NABAM REBIA AND ETC. ETC. Vs. DEPUTY SPEAKER AND ORS.- Power of Governor
Supreme Court of India (Constitution Bench- Five Judge)
Appeal (Civil), 6203-6204 of 2016, Judgment Date: Jul 13, 2016
137. As is evident from our constitutional history, there are three areas
in which a Governor might function:
Areas in which he can act only on the aid and advice of the Council of
Ministers. This is in all areas of the executive functions of the State
Government [Article 166].
Areas in which he can act in his discretion by or under the Constitution
and in which he does not need to take the advice of the Council of
Ministers [Article 163 - “except in so far as he is by or under this
Constitution required to exercise his functions or any of them in his
discretion.”] or, areas in which he might take the advice of the Council of
Ministers but is not bound by it enabling him to act in his individual
judgment by or under the Constitution.
Areas that have no concern with the Constitution. For example, where he is
acting eo nomine. We are not concerned with this area at all.
For our purposes, a distinction needs to be drawn between the relationship
of the Governor vis-à-vis the Executive and the relationship of the
Governor vis-à-vis the Legislature. Article 163 deals with the relationship
of the first category and Article 174 (among others) deals with the
relationship of the second category. We are concerned with the second
category, although the submissions of learned counsel have roped in Article
163 of the Constitution by contending that summoning the Legislative
Assembly is an executive act or function.
138. It is not at all necessary to enter into a debate on whether the act
or function of summoning the Assembly is an executive act or function.
Assuming it to be an executive function, summoning the Assembly cannot be
read as a ‘power’ conferred by the Constitution on the Governor - it
remains a function that the Governor performs in accordance with the
mandate of the Rules of Procedure and Conduct of Business in Arunachal
Pradesh Legislative Assembly on the advice of the Chief Minister and in
consultation with the Speaker of the Assembly. The unarticulated premise is
that the Governor cannot ‘act’ in an unregulated manner de hors any rules
of procedure in matters concerning the Legislative Assembly. The Governor
is expected to function in accordance with the provisions of the
Constitution (and the history behind the enactment of its provisions), the
law and the rules regulating his functions. It is easy to forget that the
Governor is a constitutional or formal head - nevertheless like everybody
else, he has to play the game in accordance with the rules of the game –
whether it is in relation to the Executive (aid and advise of the Council
of Ministers) or the Legislature (Rules of Procedure and Conduct of
Business of the Arunachal Pradesh Legislative Assembly). This is not to
say that the Governor has no powers – he does, but these too are delineated
by the Constitution either specifically or by necessary implication.
Failure to adhere to these basic principles is an invitation to enter the
highway to the danger zone.
139. Assuming however, that the Governor has the ‘constitutional power’
to summon the Assembly (and that it is not merely an executive function)
the considerations at law become quite different. Undoubtedly, no power,
constitutional or otherwise, can be exercised in an arbitrary manner though
the exercise of power, in some situations is undoubtedly beyond judicial
consideration or judicial review and at best an academic discussion, for
example the legality of using the armed forces of the Union
internationally. If the functions of the Governor were to be read as his
power, and an untrammeled one at that (in view of Article 163 of the
Constitution, as contended), then the Governor has the power to literally
summon the Assembly to meet “at such time and place as he thinks fit” that
is in any city and at any place other than the Legislative Assembly
building and at any odd time. This is nothing but arbitrary and surely, an
arbitrary exercise of power is not what our Constitution makers either
contemplated in the hands of the Governor or imagined its wielding by any
constitutional authority.
141. Does the rule of law in our country permit the Governor to throw
constitutional principles and the Rules of Procedure and Conduct of
Business of the Arunachal Pradesh Legislative Assembly to the winds and
summon the Assembly to meet wherever and whenever he deems appropriate?
Surely the answer to this must be in the negative and since that is so, it
must follow that the ‘power’ apparently conferred on the Governor is
arbitrary and must be read down to at least a ‘reasonable power’ to be
exercised in accord and consonance with constitutional principles, law and
the rules.
146. In dealing with the situation in Arunachal Pradesh, the Governor was
obliged to adhere to and follow the constitutional principle, that is, to
be bound by the advice of the Council of Ministers. In the event that
advice was not available and responsible government was not possible, the
Governor could have resorted to the “breakdown provisions” and left it to
the President to break the impasse. The Governor had the advice of the
Council of Ministers but chose to ignore it; he assumed (well before the
advice was tendered) that the advice would be such that he might not be
bound by it; the Governor, despite being the ‘first citizen’ of the State,
chose to take no steps to break the impasse caused by a collapse of
communications between him and the Chief Minister; finally, the Governor
took no steps to resort to the breakdown provisions and obtain impartial
advice from the President. Instead, the Governor acted in a manner not only
opposed to a rule of law but also opposed to the rule of law and,
therefore, arbitrarily and in a manner that certainly surprises “a sense of
juridical propriety”.
Relations between the Governor, the Executive and the Legislature
148. The issue may also be looked at from an entirely different
perspective based on the provisions of the Constitution. Part VI of the
Constitution concerns the States and it consists of six chapters. Chapter I
is general and consists of one definition. Chapter II relates to the
Executive, that is, the Governor, the Council of Ministers, the Advocate
General for the State and conduct of government business. Amongst other
things, the ‘eligibility’ of a person to be appointed a Governor is
provided for in this chapter. Article 158 of the Constitution provides that
the Governor shall not be a Member of Parliament or of a State Legislature
and if such a Member is appointed as a Governor, he shall be deemed to have
vacated his seat in the House when he enters upon his office as Governor.
This is significant since it insulates the Legislature from the Governor.
149. Article 163 of the Constitution and the discretionary exercise of
functions of the Governor comes under the heading of Council of Ministers
and is suggestive of executive governance or executive issues concerning
the Council of Ministers. In this context, reference may also be made to
Article 164 of the Constitution which provides for the appointment of the
Chief Minister of the State by the Governor and the appointment of other
Ministers on the advice of the Chief Minister. The appointment of the Chief
Minister is based on the postulate that he commands or is expected to
command the support of a majority of Members of the Legislative Assembly.
Therefore, it is not as if the Governor has untrammeled discretion to
nominate anyone to be the Chief Minister of a State. Similarly, if the
Governor chooses to ‘withdraw his pleasure’ in respect of a Minister he
must exercise his discretion with the knowledge of the Chief Minister and
not by keeping him in the dark or unilaterally. In this context, reference
may be also be made to Article 165 of the Constitution which deals with the
appointment of the Advocate General for the State. He is appointed by the
Governor and holds office during the pleasure of the Governor and receives
such remuneration as the Governor may determine. It cannot be anybody’s
case that the Governor, in exercise of his discretion, may appoint any
eligible person as the Advocate General without any reference to the
Council of Ministers and also ‘withdraw his pleasure’ at any time in
respect of the Advocate General thereby removing him from his office. The
purpose of all these provisions is to indicate that the discretion given to
the Governor is not all-pervasive or all-encompassing as is suggested by
learned counsel for the respondents.
150. That the functions of the Governor are limited to matters of
executive governance or executive issues and the Council of Ministers is
made explicit through Article 166 of the Constitution which provides that
all executive action of the Government shall be expressed to be taken in
the name of the Governor,[71] orders and instruments shall be executed in
the name of the Governor[72] and the Governor shall make rules for the more
convenient transaction of business of the Government and allocation of
business among the Ministers “in so far as it is not business with respect
to which the Governor is by or under this Constitution required to act in
his discretion.” This clearly has reference to Article 163 of the
Constitution and must be understood as meaning that framing the rules under
Article 166(3) of the Constitution is not the discretion of the Governor
but an executive exercise undertaken by the Council of Ministers. Article
167 of the Constitution relates to the duty of the Chief Minister of a
State to communicate the decisions of the Council of Ministers to the
Governor and furnish information to the Governor. Chapter II of Part VI of
the Constitution is, therefore, quite compact and delineates the relations
between the Executive and governance of the State.
154. There are other executive functions that a Governor is required to
perform with respect to the Legislature. Some of these are provided for in
Article 180 of the Constitution (referred to above), Article 184 of the
Constitution (which pertains to the Legislative Council and is in pari
materia with Article 180 of the Constitution) and recruitment and
conditions of service of secretarial staff of the Legislative Assembly or
the Legislative Council as the case may be (Article 187 of the
Constitution). If the provisions of Article 163 of the Constitution are
read into all these executive functions relatable to the Legislature and
the exercise of discretion of the Governor cannot be questioned (as
contended by learned counsel for the respondents) then the Legislature
could and would be dominated by the Governor – something completely
unthinkable in a parliamentary democracy, where the Governor cannot
dominate the Executive but could dominate the Legislature!
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISIDCTION
CIVIL APPEAL NOS. 6203-6204__OF 2016
(Arising out of SLP(C) Nos. 1259-1260 of 2016)
Nabam Rebia, and Bamang Felix … Appellants
versus
Deputy Speaker and others … Respondents
J U D G M E N T
Jagdish Singh Khehar, J.
1. Leave granted.
2. The 5th session of the Arunachal Pradesh Legislative Assembly
(hereinafter referred to as, the Assembly/House) was concluded on
21.10.2015. On 3.11.2015, the Governor issued an order summoning the 6th
session of the Assembly, to meet on 14.1.2016 in the Legislative Assembly
Chamber at Naharlagun. The instant order was passed by the Governor, on
the aid and advice of the Chief Minister, and in consultation with the
Speaker of the House. The 6th session of the House was preponed by the
Governor from 14.1.2016 to 16.12.2015, by an order dated 9.12.2015
indicating inter alia the manner in which the proceedings of the House
should be conducted. In its support, the Governor issued a message on
9.12.2015. These actions of the Governor, according to learned senior
counsel for the appellants, demonstrate an extraneous and inappropriate
exercise of constitutional authority. The above order and message of the
Governor, without the aid and advice of the Council of Ministers and the
Chief Minister, constitute the foundation of the challenge raised by the
appellants.
3. When hearing in these appeals commenced, the impression given out
was, that the sequence of facts relating to the affairs of the House and
the MLAs, by itself would be sufficient to establish, that constitutional
responsibilities were exercised in such manner, as would be sufficient for
this Court to strike down the same. The same position was espoused on
behalf of the respondents, who also advocated that the factual background,
would establish the legal and constitutional validity of the Governor’s
actions. And also, that the Governor had passed the impugned order, and
issued the impugned message, bona fide. The narration of facts, therefore
assumes significance.
The foundation of the appellants case:
The first sequence of facts:
4. In order to project the correct narrative (as per the understanding,
of learned counsel, representing the appellants), towards highlighting the
factual position, it was urged, that the political posturing in the State
of Arunachal Pradesh, commenced after the Governor – Jyoti Prasad Rajkhowa
assumed charge on 1.6.2015.
5. It was suggested, that when the Governor assumed office, there was a
brewing discord amongst members of the ruling Indian National Congress
(hereinafter referred to as the INC). Only a few days after the Governor
took over charge, the President of the Arunachal Pradesh Congress Committee
– Padi Richo addressed his first communication to the Chief Minister –
Nabam Tuki (on 18.6.2015), inviting his attention to reports received from
party workers, regarding breach of party discipline. On the same lines,
another letter was addressed by the party President, to the Chief Minister
on 1.9.2015. The text of the same is extracted hereunder:
“In reference to my earlier letter no.nil dated 18/6/2015 in connection
with reports received from party workers regarding breach of discipline by
some of the Congress legislators by their active involvement in anti-party
activities, which has been seriously viewed by the AICC and APCC. But
despite of that, it has been reported by party functionaries and workers
that some of the congress legislators are still actively indulging in
indiscipline and various anti-party activities.
Therefore, all the Congress legislators are requested to refrain themselves
from indulging in such anti-party activities and maintain party
discipline.”
6. It was submitted, that strenuous efforts were ongoing, to quell the
intra-party dissidence. It was asserted, that resignation letters of two
MLAs belonging to the INC – Wanglam Sawin and Gabriel D. Wangsu were
accepted on 6.10.2015, whereupon, they stood removed from the House. The
details of the ongoing disruptive activities within the Congress
Legislature Party, as also, the involvement of the Governor, was sought to
be demonstrated, by placing reliance on two further communications, the
first of which (dated 11.10.2015), was addressed by the removed MLAs, to
the Governor. A relevant part of the same, is reproduced hereunder:
“Sub: Commission of an enquiry into the forceful resignation.
Your Excellency,
With great pain and indignation, we the undersigned Members of Legislative
Assembly of the Sixth Arunachal Pradesh Legislative Assembly would like to
apprise your benign authority about some disturbing, degraded and
inglorious conduct of the leader of the Congress Legislative Party-cum-
incumbent Chief Minister and his supporters for favour of your kind
information and necessary action please;
Your Excellency, on 14th Sept 2015 at around 5 pm, we were repeatedly
informed through phone calls requesting us to join “a get-together dinner
party”, purportedly on the invitation of Mr. Mama Natung, HMLA, at his
residence at Senki View area, Itanagar. Some 18 MLA colleagues from the
Congress Party visited his residence for the dinner but were instead asked
to join an informal discussion on the prevailing political crisis faced by
the Congress led State Government under the Chief Ministership of Mr. Nabam
Tuki. All members participated in the discussion which revolved around
support for Mr. Tuki and further the issue of initiating actions against
any member not adhering to the decision to be loyal to Tuki was discussed.
Also it was decided to form a group of ‘like-minded’ legislators and
accordingly formed S-18 or Super-18, besides forming one Action Committee
tasked to take necessary actions against those MLAs who do not abide by the
decisions taken jointly by the group. Thereafter, we had our dinner and
left.
Your Excellency, on 16th September’ 2015, we were informed by Mr. Nyamar
Karbak, MLA who was the coordinator of S-18 to join a dinner party at the
official residence of Hon’ble Chief Minister Mr. Nabam Tuki. Like the
other day, this time also 17 of us went together to attend the dinner
hosted by the Chief Minister which amongst other included, i) Gabriel
D.Wangsu, ii) Mr. Wanglam Sawin, iii) Phurpa Tsering, iv) Mr. Jambey Tashi,
v) Mr. Tirong Aboh, vi) Mr. Dikto Yikar, vii) Mr. Mama Natung, viii) Mr.
Pani Taram, ix) Mr. Nikh Kamin, x) Mr. Nyamar Karbak, xi) Mr. Bamang Felix,
xii) Mr. Techi Kaso, xiii) Mr. Tatung Jamoh, xiv) Mr.Alo Libang, xv) Mr.
Tapuk Taku, xvi) Kumsi Sidisow, xvii) Mrs. Karya Bagang.
Like the preceding night, some of the MLAs like Mr. Nyamar Karbak, Mr.
Bamang Felix, Mr. Mama Natung and Mr. Nikh Kamen suddenly started
discussion on the political matter and requested 17 of us to support Tuki
and to protect his leadership from being ousted by the dissident group of
the party. Most of us participated in the said discussion though
reluctantly with certain reservations in our mind and heart. The gathering
instead of being a dinner party was turning more into a political meeting
and some MLAs, to our anxiety and panic, aggressively tried to persuade and
prevail upon us thereby, putting all of us in a very stressful and awkward
situation. There was little room left for further discussion or dissent.
Thereafter, some of our MLA colleagues came up with a strange proposal to
sign and submit irrevocable resignation letter in the hand of HCM to show
our loyalty to his leadership. We were baffled and dumbstruck by hearing
the undemocratic, dangerous and inappropriate proposition placed before us
by him. All of us were confused and couldn’t gather the courage to protest
against the said proposal in the presence of the CM, Speaker of the
Assembly and PCC president. Then some of the loyalists of Mr. Tuki namely
Nyamar Karbak and Bamang Felix holding ready and prepared stereotype
resignation letters in their hands came to us and handed over to each of us
and asked us to put our signatures. The whole drama took place in presence
of Mr. Nabam Tuki, CM and Mr. Padi Richo, President, Pradesh Congress
Committee and putting us in strained mental torment and duress compelled us
to hurriedly sign the resignation letter without even reading the content
thereon, against our will and against the spirit of democracy. After
getting us to sign the papers they collected the same and handed over to
the Chief Minister Mr. Nabam Tuki.
Furthermore, we were given strict instruction and direction not to mention
the date in our signatures. And just before the dinner, after concluding
the meeting and signing of the resignation letters, surprisingly Speaker
Nabam Rebia to arrived and joined in the dinner party at the CM’s official
residence. Soon thereafter a group namely ‘S-18’ was formed in the
Whatsapp. However, both of us were removed from the group on 6th October
2015.
Now under the above circumstances, we would like to inform you that those
resignation letters were signed by all 17 of us under complete duress
having obtained illegally and wrongfully. In this regard, the following
arguments may be taken into considerations;
i) That we were invited to attend an informal dinner party hosted by the
HCM for 17 of us. It was neither a CLP meeting nor a party meeting to
discuss politics as only 17 of us were invited for the dinner at the
official bungalow of the HCM. It is equally true that we were invited for
a dinner and not for signing our own resignation letters.
ii) That none of us could muster the courage and spirit to protest the
unholy and vicious agenda of the HCM that too in his presence and that of
the Speaker, both holding high constitutional posts, and President, PCC.
iii) That all the resignation letters signed by us were stereotype or
identical copies of one single letter which speaks volume about the
dishonest intention of the HCM, Speaker and his supporters as he was ready
with the resignation letters which again established that everything was
planned before hand with the help and support of the Speaker of the
Legislative Assembly to obtain our signatures in the resignation letters by
hook or crook and instill fear in our mind. Invitation to the dinner party
was only a ploy to trap us in the larger game plan to secure the Chief
Ministerial Chair.
iv) These disgracing, undemocratic and unethical action has brought
disgrace to the benign office of the Chief Minister and the Speaker as
their conduct are completely unbecoming of a Chief Minister as well as for
holding the prestigious and dignified chair of the Speaker. Their illegal
and wrongful act of obtaining our signatures by putting us in duress is
nothing but criminalization of politics and brute murder of democracy and
its values and principles for their vested personal interest which is
punishable under relevant law of the land.
v) If an elected representative is not allowed to take any decision out of
his conscience and free will it tantamounts to murder of the very basic
fabric of democracy which will bear negative impact in overall contribution
to the state’s governance, and above all that would be murder of democracy.
vi) The reason quoted in the resignation letter is also highly
inconceivable and ludicrous. How could any elected representative
including us after being elected by the people would tender the resignation
on such irrational, unjust and unfounded ground.
Your Excellency, vide our letter dated 01-10-2015 addressed to the Speaker
of the Legislative Assembly which we had submitted to the office of the
Speaker on 05-10-2015 before noon, we have elucidated the facts and
circumstances under which our signatures in the resignation letters were
obtained on 16-09-2015 at the official bungalow of CM and that the same was
obtained under duress against our consent and free will, therefore
requested the Speaker not to accept the resignation letter and to treat the
same as invalid, null and void until and unless we come in person to submit
the resignation letters.
However, ironically, after submission of our letter, it came to our
knowledge that the Speaker had without following the provisions as
enshrined in Article 190(3)(b) of the Constitution and Rule 200(2) of the
Rules of Procedure and Conduct of Business in the Arunachal Pradesh
Legislative Assembly had purportedly issued a notification dated 01-10-2015
accepting our resignation and declaring our respective seats to have fallen
vacant. The said notification was published in the evening of 05-10-2015
only immediately after submission of our withdrawal letters to the Speaker.
Article 190(3)(b) of the Constitution reads as follows;
xxx xxx xxx
Rule 200(3) of the Business Rules reads as follows;
xxx xxx xxx
Thus, the abovementioned provisions casts an obligation on the Speaker to
make inquiry regarding the voluntariness and genuineness of the resignation
letters when the resignation letters are not submitted in person but since
the Speaker himself is a party to the whole episode playing hand in glove
with the CM, therefore, he choose to do away with the laid provisions of
the law.
xxx xxx xxx
Your Excellency, since the notification dated 01-10-2015 was issued by the
Speaker without following the established principles, therefore we had
approached the Hon’ble Gauhati High Court challenging the said notification
vide WP (C) No.6193/2015. The Hon’ble Gauhati High Court after considering
the whole facts and circumstances of the case was inter-alia pleased to
stay the operation of the impugned notification dated 01-10-2015 vide order
dated 07-10-2015. The Hon’ble Court further observed that prima-facie the
requirement of Rule 200(3) of the Procedure and Conduct of Business and the
incorporated proviso to Article 190(3)(b) of the Constitution do not seem
to have been complied and directed the Election Commission not to take any
action on the basis of the said notification.
xxx xxx xxx
Your Excellency, along with us, 15 other MLAs had also signed the
resignation letters and handed over the same to the CM in the presence of
the PCC Chief, but why only our resignation letters were entertained and
accepted by the Speaker. What happened to the other resignation letters
signed by 15 other MLAs? Why no action has been taken till date on the
resignation letters of other 15 MLAs who till date has not withdrawn their
resignation letters?
xxx xxx xxx
We, therefore, request your Excellency to look into the issue seriously to
unearth the unholy nexus between the Chief Minister, the Speaker of the
Legislative Assembly and PCC, President. And why the Chief Minister has
adopted such wrongful and illegal means to obtain the resignation letters
from us, and what compelled him for such a criminal act is the million
dollar question.
In view of the above facts and circumstances, it is our humble request to
your august office to immediately enquire into the whole resignation
incident through independent investigating agency like CBI because both the
culprits are holding high constitutional posts, i.e. Chief Minister and
Speaker and there cannot be free and fair investigation, if conducted by
the State Investigation agency and take stringent action against all the
persons involved in the whole crime by booking each and everyone under
appropriate provision of law.”
According to learned counsel, it is shocking and distressing, that the
above letter should have been addressed to the Governor, who has no role in
intra-party affairs. The above letter and inferences, according to learned
counsel, were suggestive of political motivation. The second communication
dated 11.10.2015 was addressed (to the Governor) by 20 MLAs of the INC,
jointly with two Independent MLAs. A relevant extract of the instant
communication is reproduced below:
“Sub: Complaint against the policy of absolutism of the Chief Minister.
Your Excellency,
We the incumbent MLAs of INC party amongst them some are sitting Ministers
in the present ruling dispensation of the State being perturbed and
disillusioned with the current dismal and grim state of affairs of the
State Government and the tyrannical style of incumbent Chief Minister Shri
Nabam Tuki in running the government would with profound veneration most
humbly like to state the following few lines for favour of your perusal and
necessary appropriate action;
His Excellency, it has been learnt through the print media that the Chief
Minister is contemplating to literally drop four veteran, experienced and
highly regarded leaders like i) Mr. Chowna Mein, Agriculture Minister, ii)
Mr. Kamlung Mossang, Food & Civil Supply Minister, iii) Mr. Kumar Wai,
Cooperation Minister and Mr. Wanglin Lowangdong, Social Welfare Minister
from the council of Minister without articulating any cogent reasons either
implicit or explicit for taking such a drastic and unpleasant measure at
this particular junction when the State is experiencing acute financial
crisis having occasioned due to the misrule, shortsightedness, autocratic
policies and wrong decisions of the incumbent Chief Minister coupled with
excessive unplanned, wasteful expenditures and financial mismanagement
leading the state to a complete stalemate with development activities in
the State in a complete standstill and clouding the State with complete
darkness of financial depression.
His Excellency, your benign authority may be well aware of the fact that
the State under the leadership of Mr. Nabam Tuki, CM has been reeling under
the burden of humongous financial liabilities, insurmountable debts and
burden of overdrafts for last 3 years due to gross and unprecedented level
of corruption, fraudulent misappropriation and embezzlement of the project
specific funds and revenues of the government.
His Excellency, it is very unfortunate that there are serious charges of
criminal misconduct, nepotism and corruption against Shri Nabam Tuki on
numerous counts which are as follows;
Awarding contract to his family and relatives by abusing his power and
position without floating tenders and secured pecuniary gain by illegal and
dishonest means in clear violation of codal formalities. The Hon’ble
Gauhati High Court taking cognizance of the allegations against Nabam Tuki,
CM vide Judgement and Order dated 21-08-2015 in WP (C) No. 1267/2010 has
directed the CBI to register a case and conduct investigation against the
alleged misconduct of Shri Nabam Tuki in awarding contracts to his wife,
sister-in-law, brother and other near relatives without calling tenders by
abusing his official position as a Minister. The Hon’ble Court also
directed the CBI to probe and investigate the alleged UCO bank transaction
of Rs.30,00,000/- (Rupees Thirty Lacs) only allegedly deposited in the
account number of Mr. Nabam Tuki by Mr. N.N. Osik, the then Director of
Food & Civil Supplies.
Serious allegation against the incumbent CM who also holds the charges of
Finance, Planning and Disaster & Relief Ministries for gross misuse and
embezzlement of relief funds under NDRF & SDRF. In this connection also
two PILs are pending in the Hon’ble Gauhati High Court being numbered as
PIL No. 62/2015 & 65/2015 and vide order dated 06/08/2015 the Hon’ble
Gauhati High Court was pleased to admit both the PILs by rejecting the
preliminary objection of the State Government on the issue of
maintainability of the cases and made an observation that “there appears to
be some prima facie case to be enquired into the justification of the State
in making assessments regarding natural disaster”. In this connection the
Controller and Auditor General of India is also conducting an enquiry into
the allegation.
Gross misuse and siphoning of project specific funds under Centrally
Sponsored Scheme (CSS) as a result of which majority of the projects or
works under abovementioned schemes has not been completed and/or are under
progress. Worst some have even not been commenced and will never see the
light of the day because all the grant and assistance provided by the GOI
has been whimsically and capriciously diverted and misused under Non-Plan
head and PDS. Though majority of the works and projects has not been
completed but the funds have been completely exhausted creating colossal
financial liabilities to the tune of Rs.6911.55 Crores. That is the sole
reason, why the state government is unable to furnish the UC as demanded by
the GOI. The Ministry of DONER has instituted an enquiry to unearth the
degree of corruption.
The State Government is reeling under the burden of overdraft for
consecutively two years. The Government committed an overdraft of Rs.(-)
449.76 Crores during 2013-14 and Rs. (-) 581.38 Crores during last
financial year 2014-15. The current overdraft till May’ 2015 is Rs. (-)
222 Crores bringing the total overdraft to the tune of Rs. (-) 1,253.14
Crores. The amount of overdraft are to be repaid by the State government
to the RBI with 13% interest rate which in turn will affect the development
of the State, as the Government will be forced to utilize the plan money
for the repayment of the overdraft.
Your Excellency, overdraft, suspension of government bank transactions,
inordinate delay in disbursement of pension, GPF, TA/DA and other benefits
to the government employees, transfer of funds in the civil deposits of the
government, non-payment of bills to the contractors and suppliers against
the completed works and non-payment of stipend to the students has become
an order of the day.
Your Excellency, Shri Nabam Tuki, CM is adopting all sorts of illegal and
unlawful means in order to quell and crush the voices of dissent who having
been disillusioned and disenchanted with his misdeed and style of running
the State Government in a despotic and autocratic manner has intensified
their demand in recent days for a change in the leadership. He is even
indulging in criminal and immoral activities to secure his Chief
Ministerial post. It is very disheartening that Shri Nabam Tuki, CM with
the support of handful of his protagonist invited 17 MLA’s for a dinner
party at his official bungalow and has forcefully obtained signatures of
the 17 MLA’s in a resignation letters authored and produced at his
residence by putting them under intense duress and pressure with the
objective to use the same as a tool to blackmail them not to shift their
loyalty or allegiance.
xxx xxx xxx
7. Your Excellency, in a democratic and parliamentary form of
government, the legislators of the single largest party in the legislative
assembly select a leader amongst themselves to lead them who is called as a
leader of the legislative party and the selected leader accordingly becomes
the Chief Minister and forms a government. If the leader upon being
selected loses the goodwill, trust and confidence of the legislators who
have selected him, the legislators can change or replace the said leader
with more efficient, capable and competent leader to run the government.
In context to the present prevailing political scenario of the State the CM
has lost the goodwill, trust and confidence of majority of the legislators
which can gauged from the CLP meeting which was held on 29-09-2015 where
only 22 party legislators attended the meeting. Immediately thereafter a
Cabinet was also summoned by the CM and similarly the meeting not attended
by majority of the Cabinet Ministers and was less than the necessary quorum
for taking any major decisions, therefore, it is the CM who should be
tendering his resignation papers rather than dropping highly respected and
decorated sitting Ministers who have serving the State to the best of their
capability and capacity without any complaint or blemish on their
integrity.
xxx xxx xxx
Therefore, in view of the above facts and circumstances of the case, it is
our collective earnest request and appeal to your esteemed office not to
entertain the decision of the incumbent CM as he is running a minority
government and enjoys the support of only handful of legislators as he has
lost the confidence and goodwill of the majority of the legislators. If
the CM is allowed to prevail then it will tantamount to murder of democracy
and parliamentary form of government.
With regards,
signed by 20 INC MLAs and
2 Independent MLAs.
Yours faithfully,”
It was submitted, that despite the position being clear, that a Governor
has no role in internal party feuds, details as noticed in the letter
extracted above, were being provided to the Governor. Illustratively it
was submitted, that the manner of functioning of the Chief Minister, or the
likely change in the composition of the Cabinet, or the manner in which
financial affairs of the State were being handled, or the prevailing
allegations of corruption against the Government, and such like matters,
are beyond the realm of cognition and responsibility of the Governor. And
yet, were being brought to the notice of the Governor. It was urged, that
all this was being done, because of the belief of the dissident faction,
that the Governor would act thereon. This, because of the tacit support,
by MLAs belonging to the Bharatiya Janata Party (hereinafter referred to
as, ‘the BJP’). It was highlighted, that the involvement of two Independent
MLAs along with 20 MLAs of the INC, in the letter dated 11.10.2015, needed
to be pointedly noticed. Because it demonstrates, not only dissension
within the party, but also the involvement of support from outsiders. The
connotations of the above second letter, according to learned counsel, were
also suggestive of political motivation.
7. Having highlighted the alleged divisive activities of the breakaway
group of MLAs within the INC, itz was submitted, that the party President –
Padi Richo, was right in perceiving, that the above actions amounted to
breach of party discipline. The party President accordingly, addressed
individual communications dated 12.10.2015, to the defaulting MLAs, wherein
he brought to their attention, the party’s impressions. A relevant extract
of one of the said communications is being reproduced hereunder:
“It has been reported by party functionaries and workers of your
constituency and the Block/District Congress Committee that you are
indulging in various activities which amounts to breach of discipline of
the Party under Claus 4(a), (b) and (c) of the Constitution of Indian
National Congress. In this connection I have also issued a Circular to all
Party MLAs and Leaders on 1st September 2015 making it clear that action
will be taken against any such leader indulging in indiscipline and anti-
party activities.
The matter was placed before the Executive Committee of the PCC on 6th
October 2015 and the Committee is of the view that there is a prima facie
breach of discipline from your side. You are hereby called upon to explain
the charges made against you within 15 days time as to why disciplinary
action as it may deem fit is not taken against you.”
Your failure to reply within the above stated time will be considered as
that you have no explanation or reply to be given, and appropriate action
as deemed fit, will be taken against you without any further notice.”
8. At the instant juncture, a meeting inviting all members of the
Congress Legislature Party was convened for 8.11.2015, which was to be
attended by representatives of the central leadership. An extract of the
communication dated 5.11.2015, calling the above meeting, is reproduced
below:
“No.CM(AP – 11/2015 dtd 05th Nov, 2015[:] Please convey the following
message by quickest means as under[.] quote[.] From Shri Nabam Tuki, Chief
Minister to all Congress MLAS/Parliamentary Secretaries/Ministers[.] As
directed by Shri V. Narayanasami, General Secretary, AICC, In-Charge,
Arunachal Pradesh a meeting of all members of Congress Legislature Party
(CLP) convened on 8th November, 2015(Sunday) at 4.30 PM repeat 8th
November,2015 at 4.30 PM at Rajiv Gandhi Bhawan, Itanagar[.] Meeting will
be attended by [.] One[.] Shri V Narayanasami, General Secretary, AICC, In
Charge[.] Two[.] Dr. Jayakumar, AICC Secretary,[.] Three[.] Shri Padi
Richo, President PCC among others[.] Request to attend the meeting as
directed by Shri V Narayanasami, GS, AICC positively[.] unquote[.] Plse
confirm N.T.T.”
Immediately on receipt of the aforesaid invitation, the same 21 dissident
MLAs, addressed a joint statement to the party leadership, that they would
not be attending the meeting (scheduled for 8.11.2015), as the Chief
Minister – Nabam Tuki had lost all moral credibility to lead the House. An
extract of the contents of above joint assertion is reproduced below:
“…It has come to our notice that a CLP meeting has been convened on 8th
November 2015. There are already differences of opinion with regards to
autocratic way of functioning and disrespect for inner democracy of the
party with the present CLP leader Mr. Nabam Tuki. Were clearly denounce
his legitimacy as the leader of Congress Legislature Party of Arunachal
Pradesh. Under this circumstances any meeting called under his leadership
do not carry any substance and holds no water. He has lost all the moral
credibility to lead the party in the house.
Therefore, we the undersigned Congress legislature party members have
unanimously decided not to attend the CLP meeting called under the
leadership of Mr. Nabum Tuki.”
signed by 21 MLAs of the INC.
9. On 12.10.2015, the President of the Congress Legislature Party issued
a show cause notice to 19 MLAs belonging to the INC, for indulging in
activities, indicative of breach of sincerity and commitment towards the
INC. Another communication was also issued to all MLAs belonging to the
INC, to attend a party meeting, at the residence of the leader of Congress
Legislature Party. It was submitted, that the same 21 legislators
belonging to the INC again addressed a joint statement to the Chief
Minister, wherein they contested his legitimacy, as leader of the INC. The
said legislators, again refused to attend the meeting. They also issued a
press note, to openly announce their aforesaid stance. In a meeting held
on 8.11.2015, the central leadership of the Congress Party affirmed, its
support to the Chief Minister – Nabam Tuki. It was pointed out, that
thereafter, another notice was issued for holding a meeting of the
legislators, belonging to the INC, on 18.11.2015. Yet again, the same 21
MLAs did not attend the meeting, and reiterated their point of view, with
reference to the leadership of the Chief Minister. It was asserted on
behalf of the appellants, that this was a revolt of sorts, within the INC.
10. In their narration, learned counsel also pointed out, that on
16.11.2015, a notice of resolution for the removal of the Deputy Speaker –
Tenzing Norbu Thongdok, was moved. The same was allegedly moved by 16
MLAs, belonging to the INC. As a matter of clarification, it would be
pertinent to mention, that the Deputy Speaker had been elected as an MLA,
on the nomination of the INC.
11. On 19.11.2015, a notice of resolution for the removal of the Speaker
of the Assembly – Nabam Rebia, was moved by the 13 MLAs – 11 belonging to
the BJP, and 2 Independent MLAs. It was submitted, that the aforesaid
notice was issued under Article 179(c) read with Article 181, and Rules 151
and 154 of the Rules of Procedure and Conduct of Business of the Arunachal
Pradesh Legislative Assembly, framed under Article 208 (hereinafter
referred to as, the ‘Conduct of Business Rules’). The notice depicted the
following grounds for the removal of the Speaker:
“(i) The Constitution and democracy are not safe in the hands of the
Speaker, as he has unseated two members of the Arunachal Pradesh
Legislative Assembly;
(ii) That he has flagrantly violated the Constitution;
(iii) That Speaker has not been functioning as a neutral person;
(iv) That the Speaker has been appointing secretarial staff/persons without
following administrative procedure.”
12. Yet another meeting of MLAs belonging to the INC, was held on
18.11.2015. The allegedly errant 21 MLAs belonging to the INC, did not
again attend the meeting. It was asserted, that in order to take stock of
the ongoing activities of the 21 dissident MLAs, another meeting of the
Congress Legislature Party was held on 3.12.2015, wherein the participants
took note of the prevailing situation, by recording the following
proceedings:
“This meeting of the Congress Legislature Party, Arunachal Pradesh, held on
today, the 3rd December at 4.00 P.M. at Itanagar unanimously resolves to
request the Party Leadership and the Congress High Command at Delhi,
bringing to your kind attention a letter dated 2nd November 2015 signed by
21 elected members of the Congress Legislature Party Arunachal Pradesh, in
clear undemocratic, indiscipline and unheard manner dictating terms and
excuses for absenting and voluntarily distancing from the Congress
Legislature Party, Arunachal Pradesh against procedure established by the
rules and regulations of the party, challenging the democratically elected
Congress Legislature Party leaders authority, instead of participating in
the meeting as members of the Congress Legislature Party and express
whatever opinion, suggestion or grievances which can be resolved or decided
by the Congress Legislature Party in its meeting.
It is also requested that the Congress High Command may make it clear that
whether the signatories of the letter are staying back in Delhi as per the
advice of the AICC in spite of the fact that, the above group of
Legislatures voluntarily abstained from the earlier CLP meeting held on
16th November, 2015, which was attended by the General Secretary, AICC in
charge of Arunachal Pradesh Shri V. Narayanaswamy, Dr. Jayakumar, Secretary
AICC and Shri Padi Richo President APCC on the same grounds.
The meeting of the Congress Legislature Party also bring to the notice of
the Party Leadership that the activities of the above 21 MLAs who have
formed a separate group distancing themselves from the Congress Party, is
working against the interests of the Party and the democratically elected
Government of the Party, which is taking all-round efforts to develop the
State and working untiringly to improve and help the people of Arunachal
Pradesh, which got elected with an unprecedented mandate in the Assembly
election held on 2014.”
13. It was submitted, that the said 21 dissident MLAs, were publicly
proclaiming, that V. Narayanasamy, a former Union Minister, and the All
India Congress Committee in-charge for North Eastern States, was supporting
them in their cause. V. Narayanasamy had to address identical letters to
all the 21 dissident MLAs, on 6.12.2015, to repudiate their assertion of
his support. The text of the aforesaid communications is reproduced below:
“AICC has received copies of letters dated 15.11.2015 and 02.12.2015
addressed to the Chief Minister written by you and 20 other MLAs of the
Congress Legislative Party, Arunachal Pradesh in which you have claimed
and alleged that I have advised you to stay back in Delhi to bring a
solution to the present stalemate in the Party.
2. The above statements are false and against the directions given by me
and the Party Leadership at Delhi and Itanagar. In the CLP meeting held on
16.11.2015 at Itanagar, I categorically made a statement that the Party
Leadership is wholly supporting the present Chief Minister, Shri Nabam Tuki
who is CLP leader having majority and if any grievance, any of the CLP
member is having can be sorted out in the Party forum instead of giving
public statements and working against the Chief Minister or the Govt. of
Arunachal Pradesh.
3. You have also willfully did not attend three consecutive CLP meetings
and boycotted the same.
4. Instead of listening to my statement and direction, you have made
contrary statements and false allegations against me and the Party
Leadership which is not acceptable.”
The President of the Arunachal Pradesh Congress Committee – Padi Richo was
required to deliver the said letters to the 21 dissident MLAs, and also, to
obtain their acknowledgement. Which he did.
14. It was highlighted, that the aforesaid activities of the dissident
members of the INC, compelled the President – Padi Richo, to again issue
identical letters to the concerned MLAs on 7.12.2015, with a copy to the
Chief Whip of the Congress Legislature Party – Rajesh Tacho. The text of
the above letter is reproduced below:
“AICC has taken serious note of your activities against the party,
continuous attacks, defamatory and unfounded allegations and propaganda
against the Chief Minister and the Council of Ministers of Arunachal
Pradesh and the Congress Party calculated to lower the prestige of the
party, inspite of our repeated directions not to indulge in any such
activities which amounts to breach of discipline of the party.
