In an unprecedented verdict, the Supreme Court squashed the decision of Arunachal Pradesh Governor JP Rajkhowa to advance the state assembly in December 2015. The five judge constitution bench in a unanimous verdict restored the congress government in Arunachal Pradesh.
SC called the Governor’s action ‘illegal’ and ‘violative of the constitutional provisions’. The verdict reflects on the actions of centre which had imposed President’s Rule on the state and later withdrew it before a government led by a Congress rebel Kalikho Pul and supported by BJP members was installed.
This SC verdict has many important aspects which will have impact in future: politically and constitutionally.
In December 2015, the rebel MLAs approached Governor with a plea that the Speaker was trying to get them disqualified.
The Governor had already scheduled the session of the assembly and issued the notification in that respect. After hearing rebel MLAs’ plea, the Governor went ahead and preponed the session of assembly for an emergency session, without consulting the CM and his council of ministers.
In the emergency session, impeachment motion was passed and Pul was ‘elected’ as leader of house by rebels and others
Thus, Tuki led Congress government was dismissed in December 2015.
Supreme Court Judgment
The SC restored the Arunachal Pradesh government citing Governor’s action ‘illegal’. This judgment is considered as an affirmation of the constitutional principles without being influenced by any political discourse. The appointment of Governor is a political appointment by center. Hence, there is going to be an inkling of the politicisation. However, the court did not bother about if it had any political tones or motives. Court simply took the constitutional provisions as the basis of its judgement.
It restores the faith of the people in Supreme Court, particularly restoring the federal fabric of the Constitution.
Decisions within constitutional limits
The verdict reflects on Presidential proclamation as it was based on the illegal advice of the Governor. The SC has held that Governor’s advice to impose President’s Rule on ground that:
Speaker did not heed the Governor’s directive to convene the house on a preponed date
the Speaker had disqualified certain MLAs
was not the correct basis for the Governor to act and say that the government could not be carried out in accordance with the constitution.
SC commented that Governor was more worried about Speaker taking action against the 14 members. The Governor wanted to protect those MLAs from not being disqualified. The SC noted that those MLAs had the opportunity of judicial review and could approach the HC, which they did and HC also stayed their disqualification in the light of constitutional provision. So, it was not the job of Governor to protect those MLAs.
Centre’s influence in state politics?
Governor might have taken decision solely on his understanding ability or in centre’s influence. Thus, the SC verdict is an indictment not only on Governor but also on centre which sought to misuse its power under 356 to basically replace the government through the process of President’s Rule.
In Uttarakhand also, it was observed that central government used defectors to topple the government, impose President’s Rule and thereafter try and form a government with help of the defectors. This is completely against the Anti- Defection Act.
Anti-Defection Act’s purpose
The Anti-Defection Act says that if the MLAs defect, then they will be disqualified and their votes will not be counted. This was mentioned by HC in Uttarakhand case.
In Arunachal Pradesh, SC had said that the Speaker ought not to have disqualified the defectors when the motion for his own removal was pending (the Speaker’s order was anyway stayed by the HC).
The future course of action was sought on the lines that the restored government will decide about motion against Speaker or motion of no-confidence against the government. There the party whip will prevail over those MLAs who have defected. If the MLAs vote against the whip, whether motion against removal of Speaker or on confidence motion, they are liable to be disqualified.
SC tries to maintain balance
The SC has been very conscious and has tried to draw a balance.
On one hand the SC has discussed the role of Governor and has very objectively weighed the action of Governor in light of constitutional provision, esp art 163 of Constitution.
It came to the conclusion that Governor is bound by the advice of the council of Minister in performing all its function. Therefore, the court had found that the since the action of the Governor was not according to the aid and advice of the Council of Minister, it was not constitutional.
On the other hand, observation was made about the power of Speaker. It pronounced that a Speaker against whom a no-confidence motion is pending should desist from taking any action against the MLA about their disqualification.
So, the Supreme Court has tried to draw a balance in this case and has been very objective in analysing the power of the Governor limited to the present case.
Review petition possible?
Pul said that he may go for a review petition. However, a review petition of judgement is not possible. It could be of some provision of judgement which manifests the error of law. An entire judgment cannot be reviewed. In only rare cases the review is allowed.
In this case, it was heard for a long period of time involving and inspecting all the aspects of it and then pronounced an exhaustive 331 page judgment. Thus, a review petition is highly unlikely.
