Executive, the Court said that, “The Governor cannot be seen to have such powers and functions, as would assign to him a dominating position, over the state executive and the state legislature.”

No doubt, this landmark verdict paves the way to protect healthy democracy in the country and even Centre must accept it gracefully and be careful not to recommend President rule at the drop of a hat from next time onwards by citing complete breakdown in State and Governor in danger as Centre did recently in case of Arunachal Pradesh by filing an affidavit in Supreme Court ! Centre must always remember that even Sarkaria Commission which was set up by Centre itself a long time back to review Centre-State relations had itself recommended that Article 356 (President’s Rule) should be used very sparingly, in extreme cases as a last resort when all the available alternatives fail.

-Sanjeev Sirohi,

 Advocate,

 

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