By such continuous actions and activities you have distanced yourself and
from your conduct we have come to the conclusion that you have voluntarily
given up your membership of Indian National Congress and the Congress
Legislature Party.
I am enclosing herewith he letter received from the General Secretary, AICC
vide dated 06/12/2015, addressed to you in this regard.”
15. It was also pointed out, that a very important event, sponsored by
the respondents, took shape on 19.11.2015. The 13 MLAs who had issued the
notice of resolution for the removal of the Speaker – Nabam Rebia,
forwarded its copy to the Governor, with a covering letter dated
19.11.2015, wherein, they requested the Governor, to prepone the 6th
session of the Assembly. Their prayer was aimed at expediting the removal
of the Speaker – Nabam Rebia. This, according to the appellants, is
apparent from the fact, that the request for preponement was sought on the
ground, that the issue of removal should be taken up immediately after
completion of the 14 days notice, mandated under Article 179(c). The 13
MLAs also pressed, through their above letter, that the party composition
in the House, be not altered, till the resolution for removal of the
Speaker, was finally disposed of.
16. In narrating the facts, it was pointed out, that in the meeting of
the members of the Congress Legislature Party held on 3.12.2015, the
activities of the dissident members of the party were highlighted,
indicating their rebellious posturing. The central leadership of the INC,
at this juncture, again supported the leadership of Chief Minister – Nabam
Tuki. The central leadership further took note of the fact, that 21
members of the Congress Legislature Party, had distanced themselves from
the party. It was therefore, that the Chief Whip of the Congress
Legislature Party – Rajesh Tacho, filed a petition under Paragraph 2(1)(a)
of the Tenth Schedule on 7.12.2015, seeking disqualification of 14 MLAs of
the INC. The disqualification of the 14 MLAs had been sought on the ground,
that they had snapped their ties with the INC, 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 held on
29.9.2015, 8.11.2015, 18.11.2015 and 3.12.2015. And also, for having
issued a press note, to publicly air their views. The above
disqualification petition, was presented to the Speaker. It would be
relevant to mention, that the name of the Deputy Speaker – Tenzing Norbu
Thongdok, figured at serial no.14, in the disqualification petition. On
receipt of the aforesaid petition, the Speaker issued notices to the
concerned 14 MLAs, on 7.12.2015 itself. The 14 MLAs belonging to the INC,
were required to submit their response(s), and thereupon to appear before
the Speaker, on 14.12.2015.
17. It was contended on behalf of the appellants, that the factual
position noticed above, triggered the stage for a political upmanship. Not
between the legislators of the INC and the BJP, but between two factions of
the INC. With one faction of the INC legislators, garnering support from
BJP legislators. It was alleged, that the BJP legislators, in order to
topple the Government in power, were extending support to the faction
opposing the continuation of the Chief Minister – Nabam Tuki.
The impugned orders:
18. The Governor of the State of Arunachal Pradesh, according to learned
counsel, without consulting the Chief Minister – Nabam Tuki, and his
Council of Ministers, or even the Speaker – Nabam Rebia, issued an order
dated 9.12.2015, whereby, he preponed the 6th session of the Assembly
scheduled to be held on 14.1.2016, to 16.12.2015. The instant order passed
by the Governor, has been assailed by the appellants. A relevant extract
of the order, is reproduced below:
“WHEREAS I, Jyoti Prasad Rajkhowa, the Governor of Arunachal Pradesh, had
issued an Order on 3 November, 2015 under clause (1) of article 174 of the
Constitution of India summoning the Sixth Legislative Assembly of Arunachal
Pradesh to meet for its sixth session at 10.00 AM on 14 January, 2016 in
the Legislative Assembly Chamber at Naharlagun:
WHEREAS subsequent to the issue of the aforesaid order by me, a notice of
resolution for removal of Shri Nabam Rebia, from the office of the Speaker
of the Arunachal Pradesh Legislative Assembly has been received on 19
November, 2015 with a copy endorsed to me by the notice givers namely Shri
Tamiyo Taga, the Leader of Opposition in the said Assembly along with 12
other Members of the Legislative Assembly:
WHEREAS the notice of resolution for removal of the Speaker as aforesaid
has complied with the notice period of 14 days on the 4 December, 2015
(excluding the day of notice and 4 December, 2015 – 14 days clear notice)
as required under the first proviso to article 179(c) of the Constitution
of India:
WHEREAS it has been judicially held in Nipamacha Singh and Others Vs.
Secretary, Manipur Legislative Assembly and Others [AIR 2002 Gauhati 7] as
under:
“13… the powers to consider or to reject a motion for removal of the
Speaker from his office did not vest in the Speaker but in the Legislative
Assembly under article 179 and 181 of the Constitution…”
WHEREAS in view of the above judicial order, it is a Constitutional
obligation on my part to ensure that the resolution for removal of Speaker
is expeditiously placed before the Legislative Assembly:
WHEREAS I have also received a request from the notice givers of the
resolution for removal of the Speaker that the sitting of the sixth session
of the Sixth Arunachal Pradesh Legislative Assembly originally slated for
14 January, 2016 may be advanced so as to enable the House to urgently
consider the resolution for removal of the Speaker:
WHEREAS, the time gap between the 4 December, 2015 and the intended date of
first sitting of the sixth session i.e. 14 January, 2016 i.e. the earliest
date on which the resolutions for removal of Speaker can be taken up for
consideration by the House, is 42 days (including 4 December, 2015 and 14
January, 2016):
WHEREAS any such notice of resolution in relation to an Officer of the
Legislative Assembly (Speaker or Deputy Speaker) needs to be expeditiously
considered by the Legislative Assembly in view of (i) past precedents in
the Lok Sabha and (ii) the seriousness and urgency accorded to such
resolutions in paragraph 2 of Rule 151 of the Rules of Procedure and
Conduct of Business in the Arunachal Pradesh Legislative Assembly and (iii)
the utmost immediacy with which the cloud cast by the notice of resolution
over the continuance of the incumbent in the office of the Speaker has to
be cleared:
WHEREAS I am personally satisfied that the time gap between the date of
compliance of the notice with the notice period prescribed in the first
proviso to article 179(c) of the Constitution of India and the date of the
intended first sitting of the ensuing session, as computed in the aforesaid
manner, is long and unreasonable and may cause damage to the goals and
ideals of provisions in the Constitution of India and the Rules of
Procedure of the House concerning speedy disposal of such resolutions:
WHEREAS I am further satisfied that, for any exercise of advancing, the
date of the sixth session under clause (1) of article 174 of the
Constitution of India to a date earlier than the date mentioned in the
Summons dated 3rd November, 2015 for facilitating the House to
expeditiously consider resolutions for removal of Speaker, I may not be
bound by the advice of the Council of Ministers, since the subject matter
of the notice for removal of the Speaker is not a matter, falling under the
executive jurisdiction of the Chief Minister, Arunachal Pradesh not such a
subject matter finds a mention in the Rules of Executive Business of the
Government of Arunachal Pradesh framed under article 166 of the
Constitution of India thereby restricting the role of the Chief Minister in
advising me in exercise of my powers under article 174(1) of the
Constitution of India only to the matters for which the Chief Minister,
under the Constitution of India, is responsible”.
AND NOW THEREFORE –
In exercise of powers conferred upon me by clause (1) of article 174 of the
Constitution of India, I, Jyoti Prasad Rajkhowa, Governor of Arunachal
Pradesh do herby modify the order issued by me under the said provision of
the Constitution of India on 3rd November, 2015 summoning the Sixth
Arunachal Pradesh Legislative Assembly to meet for its sixth session on
14th January, 2016 to the following extent:
(i) For ‘14th January, 2016’ read ‘16th December, 2015’
(ii) For ‘18th January, 2016’ read ‘18th December, 2015’
2. Accordingly, in pursuance of the order issued by me under clause (1) of
article 174 of the Constitution of India on 3rd November, 2015 as modified
herein, the Arunachal Pradesh Legislative Assembly shall now meet at 10.00
AM on 16th December, 2015 at the Legislative Assembly Chamber at
Naharlagun.
JYOTI PRASAD RAJKHOWA
Governor”
19. It was pointed out, that the order extracted above reveals, that it
was prompted by a notice of resolution for the removal of the Speaker,
coupled with the assumption, that a constitutional obligation was cast on
the Governor, to ensure that the above resolution was expeditiously taken
up for consideration. Because, any delay in taking up the same, on the
scheduled date of summoning of the 6th session of the House (- 14.1.2016),
would “…cause damage to the goals and ideals of the provisions of the
Constitution, besides the Conduct of Business Rules …”. And that, the
Governor was not obliged, in the peculiar background referred to above, to
seek the advice of the Chief Minister and his Council of Ministers.
Admittedly, the Governor had issued the above order at his own, without any
aid and advice.
20. On the same day – 9.12.2015, the Governor issued a message under
Article 175(2) inter alia fixing the resolution for the removal of the
Speaker, as the first item of the House agenda, at the first sitting of its
6th session. A relevant extract of the same is reproduced hereunder:
“1. The resolution for removal of Speaker shall be the first item on the
agenda of the House at the first sitting of the Sixth Session of the Sixth
Arunachal Pradesh Legislative Assembly;
2. As the resolution for removal of the Speaker shall be the first item
of business, at the first sitting of the Sixth Session of the Sixth
Arunachal Pradesh Legislative Assembly, the Deputy Speaker shall preside
over the House from the first moment of the first sitting of the House in
accordance with provisions in article 181(1) of the Constitution of India;
3. The proceedings of the House on the leave, discussion and voting on
the resolution for removal of the Speaker shall be completed at the first
sitting of the session itself;
4. The Deputy Speaker shall conduct the proceedings peacefully and
truthfully and shall communicate the results of the voting on the
resolution on the same day. The proceedings of the House on the resolution
shall be video graphed and an authenticated copy of the video record shall
also be sent to me on the same day; and
5. Until the session is prorogued, no Presiding Officer shall alter the
party composition in the House.”
The above message of the Governor, has also been assailed by the
appellants. The message predetermined the procedure which the Assembly was
mandated to follow, particularly with reference to the notice of resolution
for the removal of the Speaker. The message also entailed, that the “…
party composition in the House …” would not be altered until the 6th
session of the House was prorogued. It was pointed out, that by the above
edict, the proceedings initiated by the Chief Whip of the Congress
Legislature Party under the Tenth Schedule, against 14 MLAs of the INC,
would automatically be put on hold, till the 6th session of the House was
prorogued.
Resumption of, the first sequence of facts:
21. It was pointed out, that consequent upon the above development, a
meeting of the Chief Minister and his Council of Ministers was convened on
14.12.2015. Based on the opinion tendered by the Advocate General of the
State of Arunachal Pradesh dated 12.12.2015, the State Cabinet resolved,
that the order of the Governor dated 9.12.2015, was violative of Article
174 read with Article 163 of the Constitution, and Rule 3 of the ‘Conduct
of Business Rules’. It was resolved, that the message of the Governor
dated 9.12.2015, infringed Article 175 of the Constitution, read with Rule
245 of the ‘Conduct of Business Rules’. In the aforesaid view of the
matter, the Speaker – Nabam Rebia issued a letter dated 14.12.2015,
bringing the aforesaid legal position to the notice of the Governor, and
requested the Governor, to allow the House to function, in consonance with
the provisions of the Constitution. The Governor was accordingly urged, to
convene the 6th session of the Arunachal Pradesh Legislative Assembly, as
was originally scheduled (-for 14.1.2016). It was submitted, that the
aforesaid communication addressed by the Speaker to the Governor, was
neither responded to nor acknowledged.
22. It was also the case of the appellants, that the disqualification
proceedings against the 14 legislators of the INC (initiated through the
notice dated 7.12.2015), were taken up for consideration by the Speaker –
Nabam Rebia on 14.12.2015. None of the 14 MLAs sought to be disqualified,
responded to the notice issued to them. They did not even enter appearance
before the Speaker on the returnable date – 14.12.2015. Accordingly, the
Speaker deferred the disqualification proceedings, to the following day –
15.12.2015. On 15.12.2015, a disqualification order was passed against all
the 14 MLAs of the INC, ex parte. As a natural corollary, the
constituencies from which the 14 disqualified MLAs were elected, were
declared vacant (through a notification published in the Arunachal Pradesh
Gazette dated 15.12.2015).
23. It was the pointed contention of the appellants, that on the same
day, – 15.12.2015, when the aforesaid 14 MLAs belonging to the INC, were
declared disqualified, in a purely unprecedented and unconstitutional
manner, the Deputy Speaker – Tenzing Norbu Tongdok quashed the order of
disqualification, even though he himself had been unseated through the
disqualification order. Relevant extract of the above order dated
15.12.2015, is reproduced hereunder:
“ARUNACHAL PRADESH LEGISLATIVE ASSEMBLY
OFFICE OF DEPUTY SPEAKER
No.APLA/D8/68/MEM/2015 15 DECEMBER, 2015
ORDER UNDER TENTH SCHEDULE TO THE CONSTITUTION OF INDIA AND RULE MADE
THEREUNDER
WHEREAS the Governor of Arunachal Pradesh had issued an order dated 9th
December, 2015 under article 174(1) of the Constitution of India preponing
the Sixth Session of the Sixth Arunachal Pradesh Legislative Assembly to
16th December, 2015 from 14th January, 2016;
WHEREAS the Governor of Arunachal Pradesh preponed the Sixth Session as
aforesaid in order to enable the House to expeditiously consider and
dispose of a notice of Resolution for removal of Shri Nabam Rebia from the
Office of the Speaker.
WHEREAS the Governor of Arunachal Pradesh had further issued a message to
the Arunachal Pradesh Legislative Assembly under article 175(2) of the
Constitution of India, of which, the following part has significance of
clipping the abuse of power of the incumbent Speaker.
“Until the session is prorogued the Presiding Officer shall not alter the
party composition in the House.”
WHEREAS the resolution for removal of Speaker Sh Nabam Rebia is listed as
the first item of business at the first sitting of Sixth Session of the
Legislative Assembly on the 16th December, 2015;
WHEREAS the Speaker who is facing the resolution for removal has
deliberately refrained from issuing the necessary Bulletin part II
notifying the resolution and also the list of business for the 16.12.2015
including the resolution for transaction by the House, despite the message
of the Governor and in total defiance of the Constitution, rules, norms and
ideals thereby subverting the vary Constitution of India;
WHEREAS the Deputy Speaker who was tasked by the Governor to conduct the
proceedings of the House on the resolution for removal of the Speaker in
accordance with article 181 of the Constitution of India read with relevant
rules of procedure of the House, prepared the Bulletin Part II and list of
business for 16th December, 2015 thereby conforming to the Constitution and
the mandate issued by the Governor of Arunachal Pradesh:
WHEREAS the Speaker, in order to escape the consequence of the resolution
of his removal slated for transaction on the 16th December, 2015, suddenly
a day before the first sitting of the Sixth Session i.e. on the 15th
December, 2015 disqualified following 14 MLAs by 2 Notification of even
number with No.LA/LEG-37/2015 dated the 15th December, 2015 under the Tenth
Schedule to the Constitution of India:
Shri Pema Khandu
Shri Kumar Waii
Srhi Kameng Dolo
Shri Markio Tado
Shri Jarkar Gamlin
Shri P.D. Sona
Shri Mutchu Mithi
Shri Kamlung Mossang
Shri Phosum Khimhun
Shri Wanglin Lowangdong
Shri T. Wangham
Shri Lombo Tayeng
Shri Kalikho Pul
Shri T.N. Thongdok
WHEREAS THE Speaker has disqualified the above 14 MLAs without following
basic procedure of law and justice in regard to:
Receipt of petition for Disqualification.
Forwarding the petition for comments of the respondents.
Hearing the respondents.
WHEREAS Rule 7(7) of the Members of Arunachal Pradesh Legislative Assembly
(Disqualification on Ground of Defection) provides as under, according to
which, no MLA can be disqualified under the Tenth Schedule without
affording an opportunity of personally being heard:
“…..neither the Speaker nor the committee shall come to any finding
that a member has become subject to disqualification under the Tenth
Schedule without affording a reasonable opportunity to such members to
represent his case and to be heard in person.”
WHEREAS, when a notice of resolution is staring at the face of Speaker, he
is completely incapacitated from making any order on the membership of
other MLAs when his own fate is hanging in balance:
WHEREAS the Speaker, as Constitutional functionary, is not vested with
omnipotent powers to cause injury to the powers of Honourable Governor who
had already issued a message as aforesaid to maintain the integrity of
party-wise composition of the House:
WHEREAS the Speaker, in committing this mala fide and perverse action, has
not even spared the Deputy Speaker whom the Governor had appointed to
preside over the proceedings of the House when it takes up consideration of
the resolution for removal of the Speaker:
WHEREAS a Speaker who is facing a removal resolution before the House has
no competence whatsoever to pass instantaneous orders under the Tenth
Schedule to manipulate a majority in favour of him and also Speaker who has
been directed to face the House over the resolution for his own removal has
no power whatsoever to escape his defeat by throwing out chunks of MLAs
abusing his powers under the Tenth Schedule:
WHEREAS the orders of the Speaker disqualifying 14 MLAs as aforesaid
squarely challenges the position of the Governor which the Constitution of
India had designed him to occupy in the scheme of Constitution:
NOW THEREFORE,
I, Shri T.N. Thongdok, Deputy Speaker appointed by the Governor to preside
over the first sitting of the sixth session of the sixth Arunachal
Legislative Assembly, hereby quash the orders of the Speaker and
notification issued by the Secretary of the Legislative Assembly as
aforesaid disqualifying above named named fourteen members of the
Legislative Assembly and such orders and notifications may be deemed as non
est for want of competence on the part of the Speaker who passed the order
not only for not following constitutional and legal procedures but also for
having lost his competence to do so since a notice of resolution dated
19.11.2015 for his removal is pending against him and which is to come
before the house on 16.12.2015.
2. The effect of this order is that all the above named 14 MLAs continue to
be members of the sixth Arunachal Pradesh Legislative Assembly as though
the order of the delinquent Speaker is ab initio void.
3. All the aforesaid 14 MLAs shall attend all the sessions of the sixth
Arunachal Pradesh Legislative Assembly without let or hindrance.
4. Any authority, civil or police, obstructing their attendance of the
ensuing session shall be committing grave breach of privilege of the
legislative assembly as also shall come directly under the disciplinary
jurisdiction of all law enforcing authorities including the Governor.
Naharlagun
15th December 2015 T.N. Thongdok
Deputy Speaker”
24. It was also the case of the appellants, that on 16.12.2015, the
Deputy Speaker conducted the proceedings of the 6th session of the
Assembly, outside the official premises of the State Assembly. It was
submitted, that the House assembled at Techi Takar Community Hall, G
Sector, Naharlagun. It was contended, that at the aforesaid
unconstitutional session of the Assembly (presided over by the Deputy
Speaker), the Deputy Speaker – Tenzing Norbu Thongdok, passed an order
declaring, that the erstwhile Speaker – Nabam Rebia’s announcement that the
6th session of the Assembly would not commence on 16.12.2015, was illegal.
Having so declared, the Deputy Speaker further ordered, that the 6th
session of the Assembly would be convened as rescheduled by the Governor,
with effect from 16.12.2015. It was also ordered, that the 6th session of
the Assembly would continue upto 18.12.2015. The order passed by the
Governor on 9.12.2015 was thus reiterated, and also given effect to. When
the House assembled for the preponed 6th session on 16.12.2015, the notice
for a vote of confidence against the Speaker was taken up for
consideration. The resolution for removal of the Speaker – Nabam Rebia,
was adopted by the Assembly on 16.12.2015 itself. The list of business
issued by the Deputy Speaker – Tenzing Norbu Thongdok provided, that the
following motions would be taken up on 17.12.2015:
vote of confidence of the Council of Ministers headed by Shri Nabam Tuki –
the then Chief Minister, and
expression of confidence in Kalikho Pul, to head the new Council of
Ministers.
The second sequence of facts:
25. It is also relevant to mention, that the Speaker – Nabam Rebia, filed
Writ Petition (C) No.7745 of 2015 before the Gauhati High Court,
challenging inter alia the Governor’s order dated 9.12.2015, the Governor’s
message dated 9.12.2015, the alleged holding of the preponed 6th session of
the Assembly, outside the House on 16.12.2015, the Deputy Speaker – Tenzing
Norbu Thongdok’s order dated 15.12.2015, quashing the disqualification
order of the 14 MLAs, belonging to the INC, and the resolution dated
16.12.2015 adopting the resolution for removal of the Speaker – Nabam
Rebia, and its consequential notification.
26. A Single Bench of the Gauhati High Court, by an interim order dated
17.12.2015 stayed all the aforementioned impugned decisions, till the next
date of hearing – 1.2.2016. A relevant extract of the interim order passed
by the High Court is reproduced below:
“23. The disturbing developments in the State of Arunachal Pradesh noticed
from the various steps taken since November 2015 indicates the tussle for
power by opposing group and it is clear that the Speaker and the Deputy
Speaker of the Assembly are heading the opposite camps. Understandably the
action of the MLAs are motivated by political exigencies and a
manifestation of this can be seen from the FIR dated 20.12.2015. In such
situation, the Governor as the constitutional head, is expected to
discharge his role with dispassion and within the constitutional framework.
But the impugned steps taken by the State’s Governor which facilitated the
political battle to move in certain direction in the tussle for power,
reflects the non neutral role of the constitutional head and this is
undermining the democratic process.
xxx xxx xxx
25. Taking all the above factors into account meanwhile, the impugned
decision(s) are ordered to be kept in abeyance until the case is considered
next. List on 1.2.2016.”
A perusal of the interim order passed by the High Court, it was contended,
reveals that the High Court had entertained a prima facie view, that the
Governor, was facilitating the political conflict between the parties
towards a definite direction, in a prejudicial manner. And also, that the
Governor had not acted in a dispassionate manner. The appellants, during
the course of hearing, left no stone unturned, to endorse the above noted
impression of the Single Bench. The decisions kept in abeyance, by the
interim order extracted above, were:
(i) the order passed by the Governor dated 9.12.2015
(ii) the message of the Governor dated 9.12.2015
(iii) the order passed by the Deputy Speaker dated 15.12.2015 setting
aside the disqualification of the 14 MLAs; and
(iv) the resolution dated 16.12.2015, removing the Speaker.
Thereafter, based on an order obtained by the Joint Registrar (Judicial) of
the Gauhati High Court from the acting Chief Justice of the High Court, on
the administrative side, the above Writ Petition (C) No.7745 of 2015, was
placed before a different Single Bench of the High Court. During the
course of hearing of the above writ petition on 19.12.2015, the Governor –
Jyoti Prasad Rajkhowa, and the State Government, were impleaded as parties.
Two further interlocutory applications bearing nos. 2822 and 2823 of 2015,
were filed by 13 and 7 applicants respectively, seeking impleadment in Writ
Petition (C) No.7745 of 2015, and were allowed. Through the above
applications, the applicants besides seeking impleadment, assailed the
maintainability of Writ Petition (C) No.7745 of 2015. They also sought
modification/vacation of the interim order (staying the impugned
decisions), dated 17.12.2015.
27. It was submitted, that when the Assembly met on 17.12.2015, and the
Government headed by the Chief Minister – Nabam Tuki was declared to have
lost confidence of the House, Kalikho Pul, another INC MLA, was chosen as
the new leader of the House.
28. The learned Single Bench, before whom the matter came to be posted by
the acting Chief Justice of the High Court (after the interim order
extracted above, had been passed), issued notice for modification/vacation
of the interim order (passed by the previous Single Bench) dated
17.12.2015. It was submitted, that without any notice to the appellant,
and without affording an opportunity of hearing to the counsel representing
the appellant, the successor Single Bench restrained reconvening of the
House till 4.1.2016.
29. The two MLAs belonging to the INC (- Bamang Felix and Nyamar Karbak)
also approached the High Court by filing Writ Petition (C) No.7998 of 2015.
The petitioners in the aforesaid writ petition, inter alia assailed the
same decisions, as were impugned by Nabam Rebia in Writ Petition (C)
No.7745 of 2015 (more or less, on the same grounds). The instant matter
came up for hearing, before yet another Single Bench of the High Court. On
its first date of hearing, Writ Petition (C) No.7998 of 2015 was directed
to be posted for hearing on 4.1.2016, along with the first writ petition –
Writ Petition (C) No.7745 of 2015. Resultantly, both the writ petitions
came to be posted before the same Single Bench (nominated by the acting
Chief Justice, on 18.12.2015).
30. Dissatisfied with the listing of the matters, the appellant herein –
Nabam Rebia, filed an Interlocutory Application in Writ Petition (C)
No.7745 of 2015, on the judicial side on 23.12.2015, seeking the recusal of
the Single Bench, nominated to hear the case by the acting Chief Justice.
Writ Petition (C) No.10 of 2016, was independently filed in the High Court,
impugning the order of the acting Chief Justice dated 18.12.2015
(communicated by the Joint Registrar (Judicial), after obtaining
instructions from the acting Chief Justice), directing the posting of Writ
Petition (C) No.7745 of 2015, before a different Single Bench of the High
Court.
31. As already noticed above, a prayer for recusal was also made to the
learned Single Bench, before which the matter had been posted, by the
acting Chief Justice. The learned Single Bench, was asked to recuse from
the proceedings in Writ Petition (C) No.7745 of 2015. The acting Chief
Justice of the High Court, entertained an Interlocutory Application with a
similar prayer, in his chambers on the administrative side, and rejected
the same on 4.1.2016. Writ Petition (C) No.10 of 2016 was dismissed on
7.1.2016 by a Single Bench (other than the one, which had passed the
interim order dated 17.12.2016, as also, other than the one to which the
acting Chief Justice had assigned Writ Petition (C) No. 7745 of 2015 for
hearing – after the passing of the interim order dated 17.12.2016).
Dissatisfied with the above determination, the appellant filed Special
Leave Petition (C) No.189 of 2016, before this Court. It would be
pertinent to mention, that the above special leave petition was withdrawn
by the petitioner on 13.1.2016.
The legal challenge, on behalf of the appellants:
32. The High Court disposed of Writ Petition (C) Nos.7745 and 7998 of
2015 by a common order dated 13.1.2016. The instant order is subject
matter of challenge, through Special Leave Petition (C) Nos.1259-1260 of
2016.
33. Despite the challenges to the various orders passed by the High Court
through different petitions, it was contended on behalf of the appellants,
that the determination of Special Leave Petitions (C) Nos.1259-1260 of 2016
would completely and effectively, result in the adjudication of all the
issues canvassed at the hands of the appellants, in the connected matters.
34. It was submitted on behalf of the appellants, that for an effective
adjudication of the present controversy, it is necessary to understand the
duties and responsibilities of the Governor, as envisaged in the scheme of
the Constitution. It was highlighted, that the position of the Governor,
should not be confused with the impression created by Article 168 – that
the State Legislature includes the Governor. It was submitted, that the
Governor cannot be considered even as an officer of the House. Despite the
above two express assertions, it was submitted, that it cannot be disputed
that the Governor of a State is a part of the State Legislature – just like
the President, is a part of the Parliament. It was asserted, that the
Governor functions and operates as a bridge between the executive and the
legislature. Through an address by the Governor under Article 175, the
executive informs the Assembly, about the policies of the Government. The
power vested with the Governor, to give his assent to a Bill passed by the
Assembly, or to require the matter to be reconsidered by returning the Bill
to the legislature, it was pointed out, were powers which a Governor
exercised beyond the precincts of the Assembly. This function/power
resting with the Governor, according to learned counsel, was clearly beyond
the scope of legislative business, conducted within the Assembly. It was
pointed out, that when a Governor summons the House, he does not do so at
his own will. He summons the House, on the aid and advice of the Chief
Minister and his Council of Ministers, after due consultation with the
Speaker. The only responsibility entrusted to the Governor, according to
learned counsel, is provided for in Article 174, inasmuch as, it is the
obligation of the Governor to ensure, that the interval between the last
sitting of the previous session, and the first sitting of the succeeding
session, is not more than six months.
35. For substantiating the propositions canvassed in the foregoing
paragraph, reliance was first placed on Article 158, which expressly
provides, that the “…Governor shall not be a member of either House of
Parliament or of a House of the Legislature of any State specified in the
First Schedule…”. It was pointed out, that as a matter of abundant
caution, Article 158 also provides, that in case an incumbent member of the
Assembly (or that of the Parliament) is appointed as Governor of a State “…
he shall be deemed to have vacated his seat in that House on the date on
which he enters his office as Governor”. Additionally, reliance was placed
on Article 163 to demonstrate, that the Governor is bound by the aid and
advice of the Chief Minister and his Council of Ministers. It was
acknowledged, that the Governor is also authorized to act independently –
on his own, but only in respect of such functions, wherein he is expressly
authorized to do so, by or under the Constitution. It was acknowledged,
that in such matters which the Governor considers as falling within his
independent judgment, “… the decision of the Governor in his discretion
shall be final…”. And that, the exercise of such discretion, cannot be
called in question. It was however pointed out, that such exercise of
independent judgment, can only be questioned by way of judicial review.
36. In order to demonstrate the effectiveness of the Governor as a bridge
between the executive and the legislature, reliance was placed by learned
counsel on Article 167, which provides that it would be the duty of the
Chief Minister, to communicate all decisions of the Council of Ministers
relating to administration of affairs of the State to the Governor, as well
as, proposals with reference to matters on which legislation is
contemplated. It was therefore submitted, that the intent expressed in
Article 168 should not be determined from a peripheral reading thereof, but
from the scheme envisioned by the surrounding provisions. It was urged,
that even though Article 168 provides, that every State Legislature “shall”
consist of the Governor, the fact of the matter is, that the Governor has
no role in any legislative activity of the House.
37. It was acknowledged, that the Governor was obliged to address the
Assembly, in consonance with Article 175(1). It was however urged, that
the Governor’s address to the House, was obligated to be in consonance
with, the aid and advice of the Chief Minister and his Council of
Ministers. It was pointed out, that the same position prevailed, in the
matter of sending messages to the House under Article 175(2), which
according to learned counsel, was subject to similar aid and advice.
38. Inviting the Court’s attention to Article 178 it was submitted, that
the instant Article is a part of Chapter III - under Part VI (which
includes Articles 178 to 189), of the Constitution. It was pointed out,
that Chapter III bears the heading – “Officers of the State Legislature”.
It was pointed out, that the Speaker and the Deputy Speaker are the only
two officers of the State Legislative Assembly. And likewise, the Chairman
and the Deputy Chairman, are the only officers of the State Legislative
Council. Besides the above officers, the staff of a State Legislative
Assembly, comprises of the personnel appointed, for carrying on ministerial
responsibilities of the secretariat of the Legislature. It was submitted,
that no other functionary could be considered as an officer of the State
Legislature. The pointed contention of learned counsel was, that the
Governor could not be considered, as an officer of a State Legislative
Assembly.
39. In the present sequence of submissions, learned counsel, last of all,
referred to Article 208, and urged, that the same allows every State
Legislative Assembly to frame rules for regulating the procedure for
conducting business of the House. Having drawn the Court’s attention to
sub-article (3) of Article 208, it was submitted, that the power vested
with the Governor to make rules thereunder, was limited to communications
between the two Houses (the State Legislative Assembly and the State
Legislative Council). It was accordingly contended, that the framing of
the above rules of procedure, should not be confused with, the rules for
carrying on the business of the House itself. Having invited our attention
to Article 163, it was asserted, that the power vested with the Governor
under Article 208 by necessary implication, had to be exercised on the aid
and advice of the Chief Minister and his Council of Ministers.
40. Having premised his submissions on the aforementioned provisions,
reference was made by learned counsel to Paragraph 6 of the Tenth Schedule.
Paragraph 6(1), according to learned counsel, leaves no room for any
doubt, that on the subject of disqualification of an MLA, the functional
authority is vested only with the Speaker. It was further submitted, that
reference to Article 212 (cited in Paragraph 6(2), of the Tenth Schedule),
was for the sole purpose of granting judicial immunity, to the actions
taken on a disqualification motion under Paragraph 6. Most importantly, it
was pointed out, that the Governor has no role whatsoever, on the question
of removal of MLAs. And as such, according to learned counsel, it was not
open to the Governor to be concerned with, what might or might not emerge,
from proceedings conducted by the Speaker under the Tenth Schedule.
41. It is relevant to mention, that learned counsel representing the
appellants, also made a reference to Article 361, which postulates inter
alia, that the Governor of a State is not “… answerable to any court for
the exercise and performance of powers and duties of his office or for any
act done or purporting to be done by him in the exercise and performance of
those powers and duties…”. Despite the aforesaid protection afforded to the
Governor, it was submitted, that in the present controversy, the Governor –
Jyoti Prasad Rajkhowa had moved an application for being permitted to be
arrayed as a party respondent. This action of the Governor, according to
learned counsel, was sufficient to infer, that the actions of the Governor
were partisan. It was submitted, that the facts of the case reveal, that
the actions of the Governor, were supportive of the BJP for purely
political considerations, and that, they were pointedly prejudicial to the
interest of the INC. It was asserted, that an analysis of actions of the
Governor would reveal, that the Governor was making concerted efforts
towards dislodging the INC Government, and/or weakening it by extending
support to the faction of the INC MLAs seeking the removal of the Chief
Minister – Nabam Tuki.
42. In order to support his contentions, learned counsel placed reliance
on debates of the Constituent Assembly. With reference to Article 163, it
was submitted, that the Governor was mandated to discharge his functions in
consonance with the aid and advice of the “Council of Ministers with the
Chief Minister at the head”. The only exception to the above position was
in situations, where an express provision of the Constitution, required the
Governor to exercise his functions in his own discretion/judgment. It
would be relevant to mention, that draft Article 143 eventually came to be
renumbered as Article 163 in the Constitution. The debate highlighted,
with reference to the concerned provision, is extracted hereunder:
“Shri H.V. Kamath: (C.P. & Berar: General): Mr. President, Sir, I move:
"That in clause (1) of article 143, the words 'except in so far as he is by
or under this Constitution required to exercise his functions or any of
them in his discretion' be deleted."
If this amendment were accepted by the House, this clause of article 143
would read thus:-
"There shall be a Council of Ministers with the Chief Minister at the head
to aid and advise the Governor in the exercise of his functions."
Sir, it appears from a reading of this clause that the Government of India
Act of 1935 has been copied more or less blindly without mature
consideration. There is no strong or valid reason for giving the Governor
more authority either in his discretion or otherwise vis-a-vis his
ministers, than has been given to the President in relation to his
ministers. If we turn to article 61(1), we find it reads as follows:-
"There shall be a Council of Ministers with the Chief Minister at the head
to aid and advise the Governor in the exercise of his functions."
When you, Sir, raised a very important issue, the other day, Dr. Ambedkar
clarified this clause by saying that the President is bound to accept the
advice of his ministers in the exercise of all of his functions. But here
article 143 vests certain discretionary powers in the Governor, and to me
it seems that even as it was, it was bad enough, but now after having
amended article 131 regarding election of the Governor and accepted
nominated Governors, it would be wrong in principle and contrary to the
tenets and principles of constitutional Government, which you are going to
build up in this country. It would be wrong I say, to invest a Governor
with these additional powers, namely, discretionary powers. I feel that no
departure from the principles of constitutional Government should
be favoured except for reasons of emergency and these discretionary powers
must be done away with. I hope this amendment of mine will commend itself
to the House. I move, Sir.
xxx xxx xxx
Shri T.T. Krishnamachari: Mr. President, I am afraid I will have to oppose
the amendment moved by my honourable Friend Mr. Kamath, only for the reason
that he has not understood the scope of the article clearly and his
amendment arises out of a misapprehension.
Sir, it is no doubt true, that certain words from this article may be
removed, namely, those which refer to the exercise by the Governor of his
functions where he has to use his discretion irrespective of the advice
tendered by his Ministers. Actually, I think this is more by way of a
safeguard, because there are specific provisions in this Draft Constitution
which occur subsequently where the Governor is empowered to act in his
discretion irrespective of the advice tendered by his Council of Ministers.
There are two ways of formulating the idea underlying it. One is to make a
mention of this exception in this article 143 and enumerating the specific
power of the Governor where he can exercise his discretion in the articles
that occur subsequently, or to leave out any mention of this power here and
only state it in the appropriate article. The former method has been
followed. Here the general proposition is stated that the Governor has
normally to act on the advice of his Ministers except in so far as the
exercise of his discretions covered by those articles in the Constitution
in which he is specifically empowered to act in his discretion. So long as
there are articles occurring subsequently in the Constitution where he is
asked to act in his discretion, which completely cover all cases of
departure from the normal practice to which I see my honourable Friend Mr.
Kamath has no objection, I may refer to article 188, I see no harm in the
provision in this article being as it is. If it happens that this House
decides that in all the subsequent articles, the discretionary power should
not be there, as it may conceivably do, this particular provision will be
of no use and will fall into desuetude. The point that my honourable Friend
is trying to make, while he concedes that the discretionary power of the
Governor can be given under article 188, seems to be pointless. If it is to
be given in article 188, there is no harm in the mention of it remaining
here. No harm can arise by specific mention of this exception of article
143. Therefore, the serious objection that Mr. Kamath finds for mention of
this exception is pointless. I therefore think that the article had better
be passed without any amendment. If it is necessary for the House either to
limit the discretionary power of the Governor or completely do away with
it, it could be done in the articles that occur subsequently where specific
mention is made without which this power that is mentioned here cannot at
all be exercised. That is the point that I would like to draw the attention
of the House to and I think the article had better be passed as it is.
Dr. P.S. Deshmukh: (C.P. & Berar: General): Mr. President, Mr. T.
T. Krishnamachari has clarified the position with regard to this exception
which has been added to clause (1) of article 143. If the Governor is, in
fact, going to have a discretionary power, then it is necessary that this
clause which Mr. Kamath seeks to omit must remain.
Sir, Besides this, I do not know if the Drafting Committee has deliberately
omitted or they are going to provide it at a later stage, and I would like
to ask Dr. Ambedkar whether it is not necessary to provide for the Governor
to preside at the meetings of the Council of Ministers. I do not find any
provision here to this effect. Since this article 143 is a mere
reproduction of section 50 of the Government of India Act, 1935, where this
provision does exist that the Governor in his discretion may preside at the
meetings of the Council of Ministers, I think this power is very necessary.