Classic case of establishing the supremacy of rule of law: All orders were passed by competent authorities but that is rule by some decree including the proclamation of the President’s rule. But, whenever the constitutional provisions were challenged, the rule of law prevailed above all. That way, the SC has to be applauded for making it very clear that the rule of law surmounts, always.
Role of Governor
The Arunachal Pradesh Governor chose to act in a matter that he could not have acted independently. It was incumbent on him that if the assembly session had to be preponed, it was required to consult the council of ministers. The Arunachal Pradesh Governor bypassed the Council of Ministers in summoning the assembly. This is against the constitutional provisions.
There is a public perception that the Governor has a special power.
Art 163: The Governor has to act under the aid and advice of Council of Ministers. Except under certain conditions, few of them like
Government does not have majority in the assembly
Government loses confidence of the assembly
Art 371 (h): Gives power to Governor of Arunachal Pradesh where it provides clearly that the Governor has a special power in respect of law and order and that too he can exercise his discretion only after consultation with council of ministers. However, he has no powers which is independent of council of ministers in matter of administration and legislature.
Thus, discretion to act under article 163 and 371 (h) are different.
Mind the limits!
The court made clear to the Governor to conduct their actions within the boundaries of the constitution. The court doesn’t deny any discretion to Governor nor does it say it is a puppet of central government. The court mentioned that powers of each constitutional positions are different- Speaker, Governor, MLA. The SC has tried to balance the power amongst all. However, the court has made the observation on lines of the particular case. Hence, it should not be generalised.
In recent past, whether Jharkhand, Goa or Uttarakhand, the role of Governor had become very critical and it was found that their decision was not in accordance with the constitutional provision. The questions about role of Governors, whether S.R.Bomai case, during emergency or Rajiv Gandhi government, have been always under scrutiny.
Bomai Judgment: The SC has the power to restore the government which was deposed unconstitutionally.
Uttarakhand: The SC through an order asked the CM to take the floor test which eventually went in his favour. But the SC had not given a judgment on the basic issue of the constitutionality or otherwise of the Presidential Proclamation. Though, the Arunachal Pradesh case is also not precisely on Presidential Proclamation but on Governor’s action of advancing the date of assembly without aid and advice of Council of Minister.
The Arunachal Pradesh case has been an unprecedented case. So, how the government will be restored and the procedure to be followed had no clarity.
Message to political parties
The message would be that it is the duty of all political parties to give a stable government to the people. All the citizens of country are entitled to a five year stable government. But most importantly, the government should enjoy the majority. If it does not enjoy it then the government should also not continue.
The message of SC is: it is not the job of the Governor to bother the activities in the legislature as he does not take part in the legislative activities. No one can transgress the power of one another. If there was an illegal order being passed or was passed by the Speaker against the MLA, then it is the HC or SC to take care of it, not the Governor.
Accountability: The constitutional incumbents have to adhere to constitutional norms. Though the SC judgements may not give directions, certain consequences follow from the judgment. The Governor and the government have to take responsibility. One cannot play with anti-defection law. The SC will not punish the Governor or central government. However, it underlines that the repeated misuse of President’s Rule needs to be overviewed by some independent authority which will decide if there exists any constitutional breakdown in the state or not. For example Election commission or some another constitutional authority.
It is the time when there should be consideration about the independence of Governor who has security of tenure and is not subject to removal of whims and fancies of central government.
Congress government had overwhelming majority in the house (47/60). Despite that things got messed up. Thus, political parties need to introspect the mishandling and incompetence of the leadership. Leadership is also about spotting dissention and managing contradictions within own fold apart from making speeches and statements.
The judgement is the ringing indictment of the Governor’s attempt to play politics. The judgement clearly says it is not the Governor who will pick and choose CM, arrange assembly session or instruct the Speaker or deputy Speaker accordingly for the political outcome it wants. This was not envisaged by the constitution when the post of the Governor was created. Thus, this verdict has important lessons which are bound to go beyond Arunachal Pradesh.
Real question: Whom to make Governor? Ideally, people having integrity, high reputation and independence of mind should be appointed as Governor. Yet, the system of appointment of Governor has been left much to the desire and thus, such consequences follow.
In an unexpected twist, the Arunachal Pradesh case came to a constitutional close with establishment of rebel MLA Pema Khandu led congress government. With sufficient majority present with the government, the Governor did not conduct any floor test.
Pema Khandu, India’s youngest CM, is son of former CM of Arunachal Pradesh.
Connecting the dots:
Supreme Court of India is guarantor of the Constitution of India. Substantiate.
Governor acting independent of center may increase chances of its removal. Do you agree?