Otherwise, the Ministers may exclude the Governor from any meetings
whatever and this power unless specifically provided for, would not be
available to the Governor. I would like to draw the attention of the
members of the Drafting Committee to this and to see if it is possible
either to accept an amendment to article 143 by leaving it over or by
making this provision in some other part. I think this power of the
Governor to preside over the meetings of the Cabinet is an essential one
and ought to be provided for.
xxx xxx xxx
Pandit Hirday Nath Kunzru: (United Provinces: General): Mr. President I
should like to ask Dr. Ambedkar whether it is necessary to retain after the
words "that the Governor will be aided and advised by his Ministers", the
words "except in regard to certain matters in respect of which he is to
exercise his discretion". Supposing these words, which are reminiscent of
the old Government of India Act and the old order, are omitted, what harm
will be done? The functions of the Ministers legally will be only to aid
and advice the Governor. The article in which these words occur does not
lay down that the Governor shall be guided by the advice of his Ministers
but it is expected that in accordance with the Constitutional practice
prevailing in all countries where responsible Government exists the
Governor will in all matters accept the advice of his Ministers. This does
not however mean that where the Statute clearly lays down that action in
regard to specified matters may be taken by him on his own authority this
article 143 will stand in his way.
xxx xxx xxx
I should like to say one word more before I close. If article 143 is passed
in its present form, it may give rise to misapprehensions of the kind that
my honourable Friend Dr. Deshmukh seemed to be labouring under when he
asked that a provision should be inserted entitling the Governor to preside
over the meetings of the Council of Ministers. The Draft Constitution does
not provide for this and I think wisely does not provide for this. It would
be contrary to the traditions of responsible government as they have been
established in Great Britain and the British Dominions, that the Governor
or the Governor-General should, as a matter of right, preside over the
meetings of his cabinet. All that the Draft Constitution does is to lay on
the Chief Minister the duty of informing the Governor of the decisions come
to by the Council of Ministers in regard to administrative matters and the
legislative programme of the government. In spite of this, we see that the
article 143, as it is worded, has created a misunderstanding in the mind of
a member like Dr. Deshmukh who takes pains to follow every article of the
Constitution with care. This is an additional reason why the discretionary
power of the Governor should not be referred to in article 143. The speech
of my Friend Mr. Krishnamachari does not hold out the hope that the
suggestion that I have made has any chance of being accepted. Nevertheless,
I feel it my duty to say that the course proposed by Mr. Kamath is better
than what the Drafting Sub-Committee seem to approve.
xxx xxx xxx
Shri Alladi Krishnaswami Ayyar: (Madras: General): Sir, there is really no
difference between those who oppose and those who approve the amendment. In
the first place, the general principle is laid down in article 143 namely,
the principle of ministerial responsibility, that the Governor in the
various spheres of executive activity should act on the advice of his
ministers. Then the article goes on to provide "except in so far as he is
by or under this Constitution required to exercise his functions or any of
them in his discretion. So long as there are article in the Constitution
which enable the Governor to act in his discretion and in certain
circumstances, it may be, to over-ride the cabinet or to refer to the
President, this article as it is framed is perfectly in order. If later on
the House comes to the conclusion that those articles which enable the
Governor to act in his discretion in specific cases should be deleted, it
will be open to revise this article. But so long as there are later
articles which permit the Governor to act in his discretion and not on
ministerial responsibility, the article as drafted is perfectly in order.
Shri H.V. Pataskar: (Bombay: General): Sir, article 143 is perfectly clear.
With regard to the amendment of my honourable Friend Mr. Kamath various
points were raised, whether the Governor is to be merely a figure-head,
whether he is to be a constitutional head only or whether he is to have
discretionary powers. To my mind the question should be looked at
from and entirely different point of view. Article 143 merely relates to
the functions of the ministers. It does not primarily relate to the powers
and functions of a Governor. It only says:
"There shall be a Council of Ministers with the Chief Minister at the head
to aid and advise the Governor in the exercise of his functions."
Granting that we stop there, is it likely that any complications will arise
or that it will interfere with the discretionary powers which are proposed
to be given to the Governor? In my view article 188 is probably necessary
and I do not mean to suggest for a moment that the Governor's powers to act
in an emergency which powers are given under article 188, should not be
there. My point is this, whether if this Provision, viz., "except in so far
as he is by or under this Constitution required to exercise his functions
or any of them in his discretion", is not there, is it going to affect the
powers that are going to be given to him to act in his discretion under
article 188? I have carefully listened to my honourable Friend and
respected constitutional lawyer. Mr. Alladi Krishnaswami Ayyer, but I was
not able to follow why a provision like this is necessary. He said that
instead later on, while considering article 188, we might have to say
"Notwithstanding anything contained in article 143." In the first place to
my mind it is not necessary. In the next place, even granting that it
becomes necessary at a later stage to make provision in article 188 by
saying "notwithstanding anything contained in article 143", it looks so
obnoxious to keep these words here and they are likely to enable certain
people to create a sort of unnecessary and unwarranted prejudice against
certain people. Article 143 primarily relates to the functions of the
ministers. Why is it necessary at this stage to remind the ministers of the
powers of the Governor and his functions, by telling them that they shall
not give any aid or advice in so far as he, the Governor is required to act
in his discretion? This is an article which is intended to define the
powers and functions of the Chief Minister. At that point to suggest this,
looks like lacking in courtesy and politeness. Therefore I think the
question should be considered in that way. The question is not whether we
are going to give discretionary powers to the Governors or not. The
question is not whether he is to be merely a figure-head or otherwise.
These are questions to be debated at their proper time and place. When we
are considering article 143 which defines the functions of the Chief
Minister it looks so awkward and unnecessary to say in the same article
"except in so far as he is by or under this Constitution required to
exercise his functions or any of them in his discretion." Though I entirely
agree that article 188 is absolutely necessary I suggest that in this
article 143 these words are entirely unnecessary and should not be there.
Looked at from a practical point of view this provision is misplaced and it
is not courteous, nor polite, nor justified nor relevant. I therefore
suggest that nothing would be lost by deleting these words. I do not know
whether my suggestion would be acceptable but I think it is worth being
considered from a higher point of view.
xxx xxx xxx
The Honourable Dr. B.R. Ambedkar: Mr. President, Sir, I did not think that
it would have been necessary for me to speak and take part in this debate
after what my Friend, Mr. T. T. Krishnamachari, had said on this amendment
of Mr. Kamath, but as my Friend, Pandit Kunzru, pointedly asked me the
question and demanded a reply, I thought that out of courtesy I should say
a few words. Sir, the main and the crucial question is, should the Governor
have discretionary powers? It is that question which is the main and the
principal question. After we come to some decision on this question, the
other question whether the words used in the last part of clause (1) of
article 143 should be retained in that article or should be transferred
somewhere else could be usefully considered. The first thing, therefore,
that I propose to do so is to devote myself of this question which, as I
said, is the crucial question. It has been said in the course of the debate
that the retention of discretionary power in the Governor is contrary to
responsible government in the provinces. It has also been said that the
retention of discretionary power in the Governor smells of the Government
of India Act, 1935, which in the main was undemocratic. Now, speaking for
myself, I have no doubt in my mind that the retention in or the vesting the
Governor with certain discretionary powers is in no sense contrary to or in
no sense a negation of responsible government. I do not wish to rake up the
point because on this point I can very well satisfy the House by reference
to the provisions in the Constitution of Canada and the Constitution of
Australia. I do not think anybody in this House would dispute that the
Canadian system of government is not a fully responsible system of
government, nor will anybody in this House challenge that the Australian
Government is not a responsible form of government. Having said that, I
would like to read section 55 of the Canadian Constitution.
"Section 55.--Where a Bill passed by the Houses of Parliament is presented
to the Governor-General for the Queen's assent, he shall, according to his
discretion, and subject to provisions of this Act, either assent thereto in
the Queen's name, or withhold the Queen's assent or reserve the Bill for
the signification of the Queen's pleasure."
xxx xxx xxx
The Honourable Dr. B. R. Ambedkar: I think he has misread the article. I am
sorry I do not have the Draft Constitution with me. "Except in so far as he
is by or under this Constitution," those are the words. If the words were
"except whenever he thinks that he should exercise this power of discretion
against the wishes or against the advice of the ministers", then I think
the criticism made by my honourable Friend Pandit Kunzru would have been
valid. The clause is a very limited clause; it says: "except in so far as
he is by or under this Constitution". Therefore, article 143 will have to
be read in conjunction with such other articles which specifically reserve
the power to the Governor. It is not a general clause giving the Governor
power to disregard the advice of his ministers in any matter in which he
finds he ought to disregard. There, I think, lies the fallacy of the
argument of my honourable Friend, Pandit Kunzru.
Therefore, as I said, having stated that there is nothing incompatible with
the retention of the discretionary power in the Governor in specified cases
with the system of responsible Government, the only question that arises
is, how should we provide for the mention of this discretionary power? It
seems to me that there are three ways by which this could be done. One
way is to omit the words from article 143 as my honourable Friend,
Pandit Kunzru, and others desire and to add to such articles as 175, or 188
or such other provisions which the House may hereafter introduce, vesting
the Governor with the discretionary power, saying notwithstanding article
143, the Governor shall have this or that power. The other way would be to
say in article 143, "that except as provided in articles so and so
specifically mentioned-articles 175, 188, 200 or whatever they are". But
the point I am trying to submit to the House is that the House cannot
escape from mentioning in some manner that the Governor shall have
discretion.
Now the matter which seems to find some kind of favour with my honourable
Friend, Pandit Kunzru and those who have spoken in the same way is that the
words should be omitted from here and should be transferred somewhere else
or that the specific articles should be mentioned in article 143. It seems
to me that this is a mere method of drafting. There is no question of
substance and no question of principle. I personally myself would be quite
willing to amend the last portion of clause (1) of article 143 if I knew at
this stage what are the provisions that this Constituent Assembly proposes
to make with regard to the vesting of the Governor with discretionary
power. My difficulty is that we have not as yet come either to article 175
or 188 nor have we exhausted all the possibilities of other provisions
being made, vesting the Governor with discretionary power. If I knew that,
I would very readily agree to amend article 143 and to mention the specific
article, but that cannot be done now. Therefore, my submission is that no
wrong could be done if the words as they stand in article 143 remain as
they are. They are certainly not inconsistent.
Shri H.V. Kamath: Is there no material difference between article 61(1)
relating to the President vis-a-vis his ministers and this article?
The Honourable Dr. B.R. Ambedkar: Of course there is because we do not want
to vest the President with any discretionary power. Because the provincial
Governments are required to work in subordination to the Central
Government, and therefore, in order to see that they do act in
subordination to the Central Government the Governor will reserve certain
things in order to give the President the opportunity to see that the rules
under which the provincial Governments are supposed to act according to the
Constitution or in subordination to the Central Government are observed.
Shri H.V. Kamath: Will it not be better to specify certain articles in the
Constitution with regard to discretionary powers, instead of conferring
general discretionary powers like this?
The Honourable Dr. B.R. Ambedkar: I said so, that I would very readily do
it. I am prepared to introduce specific articles, if I knew what are the
articles which the House is going to incorporate in the Constitution
regarding vesting of the discretionary powers in the Governor.
Shri H.V. Kamath: Why not hold it over?
The Honourable Dr. B.R. Ambedkar: We can revise. This House is perfectly
competent to revise article 143. If after going through the whole of it,
the House feels that the better way would be to mention the articles
specifically, it can do so. It is purely a logomachy.”
It is not necessary for us to summarise any inferences or conclusions, from
the above debate, as the same are apparent from the suggestions and
responses, highlighted above.
43. Reliance was then placed on the decision rendered by a Constitution
Bench of this Court in Samsher Singh v. State of Punjab[1]. The question
that arose for consideration in the above case was, whether the Governor as
a constitutional head of the State, could exercise powers or functions of
appointment and removal of members of the subordinate judicial service,
personally? The contention of the State Government was, that the Governor
was obliged to exercise powers of appointment and removal, conferred on him
by or under the Constitution, like the other executive power of the State
Government, only on the aid and advice of the Council of Ministers, and not
personally. As against the above stance, the appellants before this Court
placed reliance on the decision in Sardari Lal v. Union of India[2],
wherein this Court had held, that the President or the Governor, as the
case may be, on being satisfied would make an order under Article 311(2),
and more particularly, under proviso (c) thereof. It was further held,
that the satisfaction of the President or the Governor, in the above
matter, was his “personal satisfaction”. It was therefore, the contention
of the appellants before this Court, in the above case, that in exercise of
powers vested with the Governor under Article 234, the
appointment/termination of subordinate judges was to be made by the
Governor in exercise of his “personal discretion”. It would also be
relevant to mention, that the Samsher Singh case1 was decided by a seven-
Judge Bench, which examined the correctness of the decision rendered in the
Sardari Lal case2. While debating the issue, this Court in the Samsher
Singh case1, examined the distinction between Articles 74 and 163, and held
as under:
“16. It is noticeable that though in Article 74 it is stated that there
shall be a Council of Ministers with the Prime Minister at the head to aid
and advise the President in the exercise of his functions, there is no
provision in Article 74 comparable to Article 163 that the aid and advice
is except in so far as he is required to exercise his functions or any of
them in his discretion.
17. It is necessary to find out as to why the words ‘in his discretion’ are
used in relation to some powers of the Governor and not in the case of the
President.
18. Article 143 in the Draft Constitution became Article 163 in the
Constitution. The Draft Constitution in Article 144(6) said that the
functions of the Governor under that article with respect to the
appointment and dismissal of Ministers shall be exercised by him in his
discretion. Draft Article 144(6) was totally omitted when
Article 144 became Article 164 in the Constitution, Again Draft
Article 153(3) said that the functions of the Governor under clauses (a)
and (c) of clause (2) of the article shall be exercised by him in his
discretion. Draft Article 153(3) was totally omitted when it became
Article 174 of our Constitution. Draft Article 175 (proviso) said that the
Governor "may in his discretion return the Bill together with a message
requesting that the House will reconsider the Bill". Those words that “the
Governor may in his discretion" were omitted when it became Article 200.
The Governor under Article 200 may return the Bill together with a message
requesting that the House will reconsider the Bill. Draft Article 188 dealt
with provisions in case of grave emergencies. Clauses (1) and (4) in Draft
Article 188 used the words “in his discretion” in relation to exercise of
power by the Governor. Draft Article 188 was totally omitted. Draft
Article 285(1) and (2) dealing with composition and staff of Public Service
Commission used the expression "in his discretion" in relation to exercise
of power by the Governor in regard to appointment of the Chairman and
Members and making of regulation. The words "in his discretion" in relation
to exercise of power by the Governor were omitted when it became
Article 316. In Paragraph 15(3) of the Sixth Schedule dealing with
annulment or suspension of Acts or suspension of Acts and resolutions of
District and Regional Councils it was said that the functions of the
Governor under the Paragraph shall be exercised by him in his discretion.
Sub-paragraph 3 of Paragraph 15 of the Sixth Schedule was omitted at the
time of enactment of the Constitution.
19. It is, therefore, understood in the background of these illustrative
draft articles as to why Article 143 in the Draft Constitution which became
Article 163 in our Constitution used the expression "in his discretion" in
regard to some powers of the Governor.
20. Articles where the expression "acts in his discretion" is used in
relation to the powers and functions of the Governor are those which speak
of special responsibilities of the Governor. These articles
are 371A(1)(b), 371A(1)(d), 371A(2)(b) and 371A(2)(f). There are two
paragraphs in the Sixth Schedule, namely, 9(2) and 18(3) where the words
"in his discretion" are used in relation to certain powers of the Governor.
Paragraph 9(2) is in relation to determination of amount of royalties
payable by licensees or lessees prospecting for, or extracting minerals to
the District Council. Paragraph 18(3) has been omitted with effect from
January 21, 1972.
xxx xxx xxx
30. In all cases in which the President or the Governor exercises his
functions conferred on him by or under the Constitution with the aid and
advice of his Council of Ministers he does so by making rules for
convenient transaction of the business of the Government of India or the
Government of the State respectively or by allocation among his Ministers
of the said business, in accordance with
Articles 77(3) and 166(3) respectively. Wherever the Constitution requires
the satisfaction of the President or the Governor for the exercise of any
power or function by the President or the Governor, as the case may be, as
for example in Articles 123, 213, 311(2) proviso (c), 317, 352 (1),
356 and 360 the satisfaction required by the Constitution is not the
personal satisfaction of the President or of the Governor but is the
satisfaction of the President or of the Governor in the constitutional
sense under the Cabinet system of Government. The reasons are these. It is
the satisfaction of the Council of Ministers on whose aid and advice the
President or the Governor generally exercises all his powers and functions.
Neither Article 77(3) nor Article 166(3) provides for any delegation of
power. Both Articles 77(3) and 166(3) provide that the President under
Article 77(3) and the Governor under Article 166(3) shall make rules for
the more convenient transaction of the business of the Government and the
allocation of business among the Ministers of the said business. The Rules
of Business and the allocation among the Ministers of the said business all
indicate that the decision of any Minister or officer under the Rules of
Business made under these two articles viz., Article 77(3) in the case of
the President and Article 166(3) in the case of the Governor of the State
is the decision of the President or the Governor respectively.”
44. Based on the determination rendered by this Court in the Samsher
Singh case1, it was submitted, that all functions discharged by the
Governor, would have to be based on the aid and advice of the Council of
Ministers (with the Chief Minister as the head), and in the instant case,
it is apparent, that the Governor had acted on his own, while issuing the
order dated 9.12.2015, for summoning the House for 16.12.2015, under
Article 174. It was pointed out, that the Governor in the above order had
himself recorded, that “… I may not be bound by the advice of the Council
of Ministers …” and had also expressed therein, “… it is a constitutional
obligation on my part to ensure that the resolution for removal of the
Speaker is expeditiously placed before the Legislative Assembly …”. And
likewise, the message of the Governor dated 9.12.2015, directing that the
composition of the House should not be changed, and the manner in which the
business of the House was to be conducted when it assembled on 16.12.2015,
was issued without any aid and advice.
45. Based on the conclusions recorded in the Samsher Singh case1, it was
contended, that the disqualification process contemplated under the Tenth
Schedule, is of no concern, of the Governor. While, it was acknowledged,
that the Tenth Schedule was introduced into the Constitution, to maintain
and sustain the process of democratic governance, and therefore, the same
could not be put on a backburner or suspended. Learned counsel was
emphatic in his submission, that the Governor has no role in the
disqualification process contemplated under the Tenth Schedule. And the
Speaker alone, has the authority to effectuate in his exclusive discretion,
the schedule which needed to be adopted, in the process of disqualification
of MLAs. As such, it was asserted, that the fluidity of the democratic
process, could not be treated as some kind of justification, for the
Governor’s order and message dated 9.12.2015.
46. Learned senior counsel also contended, that all actions of the
Governor, ought to be in conformity with the aid and advice tendered to him
by the Council of Ministers and the Chief Minister, except when mandated
otherwise. It was submitted, that where such an express discretion is not
provided for, by or under a constitutional provision, the Governor is
precluded from exercising his own discretion. Illustratively, he invited
our attention to Articles 371-A(1)(b), 371-A(1)(d), 371-A(2)(b) and 371-
A(2)(f), wherein the Articles themselves postulate that the Governor would
discharge his functions in his individual discretion/judgment. Reliance in
this behalf, was placed on PU Myllai Hlychho v. State of Mizoram[3]. It was
submitted, that similar discretion has also been vested with the Governor
under the provisions of the Fifth and the Sixth Schedules to the
Constitution. In this behalf, reference was made to State of Meghalaya v.
KA Brhyien Kurkalang[4], Bhuri Nath v. Sate of Jammu & Kashmir[5], and
Samatha v. State of A.P.[6]. Illustratively, reference was also made to
Articles 167, 200 and 356 wherein the Governor is presumed to exercise his
powers at his own discretion, because the above provisions cannot be
construed otherwise. It was accordingly asserted, that individual
discretion could be exercised by the Governor, only when the Governor was
so expressly authorized by a constitutional provision, to exercise his
discretion at his own. And not otherwise.
47. It was pointed out, that the functions of the office of the Governor
vis-a-vis the State Legislature, are comparable to those of the President
with reference to the Parliament and the Central Government. In order to
highlight the contours of the duties and responsibilities of the Governor,
and the extent to which he can participate in the legislative process,
reliance was placed on a treatise by M.N Kaul and S.L. Shakdher – “Practice
and Procedure of Parliament”, (5th Edition), published by the Lok Sabha
Secretariat. In order to highlight the extent of the Governor’s power and
authority, on the subject of summoning the Assembly, reference was made to
the following position narrated in Chapter IX, which bears the heading –
“Summoning, Prorogation of the Houses of Parliament and the Dissolution of
the Lok Sabha”:
“Summoning of Lok Sabha-
The power to summon Lok Sabha is vested in the President. He exercises
this power on the recommendation of the Prime Minister or the Cabinet. He
may make informal suggestions to the Prime Minister as to the more
convenient date and time of summoning the House, but the ultimate advice in
this matter rests with the Prime Minister.
In West Bengal consequent on the resignation of eighteen members, including
one Minister, from the ruling United Front on 6 November, 1967, prima facie
doubts arose about majority support to the Government in the Legislative
Assembly. The Governor desired that the Assembly be summoned on 23
November, so that a confidence vote might be taken, but the Chief Minister
said that he would call the Assembly into session on 18 December, as
scheduled. Thereupon, the Governor dismissed the Ministry on 21 November.
The crisis in West Bengal, as observed by Speaker Reddy, was not
unavoidable, for the Governor need not have precipitated matters by
insisting on the Chief Minister to convene the Assembly earlier than
scheduled, when the interval between the two dates was only of a few days.
In a Resolution adopted at the Conference of Presiding Officers, it was
recommended that the Government of India should, in the light of the
following observations, take urgent and suitable steps in regard to the
powers of Governors to summon or prorogue the Legislatures and to dismiss
Ministries:
That a Governor shall summon or prorogue the Legislature on the advice of
the Chief Minister. A convention shall be developed that the Chief
Minister may fix the dates of summoning or prorogation after consulting the
Presiding Officer concerned. The Governor may suggest an alternative date
but it shall be left to the Chief Minister or the Cabinet to revise their
decision or not. Where, however, there is undue delay in summoning a
Legislative Assembly and the majority of members of the Legislative
Assembly desire to discuss a Motion of No-confidence in a Ministry and make
a request to that effect in writing to the Chief Minister, the Chief
Minister shall advise the Governor to summon the Assembly within a week of
such request.
The proposal to summon Lok Sabha is initiated by the Minister of
Parliamentary Affairs (and by the Leader of the House in case the Prime
Minister is not the Leader of the House) and submitted to the Prime
Minister, after an informal consultation with the Speaker in regard to the
date of commencement and the duration of the session. The Prime Minister
may agree with the suggestion or refer it to the Cabinet. The proposal as
finally agreed to by the Prime Minister or the Cabinet is formally
submitted to the Speaker. If the Speaker also agrees (in the case of a
rare disagreement, he may refer the matter back to the Prime Minister for
reconsideration), he directs the Secretary-General to obtain the order of
the President to summon Lok Sabha on the date and time specified. After
the President has signed the order, the Secretariat notifies it in the
Gazette Extraordinary and issues a press communiqué for wider publicity in
the Press as well as over the All India Radio and Doordarshan.”
And from Chapter XLI under the title – “Parliament and the States”, our
attention was invited to the following narration:
“Prorogation of the Assembly
As regards prorogation, the Governor should normally act on the advice of
his Council of Ministers. Where a notice of no-confidence against his
Ministry is pending in the Assembly, the Governor should first satisfy
himself that the notice is not frivolous and is a genuine exercise of the
parliamentary right of the Opposition to challenge the Government’s
majority. If so satisfied, the Governor should ask the Chief Minister to
face the Assembly and allow the motion to be debated and voted upon. To
prorogue the Assembly otherwise would amount to avoidance of responsibility
of the Council of Ministers to the Assembly.
If an Assembly or Legislature has been prorogued in a State, the matter may
be raised in the Lok Sabha and the Speaker may, in certain circumstances,
allow a discussion thereon.
Dissolution of the Assembly
Normally a Governor should exercise the power of dissolution on the advice
of the Council of Ministers. If a Chief Minister who enjoys majority
support advises dissolution, the Governor must accept the advice, but if he
advises dissolution after losing his majority, the Governor need accept his
advice only if the Ministry suffers a defeat on a question of major policy
and the Chief Minister wishes to appeal to the electorate for a mandate on
that policy. In the case of a Chief Minister heading a single party
Government which has been returned by the electorate in absolute majority,
if the ruling party loses its majority because of defection by at least one-
third of its members and the Chief Minister recommends dissolution so as to
enable him to make a fresh appeal to the electorate, the Governor may grant
a dissolution. The mere fact that some members of the party have defected
does not necessarily prove that the party has lost the confidence of the
electorate. If there is a no-confidence motion against a Ministry and the
chief Minister, instead of facing the Assembly, advises the Governor to
dissolve the Assembly, the Governor need not accept such advice, but should
ask the Chief Minister to get the verdict of the Assembly on the no-
confidence motion.
In a case where the Chief Minister recommends dissolution of the Assembly
when the Budget has not been voted and the Ministry claims majority
support, the Ministry in such a situation should face the Assembly and get
the Budget passed before seeking dissolution for whatever reason. If, on
the other hand, there is reason to believe that the Chief Minister no
longer commands majority support, it is clearly open to the Governor to
take steps to ascertain if it is possible to install another Ministry which
is able to command majority support and get the Budget passed. Failing
both, the Governor has no alternative except to make a report to the
President under article 356 because Parliament alone could then sanction
appropriation for carrying on the administration of the State.
A Governor is not bound to accept the advice of a Chief Minister to
dissolve the Assembly if the Chief Minister has lost the majority support.”
48. In order to appreciate and effectively interpret Article 174, it was
submitted, that it is necessary to examine draft Article 153 drawn by the
Drafting Committee. The same is reproduced below:
“153. Sessions of the State Legislature, propagation and dissolution. – (1)
The House or Houses of the Legislature of the State shall be summoned to
meet twice at least in every year, and six months shall not intervene
between their last sitting in one session and the date appointed for their
first sitting in the next session.
(2) Subject to the provisions of this article, the Governor may, from time
to time –
(a) summon the Houses or either House to meet at such time and place as he
thinks fit;
(b) prorogue the House or Houses;
(c) dissolve the Legislative Assembly.
(3) The functions of the Governor under sub-clauses (a) and (c) of clause
(2) of this article shall be exercised by him in his discretion.”
In the written comments submitted to draft Article 153, Jayaprakash Narayan
suggested, that clause (3) of Article 153 should be deleted. It was his
submission, that there was no reason why the Governor in his discretion,
should be permitted to summon or dissolve the House, when no such
discretionary power was being extended to the President (– with regard to
summoning and dissolution, of the Parliament). Another reason expressed by
him for deleting the aforesaid clause (3) was, the changed position of
selection of Governors, whereby Governors are to be nominated by the
President, instead of being elected, as hitherto before. When draft
Article 153 came up for debate, Mohd. Tahir suggested, addition of the
following words at the end of sub-clause (c) of clause (2) – “If the
Governor is satisfied that the administration is failing and the Ministry
has become unstable”. It was canvassed, that merely because a Governor did
not subscribe to the views of the majority party, he should not have the
discretion to dissolve the House. It was asserted, that there could be no
other reason for the dissolution of a House, except mal-administration and
instability of the Government. It was therefore, that Dr. B.R. Ambedkar
moved, that clause (3) of draft Article 153 be omitted, as the same was
inconsistent with the scheme of a “constitutional” Governor. When put to
vote, the amendment suggested by Mohd. Tahir was rejected, and the one
suggested by Dr. B.R. Ambedkar was adopted. The above draft Article was
renumbered as Article 174 of the Constitution.
49. Based on a collective reading of draft Article 153, and Article 174
of the Constitution, according to learned counsel, it was apparent that the
original intention of the Constituent Assembly, to vest personal discretion
with the Governor, for summoning, proroguing and dissolving the House, was
overruled. The above historical background, it was urged, should not be
overlooked, and that, Article 174 should be interpreted in a manner as
would exclude the personal discretion of the Governor, in the matter of
summoning, proroguing or dissolving the House(s) of the State Legislature,
in consonance with the obvious intention of the framers of the
Constitution. Learned counsel for the appellants, suggested while
concluding, that the Governor in the present case, having no discretion to
unilaterally summon the Assembly, having done so, while passing the order
dated 9.12.2015, had acted unconstitutionally. Consequently, according to
learned counsel, all steps taken by the Assembly, pursuant to the order
dated 9.12.2015 were liable to be set aside, as unconstitutional and void.
50. The appellants also assailed the validity of the message of the
Governor, dated 9.12.2015. In order to demonstrate the contours of the
authority of the Governor under Article 175, it was pointed out, that the
precursor to Article 175, was Section 63 of the Government of India Act,
1935, which is extracted below:
“63. Right of Governor to address, and send messages to, Chambers.-(l) The
Governor may in his discretion address the Legislative Assembly or, in the
case of a Province having a Legislative Council, either Chamber of the
Provincial Legislature or both Chambers assembled together, and may for
that purpose require the attendance of members.
(2) The Governor may in his discretion send messages to the Chamber or
Chambers of the Provincial Legislature, whether with respect to a Bill then
pending in the Legislature or otherwise, and a Chamber to whom. any message
is so sent shall with all convenient dispatch consider any matter which
they are required by the message to take into consideration.”
Referring to the words “in his discretion” used in sub-section (2) of
Section 63, it was submitted, that Article 175 vests no such discretion,
with the Governor. It was therefore contended, that the framers of the
Constitution, did not intend to confer any discretion with the Governor, in
the matter of sending messages (envisaged under Article 175). Accordingly,
it was submitted, that no authority is vested with the Governor under
Article 175(2), to send messages in respect of the functioning of the
House, at his own. It was pointed out, that there was no question of any
right being vested with the Governor, to interfere with the legislative
autonomy of the House, by addressing a message to the House under Article
175. It was submitted, that the message of the Governor dated 9.12.2015,
was beyond the purview of Article 175(2), and therefore, was liable to be
declared unconstitutional.
51. It was also asserted, that the message of the Governor dated
9.12.2015, contained directions to the House. The aforesaid directions,
according to learned counsel, would not fall within the purview of messages
contemplated under Article 175(2). It was pointed out, that the ‘Conduct
of Business Rules’ framed under Article 208, assigned no such role to the
Governor. A Governor, according to learned counsel, cannot determine or
interfere with, any issue with reference to the conduct of business, within
the Legislative Assembly. In support of the above proposition, reliance
was placed on Rule 21, of the ‘Conduct of Business Rules’, which is
extracted below:
“Arrangement of Business, Provisional Programme and List of Business.
(a) Arrangement of Business:
21. Arrangement of Govt. business. On days allotted for the transaction of
Government business, such business shall have precedence and the Secretary
shall arrange that business in such order as the Speaker may, after
consultation with the Leader of the House, determine:
Provided that such order of business shall not be varied on the day that
business is set down for disposal unless the Speaker is satisfied that
there is sufficient ground for such variation.”
Based on Rule 21, it was submitted, that a Governor has no right to
determine the agenda of the business of the House. Or even, the sequence
in which the business of the House, was to be conducted. To the above
extent, it was submitted, that the message of the Governor dated 9.12.2015,
was not only unconstitutional, but also violative of Rule 21. It was
therefore submitted, that it was not open to the Governor, to have directed
the House, through his message dated 9.12.2015, to take up the resolution
for removal of the Speaker, as the first item on the agenda, on 16.12.2015.
A reference was also made to Rules 152 to 154 of the ‘Conduct of Business
Rules’, which are extracted below:
“152. Leave of House to take up resolution.- (1) Subject to the provisions
of Article 181 of the Constitution, the Speaker or the Deputy Speaker or
such other person as is referred to in clause (2) of Article 180 of the
Constitution shall preside when a motion under rule 151 is taken up for
consideration.
(2) The member in whose name the motion stands on the list of business
shall, except when he wishes to withdraw it, move the motion when called
upon to do so, but no speech shall be permitted at this stage.
153. Inclusion of Resolution in the list of.- On the appointed day the
Resolution shall be included in the list of business to be taken up after
the questions and before any other business for the day is entered upon.
154. Time limit for speeches. – Except with the permission of the Speaker
or the person presiding, a speech on the Resolution shall not exceed
fifteen minutes in duration:
Provided that the mover of the Resolution when moving the same may speak
for such longer time as the Speaker or the person presiding may permit.”
Based on the above Rules, it was urged, that the entire proceedings in the
Assembly, are to be regulated by the Speaker (or the Deputy Speaker), and
that, the Governor has no role in the proceedings of the House.
52. It was also contended, that the Governor is neither a member of the
State Legislative Assembly, nor an officer of the State Legislature, and
therefore, a Governor can have no jurisdiction in the functioning, and
affairs of the House. It was accordingly asserted, that the intent
expressed in Article 168, should not be determined from a cursory reading
thereof, but should be visualised from the scheme of the surrounding
provisions. The Governor’s connectivity and relationship with the House,
according to learned counsel, was based on the aid and advice of the
Council of Ministers headed by the Chief Minister.
53. It was submitted, that the Governor has no authority whatsoever, to
get embroiled with matters falling under the Tenth Schedule. It was urged,
that the Speaker, was the sole adjudicatory authority, under the Tenth
Schedule, and his actions thereunder cannot be interfered with, by or at
the behest of the Governor. It was submitted, that even the Legislative
Assembly itself, could not interfere with the Speaker’s determination,
under the Tenth Schedule. It was urged, that on the same analogy, even the
Deputy Speaker of the House, had no authority whatsoever, to set aside an
order passed by the Speaker under the Tenth Schedule. It was pointed out,
that even the Speaker himself had no power or discretion to review the
order of disqualification dated 15.12.2015 (as in the present case). In
this behalf, reliance was placed on the following observations recorded in
Dr. Kashinath G. Jalmi v. The Speaker[7]:
“49. The power of review which, it is suggested by counsel for the
respondents, inheres in the Speaker by necessary implication has to be
found in the provisions made in the Tenth Schedule alone, and not
elsewhere. Para 7 has to be treated as non-existent in the Tenth Schedule
from the very inception, as earlier indicated. As held by the majority in
Kihoto Hollohan 1992 Supp (2) SCC 651, judicial review is available against
an order of disqualification made by the Speaker under para 6 of the Tenth
Schedule, notwithstanding the finality mentioned therein. It is on account
of the nature of finality attaching by virtue of para 6, that the judicial
review available against the Speaker's order has been labelled as limited
in para 110 (at page 711 of SCC) of the decision in Kihoto Hollohan and the
expression has to be understood in that sense distinguished from the wide
power in an appeal, and no more. As held in Kihoto Hollohan, the Speaker's
order is final being subject only to judicial review, according to the
settled parameters of the exercise of power of judicial review in such
cases, which it is not necessary to elaborate in the present context. The
existence of judicial review against the Speaker's order of
disqualification made under para 6 is itself a strong indication to the
contrary that there can be no inherent power of review in the Speaker, read
in the Tenth Schedule by necessary implication. The need for correction of
errors in the Speaker's order made under the Tenth Schedule is met by the
availability of judicial review against the same, as held in Kihoto
Hollohan.
50. In our opinion there is no merit in the submission that the power of
review inheres in the Speaker under the Tenth Schedule as a necessary
incident of his jurisdiction to decide the question of disqualification; or
that such a power existed till November 12, 1991 when the decision in
Kihota Hollohan (1992) 1 SCC 309 was rendered; or at least a limited power
of review inheres in the Speaker to correct any palpable error outside the
scope of judicial review.”
54. It was the pointed assertion of learned senior counsel, that the
order of the Deputy Speaker dated 16.12.2015, quashing the Speaker’s order
dated 15.12.2015 (disqualifying 14 members of the House, belonging to the
INC), was totally without jurisdiction. It was also urged, that if any
individual including the Deputy Speaker of the Assembly and/or the other 13
disqualified members of the House were aggrieved, they could have
legitimately taken recourse to judicial review, either before the
jurisdictional High Court under Article 226, or before this Court under
Article 32. It was pointed out, that the disqualified MLAs had actually
assailed their disqualification orders before the High Court. It was
accordingly submitted, that the decision of the Deputy Speaker, quashing
the order of the Speaker dated 15.12.2015 (disqualifying 14 MLAs of the
INC), was per se unconstitutional, it lacked jurisdictional authority, and
as such, was unacceptable in law.
55. In addition to the above, it was submitted, that the Deputy Speaker
of the Assembly – Tenzing Norbu Thongdok was one of the 14 INC MLAs of the
Assembly disqualified by the Speaker vide his order dated 15.12.2015. As
such, it was urged, that it was not open to the Deputy Speaker, to set
aside the order of his own disqualification. It was submitted, that the
aforesaid determination at the hands of the Deputy Speaker, amounted to the
Deputy Speaker acting as a judge in his own cause. It was pointed out,
that not only his action was illegal, but the same was also violative of
the rules of natural justice. With reference to the importance of the
validity (or invalidity) of the order of the Deputy Speaker dated
16.12.2015, it was pointed out, that in case the above order was found by
this Court to be unacceptable in law, the participation of the 14
disqualified MLAs belonging to the INC, in the proceedings of the House on
16.12.2016 – and thereafter, was liable to be considered as non est in the
eyes of law. It is important for us to record, that the validity of above
order of the Deputy Speaker, is sub-judice before the jurisdictional High
Court at Guwahati.
56. It was submitted, that the proceedings of the Assembly held with
effect from 16.12.2015, till the House was prorogued on 18.12.2015 with the
participation of the 14 disqualified MLAs belonging to the INC, was nothing
but an overt political act of the BJP MLAs, supported by the Governor, to
undermine the democratic process in the State. It was submitted, that once
the Governor had summoned the leader of the political party, having the
largest strength amongst the different political parties, to form
Government, without any support from any other political party, the action
of the Governor expressed through the order and message dated 9.12.2015 was
absolutely undemocratic, and unconstitutional.
57. Mr. F.S. Nariman, learned Senior Advocate entered appearance, in
support of the claim raised by the appellants. He represented Bamang Felix
– Deputy Chief Whip of the INC. In his opening statement, Mr. Nariman
adopted the factual and the legal submissions advanced on behalf of Nabam
Rebia. He pointed out, that he affirmed the submissions advanced by Mr.
Kapil Sibal, but would assist the Court, by projecting some further
constitutional aspects.
58. In the first instance, learned senior counsel placed reliance on two
reports. The first – the Justice Sarkaria Commission report, on “Centre-
State Relations”, and the second – the Justice M.M. Punchhi Commission
report, on “Constitutional Governance and Management of Centre-State
Relations”. It was pointed out, that in the Justice Sarkaria Commission
report, Chapter 5 was attributed to the role of the Governor. And in the
Justice M.M. Punchhi Commission report, Chapter 4 was ascribed to the role
of the Governor. It was asserted, that reference to both the reports would
be repetitive, inasmuch as, the conclusions drawn in the Justice Sarkaria
Commission report, had been substantially affirmed and reiterated in the
Justice M.M. Punchhi Commission report. It was therefore, that learned
counsel placed reliance only on the Justice M.M. Punchhi Commission report.
He invited our attention to paragraph 4.1.03, of the report, wherein the
Commission adopted the reasoning expressed during the proceedings of the
Constituent Assembly for arriving at its conclusions. Reference was also
made to paragraphs 4.2.09 to 4.2.15 highlighting the fact, that the
Governor in exercise of his functions, cannot act in his individual
capacity, especially when the function sought to be discharged (by the
Governor), is in the realm of executive dispensation. Reliance was also
placed on paragraph 4.3 of the report (in its entirety), which expounds
the proposition, that it is not expected of the Governor to embroil himself
in day-to-day activities of rival political parties, and that, Governors
are expected to be independent, and to act in a manner devoid of any
political consideration. It was pointed out, that independence of such
actions would include, keeping the State Legislature and the political
executive, shielded from the political will of the Union Government.
Especially when the concerned State and the Union were not being governed
by the same political party/conglomerate. Last of all, reliance was placed
on paragraph 4.5, and more particularly, on sub-paragraph 4.5.03, to
demonstrate, that a reading of the constitutional provisions had resulted
in the two Commissions very clearly expounding, that the Governor was bound
to act in consonance with the aid and advice tendered to him, by the
Council of Ministers and the Chief Minister. It was pointed out, that the
aforesaid mandate was also applicable to situations, where provisions of
the Constitution had used expressions like “he thinks fit”. It was pointed
out, that only in situations, where a constitutional provision expressly
requires the Governor to exercise his functions in his own discretion, it
is open to the Governor to do so. Only then, the exercise of such
discretion, will be deemed to have been constitutionally exercised.
Paragraphs of the Justice M.M. Punchhi Commission report, relied upon by
learned senior counsel, are extracted hereunder:
“4.1.03 Dr. B.R. Ambedkar, highlighted the Constitutional role of the
Governor in following terms:
"The Governor under the Constitution has no functions which he can
discharge by himself; no functions at all. While he has no functions, he
has certain duties to perform, and I think the House will do well to bear
in mind this distinction. This Article (Article 167) certainly, it should
be borne in mind, does not confer upon the Governor the power to overrule
the Ministry on any particular matter. Even under this Article, the
Governor is bound to accept the advice of the Ministry… This Article,
nowhere, either in clause (a) or clause (b) or clause (c), says that the
Governor in any particular circumstances may overrule the Ministry.
Therefore, the criticism that has been made that this Article somehow
enables the Governor to interfere or to upset the decision of the Cabinet
is entirely beside the point, and completely mistaken.
A distinction has been made between the functions of the Governor and the
duties which the Governor has to perform. My submission is that although
the Governor has no functions still, even the Constitutional 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 Ministry is to hold office during his pleasure, he has
to see whether and when he should exercise his pleasure against the
Ministry. The second duty which the Governor has, and must have, is to
advice the Ministry, to warn the Ministry, to suggest to the Ministry an
alternative and to ask for a reconsideration. I do not think that anybody
in this House will question the fact that the Governor should have this
duty cast upon him; otherwise, he would be an absolutely unnecessary
functionary: no good at all. He is the representative not of a party; he is
the representative of the people as a whole of the State. It is in the name
of the people that he carries on the administration. He must see that the
administration is carried on at a level which may be regarded as good,
efficient, honest administration. I submit that he cannot discharge the
constitutional functions of a Governor which I have just referred to unless
he is in a position to obtain the information… It is to enable the Governor
to discharge his functions in respect of a good and pure administration
that we propose to give the Governor the power to call for any information…
4.2.09 The Governor does not exercise the executive functions individually
or personally. The State Government at various levels takes executive
action in the name of the Governor in accordance with the rules of business
framed under Article 166(3). Hence, it is the State Government and not the
Governor who may sue or be sued in respect of any action taken in the
exercise and performance of the powers and duties of his office [Articles
361, 299(2) and 300].
4.2.10 The Governor enjoys the same privileges as the President does under
Article 361 and he stands, in this respect, on the same footing. Article
361 states that neither the President nor the Governor can be sued for
executive actions of the Government. The reason is that neither the
President nor the Governor exercises the executive functions individually
or personally.
4.2.11 The Governor is not answerable to any court for the exercise and the
performance of the powers and duties of his office, or for 'any act done or
purporting to be done by him' in the exercise and performance of those
duties. The words 'purporting to be done by him' are of very wide import,
and even though, the act is outside the scope of his powers, so long it is
professed to be done in pursuance of the Constitution, the Governor will be
protected.
4.2.12 Lack of bona-fide vitiates executive action, but due to the
operation of Article 361 the Governor is not personally responsible. Even
where the Governor's bonafide is in question while exercising his
discretionary powers, such as appointment and dismissal of Chief Minister,
he cannot be called to enter upon defense. The Madras High Court had held
that a combined reading of Articles 154, 163 and 361 would show that the
immunity against answerability to any Court is regarding functions
exercised by the Governor qua Governor and those functions in respect of
which he acts on the advice of the Council of Ministers or in his
discretion.
4.2.13 In the recent case of Rameshwar Prasad, Chief Justice Sabharwal,
while stating the majority opinion held: The immunity granted to the
Governor under Article 361(1) does not affect the power of the Court to
judicially scrutinize the attack made to the proclamation issued under
Article 361(1) of the Constitution of India on the ground of mala fides or
it being ultra vires. It would be for the Government to satisfy the court
and adequately meet such ground of challenge. A mala fide act is wholly
outside the scope of the power and has no existence in the eyes of law.
Even, the expression "purporting to be done" in Article 361(1) does not
cover acts which are mala fide or ultra vires and, thus, the Government
supporting the proclamation under Article 361(1) shall have to meet the
challenge.
The personal immunity from answerability provided in Article 361(1) does
not bar the challenge that may be made to their actions. Under law, such
actions including those actions where the challenge may be based on the
allegations of mala fides are required to be defended by Union of India or
the State, as the case may be. Even in cases where the personal mala fides
are alleged and established, it would not be open to the Governments to
urge that the same cannot be satisfactorily answered because of the
immunity granted. In such an eventuality, it is for the respondent
defending the action to satisfy the Court either on the basis of the
material on record or even filing the affidavit of the person against whom
such allegation of personal mala fides are made. Article 361(1) does not
bar filing of an affidavit if one wants to file on his own. The bar is only
against the power of the Court to issue notice or making the President or
the Governor answerable. In view of the bar, the Court cannot issue
direction to President or Governor for even filing of affidavit to assist
the Court.
4.2.14 In a very limited field, however, the Governor may exercise certain
functions in his discretion, as provided in Article 163(1). The first part
of Article 163(1) requires the Governor to act on the advice of his Council
of Ministers. There is, however, an exception in the latter part of the
clause in regard to matters where he is by or under the Constitution
required to function in his discretion. The expression "required" signifies
that the Governor can exercise his discretionary powers only if there is a
compelling necessity to do so. It has been held that the expression "by or
under the Constitution" means that the necessity to exercise such powers
may arise from any express provision of the Constitution or by necessary
implication. We would like to add that such necessity may also arise from
rules and orders made "under" the Constitution."
4.2.15 Thus, the scope of discretionary powers as provided in the exception
in clause (1) and in clause (2) of Article 163 has been limited by the
clear language of the two clauses. It is an accepted principle that in a
parliamentary democracy with a responsible form of government, the powers
of the Governor as Constitutional or formal head of the State should not be
enlarged at the cost of the real executive, viz. the Council of Ministers.
The scope of discretionary powers has to be strictly construed, effectively
dispelling the apprehension, if any, that the area for the exercise of
discretion covers all or any of the functions to be exercised by the
Governor under the Constitution. In other words, Article 163 does not give
the Governor a general discretionary power to act against or without the
advice of his Council of Ministers. The area for the exercise of his
discretion is limited. Even this limited area, his choice of action should
not be arbitrary or fanciful. It must be a choice dictated by reason,
actuated by good faith and tempered by caution.
4.3 Role of Governor in Management of Centre-State Relations
4.3.01 The role of the Governor has been a key issue in the matters of
Central State relations. The Constitution of India envisages three tiers of
Government - the Union, State and the Local Self-Government. In the light
of a volatile Political system prevailing today, it is pertinent to
recognize the crucial role played by the Governors in the working of the
democratic framework. Addressing the Conference of Governors in June 2005,
the President of India, Dr. A.P.J. Abdul Kalam stressed the relevance of
recommendations of the Sarkaria Commission and observed that "While there
are many checks and balances provided by the Constitution, the office of
the Governor has been bestowed with the independence to rise above the day-
to-day politics and override compulsions either emanating from the central
system or the state system. “The Prime Minister, Dr. Manmohan Singh on the
same occasion noted that "you are the representatives of the centre in
states and hence, you bring a national perspective to state level actions
and activities”. The then Vice-President of India, Shri G.S. Pathak, had
remarked in 1970 that "in the sphere which is bound by the advice of the
Council of Ministers, for obvious reasons, the Governor must be independent
of the center" as there may be cases "where the advice of the Center may
clash with advice of the State Council of Ministers" and that "in such
cases the Governor must ignore the Centre's "advice" and act on the advice
of his Council of Ministers."
4.3.02 One highly significant role which he (Governor) has to play under
the Constitution is of making a report where he finds that a situation has
arisen in which the Government of the State cannot be carried on in
accordance with the provisions of the Constitution. The Governor is not
amenable to the directions of the Government of India, nor is he
accountable to them for the manner in which he carries out his functions
and duties. He is an independent constitutional office which is not subject
to the control of the Government of India.
4.3.03 The Court in Rameshwar Prasad case affirmed the following views of
the Sarkaria Commission that the Governor needs to discharge "dual
responsibility" to the Union and the State. Further, most of the safeguards
as regards the working of the Governor will be such as cannot be reduced to
a set of precise rules of procedure or practice. This is so because of the
very nature of the office and the role of the Governor. The safeguards have
mostly to be in the nature of conventions and practices, to be understood
in their proper perspective and faithfully adhered to, not only by the
Union and the State Governments but also by the political parties.
4.5 Powers of the Governor in the Context of Harmonious Centre-State
Relations
Article 163 of the Constitution, unlike Article 74, carves out two ways in
which the power of the Governor must be exercised. One, in which the
Governor has to act in accordance with the aid and advice of the Council of
Ministers and two, where he exercises his personal discretion. The concept
of the Governor acting in his discretion or exercising independent judgment
is not alien to the Constitution. The normal rule is that the Governor acts
on the aid and advice of the Council of Ministers, but there are exceptions
under which the Governor can act in his own discretion. The powers in
exercise of which the Governor has to use his personal discretion have now
been settled through judicial pronouncements. In relation to other powers,
even though the Constitution uses phrases like "he thinks fit" and "in
exercise of his discretion", the Governor must act on the aid and advise of
the Council of Ministers.
Article 163(2) gives an impression that the Governor has a wide, undefined
area of discretionary powers even outside situations where the Constitution
has expressly provided for it. Such an impression needs to be dispelled.
The Commission is of the view that the scope of discretionary powers under
Article 163(2) has to be narrowly construed, effectively dispelling the
apprehension, if any, that the so-called discretionary powers extends to
all the functions that the Governor is empowered under the Constitution.
Article 163 does not give the Governor 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 and even in this limited
area, his choice of action should not be nor appear to be arbitrary or
fanciful. It must be a choice dictated by reason, activated by good faith
and tempered by caution.
The Governor's discretionary powers are the following: to give assent or
withhold or refer a Bill for Presidential assent under Article 200; the
appointment of the Chief Minister under Article 164; dismissal of a
Government which has lost confidence but refuses to quit, since the Chief
Minister holds office during the pleasure of the Governor; dissolution of
the House under Article 174; Governor's report under Article 356;
Governor's responsibility for certain regions under Article 371-A, 371-C,
371-E, 371-H etc. These aspects are now considered below:
4.5.03 Dismissal of the Chief Minister
It has already been stated that the Council of Ministers occupy office upon
the pleasure of the Governor. Further, Article 164 states that Council of
Ministers shall be collectively responsible to the Legislative Assembly of
the State. So the question arose as to whether the discretion of the
Governor or his pleasure is curtailed by the fact that the Ministers no
longer enjoy the confidence of the House. Courts have time and again
clarified that the discretion of the Governor is not fettered by any
condition or restriction. It was held that the Assembly could only express
want of confidence in the Ministry; it can go no further. The power to
dismiss solely and entirely rests with the Governor. However, the fact that
the Ministry has lost confidence is a major consideration for its
dismissal.
The Sarkaria Commission recommended that if a Government loses its
majority, it should be given a chance to prove whether it has a majority or
not on the floor of the House. The Governor should not dismiss a Council of
Ministers, unless the Legislative Assembly has expressed on the floor of
the House its want of confidence in it. He should advise the Chief Minister
to summon the Assembly as early as possible. If the Chief Minister does not
accept the Governor's advice, the Governor may, summon the Assembly for the
specific purpose of testing the majority of the Ministry. The Assembly
should be summoned to meet early within a reasonable time. What is
"reasonable" will depend on the circumstances of each case. Generally, a
period of 30 days will be reasonable, unless there is very urgent business
to be transacted, such as passing the Budget, in which case, a shorter
period may be indicated. On the question of dismissal of a Chief Minister,
the Governor should invariably insist on the Chief Minister proving his
majority on the floor of the House for which he should prescribe a time
limit. This view of the Sarkaria Commission ought to be considered in the
form of a Constitutional Amendment.
4.5.04 Summoning, proroguing and dissolution of the legislative assembly
Article 174 of the Constitution empowers the Governor to summon, prorogue
or dissolve the House. It is a well-recognised principle that, so long as
the Council of Ministers enjoys the confidence of the Assembly, its advice
in these matters, unless patently unconstitutional must be deemed as
binding on the Governor. It is only where such advice, if acted upon, would
lead to an infringement of a constitutional provision, or where the Council
of Ministers has ceased to enjoy the confidence of the Assembly, that the
question arises whether the Governor may act in the exercise of his
discretion. The Sarkaria Commission recommended that, if the Chief Minister
neglects or refuses to summon the Assembly for holding a "Floor Test", the
Governor should summon the Assembly for the purpose. As regards proroguing
a House of Legislature, the Governor should normally act on the advice of
the Chief Minister. But where the latter advises prorogation when a notice
of no-confidence motion against the Ministry is pending, the Governor
should not straightaway accept the advice. If he finds that the no-
confidence motion represents a legitimate challenge from the Opposition, he
should advice the Chief Minister to postpone prorogation and face the
motion. As far as dissolution of the House is concerned, the Governor is
bound by the decision taken by the Chief Minister who has majority.
However, if the advice is rendered by a Chief Minister who doesn't have
majority, then the Governor can try to see if an alternate government can
be formed and only if that isn't possible, should the house be dissolved.
This Commission reiterates the recommendations of the Sarkaria Commission
in this regard.”
59. Learned senior counsel then placed reliance on Article 166, which
postulates the manner of conducting the executive business of the State
Government. It was pointed out, that the Governor, has been assigned the
responsibility of framing rules under Article 166. For the State of
Arunachal Pradesh, these rules were notified on 9.4.1987 – the Arunachal
Pradesh Rules of Executive Business, 1987 (hereinafter referred to as, the
Rules of Executive Business). It was submitted, that Part-I of the Rules
of Executive Business containing Rules 4 to 12 are clustered under the
heading – “Allocation and Disposal of Business”. Whereas Part-II
containing Rules 13 to 21, are grouped under the heading – “Procedure of
the Cabinet”. Learned counsel thereupon, invited our attention to Rule 4
from Part-I and Rules 13 and 14 from Part-II, which are being extracted
hereunder:
Part I
xxx xxx xxx
Rule 4
“4. The business of the Government shall be transacted in its different
departments. Allocation of subjects among the departments shall continue
to be as set out in the Government of Arunachal Pradesh (Allocation) Rules,
1975 (as notified from time to time) until new Rules are prescribed.”
Part II
xxx xxx xxx
Rules 13 and 14
“13. The Chief Secretary shall be the Secretary to the Cabinet and another
officer shall be designated to be the Joint Secretary to the Cabinet. In
the absence of both the Chief Secretary and the Joint Secretary to the
Cabinet the Chief Minister may appoint for this purpose any other Secretary
to function as the Secretary to the Cabinet.
14. All cases referred to as in the schedule shall, after consideration by
the Minister be sent to the Secretary with a view to obtaining orders of
the Chief Minister for circulation of the case under Rule 16 or for
bringing it for consideration at a meeting of the Cabinet.”
60. Learned counsel then drew our attention to the Schedule referred to
in Rules 8 and 14, and further invited our attention, to item no.4 in the
said Schedule which is extracted below:
“Proposals to summon, prorogue or dissolve the legislature of the State”.
It was urged on behalf of the appellants, that in the matter of summoning
the House for 16.12.2015, the procedure contemplated under Rules 8, 13 and
14 ought to have been adopted. But the same was breached. Learned senior
counsel further pointed out, that while passing the order dated 3.11.2015
(when the same Governor had summoned the 6th session of the House to meet
at 10 a.m. on 14.1.2016), the procedure contemplated under Rules 8 and 14
was duly followed. Learned counsel then referred to the summoning
particulars to demonstrate, that the proposal to summon the 6th session of
the House, had emanated from the Chief Minister. The Court’s attention was
also invited to the fact, that the Speaker of the Assembly had also been
consulted, on the matter, as also the duration of the 6th session,
whereupon, the Chief Minister submitted the outcome on the matter to the
Governor. It was pointed out, that the Governor had duly accepted the
proposal, and had scheduled the 6th session of the Assembly, to meet at 10
a.m. on 14.1.2016. It was asserted, that the above rules framed under
Article 166 were binding and every constitutional authority, including the
Governor of the State, who is bound to carry out his functions/duties in
compliance therewith.
61. In addition to the above, our attention was invited to the ‘Conduct
of Business Rules’, framed under Article 208. Learned senior counsel
pointedly drew our attention to Rule 3, which is extracted hereunder:
“3. The Chief Minister shall, in consultation with the Speaker, fix the
date of commencement and the duration of the session, advise the Governor
for summoning the Assembly under Article 174 of the Constitution.”
A perusal of the above rule, according to learned senior counsel,
postulates a procedure, similar to the one contemplated under the Rules of
Executive Business, framed under Article 166. It was submitted, that in
view of the clear mandate of Rule 3 extracted above, not only the Rules of
Executive Business, framed under Article 166 must be deemed to have been
breached by the Governor (through his order dated 9.12.2015), the Governor
must also be deemed to have breached Rule 3 of the Conduct of Business
Rules, framed under Article 208. It was therefore the contention of
learned counsel for the appellants, that the order of the Governor dated
9.12.2015, preponing the 6th session of the Assembly from the earlier
determined date – 14.01.2016, by summoning it for 16.12.2015, was in breach
of the rules framed under the Constitution, and was liable to be set aside.
The foundation of the respondents’ case:
The third sequence of facts:
62. A notice of resolution for the removal of the Speaker – Nabam Rebia,
was moved on 19.11.2015. This factual position is not in dispute. The
authors of this notice were 13 MLAs – 11 belonging to the BJP and 2
Independent MLAs. It was submitted on behalf of the appellants, that a
notice of resolution dated 16.11.2015 was moved by 16 MLAs, all belonging
to the INC, for the removal of the Deputy Speaker - Tenzing Norbu Thongdok.
This factual position is disputed at the hands of the respondents. The
claim of the respondents before this Court was, that no such resolution had
been moved under Article 179, for the removal of the Deputy Speaker. During
the course of hearing, we ventured to determine the factual position. In
support of their assertion, learned counsel for the appellants invited our
attention to a xerox copy of the notice dated 16.11.2015, which is
reproduced below:
“To,
The Secretary
Arunachal Pradesh Legislative Assembly
Naharlagun.
Sub: Resolution for Removal of Deputy Speaker, under Article 179(c) of
Constitution of India and Rule 151 (Chapter XX) of Rules of procedure and
conduct of Business AP Legislative Assembly.
Sir,
We the Members of the 6th Arunachal Pradesh Legislative Assembly do here by
move this resolution as per the Articles and Rules quoted in the subject
cited above. The specific Charges against the incumbent Deputy Speaker
warranting his removal from the post are as below:
1. The Deputy Speaker is absent from attending his office continuously
for a period three months which shows disability to hold the post of Deputy
Speaker
2. The Deputy Speaker is involved in active political dissidence
activity and thereby demeaning the office of the Deputy Speaker and also
there by the neutrality and sanctity of the Legislative Assembly is at
stake.
Therefore, we request you to kindly accept this resolution and initiate
necessary action immediately.
Yours Sincerely”
All 16 MLAs had affixed their signatures, below the above notice. Having
perused the aforesaid document, and having found no clear endorsements
thereon (depicting the receipt thereof, in the office of the Secretary,
Arunachal Pradesh Legislative Assembly), we called for the original.
During the hearing, learned counsel representing the appellants adopted the
stance, that the original resolution was in the custody of the respondents,
whereas, learned counsel for the respondents pleaded to the contrary,
namely, that the same was in the custody of the appellants. It is
therefore apparent, that even though the Court desired to peruse the
original resolution moved by 16 MLAs for the removal of the Deputy Speaker,
the same was never produced for consideration. For sure the appellants, if
nothing else, could have filed an affidavit of the concerned 16 MLAs, along
with a copy of the resolution. But they did nothing of the sort.
63. Despite the above, it was asserted on behalf of the respondents, that
there was substantial material on the record of the case, to demonstrate
that such a resolution had never been moved. In order to establish that
the notice dated 16.11.2015 was actually submitted, learned counsel for the
appellants referred to a letter dated 7.12.2015 addressed by the Deputy
Secretary – Minik Damin (attached to the Governor), to the Secretary of the
Legislative Assembly. The above communication which bore reference number
GS/I-115/00 (Vol.II)/6742, is being extracted hereunder:
“To
The Secretary,
Arunachal Pradesh Legislative Assembly,
Arunachal Pradesh,
Naharlagun.
Sub: Notice of Resolution for removal of Deputy Speaker.
Sir,
I am directed to inform you that there is a Notice of Resolution for
removal of Deputy Speaker. A copy of the resolution may kindly be
forwarded to this Office for information and perusal of His Excellency the
Governor. The Hon’ble Governor would also like to have the following
information on the above stated resolution at the earliest.
Date of receipt of the notice of the resolution in the Legislative
Assembly.
Action taken by the Legislative Assembly on the notice.
Highlight of the precedents, if any.
Kindly ensure that replies of above points are sent latest by 8th December,
2015.
Yours faithfully,
signed (illegible)
07.12.2015
(Minik Damin)
Deputy Secretary to Governor”
The aforesaid communication, according to learned counsel for the
appellants, was responded to by the Secretary of the Legislative Assembly
on the following day, i.e., 8.12.2015. The response is extracted below:
“To,
The Secretary to Governor,
Governor’s Secretariat,
Raj Bhawan,
Itanagar.
Sub: Notice of Resolution of Removal of Hon’ble Deputy Speaker.
Sir,
With reference to your letter No. GS/1-115/00 (Vol-II) 6742 dated 7th
December, 2015 on the above mentioned subject, I am to furnish the
following information required by you for kind perusal of His Excellency,
the Governor.
|1. |Date of Receipt of the |: |16th November, 2015. |
| |Notice of the Resolution of | | |
| |the Legislative Assembly. | | |
|2. |Action Taken by the |: |File processed and |
| |Legislative Assembly on | |under consideration of|
| |Notice | |Hon’ble Speaker. |
|3. |Highlight of the precedent. |: |Nill |
|[pic] | Yours faithfully, |
| |signed |
| |8/XII/15 |
| |(M.LASA) |
| |Secretary, |
| |Arunachal Pradesh |
| |Legislative Assembly, |
| |Naharlagun. |
Signed (illegible)
8/12/15”
64. Learned counsel for the appellants emphatically pointed out, that the
reply of the Secretary of the Legislative Assembly, was expressly to the
letter bearing reference number GS/1-115/00(Vol-II)/6742. The said
reference number was recorded in the letter, addressed by the Deputy
Secretary attached to the Governor. Additionally, it was pointed out, that
the Secretary to the Governor was pointedly informed, that the notice of
the resolution of the Legislative Assembly for the removal of the Deputy
Speaker, was received in the office of the Secretary of the Legislative
Assembly on 16.11.2015. And it was noted in the reply, that the file was
processed, and was under consideration of the Speaker. It was therefore
asserted on behalf of the appellants, that the Governor had complete
information about the initiation of the notice of resolution for the
removal of the Deputy Speaker under Article 179, and yet, the Governor
continued to feign ignorance about the same.
65. In order to controvert the factual position brought to our notice on
behalf of the appellants, learned senior counsel for the respondents,
placed reliance on a note of Tage Habung – Superintendent of Police-cum-ADC
to Governor, and the endorsement recorded thereon, which is extracted
below:
“N O T E
Today dated 8th Dec’2015, I had gone to L/Assembly secretariat,
Naharlagun and meet the Secretary, Addll. Secretary, OSD to speaker, under
secretary and section officer. I have apprised them about the letter
issued from Governor’s Secretariat to Secretary A.P. Legislative Assembly,
Naharlagun regarding the notice of resolution for removal of speaker and
deputy speaker. It is learned that the said file is at the official
residence of Hon’ble Speaker at Itanagar.
Further it is learned that Hon’ble speaker is on tour in his home
constituency. He is likely to return late night today.
For information please.
signed (illegible)
(Tage Habung) SP
ADC to Governor
Dy. Secretary to Governor
[pic]
H.E. may like to Peruse Please.
Signed
8.12.15
D.S.
Illegible
signed
08.12.15”
Based on the note/endorsement extracted above, it was submitted, that even
though the Deputy Secretary to the Governor, through his communication
dated 7.12.2015, had sought “A copy of ...” the notice of resolution for
the removal of the Deputy Speaker – Tenzing Norbu Thongdok, the same was
not furnished to the Governor. Further more, it was pointed out from the
note/endorsement dated 8.12.2015 (of the Superintendent of Police-cum-ADC
to the Governor), that even on his visit to the office of the Speaker, when
he had met the Secretary, the Additional Secretary and the Officer-on-
Special Duty to the Speaker, he was not furnished with a copy of the notice
of resolution for the removal of the Deputy Speaker. Rather he was
informed, that the same was in the personal custody of the Speaker, who was
on tour in his home constituency. Learned counsel for the respondents
wishes us to draw a very important inference, from their instant assertion.
That, the factum of the custody of the notice of resolution for the
removal of the Deputy Speaker, was allegedly in the custody of the Speaker
of the House, and that, the Speaker never ever produced the original
thereof. And the Speaker, who is one of the appellants before this Court,
did not produce the same, even when it was called for by the Court. And
secondly, despite repeated efforts made by the Governor, to obtain a copy
of the notice of resolution for the removal of the Deputy Speaker – Tenzing
Norbu Thongdok, no such copy was ever furnished to him, by the office of
the Secretary of the Legislative Assembly.
66. More important than the factual inferences drawn in the foregoing
paragraph, was the assertion at the hands of the respondents, that the
letter addressed by the Secretary of Legislative Assembly dated 8.12.2015,
to the Secretary to the Governor extracted hereinabove, was a forged and
fabricated document. The accusation was aimed at the appellants, who alone
could be beneficiaries of the above resolution. To demonstrate, that the
communication dated 8.12.2015 was a forged and fabricated document, the
Court’s attention was drawn towards a similar intimation, about the notice
of resolution for the removal of the Speaker, on the very same day –
8.12.2015. The above communication, bearing endorsement number
LA/Leg.26/2015, is extracted hereunder:-
“Dated Naharlagun, the 8th Dec, 2015.
To,
The Secretary to Governor,
Governor Secretariat,
Raj Bhawan Itanagar,
Arunachal Pradesh.
Sub:- Notice of Resolution for Removal of Hon’ble Speaker.
Sir,
With reference to your Letter No.GS/1-115/00 (Vol.II) 6743, Dated
07/12/2015, on the above mentioned subject, I am to furnish the following
information required by you for kind perusal of His Excellency the
Governor.
|1. |Date of receipt of the |19/11/2015 | |
| |notice of the resolution of| | |
| |the Legislative Assembly. | | |
|2. |Action taken by the |File processed and under| |
| |Legislative Assembly on the|consideration of Hon’ble| |
| |notice |Speaker | |
|3. |Highlight of the |Nil. | |
| |precedents, if any. | | |
|[pic] | Yours faithfully, |
| |signed |
| |(M. Lasa) |
| |Secretary, |
| |Arunachal Pradesh, Legislative Assembly |
| |Naharlagun.” |
It was the submission of learned senior counsel for the respondents, that
the letter-head on which the two communications were addressed by the
Secretary of the Legislative Assembly on 8.12.2015, depicting details of
the resolutions for the removal of the Speaker and the Deputy Speaker, even
though addressed on the same day, were different. Having perused the same,
we hereby affirm the assertion. It was also pointed out, that the seal of
the receipt affixed by the Governor’s Secretariat, on the two letters were
markedly different, inasmuch as, the seal of the Governor’s Secretariat on
the letter bearing no.LA/LEG-24/2015 (pertaining to the notice of
resolution for the removal of the Deputy Speaker) was of long and almost
twice the size of the seal on the letter bearing no. LA/LEG-26/2015
(pertaining to the notice of resolution for the removal of the Speaker),
which was circular. The former letter merely recorded in writing the date
8.12.2015 on the receipt, whereas the latter bears a printed receipt
number, as also, a printed date of receipt, which we were informed, is the
usual practice adopted in the Secretariat of the Governor.
67. To contest the above accusation, it was submitted on behalf of the
appellants, that no receipt number was depicted even in the former letter
bearing no. LA/LEG-24/2015, dated 8.12.2015, which the respondents
acknowledge as genuine. The respondents therefore placed reliance on a
third communication, which was also addressed by the Secretary of the
Legislative Assembly, to the Commissioner to the Governor, on the subject
of preponement of the 6th Legislative Assembly. The instant communication,
bearing endorsement number LA/LEG-23/2015, is extracted below:
“To,
The Commissioner,
to the Governor,
Arunachal Pradesh,
Itanagar.
Sub: Preponing of Sixth Legislative Assembly.
Sir,
Please refer Deputy Secretary’s letter NO.GS/1-11/00 (Vol. - II/6778
dated 10.12.2015 forwarding (i) Order modifying summons dated 3rd November,
2015 under 174(1) of the Constitution of India; and (ii) Message under
article 175 (2) of the Constitution of India.
This office had issued summons for the Sixth Session of Sixth
Legislative Assembly conveying the order dated 03.11.2015 of His
Excellency. Accordingly, this office has swung in to action and initiated
all necessary steps for conducting the Session with effect from 14th
January, 2015. In the meantime we have received a communication referred
above from the Deputy Secretary, Governor’s Secretariat preponing the
assembly session and fixing the agenda for the Session.
I am to state that as per normal practice and procedure the notice
for summoning of the Assembly Session should reach the Legislative Assembly
Secretariat through the Department of Parliamentary Affairs Department of
the State Govt. Secondly, under article 174 there is no provision to
prepone or postpone Assembly Session without consulting the Govt./Speaker.
Article 175 clearly relates that His Excellency can address and send
messages to when the House in Session.
It may be mentioned here that as per rules and procedure of Arunachal
Pradesh Legislative Assembly agenda for any session is finalized by the
Business Advisory Committee as per order of precedence in the Rules.
However, Legislative Assembly Secretariat has obtained legal opinion
and advice from the Learned Advocate General of Arunachal Pradesh which is
enclose herewith for your perusal and guidance.
|Recd at |[pic] |
|3 pm. Please | |
|put up on file | |
|expeditiously. – US (NN) to| |
| | |
|receive a copy | |
|signed | |
|14/12 | |
US (NN)
D.S.
State Cabinet in its meeting held today at 1000 hrs has also conveyed
its resolution which is reproduced below for your perusal “We have also
received the opinion of the Ld. Advocate General dated 12.12.2015 on the
said Order and Message. The Cabinet has per used the said opinion and is
in complete agreement with views the Ld. Advocate General.
The said order dated 09.12.2015 issued by His Excellency the Governor of
Arunachal Pradesh is in contradiction to Article 174 read with Article 163
of the Constitution of India and Rule 3 of the Rules of Procedure and
Conduct of Business (“Rules”). Similarly, the message is contrary to
Article 175 of the Constitution read with Rule 245 of the Rules.
We, therefore advice the Hon’ble Speaker not to take any action on the said
Order and Message. The concerned officers are accordingly directed to take
necessary action.”
In view of above, we have no other alternative but to stick to the
earlier order of His Excellency to convene the Sixth Assembly Session with
effect from 14th to 18th January, 2015 excluding the holidays.
Yours faithfully,
signed (illegible)
(M. Lasa)
Secretary,
Arunachal Pradesh, Legislative Assembly”
68. It was submitted on behalf of the respondents, that the seal on the
receipt of the instant communication in the Governor’s Secretariat, is
identical to the receipt of the notice of resolution for the removal of the
Speaker. This communication, according to learned counsel for the
respondents, was a genuine communication, which was duly received at the
Governor’s Secretariat. The reliance on the instant communication dated
14.12.2015, according to learned senior counsel, is of utmost significance
to determine, that fraud had been played by the appellants. This assertion
was sought to be demonstrated, by depicting the numbers assigned to the
three communications of the office of the Secretary of the Legislative
Assembly, coupled with the date of issuance thereof. We may tabulate the
position as under:
|Sl. |Letter Nos. |Dated |Receipt No. and date |
|No. | | |thereof at the |
| | | |Governor’s Secretariat|
|1. |LA/LEG-23/2015 |14th December, 2015 |Receipt No. 6246 dated|
| | | |14.12.2015 |
|2. |LA/LEG-24/2015 |8th December, 2015 |Receipt No. Nil, dated|
| | | |8.12.2015 |
|3. |LA/Leg.26/2015 |8th December, 2015 |Receipt No.6127 dated |
| | | |8.12.2015 |
The three letters to which our attention was drawn bore numbers 23, 24 and
26. The first communication which bears no. LA/LEG-23/2015 was dated
14.12.2015. The said communication was addressed by M. Lasa – Secretary of
the Legislative Assembly, to Commissioner to the Governor, Arunachal
Pradesh. It pertained to the preponement of the 6th Legislative Assembly.
In seriatim, the second communication bearing no. LA/LEG-24/2015 was dated
8.12.2015. The said communication was also addressed by M. Lasa – Secretary
of the Legislative Assembly, to the Secretary to the Governor. The above
noted communications pertained to the notice of resolution for the removal
of the Deputy Speaker. Sequentially, the third communication bearing no.
LA/LEG-26/2015 was also dated 8.12.2015. The said communication was
addressed by M. Lasa – Secretary of the Legislative Assembly, to Secretary
to the Governor. The above noted communications pertained to the notice of
resolution for the removal of the Speaker. It was pointed out, that the
above two letters were issued on the same letter-head(s), and their
receipts were recorded under the seal of the Governor’s Secretariat,
bearing not only the number of the receipt(s), but also the date(s) of the
receipt. Whereas, the communication pertaining to the notice of resolution
for the removal of the Deputy Speaker, was not only on a different letter-
head, but was also with a different seal, and bore no receipt number. But
most importantly, sequentially, the first letter referred to above, was
dated 14.12.2015, whereas the next two communications with the succeeding
reference numbers bore the date 8.12.2015. It was pointed out, that the
letter bearing no. LA/LEG-23/2015 having been issued on 14.12.2015, the
other two letters bearing nos. LA/LEG-24/2015 and LA/LEG-26/2015 could not
bear a date preceding 14.12.2015.
69. We were of the view, that the factual position needed to be verified,
as the inference suggested was logical. We therefore, required the
officer, who was in custody of the despatch register of the office of the
Secretary of the Legislative Assembly, to produce the same for our perusal.
Having perused the original record, and having heard the explanation
tendered by the officer, all of us were individually satisfied, that the
numbers jumble suggested on behalf of the respondents, was not sufficient
to lead to the suggested inference. All that can be stated in conclusion
however is, that the material produced by the rival parties for our
consideration, with reference to the alleged resolution moved on 16.11.2015
by 16 members of the House belonging to the INC, for the removal of the
Deputy Speaker – Tenzing Norbu Thongdok, is not sufficient to render a
clear determination on the matter, one way or the other.
The fourth sequence of facts:
70. Mr. Rakesh Dwivedi, learned senior counsel entered appearance on
behalf of respondent nos. 2 to 15, and also, on behalf of respondent nos.
31 to 37. Respondent nos. 2 to 15 are the 14 MLAs belonging to the INC, who
were disqualified by the Speaker on 15.12.2015. Respondent nos. 31 to 37,
are 7 more MLAs also belonging to the INC. The first set of 14 MLAs and
the second set of 7 MLAs referred to above, constitute the group of 21 MLAs
who had originally been elected on the INC ticket, and comprise the
breakaway group of dissidents, who desired a change in the political
leadership in the Assembly. They had demanded the removal of Chief
Minister – Nabam Tuki. It would also be relevant to mention, that
respondent nos.31 and 37 – Wanglam Sawin and Gabriel D. Wangsu, were stated
to have tendered their resignations, which were accepted. Thereupon, the
constituencies represented by them, were declared vacant. It may also be
noted, that respondent nos. 31 and 37 had assailed the acceptance of their
resignations before the High Court, but the challenge raised by them, was
rejected by the High Court. We are informed, that a Petition for Special
Leave to Appeal filed by them before this Court, assailing the above order
of the High Court, has also been dismissed.
71. The submissions advanced on behalf of the respondents, require us to
record another sequence of facts. It was submitted by learned counsel,
that the 5th session of the Assembly was concluded on 21.10.2015. The
Governor issued an order on 3.11.2015 summoning the 6th session, and
scheduled its commencement for 14.1.2016. In the interregnum 13 MLAs – 11
belonging to the BJP and 2 Independent MLAs, issued a notice (-dated
19.11.2015) of resolution for the removal of the Speaker – Nabam Rebia. The
above factual position was confirmed by the Secretary of the Legislative
Assembly – M. Lasa, to Secretary to the Governor on 8.12.2015. Having
issued the above notice, the concerned 13 MLAs addressed a letter to the
Governor (dated, 19.11.2015) for the preponement of the meeting/proceeding
of the House. The aforesaid communication, which was received in the
office of the Governor on 20.11.2015, is reproduced below:
“REQUEST TO GOVERNOR FOR PREPONING THE NEXT SESSION OF APLA TO CONSIDER
AND VOTE ON THE RESOLUTION FOR REMOVAL OF THE SPEAKER
Naharlagun
19-11-2015
Honourable Governor Saheb
We, the undersigned members of the Arunachal Pradesh Legislative
Assembly, 13 in number, wish to table a notice of resolution for removal of
Shri Nabam Rebia from the Office of Speaker in exercise of our powers under
article 179 read with article 181 of the Constitution of India further read
with Rules 151 to 154 of the Rules of Procedure of the House.
The notice of Resolution for removal of the Speaker, signed by all of
us and addressed to the Secretary, Arunachal Pradesh Legislative Assembly
and endorsed to the Speaker and Deputy Speaker of the Assembly is enclosed.
As this Resolution is not a resolution under the Rules of Procedure
of the House, but a resolution under article 179 read with article 181 of
the Constitution of India, the said Resolution, as soon as it is given
notice of, requires to be disposed of by the Legislative Assembly
immediately after the completion of the mandatory time period of 14 days
prescribed in the Constitution.
You are aware, sir, that generally sessions of the House are convened
on the recommendation of the Government of the day, so that matters related
to governance are considered by the House. The matter relating to removal
of the incumbent from the Office of Speaker is not a matter of governance
but limited to the confines of Legislature with which Government of the day
is not concerned. Since a Speaker enjoys and sustains his office with the
support of the ruling party which now, in the present case, stands reduced
to only 25, even extraordinarily also, no Government recommendations would
be forthcoming for a session to consider the resolution for removal which
we tabled.
You have however called the next session on the 6th Arunachal Pradesh
Legislative Assembly to meet on 14th January, 2016 but this Resolution for
removal for which notice once given, cannot wait for nearly two months
time. Since the Constitutional imperative has to be complied with, a
session at the earliest becomes indispensable.
We therefore beseech you sir that you may be pleased to rescind the
summons issued for the House to meet on 14th January, 2016 and re-issue the
summons for the House to meet at an emergent date so that the Resolution
aforesaid is considered and disposed at the earliest in accordance with the
scheme, purpose and timeframe envisaged by the Constitution makers. Any
delay in this behalf would gravely and irreversibly affect the ends of
justice as guaranteed in the said Constitutional provisions and Rules.
You are also aware how recent reports in the newspapers about the
alleged moral turpitude of the incumbent in the office of Speaker as
evidenced by the criminal complaint of a women against him, that has
brought down the esteem of the office of the Speaker. The dignity of the
Speaker's office needs thus to be restored with the utmost dispatch through
your hands of calling a session at the earliest in lieu of the session that
has been summoned to meet on 14.1.2016.
You also have the power to modify your summons by merely preponing
the date of the meet from 14 January 2016 to any date immediately after
completion of the 14 days period. As all notices given after issue of
summons are valid, you may be pleased to prepone the session to a date
immediately after 14 days of the date of notice of our resolution for
removal of the Speaker.
We pray your honour accordingly with the hope that you would save
democracy from peril at the hands of the Speaker.
sd/-
(TAMIYO TAGA)
LEADER OF OPPOSITION
(JAPU DERU)
MLA”
A perusal of the aforesaid communication reveals, that the concerned 13
MLAs had sought the removal of the Speaker – Nabam Rebia under Articles 179
and 181. It was also pointed out, that in consonance with the procedure of
the House, such a resolution was required to be considered and disposed of,
by the Assembly immediately after the minimum mandatory period of 14 days.
It was also urged, that the ruling political party – the INC, was no longer
enjoying majority in the House, as its strength stood reduced to only 25
out of a total of 60 members. It was in this background, that a prayer was
made by the concerned 13 legislators to the Governor, to cancel the
summoning of the 6th session of the Assembly for 14.1.2016, and to re-
summon the House at the earliest, so that the resolution could be settled
without any delay. It was submitted, that the 13 MLAs had advised the
Governor, that he had the power to modify the earlier summons, and prepone
the date of summoning of the Assembly.
72. It is also relevant to mention, that on 27.11.2015 the Commissioner
to the Governor, addressed a letter to the Secretary of the State
Legislative Assembly, that the Governor was in receipt of a resolution
signed by 13 members of the House, seeking the removal of the Speaker of
the Assembly. On behalf of the Governor, the Commissioner sought the
following information through the aforesaid communication:
“1. Date of receipt of the notice of the resolution in the Legislative
Assembly.
2. Action being taken by the Legislative Assembly on the notice.
3. Highlights of precedents, if any.
Kindly ensure that replies to above points are sent at the earliest.”
73. Even though the aforesaid information was sought expeditiously, when
no such information was furnished by the Secretary of the State Legislative
Assembly, the Deputy Secretary to the Governor, addressed another letter
dated 3.12.2015 to the above Secretary, seeking the same information again.
The aforesaid communication also remained unanswered. Whereupon, a third
communication dated 7.12.2015 was addressed to the Secretary of the
Legislative Assembly for the same purpose. An extract of the letter dated
7.12.2015 is reproduced hereunder:
“To,
The Secretary,
Arunachal Pradesh Legislative Assembly,
Arunachal Pradesh,
Naharlagun.
Sub: Notice of Resolution for removal of Speaker.
Sir,
I am directed to refer to our letter of even number dated 27.11.2015
and 03.12.2015 on the above subject wherein you have been requested to
furnish the following information to this office for kind perusal of His
Excellency the Governor.
1. Date of receipt of the notice of the resolution in the Legislative
Assembly.
2. Action taken by the Legislative Assembly on the notice.
3. Highlight of the precedents, if any.
Required information have not been received from your end till date.
Kindly ensure that replies of above points are sent latest by 8th December,
2015.”
74. In the sequence of events, noticed above, it is also pertinent to
mention, that the Chief Whip of the INC – Rajesh Tacho, filed a petition on
7.12.2015 seeking disqualification of 14 members of the House (respondent
nos. 2 to 15), belonging to the INC, under Article 191(2) read with
paragraphs 2(1)(a), 6(1) and (2) of the Tenth Schedule, read with Rules
3(7) and 6 of the Members of the Arunachal Pradesh Legislative Assembly
(Disqualification on Ground of Defection) Rules, 1987.
75. It was also pointed out, that the Secretary of the Legislative
Assembly, through a communication dated 8.12.2015, informed the Governor
that a notice of resolution for the removal of the Speaker – Nabam Rebia,
had been received in his office on 19.11.2015. It was the case of the
respondents, that on confirmation of the fact that 13 MLAs had issued a
notice of resolution for the removal of the Speaker on 19.11.2015, the
Governor sought legal opinion, with reference to the proceedings of
disqualification initiated by the Chief Whip of the INC, and also, about
the validity and legitimacy of the Speaker sitting in judgment over the
adjudication of the disqualification proceedings under the Tenth Schedule,
during the pendency of the notice of resolution for his own removal. Based
on the advice tendered to him, the Governor entertained an impression, that
there was an attempt to subvert the provisions of the Constitution. The
Governor therefore, it was urged, exercised his power under Article 174(1)
suo motu, without any aid and advice, and rescheduled the 6th session of
the House by preponing it from 14.1.2016 to 16.12.2015.
The first installment of legal submissions, on behalf of the respondents:
76. Based on the factual premise recorded above, it was the contention of
Mr. Vikas Singh, and also, Mr. Shekhar Naphade, learned Senior Advocates,
that the actions of high constitutional functionaries referred to above,
were a clear testimony of the fact, that the democratic process in the
State of Arunachal Pradesh, was being subverted and undermined. As such,
it became the constitutional obligation of the Governor, to ensure that the
constitutional functioning was restored, as would re-establish the purity
of the democratic process. Additionally, it was the submission of learned
counsel, that the action taken in this case, was akin to the one where the
Governor requires the ruling party (or combination) to demonstrate its
majority/strength, on the floor of the House. The instant action of the
Governor, according to learned counsel, originated from the same logic and
rationale, and therefore, could not have been dealt with differently.
Accordingly it was urged, that this Court should not find fault with the
legality or constitutionality of the action of the Governor, and also, with
the Governor’s bona fides, in having issued the order, and the message
dated 9.12.2015.
77. It was the contention of Mr. Rakesh Dwivedi, learned Senior Advocate,
that the House could have been summoned for any day after 3.12.2015. This
because, the minimum notice period of 14 days mandated through the first
proviso under Article 179, expired on 3.12.2015. And yet, the Governor did
not feel the urgency of summoning the House by preponing the meeting of the
House. It was submitted, that the sense of urgency and compulsion, for
convening the House assumed a different complexion when the Chief Whip of
the INC – Rajesh Tacho, filed a petition for the disqualification of
respondent nos. 2 to 15, on 7.12.2015. It was therefore, and in the above
background, the urgency of the cause assumed significance. In conjunction
with the above, the fact that the office of the Secretary of the
Legislative Assembly confirmed on 8.12.2015, that he was in receipt of the
notice of resolution for the removal of the Speaker – Nabam Rebia, dated
19.11.2015, revealed that a political dimension was being created, which
was clearly undemocratic. The Governor, according to learned counsel, was
well within his rights, in the above background, to take such action as he
in his discretion considered appropriate, to re-establish the purity of the
democratic process. By the order dated 9.12.2015, the Governor preponed
the meeting of the 6th session of the Assembly originally scheduled for
14.1.2016, to 16.12.2015. For taking his order to its logical conclusion,
according to learned counsel, the Governor through his message dated
9.12.2015, regulated the procedure of the House, as would not subvert or
undermine the democratic process.
The fifth sequence of facts:
78. It was urged on behalf of the respondents, that the challenge raised
by the appellants, to the order of the Governor dated 9.12.2015 (preponing
the summoning of the House from 14.1.2016 to 16.12.2015), and to other
connected issues, before the High Court by filing Writ Petition nos. 7745
of 2015 and 7998 of 2015 (on 17.12.2015 and 22.12.2015, respectively), was
not only unfair and unreasonable, but was also illegitimate, and
constituted a misuse of the jurisdiction of the High Court. It was the
contention of learned senior counsel, that the office of the Governor
received a letter dated 14.12.2015, from the Speaker of the Assembly –
Nabam Rebia, recording his objection to the order of the Governor dated
9.12.2015 preponing the summoning of the House from 14.1.2016 to
16.12.2015. In his above letter dated 14.12.2015, the Speaker also
contested the validity of the message of the Governor dated 9.12.2015
(providing the manner in which, proceedings of the 6th session of the
Assembly should be conducted).
79. On the same day, i.e., 14.12.2015, the Commissioner to the Governor
received a letter from the Officer on Special Duty to the Chief Minister,
seeking a meeting of the Chief Minister and his Council of Ministers, and
some other MLAs, with the Governor. The said letter was received by the
Commissioner at 10.15 p.m. on 14.12.2015, and was endorsed to the SSP/ADC
to the Governor, on 15.12.2015 at 7.45 a.m. It was also pointed out, that
the aforesaid communication was brought to the notice of the Governor at 10
a.m. on 15.12.2015. Having accepted the aforesaid request, the Governor
granted audience to the Council of Ministers at 6 p.m. on 15.12.2015
itself. It was submitted, that 9 Ministers including the Chief Minister
came to meet the Governor at 6.15 p.m. on 15.12.2015, and committed acts of
serious misbehaviour. Insofar as the details of their alleged misdemeanour
are concerned, the same were disclosed by the Governor, to the High Court
in IA No.29 of 2016, in the following words:
“….. that at around 6:15 P.M. 9 (nine) ministers including the Chief
Minister Shri Nabam Tuki came to meet the Governor and the Chief Minister
initiated the discussion, all of a sudden few ministers more particularly
the Education Minister Shri. Tapang Taloh and Transport Minister without
any provocation started abusing the Governor forcing his security personnel
to interfere. There was infact an attempt to assault the Governor to force
him to withdraw his order. The Commissioner to the Governor duly informed
the incident to the Director General of Police which was videographed.”
It was also submitted, that a meeting of the Cabinet was held on
14.12.2015, with reference to the preponement of the Assembly Session from
14.1.2016 to 16.12.2015, whereupon the Cabinet passed the following
resolution:
“MINUTES OF THE MEETING OF THE CABINET HELD ON 14TH DECEMBER, 2015 AT 1000
HRS IN THE CONFERENCE HALL OF THE HON’BLE CHIEF MINISTER’S RESIDENTIAL
OFFICE, ARUNACHAL PRADESH, ITANAGAR
MEMBERS OF THE COUNCIL OF MINISTERS PRESENT:-
Shri Nabam Tuki, Chief Minister (In Chair)
Shri Tanga Byaling, Minister (Home, etc.)
Shri Tapang Taloh, Minister (Education, etc.)
Shri Gojen Gadi, Minister (PWD, etc.)
Shri Takam Pario, Minister (PHED&WS, etc.)
Shri Rajesh Tacho, Minister (Health & PW, etc.)
Shri Phurpa Tsering, Minister (AH&V, etc.)
Shri Jomde Kena, Minister (Transport, etc.)
Shri Tirong Aboh, Minister (DoTCL, etc.)
IN ATTENDANCE
Shri Ramesh Negi, Chief Secretary and Cabinet Secretary
Shri Tajom Taloh, Commissioner & Jt. Secretary to the Cabinet
Shri Onit Panyang, Secretary (Law & Parliamentary Affairs)
The Cabinet Secretary welcomed the Hon’ble Chief Minister and
his Council of Ministers.
AGENDA ITEM NO.1. DISCUSSION ON THE MESSAGE DATED 9TH DECEMBER, 2015 OF THE
GOVERNOR OF ARUNACHAL PRADESH FOR PRE-PONEMENT OF THE ASSEMBLY SESSION FROM
14TH JANUARY 2016 TO 16TH DECEMBER, 2015.
The Cabinet has discussed the opinion rendered by the Learned
Advocate General dated 12.12.2015 on the constitutionality of the order and
message of HE, the Governor. After careful examination, the Cabinet has
resolved as under:
The State Cabinet at its meeting held on 14th December, 2015 at
1000 hrs in CM’s conference hall again discussed in detail the Order and
the Message dated 09.12.2015 of His Excellency the Governor of Arunahal
Pradesh.
Cabinet has received the opinion of the Ld. Advocate General
dated 12.12.2015 and other legal experts on the said Order and Message.
The Cabinet has perused the said opinion and is in complete agreement with
views of the Ld. Advocate General.
The said Order dated 09.12.2015 issued by His Excellency the
Governor of Arunachal Pradesh is in contradiction to Article 174 read with
Article 163 of the Constitution of India and Rules 3 and 3A of the Rules of
Procedure and Conduct of Business of the Arunachal Pradesh Legislative
Assembly. Similarly, the Message is contrary to Article 175 of the
Constitution read with Rule 245 of the said Rules. Moreover, the Hon’ble
High Court of Gauhati has fixed the hearing of the case of resignation of 2
MLAs from the Assembly on 16th December, 2015.
Therefore, the Cabinet resolves …, His Excellency, the Governor
of Arunachal Pradesh to recall and cancel the Order and the Message dated
9th December, 2015 and allow the Session to be convened on 14th January,
2016 as already ordered and scheduled.
The Cabinet also resolves to endorse a copy each of this
resolution and legal advice of the Ld. Advocate General to the Hon’ble
Speaker.
... Secretary (Cabinet)”
80. It was reiterated during the course of hearing, that the meeting of
the Governor with the Chief Minister and Ministers on 15.12.2015 was duly
video-graphed. It was urged, that the entire episode as it had occurred,
can be shown to this Court. The fact that an attempt was made by the Chief
Minister – Nabam Tuki and his Ministers, to assault the Governor, in order
to force him to withdraw the order/message dated 9.12.2015, it was
submitted, was duly brought to the notice of the Director General of
Police, by the Commissioner to the Governor.
81. Insofar as the request which the Chief Minister and some Ministers
had made, in their letter dated 14.12.2015 is concerned, it was submitted,
that the same was an absolute eyewash, because members of the INC still
supporting the Chief Minister, had already taken a decision not to allow
the House to meet, as required by the Governor’s order dated 9.12.2015. In
order to substantiate this assertion, learned counsel placed reliance on a
letter dated 14.12.2015 addressed by the then Speaker – Nabam Rebia, to the
Minister (Home) – Tanga Byaling. The aforesaid letter, which has been
extracted in the impugned order passed by the High Court, is reproduced
below:
“Arunachal Pradesh Legislative Assembly
Speaker’s Cell
MOST URGENT
As the Govt. is aware of the fact that a serious law and order
problem is likely to take place on 16th of December, 2015, in view of the
unconstitutional and unprecedented summoning of the Sixth Session of Sixty
Legislative assembly of Arunachal Pradesh by the Governor of Arunachal
Pradesh. It is given to learn that thousand of anti-social elements are
taking shelter in the state Capital with the motive to create law and order
problem on that particular date. Illegal arms and ammunition are also
reported to have been collected for the purpose. Sources have revealed
that the main target of the anti—social elements would be to burn down the
legislative building of the state Assembly at Naharlagun.
I would therefore request the Hon’ble Minister (Home) Govt. of
Arunachal Pradesh to provide full-proof security in and around the Assembly
building w.e.f. 15th – 18th December, 2015 on top-most priority basis. It
is also requested that no individual including the Hon’ble Legislators be
allowed to enter the Assembly building premises on 15th, 16th, 17th and
18th Dec’ 15.
Please treat this as most urgent.
Urgent Sd/-
Illegible 14.12.15
SP/City (NABAM REBIA)
Deploy sufficient force Speaker
with monitoring system
with the administration
of IRBN + CPMF”
A perusal of the aforesaid communication reveals, that the Speaker asked
the Home Minister to provide foolproof security and to protect the building
of the State Legislative Assembly. And that, no one, not even MLAs be
permitted to enter the building from 15.12.2015 to 18.12.2015.
Accordingly, the Superintendent of Police (City), Itanagar, in compliance
with the directions issued by the Director General of Police, sufficient
number of IRBN personnel were deployed, to secure the Assembly building
premises from 15.12.2015 to 18.12.2015, so that no individual including
legislators, could enter the same. It was pointed out, that the Speaker
himself (whose continuation in the State Legislative Assembly was to be
voted upon, on 16.12.2015), being aware of his position, was making all out
efforts, to circumvent the holding of the said meeting.
82. In addition to the letter of the Speaker, referred to above, the
Speaker also addressed a letter on the same day – 14.12.2015, to the
Governor, wherein he contested the decision of the Governor, to summon the
House by preponing the summoning date from 14.1.2016 to 16.12.2015. In the
above letter of the Speaker – Nabam Rebia it was highlighted, that the
provisions of the Constitution, did not authorize the Governor, to exercise
his powers at his own free will. It was asserted, that all the powers of
the Governor were to be exercised on the aid and advice of the Council of
Ministers. For this, the Speaker had invited the Governor’s attention to
Article 163(1). It was also pointed out, that there was no provision
either under the Constitution or the ‘Conduct of Business Rules’, which
empowered the Governor to summon a meeting of the House, by preponing the
date already fixed, in consultation with the Chief Minister and his Council
of Ministers. In this behalf, reliance was placed on Rule 3 of the
‘Conduct of Business Rules’. It was pointed out, that the ‘Conduct of
Business Rules’ had been framed under Article 208, and were binding, not
only on the MLAs, but also on the Governor. The Governor was accordingly
urged by the Speaker, not to press for the implementation of the order
passed by him summoning the House for 16.12.2015, “in the interest of
upholding the high moral principles enshrined in the Constitution”. It was
also pointed out, that while preponing the session of the House, the
secretariat of the Legislative Assembly had not been afforded sufficient
time, to make necessary arrangements, for holding the preponed session.
With respect to the order/message issued by the Governor, it was asserted,
that the same was unconstitutional, and that, it impinged upon the
functions of the “Business Advisory Committee”, constituted under Rule 244
of the ‘Conduct of Business Rules’. It was urged, that the Governor’s
attention was invited to the fact, that it was the function of the
“Business Advisory Committee” alone, to schedule the business of the House,
and that, it was not within the realm of the Governor to require, the
notice of resolution for the removal of the Speaker, to be taken up as the
first item, on the agenda for the day. The Speaker – Nabam Rebia also
invited the attention of the Governor to the resolution of the State
Cabinet, in the meeting held on 14.12.2015. It was submitted, that for all
the above reasons, the Governor was requested to refrain from interfering
with the functioning of the Legislative Assembly. Based on the above
communications, it was submitted, that the Speaker was bent upon
frustrating, any final consideration on the notice of resolution for his
removal.
A further instalment of legal submissions, on behalf of the respondents:
83. It was submitted by Mr. Rakesh Dwivedi, learned senior counsel, that
the appellants were fully justified in their reference to Article 154 which
deals with the “executive power” of the State, and which also explicates,
that the same is vested with the Governor. He also acknowledged, that the
above “executive power” can be exercised by the Governor, in the manner
expressed in Article 163 – on the aid and advice of the Council of
Ministers with the Chief Minister as the head. It was however submitted,
that the exercise of functions by the Governor at his own discretion, is
recognized in Article 163(2) itself, which contemplates constitutional
decision making “in his discretion” without any aid and advice.
84. It was urged, that insofar as the present controversy is concerned, a
correct understanding of Article 163(2) would be of extreme relevance.
Under Article 163(2), according to learned counsel, the Governor has the
authority to act on his own, in respect of matters where the Governor is
mandated to act in his own discretion “by or under” the Constitution. It
was further submitted that when a question arises, as to whether such
discretion is vested with the Governor “by or under” the Constitution, the
decision of the Governor, on the above question, is final and binding. It
was submitted, that Article 163(2) postulates three situations where, as an
exception to the general rule, the Governor can act at his own will and
discretion. Firstly, when he is required to discharge his functions by the
mandate of some provision of the Constitution itself, in his own
discretion. Secondly, when the Governor is assigned functions on the basis
of enactments made under the Constitution, where he is mandated to
discharge his functions by exercising his own discretion. And thirdly,
where he is impliedly required to act in his own discretion.
85. It was pointedly contended, that in the present controversy, the
question that needs to be determined is, whether Article 174 which vests
the Governor with the authority to summon the Assembly, can be envisioned
as one of the provisions, which requires the Governor to impliedly act at
his own discretion? Learned counsel acknowledged, that the exercise of
discretion by the Governor in the present case did not fall within the
first two categorizations, postulated in his submission. Insofar as the
implied power of the Governor with reference to the summoning of the House
(vide order dated 9.12.2015) is concerned, the first and foremost
submission canvassed was, that a clear distinction needed to be drawn
between Article 174(1), which postulates the authority to summon the House,
and Article 174(2) which vests the authority to prorogue or dissolve the
Assembly. In dealing with the distinction between the two, it was pointed
out, that the process of summoning a House can never be considered to be
anti-democratic. Summoning the House, according to learned counsel,
inevitably supports the cause of the democratic process. The same,
according to learned counsel, may not be true with reference to proroguing
or dissolving the House. When a House is prorogued or dissolved, the
democratic process is sought to be deferred for the time being, or till the
re-election of the members of the Legislative Assembly, respectively.
86. Learned senior counsel also pointedly focused on Article 179, and
more particularly, sub-article (c) thereof. It was submitted, that an
incumbent Speaker (or Deputy Speaker) can be removed under sub-article (c)
of Article 179, by a resolution of the Assembly passed by a majority of “…
all the then members …” of the Assembly. It was submitted, that the issue
of removal of the existing Speaker (or Deputy Speaker) contemplated under
Article 179, should not be confused with the exercise of “executive power”
of the State. It was asserted, that the functions of an Assembly could be
placed in two entirely separate categories. Firstly, its purely
legislative activities. Legislative activity, according to learned counsel,
included the responsibility of the “executive power of the State”
represented through the Chief Minister and his Council of Ministers, to
determine the field and nature of legislation, to be brought before the
House for legislation. It was submitted, that in the discharge of the
aforesaid activity, the Governor can have no role whatsoever. The realm of
legislative activity, according to learned counsel, also included the
actual consideration of a Bill. Herein again, it was submitted, that the
Governor would have no role, except to the extent contemplated under
Article 200, wherein, when a Bill is passed by the House, the same has to
be approved by the Governor. And only when the Governor gives his assent to
the Bill, the same assumes the status of a legislative enactment. It was
pointed out, that Article 200 contemplates a situation, where the Governor
can return the Bill with a message, requiring the House to reconsider the
same, by examining the suggestions made by the Governor. This limited
responsibility cast on the Governor, it was contended, fell within the
legislative process. The Governor before whom a Bill (passed by the
Legislative Assembly) is placed, has also the right to reserve the Bill,
for the consideration of the President. This action of the Governor,
according to learned counsel, must be accepted as a further responsibility
of the Governor within the legislative process. It was submitted, that in
all the functions vested with the Governor under Article 200, are to be
discharged by the Governor, in his independent discretion, and not on any
guidance or advice. This, according to learned counsel, illustrates the
third category of the Governor’s functions, wherein the Governor is
impliedly required to act in his own discretion, even though he is not
expressly so required, by any written mandate emerging from Article 200.
87. Secondly, it was submitted, that there are functions and activities
of the House, which are separate and distinct from its legislative
functioning. The said activities may have no role, of the Chief Minister
or his Council of Ministers. Illustratively, it was contended, that the
issue of removal of a Speaker (or Deputy Speaker) under Article 179(c) is
an exclusive function of the House, but is independent of its legislative
business. Insofar as the issue of removal of the Speaker (or the Deputy
Speaker) is concerned, it was acknowledged, that neither the Chief Minister
nor his Council of Ministers has any determinative role in the matter. The
Speaker (or the Deputy Speaker) can be removed from his office, only “… by
a resolution of the Assembly passed by a majority of all the then members
of the Assembly.”. Insofar as the present controversy is concerned, it was
pointed out, that the notice of resolution for the removal of the Speaker,
dated 19.11.2015, was brought by 13 members of the House. According to
learned counsel, it is necessary to understand, the aforesaid submission,
in the background of the position occupied by the Speaker. It was
emphasized, that a Speaker is a neutral arbiter, between the ruling
Government (which has the majority in the Assembly), and the opposition
parties (which constitute the minority).
88. In continuation, learned senior counsel, invited our attention to
Article 180. It was pointed out, that sub-article (1) thereof provides,
that if the office of the Speaker is vacant, the duties of “the office” of
Speaker, are to be performed by the Deputy Speaker. And if the office of
the Deputy Speaker is also vacant, the duties of “the office” of Speaker,
are to be performed by a person appointed by the Governor, out of the
existing MLAs. It was highlighted, that in the above exigency, where the
question of discharging duties of the Speaker arises, the Governor has been
expressly vested with a constitutional responsibility. Based on the above
analysis, it was submitted, that insofar as the non-legislative duties of
the Assembly are concerned, the Governor has also been ascribed some
specific responsibilities. And since the Chief Minister and the Council of
Ministers have no role in the aforestated action/activity, the Governor
need not make the choice of the person, to discharge the duties of Speaker,
on the basis of any aid and advice of the Chef Minister and his Council of
Ministers.
89. It was asserted, that the position prevailing after the conclusion of
the 5th session of the Assembly on 21.10.2015, did occasion the
applicability of sub-article (2) of Article 180, in the peculiar facts of
this case. As such, it was urged, that it would be wholly incorrect to
assume, that the action taken by the Governor with reference to the office
of Speaker was extraneous, specially when considered with reference to the
relevant provisions of the Constitution.
90. Learned senior counsel seriously questioned the action of the Speaker
in locking the premises of the Assembly, and thereby, consciously stalling
the democratic process of the House. It was asserted, that if the Speaker
was desirous of enforcing the order of disqualification (of 14 MLAs) by
himself, under the Tenth Schedule, he may well have prevented the entry of
the said 14 disqualified members into the premises of the House. It was
submitted, that the action of the Speaker in disallowing the consideration
of the notice of resolution for his removal, by preventing entry of all the
legislators, into the building of the House, was really an action aimed at
frustrating the democratic process. And, an escape route with reference to
the notice of resolution for his own removal. It was pointed out, that the
Speaker being an elected member of the Assembly, discharges vital
legislative and non-legislative functions. His non-legislative functions
include the duties as head of the Secretariat of the Assembly, and in
addition thereto, his quasi-judicial functions are those postulated under
the “Tenth Schedule”, of the Constitution. The legislative functions, as
well as, the duties vested with the Speaker under the Tenth Schedule, have
a direct nexus to the democratic process, and as such, the discharge of the
above responsibilities, while his position as a Speaker of the House was
under challenge, constituted a serious constitutional impropriety.
91. On the duties assigned to the Governor under Article 174, it was
submitted, that it was improper and unjustified to describe the action of
the Governor in summoning the House vide order dated 9.12.2015, as anti-
democratic. According to learned counsel, only anti-democratic forces would
contest a decision of the Governor, in summoning the House. It was
asserted, that a Government which is confident of its majority on the floor
of the House, would have nothing to fear, when the House is summoned. The
summoning of the House by the Governor, at his own discretion, would be
inconsequential where the Government can establish its numbers. For
exactly the same reason, it was submitted, that the action of the Governor
in summoning the House, for the consideration of a notice of resolution for
the removal of the Speaker would be inconsequential, if the Speaker enjoyed
the support of the majority of the members of the House. It was pointed
out, that the action of shying away and stalling consideration, of a
resolution for the removal of the Speaker, is an action which could be
justifiably described as anti-democratic. It was submitted, that a party
in power which claims to enjoy the majority, cannot be aggrieved in a
situation where the Governor requires the Government to establish its
majority, through a floor test. Likewise, a Speaker who enjoys the
confidence of the House, cannot be an aggrieved party, when the Governor
calls for the consideration of a notice of resolution for his removal.
92. Referring to the action of the Governor, based on the order dated
9.12.2015, it was submitted, that even in the worst case scenario, the
action of the Governor could not be described, as an action in conflict
with any provision of the Constitution, or even a constitutional
norm/propriety. It was submitted, that the notice of resolution for the
removal of the Speaker was submitted on 19.11.2015. The Governor had made
repeated efforts in writing, to confirm, whether such a notice had actually
been submitted to the Secretary of the Legislative Assembly. Initiating
action for summoning the House, by ordering its preponement, according to
learned senior counsel, could be an option only if, the concerned 13 MLAs
had actually submitted the above notice dated 19.11.2015, to the Secretary
of the Legislative Assembly. Merely because a copy thereof had been
furnished to the Governor, he could not have initiated any action. In
spite of the high office of the Governor, and despite repeated
communications were sent by the Governor, seeking information about the
factual position, whether a notice of resolution for the removal of the
Speaker – Nabam Rebia had been received, the same remained unanswered.
Finally, the factual position came to the notice of the Governor, only on
8.12.2015, on the receipt of a communication from the Secretary of the
Legislative Assembly. By this time the postulated 14 days’ notice period,
before such notice could be taken up for consideration, had expired (on
3.12.2015). Allowing the Speaker to discharge functions pertaining to the
Secretariat of the Assembly, or under the Tenth Schedule to the
Constitution, while his own position was under challenge, would not only be
unconstitutional, but also undemocratic. It was urged, that it was in the
aforesaid background, and based on the aforesaid understanding, and also to
ensure that the functioning of the House was carried out in consonance with
established democratic norms, that the Governor (in exercise of the powers
vested with him under Article 174), had ordered the summoning of the House
for 16.12.2015 (by preponing the 6th session of the Assembly, earlier
scheduled for 14.1.2016). It was therefore contended, that the submissions
advanced at the behest of learned counsel for the appellants, deserved to
be rejected.
93. Mr. Rakesh Dwivedi, learned senior counsel, having concluded his
submissions with reference to the order of the Governor dated 9.12.2015,
similarly endeavoured to justify the message of the Governor dated
9.12.2015. His submissions to support the message dated 9.12.2015, were
the same as in support of the order of the Governor dated 9.12.2015.
According to learned counsel, the message was clear, that the Governor had
authorised the House, to permit the resolution for removal of the Speaker
to be moved. The message required the members of the Assembly, to discuss
and put the same to vote, as “… the first item on the agenda of the House
at the first sitting of the Sixth Session…”. The Governor also required
the Deputy Speaker, to hold the proceedings peacefully and truthfully, so
as to ensure that they were conducted fairly. The message of the Governor,
required the proceedings to be video-graphed. It was submitted, that the
message of the Governor, would not only secure the enforcement of the
democratic process, but would also ensure transparency and fairness. It was
therefore the assertion of learned senior counsel, that no fault whatsoever
could be found with the message of the Governor.
94. Having submitted thus far, learned senior counsel, pointedly referred
to paragraph 5 of the message dated 9.12.2015. It was conceded, that the
contents of paragraph 5, were instructions to the House, that until the 6th
session (to commence on 16.12.2015) of the Legislative Assembly was
prorogued, no Presiding Officer would alter the party composition of the
House. It was acknowledged, that this could only be understood to
mean, that disqualification proceedings under the “Tenth Schedule”, would
have to await the outcome of the motion against the Speaker under Article
179(c). In order to demonstrate the propriety and constitutional validity
of paragraph 5 of the message, it was submitted, that once it is concluded
(- that is, if this Court, on accepting the submissions advanced on behalf
of the respondents, so concludes), that the Governor had the discretion to
summon or prepone the sitting of the Assembly under Article 174(1) read
with Articles 163 and 179(c), then it would also be up to the Governor to
decide when and/or where, the House should meet. It was pointed out, that
the Governor is undisputedly a high constitutional functionary. And as
such, his decisions could neither be taken lightly, nor be easily
interfered with. By inviting the Court’s attention to Article 174, it was
urged, that the above provision vests responsibility in the Governor to
summon, prorogue or dissolve the Assembly. The Governor is mandated to
summon the Legislative Assembly “at such time and place as he thinks fit”.
The instant connotation in Article 174, makes it abundantly clear, that the
Governor has to discharge the above function, as he in his own discretion,
considers appropriate. Premised on the aforesaid foundation, it was
contended, that the instant discretion conferred on the Governor, could not
be subservient to any aid and advice. It was pointed out, that the
fixation of time for sitting of the Legislative Assembly, determined by the
Governor under Article 174, was an issue on which reasonable persons could
differ widely. As such, it would not be proper for any Court to interfere
with, the time and place fixed by the Governor in summoning the Assembly.
95. On the subject of the power of the judicial review, with reference to
the exercise of discretion by the President (in relation to the removal of
a Governor), it has to be accepted, that the power of judicial review has
to be limited to situations wherein, it could be established that the
President had exercised his discretion wantonly, whimsically or
arbitrarily. It was urged that the same position would apply to decisions
of Governors as well. It was submitted, that the appellants before this
Court, were obliged to establish, that the Governor had acted deliberately
in an unprincipled manner, and that, the action of the Governor would
impair the constitutional trust assigned to him. On the present aspect of
the matter, learned senior counsel placed reliance on B.P. Singhal v. Union
of India[8], and invited our attention to the following observations
recorded therein:
“71. When a Governor holds office during the pleasure of the Government and
the power to remove at the pleasure of the President is not circumscribed
by any conditions or restrictions, it follows that the power is exercisable
at any time, without assigning any cause. However, there is a distinction
between the need for a cause for the removal, and the need to disclose the
cause for removal. While the President need not disclose or inform the
cause for his removal to the Governor, it is imperative that a cause must
exist. If we do not proceed on that premise, it would mean that the
President on the advice of the Council of Ministers, may make any order
which may be manifestly arbitrary or whimsical or mala fide. Therefore,
while no cause or reason be disclosed or assigned for removal by exercise
of such prerogative power, some valid cause should exist for the removal.
Therefore, while we do not accept the contention that an order under
Article 156 is not justiciable, we accept the contention that no reason
need be assigned and no cause need be shown and no notice need be issued to
the Governor before removing a Governor.
xxx xxx xxx
76. This Court has examined in several cases, the scope of judicial review
with reference to another prerogative power — power of the
President/Governor to grant pardon, etc. and to suspend, remit or commute
sentences. The view of this Court is that the power to pardon is a part of
the constitutional scheme, and not an act of grace as in England. It is a
constitutional responsibility to be exercised in accordance with the
discretion contemplated by the context. It is not a matter of privilege but
a matter of performance of official duty. All public power including
constitutional power, shall never be exercisable arbitrarily or mala fide.
While the President or the Governor may be the sole Judge of the
sufficiency of facts and the propriety of granting pardons and reprieves,
the power being an enumerated power in the Constitution, its limitations
must be found in the Constitution itself. The Courts exercise a limited
power of judicial review to ensure that the President considers all
relevant materials before coming to his decision. As the exercise of such
power is of the widest amplitude, whenever such power is exercised, it is
presumed that the President acted properly and carefully after an objective
consideration of all aspects of the matter. Where reasons are given, the
Court may interfere if the reasons are found to be irrelevant. However,
when reasons are not given, the Court may interfere only where the exercise
of power is vitiated by self-denial on wrong appreciation of the full
amplitude of the power under Article 72 or where the decision is arbitrary,
discriminatory or mala fide [vide Maru Ram v. Union of India 1981 (1) SCC
107, Kehar Singh v. Union of India 1989 (1) SCC 204, etc.].
xxx xxx xxx
82. The President in exercising power under Article 156(1) should act in
a manner which is not arbitrary, capricious or unreasonable. In the event
of challenge of withdrawal of the pleasure, the Court will necessarily
assume that it is for compelling reasons. Consequently, where the aggrieved
person is not able to establish a prima facie instance of arbitrariness or
malafides, in his removal, the Court will refuse to interfere. However,
where a prima facie case of arbitrariness or malafides is made out, the
Court can require the Union Government to produce records/materials to
satisfy itself that the withdrawal of pleasure was for good and compelling
reasons. What will constitute good and compelling reasons would depend upon
the facts of the case. Having regard to the nature of functions of the
Governor in maintaining centre-state relations, and the flexibility
available to the Government in such matters, it is needless to say that
there will be no interference unless a very strong case is made out. The
position, therefore, is that the decision is open to judicial review but in
a very limited extent.
83. We summarise our conclusions as under:
(i) Under Article 156(1), the Governor holds office during the pleasure of
the President. Therefore, the President can remove the Governor from office
at any time without assigning any reason and without giving any opportunity
to show cause.
(ii) Though no reason need be assigned for discontinuance of the pleasure
resulting in removal, the power under Article156(1) cannot be exercised in
an arbitrary, capricious or unreasonable manner. The power will have to be
exercised in rare and exceptional circumstances for valid and compelling
reasons. The compelling reasons are not restricted to those enumerated by
the petitioner (that is physical/mental disability, corruption and
behaviour unbecoming of a Governor) but are of a wider amplitude. What
would be compelling reasons would depend upon the facts and circumstances
of each case.
(iii) A Governor cannot be removed on the ground that he is out of sync
with the policies and ideologies of the Union Government or the party in
power at the Centre. Nor can he be removed on the ground that the Union
Government has lost confidence in him. It follows therefore that change in
government at Centre is not a ground for removal of Governors holding
office to make way for others favoured by the new government.
(iv) As there is no need to assign reasons, any removal as a consequence of
withdrawal of the pleasure will be assumed to be valid and will be open to
only a limited judicial review. If the aggrieved person is able to
demonstrate prima facie that his removal was either arbitrary, malafide,
capricious or whimsical, the Court will call upon the Union Government to
disclose to the Court, the material upon which the President had taken the
decision to withdraw the pleasure. If the Union Government does not
disclose any reason, or if the reasons disclosed are found to be
irrelevant, arbitrary, whimsical, or malafide, the Court will interfere.
However, the court will not interfere merely on the ground that a different
view is possible or that the material or reasons are insufficient.”
Based on the legal position declared by this Court, it was submitted, that
the prayer addressed by the appellants, to interfere with the discretion
exercised by the Governor in his order, and his message dated 9.12.2015,
ought to be rejected.
96. Learned senior counsel further contended, that interference with the
action of the Governor could not be based on any alleged personal mala
fides. It was asserted, that established malice in law only, could lead to
an adverse inference. In this behalf, reliance was placed on S.R. Bommai
v. Union of India[9], wherein it has been held as under:
“390. We find ourselves unable to agree with the High Court except on
points (1) and (2). To begin with, we must say that question of 'personal
bonafides' of Governor is really irrelevant.
391. We must also say that the observation under point (7) is equally
misplaced. It is true that action under Article 356 is taken on the basis
of satisfaction of the Union Council of Ministers but on that score it
cannot be said that 'legal malafides' of the Governor is irrelevant. When
the article speaks of the satisfaction being formed on the basis of the
Governor's report, the legal malafides, if any, of the Governor cannot be
said to the irrelevant. The Governor's report may not be conclusive but its
relevance is undeniable. Action under Article 356 can be based only and
exclusively upon such report. Governor is a very high constitutional
functionary. He is supposed to act fairly and honestly consistent with his
oath. He is actually reporting against his own government. It is for this
reason that Article 356 places such implicit faith in his report. If,
however, in a given case his report is vitiated by legal malafides, it is
bound to vitiate the President's action as well. Regarding the other points
made in the judgment of the High Court, we must say that the High Court
went wrong in law in approving and upholding the Governor's report and the
action of the President under Article 356. The Governor's report is
vitiated by more than one assumption totally unsustainable in law. The
Constitution does not create an obligation that the political party forming
the ministry should necessarily have a majority in the Legislature.
Minority Governments are not unknown. What is necessary is that that
government should enjoy the confidence of the House. This aspect does not
appear to have been kept in mind by the Governor. Secondly and more
importantly, whether the Council of Ministers has lost the confidence of
the House is not a matter to be determined by the Governor or for that
matter anywhere else except the floor of the House. The principle of
democracy underlying our Constitution necessarily means that any such
question should be decided on the floor of the House. The House is the
place where the democracy is in action. It is not for the Governor to
determine the said question on his own or on his own verification. This is
not a matter within his subjective satisfaction. It is an objective fact
capable of being established on the floor of the House. It is gratifying to
note that Sri R. Venkataraman, the former President of India has affirmed
this view in his Rajaji Memorial Lecture (Hindustan Times dated February
24, 1994).”
Based on the above proposition declared by this Court, it was urged, that
the submissions advanced on behalf of the appellants do not justify any
interference, with the impugned actions of the Governor.
97. On the issue of discretion, learned senior counsel, placed reliance
on Article 163(2). Based thereon, it was submitted, that the Governor’s
discretion, for all intents and purposes, must be deemed to be final. It
was submitted, since Article 163(2) itself postulates, that “the decision
of the Governor in his discretion shall be final, and the validity of
anything done by the Governor shall not be called in question on the ground
that he ought or ought not to have acted in his discretion”, by itself
absolves the Governor from a challenge to the discretion exercised by him.
It was submitted, that Article 163(2) was neither a defunct nor a redundant
provision, and as such, it could neither be overlooked nor ignored. It was
contended, that the words employed in Article 163(2) must be given due
weightage. And if that was to be done, there could be no doubt, that the
discretion exercised by the Governor under Article 163(2), would have to be
considered in a manner, as would protect it from the scope of any
challenge.
98. With reference to the Governor’s message dated 9.12.2015, it was
submitted, that the same was justified under Article 175(2), whereunder,
the Governor’s message can be “with reference to a Bill then pending in the
Legislature or otherwise”. Article 175(2) by itself makes it abundantly
clear, that messages are not limited to the Bills pending before the House.
But could extend to and include other matters. Learned counsel clarified,
that the authority vested with the Governor under Article 200, should not
to be confused by reference to the words “or otherwise” used in Article
175(2). The message sent by the Governor can also relate to a Bill under
Article 200, as is apparent on from the expression “with respect to a Bill
then pending in the Legislature” used in Article 175(2). It was submitted,
that reliance placed by the appellants on Union of India v. Valluri
Basavaiah Chowdhary[10], for asserting that the Governor could not send any
message under Article 175(2), with regard to a resolution pending before
the Legislative Assembly, was wholly misconceived. It was pointed out,
that the controversy dealt with in the above judgment pertained to Article
252, and in the context of the above provision, this Court held, that the
State Legislature meant only the House of the Legislature. Insofar as the
present controversy is concerned, it was submitted, that the same pertained
to a notice of resolution for the removal of the Speaker under Article
179(c). It was pointed out, that the words “or otherwise” referred to in
Article 175(2) had a wide import, and that, there was no justification
whatsoever to limit the same, so as to unnecessarily curtail the authority
of the Governor, to that which is contemplated under Article 200. It was
submitted, that if the power of the Governor with reference to messages,
was to be limited to the responsibility enshrined in him under Article 200,
then the words “or otherwise” expressed in Article 175(2) would be
superfluous and otiose. Additionally it was contended, that Article 175(2)
also mandates, that the Legislative Assembly would deal with a message
received from the Governor “with all convenient despatch”, and would take a
call thereon, as may be “required by the message to be taken into
consideration”. It was therefore contended, that a message addressed by
the Governor under Article 175(2), to the State Legislative Assembly, was
not actually in the nature of a command. And yet, the same was bound to be
taken into consideration “with all convenient despatch”. In the above view
of the matter, it was submitted, that the term “or otherwise” could not be
ascribed a narrow or limited meaning, but was bound to be extended the
widest amplitude, in harmony with the related provisions of the
Constitution.
99. It was pointed out, that in the past also messages sent by the
Governor were assailed through judicial proceedings. In this behalf,
reference was made to K.A. Mathialagan v. P. Srinivasan[11], wherein also,
the message sent by the Governor pertained to a vote of no confidence
against the Speaker. Reference was also made to Pratapsing Raojirao Rane
v. Governor of Goa[12], wherein also, the message of the Governor pertained
to a notice of resolution for the removal of the Speaker. It was
submitted, that the message (dated 9.12.2015) which has been assailed by
the appellants in the present case, suggested that the House should not be
adjourned, till the notice of resolution for the removal of the Speaker
stood determined finally, one way or the other. It was submitted, that one
of the proposed requirements contained in the message of the Governor was,
that the notice of resolution for the removal of the Speaker would be taken
up as the first item on the agenda. It was pointed out, that the
Governor’s message was merely to bring to the notice of the House the
procedure that the House, was required to follow. It was urged, that under
Rule 153 of the ‘Conduct of Business Rules’ a notice of resolution for the
removal of the Speaker, had to be included in the list of business before
any other business for the day, could be taken up. Reference was also made
to Rule 151 of the ‘Conduct of Business Rules’, which mandates that after a
notice of resolution for the removal of a Speaker is tabled, the House
would not be adjourned till the motion of no confidence had been finally
disposed of. In the above view of the matter, it was pointed out, that
requiring the Assembly to take up the notice of resolution for the removal
of the Speaker, as the first item in the agenda (in the message dated
9.12.2015), cannot be termed as an action at the hands of the Governor,
based on his own whims and fancies. It was urged, that the message needed
to be viewed as an advice tendered to the Assembly, so as to deal with an
important issue, in consonance with the provisions of the ‘Conduct of
Business Rules’.
100. Learned senior counsel then invited the Court’s attention to the
second direction in the message dated 9.12.2015, whereby the Deputy Speaker
was obliged to preside over the House, from the first moment of the first
sitting of the House. It was submitted, that the above noted action was
also in the nature of an advice, so as to make sure that the procedure
adopted before the House would not infringe Article 181(1) read with
Article 182. It was pointed out, that the above provisions postulate inter
alia, that the Speaker would not preside over the proceedings of the
Assembly, wherein a resolution for his own removal, was to be considered.
As such, it was submitted, that during the period when the notice of
resolution for the removal of the Speaker – Nabam Rebia, was under
consideration of the House, the Deputy Speaker was liable to preside over
the proceedings of the House. In this behalf, while it was acknowledged,
that even the Deputy Speaker – Tenzing Norbu Thongdok, should similarly be
treated as being debarred from presiding over the proceedings of the House,
because a resolution for his (the Deputy Speaker’s) removal from office was
pending consideration. It was however submitted, that the above factual
position is not correct, as no notice of resolution for the removal of the
Deputy Speaker, had actually been moved. It was submitted, that the fact
that a notice of resolution for the removal of the Deputy Speaker (alleged
to have been presented to the Secretary of the Legislative Assembly, on
16.11.2015), was a complete falsity, as despite repeated reminders
addressed by the Governor, seeking a copy of the notice of resolution for
the removal of the Deputy Speaker, the same was not furnished to him. It
was emphasized, that even before this Court, the appellants have failed to
establish, that such a notice of resolution for the removal of the Deputy
Speaker – Tenzing Norbu Thongdok, had ever been moved. It was therefore
urged, that it was wholly legitimate for the Governor, in the facts of the
present case, to require the Deputy Speaker of the Assembly, to preside
over the proceedings, of the notice of resolution for the removal of the
Speaker – Nabam Rebia.
101. It was also the contention of learned senior counsel, that Speakers
against whom resolutions for their removal have been moved, are known to
have resorted to unsavoury means, to defer consideration thereon. In this
behalf, learned counsel placed reliance on State of Punjab v. Satya Pal
Dang[13], the K.A. Mathialagan case11, and Nipamacha Singh v. Secretary,
Manipur Legislative Assembly[14].
102. It was also submitted, that the Tenth Schedule, was added to the
Constitution, by the Constitution (Fifty-second Amendment) Act, 1985 which
came into force with effect from 1.3.1985. It was pointed out, that under
the Tenth Schedule power is vested with Speaker alone, for exercising quasi-
judicial functions (under Paragraph 6, of the Tenth Schedule). It was
contended, that any misuse of the power vested with the Speaker under the
Tenth Schedule, could result in derailing the democratic process of the
concerned State. Insofar as the present controversy is concerned, it was
pointed out, that the concerned Speaker – Nabam Rebia, issued notices to 14
MLAs belonging to the INC, for their disqualification on 7.12.2015, and
thereby, took active steps to derail the democratic process, specially
when, a resolution for his own removal had already been moved (on
19.11.2015). It was asserted, that the action of the Governor in
requiring, that “… no Presiding Officer shall alter the party composition
in the House” in the message dated 9.12.2015, was only aimed at preserving
the democratic process, so that the Speaker by exercising his quasi-
judicial powers under the Tenth Schedule, would not so change the
composition of the House, as would favourably tilt the motion for his
removal, in his own favour. It was accordingly asserted, that no motive
should be attributed to the message of the Governor dated 9.12.2015, more
particularly, paragraph 5 thereof. It was submitted, that save and except
the ultimate desire of the Governor to preserve the democratic process, the
message dated 9.12.2015 had no other fall out/consequence. It was also
contended, that as the question of removal of the Speaker was pending
consideration before the House, it would have been a serious constitutional
impropriety on the part of the Speaker, to carry on presiding over the
proceedings of the House, and more particularly, to conduct or continue
with the quasi-judicial functions vested with him, under the Tenth
Schedule. In conclusion, it was pointed out, that the action proposed by
the Governor, through paragraph 5 of the message dated 9.12.2015, was
merely aimed at maintaining the constitutional integrity of the House, and
preserving the constitutional morality expected of the Speaker of the
House.
103. It was asserted by learned senior counsel, that it was apparent from
the facts and circumstances of the present case, that the Speaker had
entertained a petition for disqualification, against 14 MLAs belonging to
the INC on 7.12.2015, well after, the Governor had sought information,
about the notice for the removal of the Speaker. It was submitted, that in
the first instance, the Secretary of the Legislative Assembly, maintained
complete silence, and chose not to respond to the letter(s) of the
Governor. Finally through a communication dated 7.12.2015, the Secretary of
the Legislative Assembly wrote to the Governor, informing him that the
Speaker was on tour, and the notice of resolution for his own removal (for
the removal of the Speaker – Nabam Rebia), as well as, that of the Deputy
Speaker – Tenzing Norbu Thongdok, were in the personal custody of the
Speaker – Nabam Rebia. In the above view of the matter, it was submitted,
that it was natural for the Governor to have addressed the message dated
9.12.2015, with a clear description of the manner in which the proceedings
of the House were to be conducted, when the 6th session commenced on
16.12.2015. This was done by the Governor, according to learned counsel,
only to ensure that procedure adopted by the House, was in consonance with
the provisions of the Constitution, and the ‘Conduct of Business Rules’.
104. Based on the aforementioned submissions, it was the contention of Mr.
Rakesh Dwivedi, learned senior counsel, that the prayers made by the
appellants before this Court, being devoid of any merit, deserved to be
rejected.
105. Mr. T.R. Andhyarujina, learned Senior Advocate, entered appearance on
behalf of respondent no. 16 – the Governor of the State of Arunachal
Pradesh. It would be pertinent to mention, that the Governor had entered
appearance before the High Court, by moving an interlocutory application,
for the limited purpose of justifying his order and message dated
9.12.2015, and also, in order to demonstrate that he was unaware of the
notice of the resolution dated 16.11.2015, moved for the removal of the
Deputy Speaker – Tenzing Norbo Thongdok.
The sixth sequence of facts:
106. It was contended by learned senior counsel, that there had been
political turmoil in the State of Arunachal Pradesh, since March/April,
2015. It was pointed out, that the situation got worst in September, 2015,
when a group of 21 MLAs belonging to the INC, clamoured for a change of
guard, which was targeted at the Chief Minister – Nabam Tuki. It was
submitted, that the above 21 MLAs had camped in Delhi for three months, so
as to press their claim before the central leadership (of the National
Congress Party). During the above period, all the 21 MLAs belonging to the
INC, had refused to attend meetings of the Congress Legislature Party in
the State of Arunachal Pradesh. This factual position, according to
learned senior counsel, has been acknowledged by the appellants themselves,
even before this Court.
107. It was submitted, that on 14.9.2015, 17 of the 21 MLAs belonging to
the INC, were invited for an informal dinner by the Chief Minister – Nabam
Tuki, at his official residence. At the aforesaid dinner, they were
coerced into signing identically worded resignation letters. It was
submitted, that the Speaker – Nabam Rebia, was also present at the dinner
hosted by the Chief Minister. It was brought out, that rather than
accepting all the 17 resignation letters, the Speaker – Nabam Rebia,
accepted resignation letters of only two of the MLAs - Gabriel D. Wangsu
and Wanglam Sawin. Having accepted the two resignation letters, the
Speaker issued a notification on 1.10.2015, declaring that their respective
Assembly segments, had been rendered vacant (under Article 190). It was
pointed out, that on 11.10.2015, the aforesaid MLAs addressed a letter to
the Governor complaining about the manner in which their resignation
letters were got signed under coercion, as also, the illegal acceptance
thereof. It was pointed out, that the aforesaid letter(s) were available
on the record. The letters referred to, are not being extracted herein for
reasons of brevity. It was submitted, that the said two members of the
House, whose resignations were accepted, approached the Gauhati High Court,
by filing Writ Petition (C) No.6193 of 2015. On 7.10.2015, the High Court
passed an interim order staying the orders accepting their resignations.
The above writ petition, it was submitted, was dismissed by the High Court
on 12.1.2016, and a Petition for Special Leave to Appeal assailing the
same, was dismissed by this Court. It was pointed out, that the subsequent
dismissal of the judicial proceedings by the High Court, and by this Court,
were inconsequential, inasmuch as, at the relevant juncture, the High Court
having found prima facie merit in the claim raised by the two MLAs, against
the acceptance of their resignation letters, had stayed the operation of
the order by which their resignation letters had been accepted. It was
urged, that it was relevant to keep in mind the impression which would have
been created in the mind of the Governor, by the said interim directions.
108. It was submitted, that immediately after the resignation of the two
MLAs was accepted, 21 MLAs belonging to the INC, wrote to the Governor on
11.10.2015, that the Chief Minister – Nabam Tuki, did not enjoy the
majority of the House, and as such, was running a minority government.
Shortly after the receipt of the communication dated 11.10.2015, 13 MLAs
(11 from the BJP, and 2 Independent MLAs) issued a notice of resolution for
the removal of the Speaker – Nabam Rebia, under Article 179(c) on
19.11.2015. It was submitted, that the aforesaid notice ought to have been
taken up at the earliest, and in any case, soon after the expiry of 14 days
(expressed in the first proviso, under Article 179). It was highlighted,
that on the same day on which the notice was moved, a copy of the
resolution (dated 19.11.2015) was endorsed by the MLAs to the Governor.
And on the same day – 19.11.2015, all the 13 signatories to the resolution
for removal of the Speaker, made a written request, to the Governor,
seeking preponement of the 6th session of the House. And for an urgent
consideration by the House, of the resolution for the removal of the
Speaker – Nabam Rebia. (this communication, has been extracted above).
109. It was further the submission of learned senior counsel, that in
order to derail the action initiated by the 13 MLAs, seeking removal of the
Speaker, the Chief Whip of the Congress Legislature Party – Rajesh Tacho,
petitioned the Speaker under Article 191(2) on 7.12.2015, to disqualify 14
MLAs, belonging to the INC, on account of their having allegedly given up
their allegiance/membership to the political party (- the INC) on whose
ticket they had been elected to the House. The above petition, called for
their disqualification under the Tenth Schedule. It was submitted, that
the Governor having viewed the developments referred to hereinabove, found
it appropriate to exercise his discretion under Article 174, to prepone the
6th session of the Assembly, from 14.1.2016 to 16.12.2015. It was
asserted, that the aforesaid action of the Governor, would enable the House
to consider the notice of resolution for the removal of the Speaker – Nabam
Rebia, at the earliest, in consonance with Article 179(c) and Rules 151 to
153 of the ‘Conduct of Business Rules’.
110. It was submitted, that the factual position depicted hereinabove, had
not been invented by the Governor, in order to satisfy the High Court or
this Court, on the then prevailing political conditions, which necessitated
the passing of the order and the message dated 9.12.2015, but was apparent
from the monthly letters, addressed by the Governor to the President. It
was pointed out, that the first of the above letters, was addressed by the
Governor to the President on 17.10.2015. An extract of the same is
reproduced hereunder:
“No. GS/I(C)-129/2014 (Vol-II)
17th October, 2015
Hon’ble Shri Pranab Mukherjee Ji,
This is a Special Report on the latest significant political
developments in my State of Arunachal Pradesh.
In view of the prevailing political imbroglio in the State arising
out of growing dissidence in the Congress, the Congress Legislators seem to
be divided into two groups, due to internal infighting among them for power
and position and also one group demanding resignation of the Chief Minister
Shri Nabam Tuki for alleged failure. Media reports indicate that the
dissident group has been camping at New Delhi to appeal to the AICC Central
Leadership for a change of leadership in the State, but AICC has not yet
responded to their appeal. As per media report, Shri Kalikho Pul, the
former Finance Minister of the State and sitting MLA is allegedly leading
the dissident group and about 37 Legislators in the 60-Member State
Assembly have agreed to support Shri Kalikho Pul’s bid for leadership. The
State BJP termed it as unfortunate and demanded the resignation of Chief
Minister Shri Nabam Tuki, accusing him of failing to honour the people’s
mandate alleging that, as a result, the developmental activities continued
to be adversely affected due to the existing political scenario. It is
pertinent to mention here that Arunachal Pradesh has a 60-Member Assembly,
out of which Congress has 47, BJP-11 and 2 Independent Legislators.
However, the Arunachal Pradesh Congress Committee Chief Shri Padi Richo
said that the report was false, fabricated and misleading.
It is reported that, in a high political drama, on 16th September,
2015, Shri Gabriel Denwang Wangsu and Shri Wanglam Sawin, both Congress
MsLA, were invited to a dinner party at the residence of Shri Nabam Tuki,
Chief Minister where 17 MsLA of the Congress party attended. Some
loyalists of Shri Nabam Tuki compelled them to sign in resignation letters
without even reading the content therein, in front of Shri Nabam Tuki,
Chief Minister, Shri Nabam Rebia, Speaker of the State Assembly and the
President of Pradesh Congress Committee. On 1st October, 2015 the
Secretary, Legislative Assembly notified the resignation of two Legislators
– Shri Gabriel Denwang Wangsu, MLA Kanubari and Shri Wanglam Sawin, MLA
Khonsa (East) have resigned from the Arunachal Pradesh Legislative Assembly
and the Speaker has accepted their resignations under the provision of
Rules of Procedure and Conduct of Business of the Assembly. The
Notification further informed that consequent upon their resignation, the
seats of 55-Khonsa East (ST) AC and 58-Kanubari (ST) AC respectively have
fallen vacant. (Notification at Annexure-I). The two MsLA in a written
complaint dated 11th October, 2015 to the Governor informed about their
being coerced to submit typed resignation letters addressed to the Speaker
“under complete duress” and requested for instituting an enquiry into the
whole ‘resignation incident’ through an agency like the CBI. A copy of
Joint Complaint letter dated 11th October, 2015, addressed to the Governor
by Shri Gabriel Denwang Wangsu, MLA Kanubari and Shri Wanglam Sawin, MLA
Khonsa (East) is enclosed at Annexure-II for your kind perusal.
They also submitted another complaint stating that some anti-social
elements and local miscreants frequently visited their official residences
at Itanagar and private property giving mental agony and raising fears in
them and their families. In view of the above, I advised the State Home
Minister with copies to the State Chief Minister, Chief Secretary and DGP
to look into the issue and direct all concerned to provide necessary
security to Shri Wanglam Sawin, MLA and Shri Gabriel D. Wangsu, MLA and
also to their family members, and that the miscreants / culprits involved
in the intimidation cases be apprehended and brought to justice, at the
earliest. (Copy at Annexure-III).
While condemning the move to obtain resignation letter of 17 MsLA by
coercing them and putting them under duress, the People’s Party of
Arunachal (PPA) termed the alleged forced resignation as ‘murder of
democracy’ and demanded immediate intervention of the Governor on the
matter to ascertain that the two Legislators should get back their
constitutional rights. Opposition Leader Shri Tamiyo Taga (BJP), who
himself was once the Speaker of the State Assembly, questioned the role of
the Speaker Shri Nabam Rebia, for misusing his power and position by
creating political drama over the resignation of two sitting MsLA, and
stated that the MsLA resigned from the State Assembly under duress.
Aggrieved by the Order of the Hon’ble Speaker, Sarvashri Wangsu and
Sawin filed Writ Petition before the Hon’ble Gauhati High Court vide WP(C)
6193/2015 praying for relief. The Hon’ble Gauhti High Court on 7th
October, 2015 stayed the Notification of the Speaker of Arunachal Pradesh
Legislative Assembly dated 01.10.2015 accepting the resignation letters of
the two Congress MsLA and declaring the seats vacant in their respective
constituencies, and directed that the Election Commission shall not take
any action on the basis of the Notification to hold bye-election. In
another development, in a joint letter addressed to the Governor, the
Arunachal Students’ Federation (ASF) and the Wancho Students’ Union (WSU)
urged to impose President’s Rule in the State, following the disclosure of
the resignation of two MsLA.
Meanwhile, Shri Kalikho Pul, MLA recently complained to me about
threats being issued to him by unknown miscreants and also threats meted
out to his family members by a group of miscreants / criminals at his
Official Bungalow. He requested for providing adequate security to him and
his family members as he apprehended grave threats to their lives. I
advised the State Home Minister with intimation to the Chief Minister,
Chief Secretary and DGP to take immediate steps to provide necessary
security to Shri Pul and his family and also to direct the Police
authorities to take up investigation of the Case, identify and arrest the
culprits and bring them to book under the Law, at the earliest.
xxx xxx xxx
For kind information of Hon’ble President of India please.
With Esteemed Regards,
Yours sincerely,
signed (illegible) (J.P. Rajkhowa)”
111. The second of the letters addressed by the Governor to the President
was dated 19.11.2015. An extract of the same is reproduced hereunder:
“No. GOV-AP/SPL-REP/2015
19th November, 2015
Hon’ble Shri Pranab Mukherjeeji,
This is a Special Report highlighting some latest significant
developments in my State of Arunachal Pradesh.
In continuation to my Special Report on Political Development in the
State vide No.GS/I(C)-129/2014 (Vol-II) dated 17th October, 2015 and my
subsequent Monthly Report for the Month of October, 2015 No. G/ML/2015
dated 1st November 2015, it has been observed that the political imbroglio
in the State has been storming with growing dissidence amongst the Congress
Legislators, including some Ministers due to internal infighting for
changing of leadership in the State.
The Congress Legislature Party (CLP) with 47 MsLA in a 60-Member
House has cracked into two rival factions in the recent past. It was
reported that the Congress Legislature Party (CLP) Meeting was held at
Rajiv Gandhi Bawan, Itanagar on 8th November, 2015, which was attended by
25 Congress Legislators including Shri Nabam Tuki, Chief Minister, Shri V.
Narayanasamy, General Secretary, AICC and Dr. K. Jaya Kumar, Secreary,
AICC, both In-Charge of Arunachal Pradesh also attended the Meeting along
with Shri Padi Richo, Aunachal Pradesh Congress Committee (APCC), Office
Bearers of APCC, and prominent leaders of INC Party from all the Districts
of Arunachal Pradesh. Those in support of Shri Nabam Tuki are stationed in
Itanagar, the Capital City, making occasional appearances before the media
with the Chief Minister, while the dissidents group, comprising 21 Congress
Legislators, seeking a change of leadership, citing “ineffective
governance”, financial mismanagement, corruption and autocratic way of
functioning of the Chief Minister Shri Nabam Tuki, have been camping in
Delhi for the past two months or so.
The Legislators present in the Meeting condemned the dissident
Legislators for abstaining from the CLP Meeting. The Legislators who
attended the CLP Meeting were, (1) Shri Nabam Tuki, Chief Minister, (2)
Shri Tanga Byaling, Home Minister, (3) Shri Gojen Gadi, Minister PWD &
Election, (4) Shri Rajesh Tacho, Minister Health & Family Welfare &
Parliamentary Affairs, (5) Shri Tapang Taloh, Minister, Education,
Libraries, Textile, Handloom & Handicrafts & Department of Water Resources
Development, (6) Shri Jomde Kena, Minister, Transport and Civil Aviation,
Cooperation, (7) Shri Phurpa Tsering, Minister, Animal Husbandry &
Veterinary, Power (Civil), (8) Shri Tirong Aboh, Minister, Department of
Development of Tirap, Changlang Districts and Mines with additional
department of Civil Supplies and Consumer Affairs, (9) Shri Takam Pario,
Minister, Public Health Engineering & Water Supply, Department of Disaster
Management, (10) Shri Techi Kaso, Parliamentary Secretary, (11) Shri Kumsi
Sidisow, Parliamentary Secretary, (12) Shri Alo Libang, Parliamentary
Secretary, (13) Shri Mama Natung, Parliamentary Secretary, (14) Shri Jambey
Tashi, Parliamentary Secretary, (15) Shri Tapuk Taku, Parliamentary
Secretary, (16) Shri Pani Taram, Parliamentary Secretary, (17) Shri Nikh
Kamin, Parliamentary Secretary, (18) Shri Dikto Yekar, Parliamentary
Secretary, (19) Smt. Gum Tayeng, Parliamentary Secretary, (20) Shri Karya
Bagang, Parliamentary Secretary, (21) Shri Bamang Felix, Parliamentary
Secretary, (22) Shri Nyamar Karbak, Parliamentary Secretary, (23) Shri
Punji Mara, Parliamentary Secretary, (24) Shri Likha Saaya, Parliamentary
Secretary & (25) Shri Tatung Jamoh, Parliamentary Secretary.
As per the media report, Shri V. Narayanasamy, AICC In-charge
Arunachal Pradesh declared Shri Nabam Tuki, Chief Minister as the
undisputed leader and claimed the State Government 100% stable. He termed
the absence of 21 dissident MsLA in CLP Meeting as an act of indiscipline
and alleged State BJP and Union Minister of State for Home Affairs Shri
Kiren Rijiju to be behind this open defiance and have been creating
disturbance and hurdles in developmental activities. In the Meeting, it
was reportedly decided to initiate disciplinary action against the
dissident Legislators, who did not attend the CLP Meeting. He also
reportedly stated that he would submit a report to the Party High Command
on the situation and suggest disciplinary action against the 21 MsLA.
Prominent among the 21 Legislators included former Ministers Shri Kalikho
Pul, Shri Chowna Mein, Shri Kumar Waii, Shri Wanglin Lowangdong, Shri
Thangwang Wangham, Shri Kamlung Mossang, most of whom were dropped from the
Ministry led by Shri Nabam Tuki recently.
The State BJP strongly condemned the above unwarranted statements of
Shri Narayanasamy as political statements not based on truth and out of
frustration due to their failure to put their house in order.
Meanwhile, State BJP Legislators have submitted a Memorandum dated
12th November, 2015 to the Governor apprising him the recent political
crisis in the State and requested to take appropriate and proactive action
on the issue (copy at Annexure-I). They alleged that the “stretched”
political stalemate has put the State under “complete darkness” and the
continuation of the present Congress Government has made each and every
citizen very “vulnerable”. In the Memorandum they claimed that in the
House of total 60 Members, any Legislature Party to form a Government must
enjoy the confidence or support of minimum 31 Members of the House, but the
Government led by Shri Nabam Tuki commands the support and confidence of
only 25 Legislators. They also requested the Governor to ask the State
Government not to take any major decisions in financial matters because
Chief Minister Shri Nabam Tuki’s Government has been reduced to a minority.
The State BJP also reiterated its demand that the ruling Congress
Government in the state should surrender paving way for new regime to take
over. Highlighting the present political situation in the state, the BJP,
in a Press Statement, claimed that the long political stalemate in the
rebel-plagued Government has brought all developmental activities to a
grinding halt and the long absence of the rebel MLAs from the state has
totally paralyzed the State.
In the meantime, Peoples’ Party of Arunachal (PPA) in a Press
Statement said that the Leader of the Opposition should immediately call
upon the Governor of the State and urge him to instruct the Chief Minister
to prove his majority or step down, owning moral responsibility.
xxx xxx xxx
I will keep you informed of the subsequent developments, if any, on
the above issues, in my subsequent Report.
With Esteemed Regards,
Yours sincerely,
signed (illegible) ( J.P. Rajkhowa ) ”
112. The last letter addressed by the Governor to the President, before
the issuance of the order, and the message dated 9.12.2015 was dated
1.12.2015. An extract of the same is reproduced hereunder:
“No. G/ML/2015
01 Dec, 2015
Hon’ble Shri Pranab Mukherjee ji,
My report for the month of November, 2015, briefly giving an outline of
various events in Arunachal Pradesh is placed below for your kind perusal.
xxx xxx xxx
On 19th November, 2015, thirteen Legislators submitted a Memorandum to the
Governor, praying to rescind the Summons issued for the House to meet on
14th January, 2016 and re-issue the Summons for the House to meet at an
emergent date so that the Resolution aforesaid is considered and disposed
at the earliest in accordance with the scheme, purpose and timeframe
envisaged by the Constitution makers.” (Copy at Annexure-I).
Further, 13 Members of the Arunachal Pradesh Legislative Assembly (APLA),
addressing a letter to the Secretary of the Assembly, issued a Notice of
the following Resolution, under Article 179(c) read with Article 181 of the
Constitution of India and Rules 151 to 154 of the Rules of Procedure and
Conduct of Business of APLA, for removal of the present Speaker.
“That this House removes Shri Nabam Rebia from the Office of the Speaker of
the Arunachal Pradesh Legislative Assembly with immediate effect.” The
signatories have given five grounds, in justification, including one of
committing the “moral turpitude of the highest order thereby making him
ineligible to occupy the high office of the Speaker”, since he was
reportedly “caught in an ugly scandal involving a woman from the State” who
lodged an FIR on 15-11-2015 in the Women Police Station, Itanagar. (copy at
Annexure-II).
While voicing on the same tune, the Peoples’ Party of Arunachal (PPA) also
demanded the Governor to prepone the Session of Legislative Assembly slated
to be held from 14th January, 2016, alleging that the present Nabam Tuki
led Govt. has completely lost the confidence of the people and has been
reduced to a minority and hence needs to prove his majority in the floor of
the House.
It is pertinent to mention here that the present political scenario of such
a long-drawn impasse extending over nearly three months, with 21 Congress
Legislators camping in Delhi to impress upon the party Central Leadership
for removing Shri Nabam Tuki from the post of Chief Minister, is not at all
in the interest of the people and the State, which requires urgent and
immediate redressal, keeping in mind that political stability is of utmost
importance for the welfare of the people of this strategic border State.
The attention of the Raj Bhavan has been drawn to the news item in one of
the local dailies, the Dawnlit Post, with headline ‘Tuki led Government is
100 percent stable: Narayanasamy; Eastern Sentinel, with Headline ‘Tuki,
undisputed leader: Narayanasamy’; Arunachal Front, with a headline ‘AICC
top brasses elicit 25 CLP MsLA view to report to Delhi’, where it states
that ‘Modi replaced all the Governors by RSS men and the present State
Governor wrote a letter against the Hollongi Greenfield Airport without
consulting the CM which was unconstitutional. The Governor has turned the
Raj Bhavan into BHP Hqs, Narayanasamy alleged. I expressed strong
disapproval to such wild allegation by a former Union Minister of State,
Shri V. Narayanasamy, who is one of the senior leaders of one of the major
political parties of the country. A copy of the Press Release issued from
the Raj Bhavan is attached vide Annex-‘B’.
xxx xxx xxx
During the month under report, the insurgent activities, like forcible tax
collection by three factions of NSCN (K), NSCN (IM) and NSCN (R) in three
Districts, i.e. Tirap, Changlang and Longding are still continuing.
The Detailed Report is enclosed herewith.
With kindest regards,
Yours sincerely,
signed (illegible)
(J.P. Rajkhowa)”
113. Based on the three monthly reports submitted by the Governor to the
President, it was contended, that there was sufficient material before the
Governor to arrive at the conclusion, that the Speaker was likely to
discharge his duties in a manner as would result in extending political
favours to the INC. It was submitted, that it was legitimately apprehended
(- by the Governor), that the Speaker who was facing a notice of resolution
for his removal, would exercise his powers under the Tenth Schedule, to
disqualify the dissident MLAs (belonging to the INC), and thereby stage
manage his majority in the House, with the support of the Chief Minister.
This in turn, it was urged, would ward off the threat to the position of
the Chief Minister, as well. It was submitted that, it was in the above
background, that the Governor expressed in his message dated 9.12.2015,
that the Presiding Officer during the course of consideration of the notice
of resolution for the removal of the Speaker, would not alter the party
composition in the House. It was submitted, that the aforesaid
apprehension entertained by the Governor, came out to be true, when the
Speaker of the Legislative Assembly, issued notices on 7.12.2015
(returnable for 14.12.2015) for the removal of the said 14 MLAs, belonging
to the INC. It was pointed out, that even though none of the above MLAs
were served, proceedings against them were simply adjourned to the
following day - 15.12.2015. Even the adjourned date was not to the
knowledge of the MLAs proceeded against. And despite the fact, that none
of the MLAs whose disqualification was sought, had been served or had
entered appearance in the proceedings, they were all disqualified by the
Speaker, on 15.12.2015. According to learned senior counsel, this action
of the Speaker resulted in depletion of the strength of the Assembly. This
depleted strength had the effect of reviving and securing his own majority,
which was sufficient to effectively defeat the notice of resolution for his
removal. It was submitted, that it is evident that the order, and the
message of the Governor dated 9.12.2015, were based on good and sound
reasons, and were aimed at preserving an honest democratic process in the
State.
The next instalment, of the legal response, on behalf of the respondents:
114. Relying on the decisions rendered by this Court in the Samsher Singh
case1, and in Madhya Pradesh Special Police Establishment v. State of
Madhya Pradesh[15], as also, in State of Gujarat v. Justice R.A. Mehta[16],
and especially in the Satya Pal Dang case13, it was submitted, that the
Governor’s power to prorogue the Legislative Assembly under Article 174(2)
was absolute, and without any restriction and restraint, and that, the
Governor could exercise his said power, in his own discretion without any
aid or advice.
115. Having invited our attention to Article 163(2), it was submitted,
that the power of the Governor with reference to a situation, in which he
is to act in his own discretion is not only final, but also that, the
validity of the exercise of such discretion by the Governor, cannot be
called in question, before any Court. It was asserted, that no one
whatsoever had the right to determine, whether the Governor ought or ought
not to have acted, in his discretion. It was submitted, that the only
situation, where the exercise of discretion by the Governor, can be called
in question is, when it can be established, that the Governor’s action was
perverse or capricious or fallacious or extraneous or for a motivated
consideration. In other words, when the exercise of discretion, can be
described as mala fide. Then, and then alone, according to learned
counsel, the same can be questioned by adopting a process of judicial
review. It was submitted, that the scope of interference in the discretion
of the Governor under Article 163(2), has to be accepted as extremely
limited. It was pointed out, that Article 163(2) is a unique provision.
It was acknowledged, that its ambit and scope had not yet been determined
by this Court. It was urged, that the power of the Governor to exercise
functions on his own, without the aid and advice of the Council of
Ministers headed by the Chief Minister, is well known. Illustratively,
reference was made to Articles 200, 239(2), 356, 371(2), 371A(1)(b),
371C(1), 371F(g), and in addition thereto, the powers vested with the
Governor under Paragraph 9 of the Sixth Schedule. It was further urged,
that there were other situations also, wherein discretion to act
independently, has been conferred on the Governor, even though not
specifically expressed, by or under any provision of the Constitution.
Reference was made to the selection of the Chief Minister after fresh
elections under Article 164; the authority to obtain a fresh vote of
confidence; where it appears to the Governor that the Chief Minister and
his Council of Ministers no longer enjoy the majority in the House.
Reference was also made to the Samsher Singh case1 (paragraph 154 – already
extracted above), wherein this Court referred to obvious situations, in
which the Governor would act at his own.
116. Reference was also made to the Madhya Pradesh Special Police
Establishment case15, wherein this Court recognised the fact, that there
would be many situations where, for reasons of peril to democratic
principles, the Governor was liable to act at his own, without subjecting
himself to the aid and advice of the Chief Minister and his Council of
Ministers. It was explained, that in matters where the Governor is of the
view, that the advice of the Council of Ministers was likely to be biased
or partisan, or where there is a conflict of interest between the Council
of Ministers on the issue under consideration, it would be open to a
Governor to act at his own. And in such cases, even if advice is tendered
by the Council of Ministers, the Governor could legitimately ignore the
same. It was pointed out, that the above position was reiterated in the
Justice R.A Mehta case16, wherein this Court while interpreting Article
163(2) concluded, that it would be permissible for the Governor to act
without ministerial advice, even in the absence of an express provision in
the Constitution.
117. Insofar as the present controversy is concerned, learned senior
counsel asserted, that Article 174 itself vests the power with the
Governor, to summon, prorogue or dissolve the Legislative Assembly. It was
submitted, that a perusal of Article 174 reveals, that there are no
restrictions on the powers of the Governor, in the above matters. The
Governor’s decision determining the place and time, where and when the
House would meet, according to learned counsel, is also demonstrative of
the determination of the same, by himself. It was submitted, that
summoning the Assembly is a part of the discretion referred to in Article
163(1), where the Governor can act without the aid and advice of the
Council of Ministers. And further that, the decision of the Governor in
the above matter is final, and cannot be questioned, because it is so
mandated, under Article 163(2). It was therefore asserted, that the
discretion exercised by the Governor in preponing the meeting of the
Assembly from 14.1.2016 to 16.12.2015, was fully justified and within the
individual domain of the Governor.
118. On the subject of judicial review, in respect of the discretion
exercised by the Governor under Article 163(2), it was submitted, that this
Court in Kesavananda Bharati v. State of Kerala[17], held that the
provisions of the Constitution cannot be amended, so as to alter the basic
structure of the Constitution. It was acknowledged, that the power of
judicial review has been recognised as a part of the basic structure of the
Constitution. It was submitted, that the concept of the basic structure,
is not applicable to the original provisions of the Constitution. It was
emphasized, that Article 163(2) is an original provision of the
Constitution, and therefore, it cannot be tested on the touchstone of the
concept of the basic structure. It was pointed out, that the founding
fathers of the Constitution, desired to vest absolute discretion with the
Governor, to determine whether he ought to act in his discretion. It was
urged, that the founding fathers made it explicitly clear, that the
decision of the Governor taken in his discretion would be final, and
additionally, anything done by the Governor while exercising his discretion
under Article 163(2), would not be called in question. It was submitted,
that a plain reading of the above provision, leaves no room for any doubt,
that the framers of the Constitution vested with the Governor an
unambiguous authority to exercise his discretion under the provisions of
the Constitution. The founding fathers also desired, that such discretion
exercised by the Governor should be final. It was therefore submitted,
that the very suggestion at the hands of the appellants, that the order and
message of the Governor dated 9.12.2015, were subject to judicial review,
was liable to be rejected.
119. In order to demonstrate the uniqueness of the position of the
Governor, learned senior counsel desired this Court to contrast Article 163
with Article 74. It was pointed out, that Article 74 requires the
President, to exercise his functions in accordance with the aid and advice
tendered to him by the Council of Ministers (with the Prime Minister as the
head). And under no circumstances, in his own discretion. It was urged,
that while examining the scope of functions vested with the Governor, it
needs to be visualized that Article 163(1) postulates situations, wherein
the Governor is to exercise his functions, as provided for by or under the
Constitution, in his own discretion. It was highlighted, that under
Article 163(2), in case of a dispute, whether or not a particular function
could or could not be exercised by the Governor in his own discretion, the
Governor and the Governor alone, is mandated to take call on the matter.
And his decision on the matter, is final. According to learned senior
counsel, in the discharge of functions under the Constitution, the
determination at the hands of the Governor is different from that of the
President. The Governor has clear discretionary powers, whereas the
President has none. Furthermore, as noticed above, Article 163(2) assigns
finality to the determination by the Governor, as to whether he was
required by or under the Constitution to act in his own discretion. Not
only that, the said determination by the Governor “… shall not be called in
question on the ground that he ought or ought not to have acted in his
discretion …”.
120. It was therefore submitted, that in all matters where, by a
constitutional provision, the Governor is required to discharge a
particular function, the manner in which that function is to be discharged,
would have to be determined by the Governor himself. It was submitted,
that that could be the only legitimate conclusion, on an effective
comparison and understanding of Articles 74 and 163. It was in the instant
background, that learned senior counsel drew our attention to Article 174,
which according to him, unambiguously vests in the Governor, the
responsibility to summon the State Legislature. Not only that, it was
submitted, that the Governor is also vested with the responsibility to
determine “as he thinks fit”, when and where the House would meet.
Likewise, the Governor is authorized to prorogue and dissolve the House,
from time to time, as he may choose. It was therefore submitted, that in
the facts and circumstances of the present case, when the Governor by his
order dated 9.12.2015, took the decision by exercising his discretion, to
summon the House by preponing the 6th session of the Assembly from
14.1.2016 (as earlier fixed), to 16.12.2015. The above discretion
exercised by the Governor was bound to be accepted as final, and could not
be called in question. It was submitted, that judicial review of the above
order, was clearly barred, except if it could be shown, that the above
discretion was not exercised by the Governor bona fide and on due
consideration. It was submitted, that the exercise of discretion at the
hands of the Governor under Article 163(2), was an area of non-
justiciability. And that, it was impossible to get over the bar, except to
the limited extent referred to hereinabove.
121. In the above view of the matter, for exactly the same reasons
expressed by learned counsel with reference to the order dated 9.12.2015,
it was submitted, that the discretion exercised by the Governor in
addressing the message dated 9.12.2015 under Article 175, was also in
exercise of due discretion, without any oblique motives, and to further the
democratic process, in consonance with the provisions of the Constitution,
as also, the ‘Conduct of Business Rules’ (framed under Article 208). It
was therefore the vehement contention of learned senior counsel, that the
prayers made by the appellants against the impugned order of the Governor
dated 9.12.2015, as well as, the impugned message of the Governor dated
9.12.2015, deserved to be rejected.
The last segment of legal submissions, on behalf of the respondents:
122. Mr. Ashok H. Desai, Senior Advocate entered appearance last of all.
His representation was on behalf of respondent nos. 21 to 30. He assisted
the Court by primarily expounding the constitutional parameters
contemplated under Articles 163 and 174. Learned counsel examined the
aforesaid provisions, to highlight his understanding of the scope and
powers of the Governor. In order to broadly demonstrate the functions of
the Governor, it was submitted, that the Constitution has vested with the
Governor executive, as well as, legislative functions. It was submitted,
that Article 154 postulates the range of the executive power of the State,
accorded to the Governor. He placed reliance on Article 168, which
declares the office of the Governor, to be a component of the State
Legislature. It was also pointed out, that the Governor was bestowed with
legislative power under Article 213, which authorized him to promulgate
Ordinances, during the period the State Legislature was not in session. As
against the above, it was submitted, that all executive actions of the
State Government, are expressed in the name of the Governor, under Article
166. According to learned counsel, Article 166 also requires the Governor
to make rules for the convenient transaction of business of the State
Government, and for the allocation of governmental business amongst
Ministers. It was also highlighted, that the Governor of a State has the
power to grant pardons, reprieves, respites or remissions of punishment or
to suspend, remit or commute sentences of persons convicted of offences
relating to matters to which the executive power of the State extends under
Article 161. It was submitted, that under Article 174, the Governor is
required to summon Houses of the State Legislature, at such time and place
as he thinks fit. The Governor likewise, has the authority to prorogue and
dissolve the Assembly. It was pointed out, that in a State Legislature
having both a Legislative Council and a Legislative Assembly, the Governor
is authorized to make rules relating to procedure, with respect to the
business of the House, under Article 208. It was submitted, that no Bill
can be passed by State Legislature(s) to become law, unless on being
presented to the Governor under Article 200, the Governor accords his
assent to the same. It was urged, that even though Article 163 provides,
that a Governor would exercise his functions on the aid and advice of a
Council of Ministers with the Chief Minister as the head, yet the same
Article notably authorizes the Governor to carry out certain functions in
his own discretion, without any aid and advice. It was pointed out, that
it was inter alia on the receipt of a report from the Governor of a State,
that the President may, in case of failure of the constitutional machinery,
declare that the power of the Legislature of the State, would be exercised
under the authority of the Parliament. It was contended, that the power
and position of the Governor and the contours, while interpreting the scope
and extent of his powers and functions, should be determined on the basis
of the responsibilities and the functions assigned to him under different
provisions of the Constitution.
123. It was urged by learned senior counsel, that a Governor is required
to discharge the functions assigned to him, keeping in mind the true scope
and ambit of each of the functions. It was pointed out, that in case of
conflict between the views expressed by the Union Government and a
concerned State Government, the Governor must assume the position of an
impartial/neutral umpire. It was submitted, that the State of Arunachal
Pradesh (of which respondent no.17, was the Governor), could not be handled
in the same manner as other States recognized by the Indian Constitution.
It was submitted, that the State of Arunachal Pradesh is located in the
north-east of India, and has one of the longest international boundaries of
any State. It was urged, that the State had been subjected to recurrent
insurgencies from within, as also, from outside the country. It was also
pointed out, that China which has a common border with the State of
Arunachal Pradesh, is claiming a large part of the Indian territory falling
in the State. It was submitted, that Article 371H recognizes the special
position of the Governor of the State of Arunachal Pradesh. Article 371H
is extracted hereunder:
“371H. Special provision with respect to the State of Arunachal
Pradesh.—Notwithstanding anything in this Constitution,—
(a) the Governor of Arunachal Pradesh shall have special responsibility
with respect to law and order in the State of Arunachal Pradesh and in the
discharge of his functions in relation thereto, the Governor shall, after
consulting the Council of Ministers, exercise his individual judgment as to
the action to be taken:
Provided that if any question arises whether any matter is or is not a
matter as respects which the Governor is under this clause required to act
in the exercise of his individual judgment, the decision of the Governor in
his discretion shall be final, and the validity of anything done by the
Governor shall not be called in question on the ground that he ought or
ought not to have acted in the exercise of his individual judgment:
Provided further that if the President on receipt of a report from the
Governor or otherwise is satisfied that it is no longer necessary for the
Governor to have special responsibility with respect to law and order in
the State of Arunachal Pradesh, he may by order direct that the Governor
shall cease to have such responsibility with effect from such date as may
be specified in the order;
(b) the Legislative Assembly of the State of Arunachal Pradesh shall
consist of not less than thirty members.”
Based on the aforesaid provision, it was pointed out, that the Governor of
the State of Arunachal Pradesh, is provided with special responsibilities
with respect to law and order. It was submitted, that the Governor, after
consulting the Council of Ministers, is authorized to exercise his
individual judgment, as to the action to be taken, with respect to
maintaining law and order in the State. And that, any such action taken by
the Governor in his individual judgment, has been assigned the status of
being final and binding, so as not be called in question, on the plea that
he ought or ought not to have acted, in exercise of his individual
judgment. It was however acknowledged, that the exercise of the
responsibility by the Governor under Article 371H would remain, so long as,
the approval for the same continues to be accorded by the President.
124. On the pointed interpretation of Article 163(1), it was asserted,
that a Governor would ordinarily exercise his functions on the aid and
advice of the Council of Ministers with the Chief Minister as the head. It
was however pointed out, that under the very same provision, the Governor
is authorised by the Constitution “to exercise his functions or any of them
in his discretion”. It was urged, that the constitutional powers which the
Governor is mandated to exercise under Article 163(1), extend to situations
provided for expressly “by or under” the provisions of the Constitution.
It was asserted, that besides the functions assigned to a Governor under
the Constitution, a Governor may be required to discharge functions and
exercise powers, under ordinary legislative enactments. It was submitted,
that the authority exercised by the Governor under a statutory provision,
may or may not be required to be performed, on any aid and advice. Relying
on the judgment in the Samsher Singh case1, it was urged, that a seven-
Judge Bench by way of illustration indicated, a number of situations, where
the Governor could act without any aid and advice. It was highlighted,
that in the Samsher Singh case1 the Court emphasized, that the instances
depicted in the judgment were only illustrative, and not exhaustive. A
relevant extract of the above judgment is reproduced hereunder:
“54. The provisions of the Constitution which expressly require the
Governor to exercise his powers in his discretion are contained in Articles
to which reference has been made. To illustrate, Article 239(2) states that
where a Governor is appointed an Administrator of an adjoining Union
Territory he shall exercise his functions as such administrator
independently of his Council of Ministers. The other Articles which speak
of the discretion of the Governor are paragraphs 9(2) and 18(3) of the
Sixth Schedule and Articles 371A(1)(b),
371A(1)(d) and 371A(2)(b) and 371A(2)(f). The discretion conferred on the
Governor means that as the Constitutional or formal head of the State the
power is vested in him. In this connection, reference may be made to
Article 356 which states that the Governor can send a report to the
President that a situation has arisen in which the government of the State
cannot be carried on in accordance with the provisions of this
Constitution. Again Article 200 requires the Governor to reserve for
consideration any Bill which in his opinion if it became law, would so
derogate from the powers of the High Court as to endanger the position
which the High Court is designed to fill under the Constitution.
55. In making a report under Article 356 the Governor will be justified in
exercising his discretion even against the aid and advice of his Council of
Ministers. The reason is that the failure of the constitutional machinery
may be because of the conduct of the Council of Ministers. This
discretionary power is given to the Governor to enable him to report to the
President who, however, must act on the advice of his Council of Ministers
in all matters. In this context Article 163(2) is explicable that the
decision of the Governor in his discretion shall be final and the validity
shall not be called in question. The action taken by the President on such
a report is a different matter. The President acts on the advice of his
Council of Ministers. In all other matters where the Governor acts in his
discretion he will act in harmony with his Council of Ministers. The
Constitution does not aim at providing a parallel administration within the
State by allowing the Governor to go against the advice of the Council of
Ministers.
56. Similarly Article 200 indicates another instance where the Governor may
act irrespective of any advice from the Council of Ministers. In such
matters where the Governor is to exercise his discretion he must discharge
his duties to the best of his judgment. The Governor is required to pursue
such courses which are not detrimental to the State.
xxx xxx xxx
154. We declare the law of this branch of our Constitution to be that the
President and Governor, custodians of all executive and other powers under
various Articles, shall, by virtue of these provisions, exercise their
formal constitutional powers only upon and in accordance with the advice of
their Ministers save in a few well-known exceptional situations. Without
being dogmatic or exhaustive, these situations relate to (a) the choice of
Prime Minister (Chief Minister), restricted though this choice is by the
paramount consideration that he should command a majority in the House; (b)
the dismissal of a Government which has lost its majority in the House, but
refuses to quit office; (c) the dissolution of the House where an appeal to
the country is necessitous, although in this area the Head of State should
avoid getting involved in politics and must be advised by his Prime
Minister (Chief Minister) who will eventually take the responsibility for
the step. We do not examine in detail the constitutional proprieties in
these predicaments except to utter the caution that even here the action
must be compelled by the peril to democracy and the appeal to the House or
to the country must become blatantly obligatory. We have no doubt that de
Smith's statement regarding royal assent holds good for the President and
Governor in India:
Refusal of the royal assent on the ground that the Monarch strongly
disapproved of a Bill or that it was intensely controversial would
nevertheless be unconstitutional. The only circumstances in which the
withholding of the royal assent might be justifiable would be if the
Government itself were to advise such a course—a highly improbable
contingency—or possibly if it was notorious that a Bill had been passed in
disregard to mandatory procedural requirements; but since the Government in
the later situation would be of the opinion that the deviation would not
affect the validity of the measure once it had been assented to, prudence
would suggest the giving of assent.”
Reliance was also placed on State of Maharashtra v. Ramdas Shrinivas
Nayak[18], and our attention was drawn to the following observations
recorded therein:
“10. We may add, there is nothing before us to think that any such mistake
occurred, nor is there any ground taken in the petition for grant of
special leave that the learned Judges proceeded on a mistaken view that the
learned counsel had made a concession that there might arise circumstances,
under which the Governor in granting sanction to prosecute a minister must
act in his own discretion and not on the advice of the Council of
Ministers. The statement in the judgment that such a concession was made is
conclusive and, if we may say so, the concession was rightly made. In the
facts and circumstances of the present case, we have no doubt in our mind
that when there is to be a prosecution of the Chief Minister, the Governor
would, while determining whether sanction for such prosecution should be
granted or not under Section 6 of the Prevention of Corruption Act, as a
matter of propriety, necessarily act in his own discretion and not on the
advice of the Council of Ministers.”
Our attention was also drawn to the Madhya Pradesh Special Police
Establishment case15, where this Court held as under:
“12. …..Thus, as rightly pointed out by Mr. Sorabjee, a seven- Judge Bench
of this Court has already held that the normal rule is that the Governor
acts on the aid and advice of the Council of Ministers and not
independently or contrary to it. But there are exceptions under which the
Governor can act in his own discretion. Some of the exceptions are as set
out hereinabove. It is, however, clarified that the exceptions mentioned in
the judgment are not exhaustive. It is also recognized that the concept of
the Governor acting in his discretion or exercising independent judgment is
not alien to the Constitution. It is recognized that there may be
situations where by reason of peril to democracy or democratic principles
an action may be compelled which from its nature is not amenable to
Ministerial advice. Such a situation may be where bias is inherent and/or
manifest in the advice of the Council of Ministers.
xxx xxx xxx
19. Article 163 has been extracted above. Undoubtedly, in a matter of
grant of sanction to prosecute the Governor is normally required to act on
aid and advice of the Council of Ministers and not in his discretion.
However, an exception may arise whilst considering grant of sanction to
prosecute a Chief Minister or a Minister where as a matter of propriety the
Governor may have to act in his own discretion. Similar would be the
situation if the Council of Ministers disables itself or disentitles
itself.”
Learned counsel also invited the Court’s attention to the conclusions drawn
by this Court in the Justice R.A. Mehta case16, wherefrom he laid emphasis
on the following observations
“37. In M.P. Special Police Establishment v. State of M.P., (2004) 8 SCC
788, the question that arose was whether, for the purpose of grant of
sanction for the prosecution of Ministers, for offences under the
Prevention of Corruption Act and/or, the Penal Code, the Governor, while
granting such sanction, could exercise his own discretion, or act contrary
to the advice rendered to him by the Council of Ministers. The Court, in
this regard, first considered the object and purpose of the statutory
provisions, which are aimed at achieving the prevention and eradication of
acts of corruption by public functionaries. The Court then also considered,
the provisions of Article 163 of the Constitution, and took into
consideration with respect to the same, a large number of earlier judgments
of this Court, including Samsher Singh v. State of Punjab, (1974) 2 SCC 831
and State of Maharashtra v. Ramdas Shrinivas Nayak, (1982) 2 SCC 463, and
thereafter, came to the conclusion that, in a matter related to the grant
of sanction required to prosecute a public functionary, the Governor is
usually required to act in accordance with the aid and advice rendered to
him by the Council of Ministers, and not upon his own discretion. However,
an exception may arise while considering the grant of sanction required to
prosecute the Chief Minister, or a Minister, where as a matter of
propriety, the Governor may have to act upon his own discretion. Similar
would be the situation in a case where, the Council of Ministers disables
or disentitles itself from providing such aid and advice. Such a conclusion
by the Court, was found to be necessary, for the reason that the facts and
circumstances of a case involving any of the aforementioned fact
situations, may indicate the possibility of bias on the part of the Chief
Minister, or the Council of Ministers. This Court carved out certain
exceptions to the said provision. For instance, where bias is inherent or
apparent, or, where the decision of the Council of Ministers is wholly
irrational, or, where the Council of Ministers, because of some incapacity
or other situation, is disentitled from giving such advice, or, where it
refrains from doing so as matter of propriety, or in the case of a complete
break down of democracy.
38. Article 163(2) of the Constitution provides that it would be
permissible for the Governor to act without ministerial advice in certain
other situations, depending upon the circumstances therein, even though
they may not specifically be mentioned in the Constitution as discretionary
functions e.g. the exercise of power under Article 356(1), as no such
advice will be available from the Council of Ministers, who are responsible
for the breakdown of constitutional machinery, or where one Ministry has
resigned, and the other alternative Ministry cannot be formed. Moreover,
clause 2 of Article 163 provides that the Governor himself is the final
authority to decide upon the issue of whether he is required by or under
the Constitution, to act in his discretion. The Council of Ministers
therefore, would be rendered incompetent in the event of there being a
difference of opinion with respect to such a question, and such a decision
taken by the Governor, would not be justiciable in any court. There may
also be circumstances where, there are matters, with respect to which the
Constitution does not specifically require the Governor to act in his
discretion, but the Governor, despite this, may be fully justified to act
so e.g. the Council of Ministers may advise the Governor to dissolve a
House, which may be detrimental to the interests of the nation. In such
circumstances, the Governor would be justified in refusing to accept the
advice rendered to him, and act in his discretion. There may even be
circumstances where ministerial advice is not available at all, i.e. the
decision regarding the choice of Chief Minister under Article 164(1), which
involves choosing a Chief Minister after a fresh election, or in the event
of the death or resignation of the Chief Minister, or dismissal of the
Chief Minister who loses majority in the House and yet refuses to resign,
or agree to dissolution. The Governor is further not required to act on the
advice of the Council of Ministers, where some other body has been referred
for the purpose of consultation i.e. Article 192(2) as regards decisions on
questions related to the disqualification of Members of the State
Legislature.”
Last of all, learned counsel placed reliance on the judgment of this Court
in Rajendra Singh Verma v. Lt. Governor (NCT of Delhi)[19], and our
attention was invited to the following observations made therein:
“135. Thus, it is fairly well settled by a catena of decisions of this
Court that in the matter of compulsory retirement of a Judicial Officer the
Governor cannot act on the aid and the advice of Council of Ministers but
has to act only on the recommendation of the High Court. Though the Lt.
Governor is a party to these appeals, he has not raised any plea that the
recommendation made by the Delhi High Court was not binding on him and he
could have acted in the matter only on the aid and advice of his Council of
Ministers. Thus the order of the Lt. Governor compulsorily retiring the
appellants without seeking aid and advice of his Council of Ministers is
neither ultra vires nor illegal and is rightly sustained by the High Court.
The Governor could not have passed any order on the aid and advice of
Council of Ministers in this case. The advice should be of no other
authority except that of the High Court in the matter of judicial officers.
This is the plain implication of Article 235.”
Based on the declared position of law by this Court, in the judgments on
which reliance was placed by learned counsel, it was submitted, that where
constitutional issues arise, because of an unacceptable and
constitutionally impermissible conduct of the Council of Ministers, or in
case of a disputation relating to the choice of the Chief Minister, or with
reference to the resolution of the House, or on account of the democratic
process being undermined, it was open to a Governor to act on his own,
without any aid and advice. It was urged, that the individual
determination of the Governor would extend to issues where propriety
requires him to discharge his functions in his own discretion, as for
instance, sanction of prosecution of a Chief Minister or a Member of the
Council of Ministers.
125. It was urged, that the sequence of facts narrated by the learned
counsel representing the respondents has highlighted a situation, where
MLAs belonging to the INC did not support their own Chief Minister – Nabam
Tuki. It was also highlighted, that the Speaker – Nabam Rebia, who ought
to have been functioning as a neutral arbiter in the activities of the
House, was demonstrating a partisan attitude by siding with the Chief
Minister – Nabam Tuki. And in order to support the Chief Minister, the
Speaker had endeavoured to misuse the power vested with him, under the
Tenth Schedule. It was therefore submitted, that the action taken by the
Governor, through his order dated 9.12.2015 and his message dated
9.12.2015, was surely aimed at restoring balance in the democratic process,
and as such, could not have been performed on the aid and advice of the
Council of Ministers with the Chief Minister as the head. It was pointed
out, that not only the Council of Ministers and the Chief Minister, but
also the Speaker were misusing the constitutional powers vested with them,
to derail the democratic process, and in the facts and circumstances of the
case, the Governor was well within his rights in exercise of the discretion
vested with him under Article 163, to endeavour to preserve the democratic
process without himself interfering therewith.
126. Learned senior counsel then placed reliance on the first, third,
fourth, fifth and sixth sequences of facts, to contend that the
constitutional turmoil which prevailed in the State of Arunachal Pradesh
was of a nature, wherein it was futile to seek the aid and advice of the
Council of Ministers with the Chief Minister as the head. In fact, it was
his pointed contention, that the situation which prevailed in the
Legislative Assembly of the State of Arunachal Pradesh, had erupted on
account of the complicity between the Chief Minister and the Speaker,
neither of whom enjoyed the confidence of the House. It was submitted,
that the democratic process was in peril. It was urged, that the Governor
in compliance with the oath subscribed to by him, at the time of assumption
of office under Article 159, had passed the order dated 9.12.2015, as also,
issued the message dated 9.12.2015, which were aimed at preserving,
protecting and defending the Constitution, and the laws. It was submitted,
that there was no question of seeking any aid and advice, for the purpose
of preponing the 6th session of the Assembly, in exercise of the power
vested with the Governor under Article 174. It was submitted, that his
exercise of discretion to prepone the 6th session of the Assembly from
14.1.2016 to 14.12.2015, was in consonance with the discretion vested with
him under Article 163(2). In order to justify his above contention, it was
submitted, that there was no cause for the Governor to consult the Chief
Minister – Nabam Tuki, who had lost support of the majority of the MLAs.
It was asserted, that in the same manner, as the Governor can summon the
House for a floor test, to determine whether or not the ruling party had
support of the majority, so also, the Governor was well within his rights,
to determine whether or not the Speaker, continued to enjoy majority
support. It was submitted, that the right of a Speaker to conduct
proceedings against MLAs (who had been proceeded against under the Tenth
Schedule), can be considered to be constitutionally justified, only if the
Speaker enjoys majority support. Once the Governor entertained the belief,
that the Speaker – Nabam Rebia, had lost support of the majority of the
MLAs, he could not be permitted to discharge the onerous constitutional
responsibility, under the Tenth Schedule. It was urged, that it was in the
aforestated background, that the Governor had in his own discretion,
summoned the Assembly under Article 174. It was submitted, that the
instant situation is comparable to the other circumstances, wherein, even
though the Governor has not been so expressly authorized (to deal with a
matter in his own discretion), not doing so, would amount to defeating the
constitutional purpose sought to be achieved. In the above view of the
matter, it was reiterated, that in the backdrop of the vast and onerous
functions vested with the Governor, it cannot be doubted, that the Governor
has the power to summon the Assembly, in exercise of his discretionary
powers, specially in the ongoing exceptional circumstances, and the
sensitivity of the State of Arunachal Pradesh.
127. Even though we have not highlighted and repeated the different
sequence of facts relied upon by the learned senior counsel, yet it may be
mentioned, that the Governor was allegedly in possession of material
indicating that the Speaker was under a serious cloud, and did not command
the confidence of the majority of the MLAs. Additionally, there were
serious allegations of complicity between the Chief Minister and the
Speaker. In the above factual situation, it was submitted, that the
Governor was fully justified in not consulting the Speaker and/or the Chief
Minister (or the Council of Ministers). It was asserted, that consulting
the Speaker was out of question, as the Speaker cannot be a judge in his
own cause. Insofar as consultation with the Chief Minister is concerned,
it was submitted, that there was sufficient material before the Governor to
suggest, that the Chief Minister and the Speaker were partners in an
illegal conspiracy, to subvert the democratic process in the State. In the
above view of the matter, it was reiterated, that the Governor was fully
vindicated in having exercised his independent judgment, in not consulting
the Chief Minister. It was also pointed out, that the complicity between
the Chief Minister and the Speaker stands established, from the fact that
the Chief Minister – Nabam Tuki, and the Speaker – Nabam Rebia are first
cousins. Therefore, the principle of conflict of interest/bias is clearly
applicable even in the case on hand. In the above view of the matter, it
was urged, that an expeditious disposal of the notice of resolution for the
removal of the Speaker – Nabam Rebia was fully justified, having regard to
the fact that a number of legislators forming more than 1/5th of the MLAs,
had expressed their want of confidence in the Speaker.
128. Besides the submissions noticed hereinabove, it was also the
contention of Mr. Ashok H. Desai, learned senior counsel, that the exercise
of discretion by the Governor was final and binding. The Court’s attention
was invited to Article 163(2) which mandates, that “…the decision of the
Governor in his discretion shall be final, and the validity of anything
done by the Governor shall not be called in question on the ground that he
ought or ought not to have acted in his discretion.”. While it was
acknowledged, that there is no bar to judicial review, learned senior
counsel was emphatic, that judicial review was permissible only in
situations where the Governor had exercised his discretion in a wanton
manner. It was submitted, that the exercise of power by the Governor can
legitimately be placed in the following categories. Firstly, the exercise
of executive powers in consonance with the provisions of the Constitution,
by or under the order of the Governor, wherein full judicial review is
available. Secondly, orders passed by the Governor on the aid and advice
of the Council of Ministers headed by the Chief Minister, wherein also full
judicial review is available. Thirdly, orders like the grant of pardon
under Article 161, and orders passed by the President based on a report
submitted by the Governor under Article 356, wherein limited judicial
review is available. And fourthly, where the Governor acts without the aid
and advice of the Council of Ministers headed by the Chief Minister, in his
own discretion. It was submitted, that in the fourth situation, no
judicial review is permissible, as is explicit from a plain reading of
Article 163(2).
129. To support his aforesaid contention, with reference to assailability
of the order of the Governor dated 9.12.2015, as well as, the message of
the Governor dated 9.12.2015, learned counsel placed reliance on the
Pratapsing Raojirao Rane case12, and invited the Court’s attention to the
following:
“43. While dealing with Full Bench judgment of the Madras High Court the
noted Constitutional Expert H.M. Seervai in "Constitutional Law of India",
4th Edition, Volume I, at page 2070, Note 18.79 has opined that the view
taken by Full Bench that in respect of his official acts, the Governor is
not answerable to the Court even in respect of a charge of mala fides is
correct.
44. We concur with this position. We also agree with the learned author
that in such eventuality Governor cannot be said to be under duty to deal
with allegations of mala fides in order to assist the Court, which in
effect would mean that he is answerable to the Court.
45. The Governor in terms of Article 156 of the Constitution holds office
during the pleasure of the President. Any mala fide actions of the Governor
may, therefore, conceivably be gone into by the President. Another
effective check is that the Ministry will fall if it fails to command a
majority in the Legislature Assembly.
46. Thus, the position in law is clear that the Governor, while taking
decisions in his sole discretion, enjoys immunity under Article 361 and the
discretion exercised by him in the performance of such functions is final
in terms of Article 163(2). The position insofar as the dismissal of the
Chief Minister is concerned would be the same, since when the Governor acts
in such a matter, he acts in his sole discretion. In both the situations,
namely, the appointment of the Chief Minister and the dismissal of the
Chief Minister, the Governor is the best judge of the situation and he
alone is in possession of the relevant information and material on the
basis of which he acts. The result, therefore, would be that such actions
cannot be subjected to judicial scrutiny at all.”
And on Mahabir Prasad Sharma v. Prafulla Chandra Ghose[20], wherefrom the
Court’s attention was drawn to the following conclusions:
“44. There are other provisions in the Constitution which empower the
Governor to make an appointment to an office. As for example, the power
under Article 165(1) to appoint a person as the Advocate-General of the
State. This power, however, has been conditioned by the restrictions
imposed thereby, namely, that a person can be appointed Advocate-General if
he is qualified to be a Judge of a High Court. If this condition is
violated, and a person is appointed who is not qualified to be a Judge of a
High Court, the appointment can certainly be questioned in writ
proceedings, as was done in the writ petition filed in the Nagpur High
Court. Then again under Article 310(1) various public servants mentioned
therein hold office during the pleasure of the President and a
Governor. Article 310(1) opens with the words: "except as expressly
provided by this Constitution." Article 311 provides for dismissal, removal
or reduction in rank of person employed in civil capacities under the Union
or the States, and the pleasure of the President or the Governor
contemplated by Article 310(1) is conditioned by the limitations prescribed
by Article 311 of the Constitution. If the conditions and the limitations
created by Article 311 are violated in dismissing, removing or reducing in
rank a servant of the Union or a State, the order of the President or the
Governor can be questioned in appropriate proceedings. But there is no such
limitation or condition to the pleasure of the Governor prescribed
by Article 164(1) and it must, therefore, be held that the right of the
Governor to withdraw the pleasure, during which the Ministers hold office,
is absolute and unrestricted. Furthermore having regard to the provisions
in Clause (2) of Article 163 the exercise of the discretion by the Governor
in withdrawing the pleasure cannot be called in question in this
proceedings.”
Reliance was also placed on Constitutional Law of India (Fourth Edition)
Volume II, authored by H.M. Seervai, and the Court’s attention was drawn to
paragraph 18.78 on page 2070 thereof, which is extracted below:
“18.78 As to Brief Note (A), it is submitted that after the Sup. Ct.’s
decision in Samsher Singh’s Case the proposition that the Governor is
required to act in his discretion only by express provision is no longer
good law, for, as we have seen, both the judgments in that case held that
in some cases the Governor had power to act in his discretion as a matter
of necessary implication. Again, the statement that the words “in his
discretion” have the technical meaning given to them under the G.I. Act,
35, is also not good law, for the Sup. Ct. gave those words their plain
natural meaning, namely, that where the Governor acts “in his discretion”
he is not obliged to follow the advice given to him by the Council of
Ministers. The Full Bench did not give weight to the language of Art.
163(2) which postulates that a question might arise whether by or under the
Constitution the Governor is required to act in his discretion; and Art.
163(2) provides an answer by making the Governor the sole and final judge
of that question, and by further providing that no action of the Governor
shall be called in question on the ground that he ought or ought not to
have acted in his discretion. It is submitted that in view of Art. 163(2)
the court had no jurisdiction to decide whether the Governor ought or ought
not to act in his discretion as rightly held by the Calcutta High Court in
M.P. Sharma’s Case (1968) 72 C.W.N. 328. It was unfortunate that this
decision was not cited to, or considered by, the Full Bench. Secondly,
when the petition raised a question whether the Governor acted on the
advice of his Chief Minister and whether such advice was misleading, the
petition raised questions which the court could not inquire into, because
Art. 163(3) provides that “The question whether any, and if so what, advice
was tendered by Ministers to the Governor shall not be inquired into in any
court”.
Based on the two judgments referred to hereinabove, as also, the opinion
expressed by the jurist, it was asserted, that in the facts and
circumstances of the present controversy, since it could not be concluded
or inferred, that the Governor had acted in a wanton manner, it must
necessarily be held, that there was no scope to invoke judicial review, as
against the order of the Governor dated 9.12.2015, as also, the message of
the Governor dated 9.12.2015.
The consideration and the conclusions:
I .
Article 163 of the Constitution
163. “Council of Ministers to aid and advise Governor.-(1) There shall be
a Council of Ministers with the Chief Minister at the head to aid and
advise the Governor in the exercise of his functions, except in so far as
he is by or under this Constitution required to exercise his functions or
any of them in his discretion.
(2) If any question arises whether any matter is or is not a matter as
respects which the Governor is by or under this Constitution required to
act in his discretion, the decision of the Governor in his discretion shall
be final, and the validity of anything done by the Governor shall not be
called in question on the ground that he ought or ought not to have acted
in his discretion.
(3) The question whether any, and if so what, advice was tendered by
Ministers to the Governor shall not be inquired into in any court.”
130. To demonstrate, that the order and message of the Governor dated
9.12.2015 were well within the domain and authority of the Governor,
learned counsel for the respondents were emphatic in pointing out, the
distinction between Article 74 and Article 163. It was pointed out, that
in consonance with Article 74 the Council of Ministers with the Prime
Minister as the head, is to aid and advise the President. And that, the
President is to exercise all his functions in consonance with the advice
tendered to him. It was highlighted, that no discretionary power
whatsoever has been conferred with the President, to enable him to exercise
his functions in his own discretion. At best, the President can require
the Council of Ministers to reconsider the advice tendered to him. And on
such reconsideration, if the position is reiterated, the President is bound
to act in consonance with the desire of the Council of Ministers. In
contrast to the above, even though Article 163 similarly provides, that the
Governor of a State is to exercise his functions in consonance with the aid
and advice tendered to him by the Council of Ministers with the Chief
Minister as the head, yet Article 163(1) confers discretionary power with
the Governor, when it is so expressly mandated by or under the
Constitution. There can therefore be no doubt, that to a limited extent,
Article 163(1) authorizes the Governor to act in his own discretion. And
in that sense, there is a clear distinction between the power vested with
the President, and the power vested with the Governor.
131. According to the respondents, the scope and ambit of the
discretionary power of the Governor, must necessarily be traced from
Article 163(2). It was urged, that even the simple dictionary meaning
assigned to the language adopted in Article 163(2) would reveal, that the
above provision allows the Governor to choose matters on which he needs to
exercise his own discretion. Such choice made by the Governor, according
to learned counsel for the respondents, has been accorded finality, and is
beyond the purview of being questioned. It was clarified, that the
validity of an action taken by the Governor in exercise of his own
discretion, has been assigned a constitutional protection. Inasmuch as,
the same cannot be called in question, even by way of judicial review, on
the ground whether the Governor ought or ought not to have acted in his
discretion. Based on the interpretation emerging from a plain reading of
Article 163, it was asserted on behalf of the respondents, that the order
of the Governor dated 9.12.2015, as well as, his message dated 9.12.2015,
were actions taken by the Governor in his own independent discretion, under
Article 163(2). It was accordingly urged, that the same enjoyed absolute
constitutional immunity/protection, which placed the said order and message
beyond the scope of being questioned.
132. It was also submitted on behalf of the respondents, that there are
judicially recognized situations, wherein the Governor can function without
any aid and advice. These were illustratively referred to, by adverting to
Articles 200, 239(2), 356, 371(2), 371A(1)(b), 371C(1) and 371F(g), as
also, the power vested with the Governor under Paragraph 9 of the Sixth
Schedule. It was also pointed out, that contrary to the plain reading of
Article 163(1), namely, that the Governor can exercise his functions in his
own discretion, only in situations provided for “by or under” the
Constitution, this Court has held, that in certain situations the Governor
can still act in his own discretion (without any aid or advice), even
though the Governor has not been so expressly required to act in his own
discretion. Insofar as the situations where there is no such express
provision, and yet the Governor has been held to be authorized to exercise
the same in his own discretion, reference was made to Article 164,
whereunder the Governor is required to choose the person to be sworn as the
Chief Minister, after fresh elections are held. Similarly, wherein the
Government in power, appears to have lost its majority in the Legislature.
The Governor can require, the party holding the reins of Government, or the
party desirous to form Government, to demonstrate their majority by way of
a floor test. Reference was also made to situations wherein, there is a
conflict of interest between the Council of Ministers on the one hand, and
the issue under consideration on the other. In such matters also, even
though there is no express provision allowing the Governor to act in his
own discretion, this Court has repeatedly declared the right of the
Governor, to act on his own, without any aid and advice.
133. Based on the declared position of law by this Court, it was also
submitted on behalf of the respondents, that where constitutional issues
arise, because of an unacceptable and constitutionally impermissible
conduct of the Government, or in cases of a disputation relating to the
choice of the Chief Minister, or with reference to an undemocratic
resolution of the House, or on account of the democratic process being
otherwise undermined, it is open to the Governor to act on his own, without
any aid and advice. It was urged, that the individual determination of the
Governor, would additionally extend to issues, where propriety required,
that the Governor should discharge his functions in his own discretion.
134. Insofar as the question of judicial review is concerned, it was
submitted, that this Court in the Kesavananda Bharati case17 had recognized
judicial review, as a part of the ‘basic structure’ of the Constitution. It
was also acknowledged, that a series of judgments rendered by this Court
thereafter, have reiterated the above position. It was however submitted,
that a challenge can only be raised under the ‘basic structure doctrine’ to
assail an amended provision of the Constitution. It was contended, that
the aforesaid doctrine is not applicable to the provisions of the original
Constitution. It was emphasized, that Article 163(2), as it presently
exists, is in the same format in which it was originally expressed, by the
framers of the Constitution. It was therefore asserted, that if and when
the Governor exercises his constitutional functions in his own discretion,
the same are protected through a constitutional immunity (postulated
through, sub-article (2) of Article 163), even from judicial review. In
view of the above, it was contended, that this Court should not entertain a
challenge raised by the appellants, to the order of the Governor dated
9.12.2015, and his message dated 9.12.2015, since both were decisions of
the Governor taken under Article 163(2), in his own discretion, without any
aid and advice.
135. Even though the position expressed in the preceding paragraph is
clear and explicit, yet learned counsel representing the respondents, at
his own acceded to one exception to the proposition canvassed by him,
namely, that a determination at the hands of the Governor in his own
discretion, would be subject to judicial review, when it can be shown that
the discretion exercised by the Governor was not bona fide, or not on due
consideration. It was illustratively submitted, that the Governor’s
exercise of discretion, would be open to challenge, where it can be shown
to be perverse, or capricious, or fallacious, or extraneous, or for a
motivated consideration, and in situations of the like nature. Stated
simply, it is conceded, that an order passed by the Governor in exercise of
his own discretion (without any aid or advice) can be successfully
assailed, if it can be shown, that in the discretion exercised by the
Governor, he had acted wantonly, whimsically or arbitrarily.
136. The aforestated submissions at the hands of the learned counsel for
the respondents, though extremely attractive, and seemingly emerging from a
plain reading of Article 163(2), cannot be accepted. The reasons for our
determination are being narrated in the following paragraphs.
137. First of all, it is extremely essential to understand, the nature of
powers and the functions of the Governor, under the provisions of the
Constitution. Insofar as the instant aspect of the matter is concerned, it
is apparent that the Governor has been assigned functions and powers,
concerning the executive and the legislative affairs of the State. The
executive functioning of the States is provided for under Part VI Chapter
II of the Constitution, which includes Articles 153 to 167. Article 154
mandates, that the executive power of the State is vested with the
Governor, and is to be exercised by him either directly or through officers
subordinate to him “in accordance with this Constitution”. Article 163
further warrants, that the Governor would exercise his functions, on the
aid and advice of the Council of Ministers with the Chief Minister as the
head. The above edict is not applicable, in situations where the Governor
is expressly required to exercise his functions, “…by or under this
Constitution…”, “… in his discretion...”. The question that will need
determination at our hands is, whether the underlying cardinal principle,
with reference to the discretionary power of the Governor, is to be traced
from Article 163(1) or from Article 163(2). Whilst it was the contention
of the learned counsel for the appellants, that the same is expressed in
sub-article (1) of Article 163, the contention on behalf of the respondents
was, that the amplitude of the discretionary power of the Governor is
evinced and manifested in sub-article (2) of Article 163. Undoubtedly, all
executive actions of the Government of a State are expressed in the name of
the Governor, under Article 166. That, however, does not per se add to the
functions and powers of the Governor. It is also necessary to appreciate,
that in the discharge of executive functions, the Governor of a State has
the power to grant pardons, reprieves, respites or remissions of
punishments or to suspend, remit or commute sentences (under Article 161).
The Governor’s power under Article 161, is undisputedly exercised on the
aid and advice of the Chief Minister and his Council of Ministers. The
Governor has power to frame rules for the convenient transaction of
executive business of the Government, under Article 166. The instant
responsibility is also discharged, on aid and advice. All in all, it is
apparent, that the Governor is not assigned any significant role in the
executive functioning of the State. We would also endeavour to examine the
duties and responsibilities of the Governor in the legislative functioning
of a State. Details with reference to the same are found incorporated in
Part VI Chapter III of the Constitution, which includes Articles 168 to
212. Even though Article 168 postulates, that the legislature of a State
would comprise of the Governor, yet the Governor is not assigned any
legislative responsibility in any House(s) of the State Legislature,
irrespective of whether it is the legislative process relating to Ordinary
Bills or Money Bills. Article 158 (dealing with the conditions of the
Governor’s office) provides, that the “… Governor shall not be a member of
either House of Parliament or of a House of the Legislature of any State
specified in the First Schedule …”. Insofar as the legislative process is
concerned, the only function vested with the Governor is expressed through
Article 200 which inter alia provides, that a Bill passed by the State
Legislature, is to be presented to the Governor for his assent. And its
ancillary provision, namely, Article 201 wherein a Bill passed by the State
Legislature and presented to the Governor, may be reserved by the Governor
for consideration by the President. The only exception to the non-
participation of the Governor in legislative functions, is postulated under
Article 213 (contained in Part VI Chapter IV of the Constitution), which
apparently vests with the Governor, some legislative power. The Governor
under Article 213 can promulgate Ordinances, during the period when the
House(s) of the State Legislature, is/are not in session. This function is
exercised by the Governor, undisputedly, on the aid and advice of the
Council of Ministers with the Chief Minister as the head. The Governor is
also required to summon the House or Houses of State Legislature, or to
prorogue or dissolve them under Article 174. We shall exclusively deal
with the connotations of the instant responsibility entrusted with the
Governor, immediately after drawing our conclusions with reference to
Article 163. Articles 178 to 187 deal with the officers of the State
Legislature, including the Speaker and the Deputy Speaker, as well as, the
secretariat of the State Legislature. The above Articles are on the
subject of appointment and removal of the Speaker and the Deputy Speaker of
the Legislative Assembly, as also, the Chairman and Deputy Chairman of the
Legislative Council, as well as, other ancillary matters. Whilst Article
179 provides for vacation, resignation and removal of the Speaker (and the
Deputy Speaker) of the Legislative Assembly. Article 183 provides for
vacation, resignation and removal of the Chairman (and the Deputy Chairman)
of the Legislative Council. In neither of the above Articles, the Governor
has any assigned role. The only responsibility allocated to the Governor
under Article 208, is of making rules as to the procedure with respect to
communications between the two Houses of State Legislature. All in all, it
is apparent, that the Governor is not assigned any significant role even in
the legislative functioning of the State.
138. The above position, leaves no room for any doubt, 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.
The interpretation placed on Article 163(2), on behalf of the respondents,
has just that effect, because of the following contentions advanced on
behalf of the respondents. Firstly, whenever a question arises, whether in
discharging a particular function, the Governor can or cannot act in his
own discretion. According to the respondents, the discretion of the
Governor, on the above question, is final. Secondly, since the provision
itself postulates, that “ … the decision of the Governor in his discretion
shall be final, and the validity of anything done by the Governor shall not
be called in question on the ground that he ought or ought not to have
acted in his discretion…”, according to the respondents, makes the
Governor’s orders based on his own discretion, immune from judicial review.
Accepting the above position, will convert the Governor into an all-
pervading super-constitutional authority. This position is not acceptable
because an examination of the executive and legislative functions of the
Governor, from the surrounding provisions of the Constitution clearly
brings out, that the Governor has not been assigned any significant role
either in the executive or the legislative functioning of the State. The
position adopted on behalf of the appellants, on the other hand, augurs
well in an overall harmonious construction of the provisions of the
Constitution. Even on a cursory examination of the relevant provisions of
the Constitution, we are inclined to accept the contention advanced on
behalf of the appellants.
139. In our considered view, a clear answer to the query raised above, can
inter alia emerge from the Constituent Assembly debates with reference to
draft Article 143, which eventually came to be renumbered as Article 163 in
the Constitution. It would be relevant to record, that from the queries
raised by H.V. Kamath, T.T. Krishnamachari, Alladi Krishnaswami Ayyar, and
from the response to the same by Dr. B.R. Ambedkar, it clearly emerges,
that the general principle with reference to the scope and extent of the
discretionary power of the Governor, is provided for through Article
163(1). It also becomes apparent from Article 163(1), which provides for
the principle of ministerial responsibility. The crucial position that
gets clarified from a perusal of the Constituent Assembly debates, arises
from the answer to the query, whether the Governor should have any
discretionary power at all? The debates expound, that the retention of
discretionary power with the Governor was not, in any way, contrary to the
power of responsible Government, nor should the same be assumed as a power
akin to that vested with a Governor under the Government of India Act,
1935. And from that, emerges the answer that the retention and vesting of
discretionary powers with the Governor, should not be taken in the sense of
being contrary to, or having the effect of negating, the powers of
responsible Government. Significantly, with reference to the Governor’s
discretionary powers, it was emphasized by Dr. B.R. Ambedkar, that “the
clause is a very limited clause; it says: ‘except insofar as he is by or
under this Constitution’. Therefore, Article 163 will have to be read in
conjunction with such other Articles which specifically reserve the powers
to the Governor”. “It is not a general clause giving the Governor power to
disregard the advice of his Ministers, in any matter in which he finds he
ought to disregard. There, I think, lies the fallacy of the argument of my
Hon’ble friend…”. In our considered view, the Constituent Assembly
debates, leave no room for any doubt, that the framers of the Constitution
desired to embody the general and basic principle, describing the extent
and scope of the discretionary power of the Governor, in sub-article (1) of
Article 163, and not in sub-article (2) thereof, as suggested by the
learned counsel for the respondents.
140. Insofar as the instant issue is concerned, reference may also be made
to the Justice Sarkaria Commission report on “Centre – State Relations” and
the Justice M.M. Punchhi Commission report on “Constitutional Governance
and Management of Centre – State Relations”. The conclusions drawn in both
the above reports are clear and explicit. In paragraph 4.1.03 of the
Justice M.M. Punchhi Commission report, the observations of Dr. B.R.
Ambedkar have been highlighted to the effect, that insofar as the
constitutional role of the Governor is concerned, “…..the Governor under
the Constitution has no function which he can discharge by himself; no
functions at all. While he has no functions, he has certain duties to
perform, and I think the House will do well to bear in mind this
distinction.”. “..…This Article, nowhere, either in clause (a) or clause
(b) or clause (c), says that the Governor in any particular circumstances
may overrule the Ministry. Therefore, the criticism that has been made that
this Article somehow enables the Governor to interfere or to upset the
decision of the Cabinet is entirely beside the point, and completely
mistaken.” And thereafter, in paragraph 4.2.14 of the Justice M.M. Punchhi
Commission report, it is observed as under:
“4.2.14 In a very limited field, however, the Governor may exercise certain
functions in his discretion, as provided in Article 163(1). The first part
of Article 163(1) requires the Governor to act on the advice of his Council
of Ministers. There is, however, an exception in the latter part of the
clause in regard to matters where he is by or under the Constitution
required to function in his discretion. The expression "required" signifies
that the Governor can exercise his discretionary powers only if there is a
compelling necessity to do so. It has been held that the expression "by or
under the Constitution" means that the necessity to exercise such powers
may arise from any express provision of the Constitution or by necessary
implication. We would like to add that such necessity may also arise from
rules and orders made "under" the Constitution."
4.2.15 Thus, the scope of discretionary powers as provided in the exception
in clause (1) and in clause (2) of Article 163 has been limited by the
clear language of the two clauses. It is an accepted principle that in a
parliamentary democracy with a responsible form of government, the powers
of the Governor as Constitutional or formal head of the State should not be
enlarged at the cost of the real executive, viz. the Council of Ministers.
The scope of discretionary powers has to be strictly construed, effectively
dispelling the apprehension, if any, that the area for the exercise of
discretion covers all or any of the functions to be exercised by the
Governor under the Constitution. In other words, Article 163 does not give
the Governor a general discretionary power to act against or without the
advice of his Council of Ministers. The area for the exercise of his
discretion is limited. Even this limited area, his choice of action should
not be arbitrary or fanciful. It must be a choice dictated by reason,
actuated by good faith and tempered by caution.”
The important observations in the Justice M.M. Punchhi Commission report,
with reference to Article 163(2), are contained in paragraph 4.3.03.
Relevant extract of the same is reproduced below:
“Article 163(2) gives an impression that the Governor has a wide, undefined
area of discretionary powers even outside situations an impression needs to
be dispelled. The Commission is of the view that the scope of discretionary
powers under Article 163(2) has to be narrowly construed, effectively
dispelling the apprehension, if any, that the so-called discretionary
powers extends to all the functions that the Governor is empowered under
the Constitution. Article 163 does not give the Governor 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 and
even in this limited area, his choice of action should not be nor appear to
be arbitrary or fanciful. It must be a choice dictated by reason, activated
by good faith and tempered by caution.
The Governor's discretionary powers are the following: to give assent or
withhold or refer a Bill for Presidential assent under Article 200; the
appointment of the Chief Minister under Article 164; dismissal of a
Government which has lost confidence but refuses to quit, since the Chief
Minister holds office during the pleasure of the Governor; dissolution of
the House under Article 174; Governor's report under Article 356;
Governor's responsibility for certain regions under Article 371-A, 371-C,
371-E, 371-H etc. These aspects are now considered below: …”
We are of the considered view, that the inferences drawn in the Justice
M.M. Punchhi Commission report extracted hereinabove, are in consonance
with the scheme of the functions and powers assigned to the Governor, with
reference to the executive and legislative functioning of the State, and
more particularly with reference to the interpretation of Article 163. We
endorse and adopt the same, as a correct expression of the constitutional
interpretation, with reference to the issue under consideration.
141. Though the debate could be endless, yet we would consider it apposite
to advert to the decisions rendered by this Court in the Sardari Lal case2
and the Samsher Singh case1. Insofar as the Sardari Lal case2 is
concerned, this Court had held therein, that the President or the Governor,
as the case may be, would pass an order only on his personal satisfaction.
In the above case, this Court while examining the case of an employee under
Article 311(2) (more particularly, under proviso (c) thereof), recorded its
conclusions, in the manner expressed above. The same issue was placed
before a seven-Judge Bench constituted to re-examine the position adopted
in the Sardari Lal case2. The position came to be reversed. This Court in
the Samsher Singh case1 declared, that wherever the Constitution required
the satisfaction of the President or the Governor, for the exercise of any
power or function, as for example under Articles 123, 213, 311(2), 317,
352(1), 356 and 360, the satisfaction required by the Constitution was not
the personal satisfaction of the President or the Governor. “… but is the
satisfaction of the President or of the Governor in the constitutional
sense under the Cabinet system of Government …”. It is therefore clear,
that even though the Governor may be authorized to exercise some functions,
under different provisions of the Constitution, the same are required to be
exercised only on the basis of the aid and advice tendered to him under
Article 163, unless the Governor has been expressly authorized, by or under
a constitutional provision, to discharge the concerned function, in his own
discretion.
142. We are therefore of the considered view, that insofar as the exercise
of discretionary powers vested with the Governor is concerned, the same is
limited to situations, wherein a constitutional provision expressly so
provides, that the Governor should act in his own discretion.
Additionally, a Governor can exercise his functions in his own discretion,
in situations where an interpretation of the concerned constitutional
provision, could not be construed otherwise. We therefore hereby reject
the contention advanced on behalf of the respondents, that the Governor has
the freedom to determine when and in which situation, he should take a
decision in his own discretion, without the aid and advice of the Chief
Minister and his Council of Ministers. We accordingly, also turn down the
contention, that whenever the Governor in the discharge of his functions,
takes a decision in his own discretion, the same would be final and
binding, and beyond the purview of judicial review. We are of the view,
that finality expressed in Article 163(2) would apply to functions
exercised by the Governor in his own discretion, as are permissible within
the framework of Article 163(1), and additionally, in situations where the
clear intent underlying a constitutional provision, so requires i.e., where
the exercise of such power on the aid and advice, would run contrary to the
constitutional scheme, or would be contradictory in terms.
143. We may therefore summarise our conclusions as under:
Firstly, the measure of discretionary power of the Governor, is limited to
the scope postulated therefor, under Article 163(1).
Secondly, under Article 163(1) the discretionary power of the Governor
extends to situations, wherein a constitutional provision expressly
requires the Governor to act in his own discretion.
Thirdly, the Governor can additionally discharge functions in his own
discretion, where such intent emerges from a legitimate interpretation of
the concerned provision, and the same cannot be construed otherwise.
Fourthly, in situations where this Court has declared, that the Governor
should exercise the particular function at his own and without any aid or
advice, because of the impermissibility of the other alternative, by reason
of conflict of interest.
Fifthly, the submission advanced on behalf of the respondents, that the
exercise of discretion under Article 163(2) is final and beyond the scope
of judicial review cannot be accepted. Firstly, because we have rejected
the submission advanced by the respondents, that the scope and extent of
discretion vested with the Governor has to be ascertained from Article
163(2), on the basis whereof the submission was canvassed. And secondly,
any discretion exercised beyond the Governor’s jurisdictional authority,
would certainly be subject to judicial review.
Sixthly, in view of the conclusion drawn at Fifthly above, the judgments
rendered in the Mahabir Prasad Sharma case20, and the Pratapsing Raojirao
Rane case12, by the High Courts of Calcutta and Bombay, respectively, do
not lay down the correct legal position. The constitutional position
declared therein, with reference to Article 163(2), is accordingly hereby
set aside.
144. The conclusions recorded hereinabove will constitute the foundational
basis for determining some of the other important issues, that arise for
consideration in the present controversy.
II.
Article 174 of the Constitution
174. “Sessions of the State Legislature, prorogation and dissolution – (1)
The Governor shall from time to time summon the House or each House of the
Legislature of the State to meet at such time and place as he thinks fit,
but six months shall not intervene between its last sitting in one session
and the date appointed for its first sitting in the next session.
(2)The Governor may from time to time –
(a)prorogue the House or either House;
(b)dissolve the Legislative Assembly.”
145. A forceful and determined contention was advanced by the learned
counsel for the respondents, that the process of summoning the Assembly can
never be considered as anti-democratic. It was asserted, that the
summoning a Legislature, can only further the democratic process, as it
opens the House for carrying out legislative activity. As against the
above, it was pointed out, that when the Assembly is prorogued or
dissolved, the democratic/legislative processes are placed in suspended
animation. An action which prorogues or dissolves the Legislature,
according to learned counsel, can be taken to be actions whereby the
democratic/legislative process is either temporarily stalled, or brought to
an end. According to learned counsel for the respondents, there can
therefore be no justification, to find fault with the order of the Governor
dated 9.12.2015, or with his message dated 9.12.2015, by which the
summoning of the 6th session of the Assembly, was preponed from 14.1.2016
to 16.12.2015, and thereby the democratic/legislative process was brought
into active animation, from a date earlier than originally determined.
146. Adverting to the plain reading of Article 174, it was submitted, that
the Governor has not only been vested with the authority to summon the
House, but has also been vested with the authority to determine, at which
venue and at what time, the House should be summoned. For this, reference
was made to the words “as he thinks fit” in Article 174(1), which signify
and imply, that the Governor, would exercise his discretion and power to
summon the Assembly, on his own, and without any aid or advice. It was
contended on behalf of the respondents, by inviting the Court’s attention
to sub-article (2) of Article 174, that even the question of proroguing and
dissolving the House, had been left to the free will and discretion of the
Governor.
147. In connection with the interpretation of Article 174(1) which
pertains to the power of the Governor, to summon the House, it was urged,
that the words “as he thinks fit” satisfy the requirement of Article
163(1), inasmuch as it fulfills the constitutional stipulation, that the
Governor would exercise functions in his discretion, which he is expressly
required, “by or under” the Constitution, to exercise on his own. It was
therefore asserted, that it being clearly and expressly mandated under
Article 174(1) itself, that the Governor could summon the State Legislature
“as he thinks fit” the requirement of Article 163(1) stands satisfied.
148. Yet again, the contention advanced at the hands of the learned
counsel for the respondents, at first blush seems to be most acceptable.
But, the Constituent Assembly debates in connection with Article 174, the
historical background depicting the manner in which Article 174 came to be
drafted, and treatises on the issue, clearly lead to the conclusion, that
the submission advanced at the behest of the respondents, cannot be
accepted. We shall hereinafter, detail our reasons, for not accepting the
respondents’ contention.
149. It would be relevant to mention, that draft Article 153 eventually
came to be renumbered as Article 174 of the Constitution. draft Article
153 has been extracted in paragraph xxx 48 xxx, above. A perusal of the
draft Article 153(2) would reveal, that the same through the words “as he
thinks fit”, vested discretion with the Governor to choose the time and
place at which the House(s) were to be summoned. The above words have been
retained in Article 174. The retention of the said words, would lean in
favour of the submission canvassed on behalf of the respondents. It is
however relevant to notice, that the power to summon the House or Houses of
the State Legislature was postulated under draft Article 153(2)(a), whereas
the power to prorogue and dissolve the House or Houses of the State
Legislature was expressed in draft Articles 153(2)(b) and (c) respectively.
The most significant feature of draft Article 153 was expressed in sub-
article (3) thereof, wherein it was provided, that the functions of the
Governor with reference to sub-clauses (a) and (c), namely, the power to
summon and dissolve the House or Houses of the State Legislature “… shall
be exercised by him in his discretion.” The words used in sub-article (3)
of draft Article 153, were in consonance with the requirements postulated
under Article 163(1). Needless to mention, that under Article 163(1), the
Governor can exercise only such functions in his own discretion which he is
expressly required, by or under the Constitution, to exercise in his
discretion. The manner in which draft Article 153(3) was originally drawn,
would have left no room for any doubt, that the Governor would definitely
have had the discretion to summon or dissolve the House or Houses of the
State Legislature, without any aid or advice. After the debate, draft
Article 153 came to be renumbered as Article 174. Article 174 reveals,
that sub-article (3) contained in draft Article 153 was omitted. The
omission of sub-article (3) of draft Article 153, is a matter of extreme
significance, for a purposeful confirmation of the correct intent
underlying the drafting of Article 174. The only legitimate and rightful
inference, that can be drawn in the final analysis is, that the framers of
the Constitution altered their original contemplation, and consciously
decided not to vest discretion with the Governor, in the matter of
summoning and dissolving the House, or Houses of the State Legislature, by
omitting sub-article (3), which authorized the Governor to summon or
dissolve, the House or Houses of Legislature at his own, by engaging the
words “… shall be exercised by him in his discretion…”. In such view of
the matter, we are satisfied in concluding, that the Governor can summon,
prorogue and dissolve the House, only on the aid and advice of the Council
of Ministers with the Chief Minister as the head. And not at his own.
150. The historical reason relevant for the present determination, emerges
from the fact, that a Governor under the Constitution, is not an elected
representative. A Governor is appointed by a warrant issued under the hand
and seal of the President under Article 155, and his term of office enures
under Article 156, during the pleasure of the President. A Governor is an
executive nominee, and his appointment flows from the aid and advice
tendered by the Council of Ministers with the Prime Minister as the head,
to the President. The President, on receipt of the above advice, appoints
the Governor. Likewise, the tenure of the Governor rightfully subsists,
till it is acceptable to the Council of Ministers with the Prime Minister
as its head, as the Governor under Article 156 holds office, during the
pleasure of the President. In our considered view, such a nominee, cannot
have an overriding authority, over the representatives of the people, who
constitute the House or Houses of the State Legislature (on being duly
elected from their respective constituencies) and/or even the executive
Government functioning under the Council of Ministers with the Chief
Minister as the head. Allowing the Governor to overrule the resolve and
determination of the State legislature or the State executive, would not
harmoniously augur with the strong democratic principles enshrined in the
provisions of the Constitution. Specially so, because the Constitution is
founded on the principle of ministerial responsibility. The acceptance of
the submission advanced on behalf of the respondents, would obviously
negate the concept of responsible Government. Summoning of the
Legislature, initiates the commencement of the legislative process;
prorogation of the Legislature temporarily defers the legislative process;
and the dissolution of the Legislature brings to an end, the legislative
process. In the absence of any legislative responsibility, acceptance of
the contention advanced on behalf of the respondents, would seriously
interfere with the responsibility entrusted to the popular Government,
which operates through the Council of Ministers with the Chief Minister as
the head. It is for the instant reasons also, that the submission advanced
on behalf of the respondents, with reference to the interpretation of
Article 174, does not merit acceptance.
151. For an insight into Article 174, reference may also be made to the
observations recorded in the Justice Sarkaria Commission report on “Centre
– State Relations”, and the Justice M.M. Punchhi Commission report on
“Constitutional Governance and Management of Centre – State Relations”.
With reference to Article 174, the Justice M.M. Punchhi Commission report
makes the following remarks:
“4.5.04 Summoning, proroguing and dissolution of the legislative assembly
Article 174 of the Constitution empowers the Governor to summon, prorogue
or dissolve the House. It is a well-recognised principle that, so long as
the Council of Ministers enjoys the confidence of the Assembly, its advice
in these matters, unless patently unconstitutional must be deemed as
binding on the Governor. It is only where such advice, if acted upon, would
lead to an infringement of a constitutional provision, or where the Council
of Ministers has ceased to enjoy the confidence of the Assembly, that the
question arises whether the Governor may act in the exercise of his
discretion. The Sarkaria Commission recommended that, if the Chief Minister
neglects or refuses to summon the Assembly for holding a "Floor Test", the
Governor should summon the Assembly for the purpose. As regards proroguing
a House of Legislature, the Governor should normally act on the advice of
the Chief Minister. But where the latter advises prorogation when a notice
of no-confidence motion against the Ministry is pending, the Governor
should not straightaway accept the advice. If he finds that the no-
confidence motion represents a legitimate challenge from the Opposition, he
should advice the Chief Minister to postpone prorogation and face the
motion. As far as dissolution of the House is concerned, the Governor is
bound by the decision taken by the Chief Minister who has majority.
However, if the advice is rendered by a Chief Minister who doesn't have
majority, then the Governor can try to see if an alternate government can
be formed and only if that isn't possible, should the house be dissolved.
This Commission reiterates the recommendations of the Sarkaria Commission
in this regard.”
The extract of the report reproduced above, makes it abundantly clear, that
as long as the Council of Ministers enjoys the confidence of the House, the
aid and advice of the Council of Ministers headed by the Chief Minister is
binding on the Governor, on the subject of summoning, proroguing or
dissolving the House or Houses of the State Legislature. The above
position would stand altered, if the Government in power has lost the
confidence of the House. As and when the Chief Minister does not enjoy the
support from the majority of the House, it is open to the Governor to act
at his own, without any aid and advice. Aid and advice sustains and
subsists, till the Government enjoys the confidence of the Legislature. We
find no justification in taking a different view, than the one expressed by
the Justice Sarkaria Commission report, conclusions whereof were reiterated
by the Justice M.M. Punchhi Commission report. We endorse and adopt the
same, as a correct expression of the constitutional interpretation, insofar
as the present issue is concerned.
152. In addition to the above, reference may also be made to the treatise
by M.N Kaul and S.L. Shakdher – “Practice and Procedure of Parliament” (5th
Edition) published by the Lok Sabha Secretariat. In the above text,
Chapter IX bears the heading – “Summoning, Prorogation of the Houses of
Parliament and the Dissolution of the Lok Sabha”. Relevant portion of the
above chapter, has been extracted in paragraph xxx 47 xxx, above. The same
clearly expresses the view of the authors, that the Governor would summon
or prorogue the House or Houses of the State Legislature, on the aid and
advice of the Chief Minister. The narration by the authors reveals, that
it would be open to the Governor to suggest an alternative date for
summoning or proroguing the House or Houses of the State Legislature, but
the final determination on the above issue rests with the Chief Minister or
the Cabinet, which may decide to accept or not to accept, the alternate
date suggested by the Governor. The opinion of M.N Kaul and S.L. Shakdher
is in consonance with the Constituent Assembly debates. The position only
gets altered, when the Government in power loses its majority in the House.
With reference to prorogation, the opinion expressed by the authors is,
that the same is also to be determined by the Council of Ministers with the
Chief Minister as the head, except in a situation wherein the Government’s
majority in the House, is under challenge. From the above exposition it
emerges, that the Chief Minister and his Council of Ministers lose their
right to aid and advise the Governor, to summon or prorogue or dissolve the
House, when the issue of the Government’s support by a majority of the
members of the House, has been rendered debatable. We have no hesitation
in endorsing the above view. But, what is of significance and importance
in the opinion expressed by M.N Kaul and S.L. Shakdher, which needs to be
highlighted is, that the mere fact that some members of the ruling party
have defected, does not necessarily prove that the party has lost
confidence of the House. And in such a situation, if there is a no
confidence motion against the Chief Minister, who instead of facing the
Assembly, advises the Governor to prorogue or dissolve the Assembly, the
Governor need not accept such advice. In the above situation, the Governor
would be well within his right, to ask the Chief Minister to get the
verdict of the Assembly, on the no confidence motion. The above authors
also express the view, that if the Chief Minister recommends dissolution of
the Assembly, when the budget has not been voted, whilst the Ministry
claims majority support, the Ministry in such a situation should face the
Assembly and get the budget passed, before seeking dissolution for whatever
reasons. However, where there is reason to believe, that the Government in
power no longer enjoys majority support, it is open to the Governor, to
take steps to determine the issue of majority by a floor test. And in case
the Government in power fails to succeed in the same, to take steps to
ascertain the possibility of installing another Government, which is in a
position to command majority support, so as to get the budget passed. Not
taking the aforesaid course, would lead to a financial impasse, in which
situation, it would be open to the Governor, to move the President under
Articles 356 or 360. In the instant situation also, M.N Kaul and S.L.
Shakdher have opined, that it would be open to the Governor to act at his
own, without any aid and advice of the Council of Ministers headed by the
Chief Minister. Neither of the aforesaid two situations emerge in the
facts and circumstances of the present case.
153. In view of the consideration recorded hereinabove, we are of the
view, that in ordinary circumstances during the period when the Chief
Minister and his Council of Ministers enjoy the confidence of the majority
of the House, the power vested with the Governor under Article 174, to
summon, prorogue and dissolve the House(s) must be exercised in consonance
with the aid and advice of the Chief Minister and his Council of Ministers.
In the above situation, he is precluded to take an individual call on the
issue at his own will, or in his own discretion. In a situation where the
Governor has reasons to believe, that the Chief Minister and his Council of
Ministers have lost the confidence of the House, it is open to the
Governor, to require the Chief Minister and his Council of Ministers to
prove their majority in the House, by a floor test. Only in a situation,
where the Government in power on the holding of such floor test is seen to
have lost the confidence of the majority, it would be open to the Governor
to exercise the powers vested with him under Article 174 at his own, and
without any aid and advice.
154. Since it is not a matter of dispute, that the Governor never called
for a floor test, it is reasonable for us to infer, that the Governor did
not ever entertain any 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. In the
above situation, the Governor just could not have summoned the House, vide
his order dated 9.12.2015, in his own discretion, by preponing the 6th
session of the Legislative Assembly from 14.1.2016 to 16.12.2015. This,
for the simple reason, that the Governor neither had the jurisdiction nor
the power to do so, without the aid and advice of the Council of Ministers
with the Chief Minister as the head.
III.
Article 175 of the Constitution
175. “Right of Governor to address and send messages to the House or
Houses – (1) The Governor may address the Legislative Assembly or, in the
case of a State having a Legislative Council, either House of the
Legislature of the State, or both Houses assembled together, and may for
that purpose require the attendance of members.
(2) The Governor may send messages to the House or Houses of the
Legislature of the State, whether with respect of a Bill then pending in
the Legislature or otherwise, and a House to which any message is so sent
shall with all convenient despatch consider any matter required by the
message to be taken into consideration.”
155. On the ambit and scope of messages which can be addressed by the
Governor to the House or Houses of State Legislatures under Article 175, it
was submitted on behalf of the respondents, that the same can be with
respect to “… a Bill then pending in the Legislature or otherwise”. Based
on the use of the above expression in Article 175(2), it was asserted on
behalf of the respondents, that the text of the message need not
necessarily be limited to a Bill then pending before the Legislature. It
was submitted, that a message can extend to additional and ancillary
issues, as was apparent from the words “or otherwise” used in conjunction
with the words “with respect to a Bill then pending in the Legislature”.
It was also sought to be clarified, that the power vested with the Governor
to address a message to the House or Houses of the State Legislature,
should not be confused with the power vested with the Governor under
Article 200, which authorizes the Governor inter alia to accord his assent
to a Bill, or to return a Bill (if it is not a Money Bill) together with a
message requesting the House or Houses of the State Legislature to
reconsider the Bill, or any specified provisions thereof, and/or the
desirability of introducing such amendments in the Bill, as the Governor
may recommend in his message. It was submitted, that the power exercised
by the Governor under Article 200, relates to a Bill passed by the State
Legislature, whereas the message referred to in Article 175, is expressly
relatable to a Bill then pending before the State Legislature. It was
pointed out, that the use of the words “or otherwise” in Article 175(2) has
the consequence of extending and enlarging the subject and context on which
a message can be addressed by the Governor, to the State Legislature.
156. It was further submitted on behalf of the respondents, that the
message of the Governor dated 9.12.2015 (which has been impugned by the
appellants before this Court), contained three directions. Firstly, the
Assembly should not be adjourned, till the notice of resolution for the
removal of the Speaker – Nabam Rebia dated 19.11.2015, was finally
determined, one way or the other. Secondly, the notice of resolution for
the removal of the Speaker – Nabam Rebia, should be taken up for
consideration in the list of business of the Assembly, before any other
business of the day is taken up. And thirdly, until the 6th session of the
Assembly was prorogued, the Presiding Officer “shall” not alter the party
composition in the House. Insofar as the directions contained in the
impugned message dated 9.12.2015 are concerned, it was asserted, that the
same merely brought to the notice of the members of the Assembly, the
provisions of the Constitution, supplemented by the ‘Conduct of Business
Rules’, to ensure that the functioning of the House, in a situation of
turmoil and turbulence, was carried out in consonance with established
norms. Insofar as the first direction is concerned, reference was made to
Rule 151 of the ‘Conduct of Business Rules’, which provides, that after a
notice of resolution for the removal of a Speaker is tabled, the House
shall not be adjourned till the motion of no confidence has been finally
disposed of. Insofar as the second direction is concerned, it was pointed
out, that the same is postulated under Rule 153 of the ‘Conduct of Business
Rules’, which provides, that a notice of resolution for the removal of the
Speaker would be included in the list of business, before any other
business of the day is taken up. And insofar as the third direction is
concerned, reference was made to Article 179(c), which provides that a
Speaker may be removed from his office by a resolution of the Assembly “…
passed by a majority of all the then members of the Assembly”. It was
therefore contended on behalf of the respondents, that the alleged
directions contained in the message addressed by the Governor to the
Assembly, dated 9.12.2015, were not matters emerging out of any independent
will or fancy of the Governor, but were in consonance with the prescribed
and postulated rules of procedure, which were in any case bound to be
followed, while considering a notice of resolution for the removal of the
Speaker. It was accordingly asserted, that the impugned message dated
9.12.2015 should be viewed as advice and guidance, tendered by the Governor
to the Assembly, so as to preserve recognized constitutional norms.
157. Based on the assertions recorded hereinabove, it was submitted on
behalf of the respondents, that save and except, the ultimate desire of the
Governor to preserve the democratic process, the impugned message dated
9.12.2015, had no other fallout/consequence, nor was the same aimed at a
gain or loss, for one or the other political party. It was contended, that
no extraneous motive, could be attributed to the Governor, with reference
to the message dated 9.12.2015. It was also urged, that any action taken
by the Assembly, in breach of the message dated 9.12.2015, would have
constituted a serious constitutional impropriety. In conclusion, it was
submitted, that the message dated 9.12.2015, should be taken as a bona
fide gesture at the hands of the Governor, to require the Assembly to carry
out its functions, in the peculiar circumstances which prevailed at that
juncture, in accordance with the provisions of the Constitution. It was
also pointed out, that the message dated 9.12.2015 was addressed by the
Governor, by taking note of the actions of the Speaker, who was
manipulating the situation, so as to defer consideration on the notice of
resolution, for his own removal.
158. We must yet again acknowledge, that the submissions advanced at the
behest of the respondents, emerge from common sense, rationale and
acceptable logic. The question which arises for our consideration, however
is, whether a message addressed by the Governor, could extend to subjects
on which the above message dated 9.12.2015 was addressed. And also
whether, the Governor could address a message to the Assembly in his own
discretion, without seeking the aid and advice of the Chief Minister and
his Council of Ministers. Having given our thoughtful consideration to the
above, it is not possible for us to accept the submissions advanced on
behalf of the respondents. Our reasons for not agreeing with the
respondents are recorded hereinafter.
159. It is not disputed, that Section 63 of the Government of India Act,
1935 was a precursor to Article 175. Section 63 aforementioned has been
extracted in paragraph xxx 50 xxx, herein above. A perusal of Section 63
of the Government of India Act, 1935, reveals that sub-section (2) thereof
had the words “in his discretion”, incorporated therein, with reference to
the scope and ambit of the Governor’s messages, to the Legislature. It is
therefore apparent, that under the Government of India Act, 1935, the
discretion to send messages to the Legislature, was clearly and precisely
bestowed on the Governor, as he may consider appropriate, in his own
wisdom. Article 175 has no such or similar expression. It is apparent
therefore, that the framers of the Constitution did not intend to follow
the regimen, which was prevalent under Section 63 of the Government of
India Act, 1935. It must have been for the above reason, that the
Constituent Assembly framed Article 175, by excluding and omitting the
discretion which was vested with the Governor, in the matter of sending
messages, under the Government of India Act, 1935. Had it been otherwise,
the phrase “in his discretion” would have been retained by the Constituent
Assembly in Article 175. It was also the contention on behalf of the
appellants, that the messages addressed by the Governor should be construed
by accepting, that the Governor is in no manner associated with the
legislative process, except under Article 200. A detailed consideration in
this behalf has already been recorded hereinabove. In our considered view,
the Governor’s connectivity to the House in the matter of sending messages,
must be deemed to be limited to the extent considered appropriate by the
Council of Ministers headed by the Chief Minister. In fact, it is not
possible for us to conclude otherwise, because Article 175 does not
expressly provide, in consonance with Article 163(1), that the Governor
would exercise his above functions “in his discretion”. Thus viewed, we
have no hesitation in concluding, that messages addressed by the Governor
to the House(s) have to be in consonance with the aid and advice tendered
to him.
160. During the course of hearing it emerged, that one of the primary
reasons for addressing the message dated 9.12.2015, was the fact, that a
notice of resolution for the removal of the Speaker – Nabam Rebia, dated
19.11.2015, was addressed by 13 MLAs (-11 belonging to the BJP, and 2
Independent MLAs), to the Secretary of the Legislative Assembly.
Accordingly, in the understanding of the Governor, it would constitute a
constitutional impropriety, if the above notice of resolution for the
removal of the Speaker, was not taken up for consideration forthwith,
namely, immediately after the expiry of 14 days, provided for in the first
proviso under Article 179. Insofar as the instant aspect of the matter is
concerned, whilst we do not doubt the bona fides of the Governor, it cannot
be overlooked that the Governor has no express or implied role under
Article 179 on the subject of “the removal of Speaker or Deputy Speaker”.
The aforesaid issue of removal of the Speaker (or Deputy Speaker), squarely
rests under the jurisdictional authority of the Members of the Legislative
Assembly, who must determine at their own, whether the notice of resolution
for the removal of the Speaker (or the Deputy Speaker) should be adopted or
rejected. In the instant view of the matter, the participatory role at the
hands of the Governor, in the matter concerning the removal of the Speaker,
can neither be understood nor accepted, and may well be considered as
unwarranted.
161. Another important reason, for addressing the message dated 9.12.2015
to the House was, that a petition had been preferred by the Chief Whip of
the Congress Legislature Party – Rajesh Tacho on 7.12.2015, for
disqualification of 14 MLAs belonging to the INC, under the Tenth Schedule.
It was therefore, that the Governor in his message dated 9.12.2015,
ventured to inform the Presiding Officer of the House, that till the 6th
session of the Assembly was prorogued, the party composition of the House
“shall” not be altered. Once again, for exactly the same reasons, as
recorded in the preceding paragraph, it is imperative for us to express,
that the Governor has no role, in the disqualification of members of the
Assembly. The exclusive jurisdiction on the above issue, rests with the
Speaker of the Assembly, under Paragraph 6 of the Tenth Schedule. Whether
the Speaker’s actions fall within the framework of the Constitution, or
otherwise, does not fall within the realm of consideration of the Governor.
The remedy for any wrong doing under the Tenth Schedule, lies by way of
judicial review. Neither the provisions of the Constitution nor the
‘Conduct of Business Rules’ assign any such role to the Governor. It does
not lie within the domain of the Governor, 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
Governor’s messages with reference to such matters (as were expressed in
the message dated 9.12.2015), do not flow from the functions assigned to
him. The Governor cannot likewise interfere in the activities of the
Assembly, for the reason that the Chief Minister, or the entire Council of
Ministers, or an individual Minister in the Cabinet, or for that matter
even an individual MLA, are not functioning in consonance with the
provisions of the Constitution, or in the best interest of the State. 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.
162. In view of the above, we have no hesitation in concluding, that the
messages addressed by the Governor to the Assembly, must abide by the
mandate contained in Article 163(1), namely, that the same can only be
addressed to the State Legislature, on the aid and advice of the Council of
Ministers with the Chief Minister as the head. The message of the Governor
dated 9.12.2015, was therefore beyond the constitutional authority vested
with the Governor.
163. For all the reasons recorded hereinabove, we are of the considered
view, that the impugned message of the Governor dated 9.12.2015 is liable
to be set aside. We order accordingly.
IV.
Article 179 of the Constitution
179. “Vacation and resignation of, and removal from, the offices of
Speaker and Deputy Speaker – A member holding office as Speaker or Deputy
Speaker of an Assembly -
(a) shall vacate his office if he ceases to be a member of the Assembly;
(b) may at any time by writing under his hand addressed, if such member is
the Speaker, to the Deputy Speaker, and if such member is the Deputy
Speaker, to the Speaker, resign his office; and
(c) may be removed from his office by a resolution of the Assembly passed
by a majority of all the then members of the Assembly:
Provided that no resolution for the purpose of clause (c) shall be moved
unless at least fourteen days' notice has been given of the intention to
move the resolution:
Provided further that, whenever the Assembly is dissolved, the Speaker
shall not vacate his office until immediately before the first meeting of
the Assembly after the dissolution.”
164. The deliberations and the discussions recorded hereinabove
substantiate, that even though in terms of Article 154, the executive power
of the State vests in the Governor, and further, the executive power vested
with the Governor would be exercised by him either directly or through
officers subordinate to him “in accordance with this Constitution”, and
further, the mandate contained in Article 166 enjoins, that all executive
actions of the Government of a State are expressed in the name of the
Governor, yet Article 163(1) leaves no room for any doubt, that the
Governor is ordained, to exercise his functions on the aid and advice of
the Council of Ministers with the Chief Minister as the head. Articles
154, 163 and 166 referred to above, are contained in Chapter II of Part VI
of the Constitution, which relate to the State Executive. It is therefore
apparent, that the exercise of executive power by the Governor, is by and
large notional. All in all, the Governor had a limited scope of authority,
relating to the exercise of executive functions, in his own discretion,
i.e., without any aid and advice. The aforesaid limited power of the
Governor is exercisable in situations, expressly provided for “by or under”
the provisions of the Constitution. The position which has briefly been
recorded above, has been examined in some detail in paragraph xxx 139 xxx
of this judgment.
165. Likewise, even though Article 168 includes the Governor, and
pronounces him to be a part of the State Legislature, the provisions of the
Constitution extend no legislative responsibility to him, within the
precincts of the House or Houses of the State Legislature. Article 158
provides, that the “… Governor shall not be a member of either House of
Parliament or of a House of the Legislature of any State specified in the
First Schedule …”. The Governor does not participate in debates within the
Legislature, nor does he have any role in any activity which would result
in the passing of a Bill, on the floor of the House. All in all, the
legislative functionality constitutionally extended to the Governor, is
extremely limited. The role assigned to a Governor in the entire gamut of
the legislative process, is as ascribed under Article 200. Needless to
mention, that when the House or Houses of the State Legislature are not in
session, the Governor has the power to promulgate Ordinances under Article
213. No such legislative power is vested with the Governor, while the
House or Houses of the State Legislature are in session. But even the
power to issue Ordinances, cannot be exercised by the Governor, on his own.
Ordinances can be issued by the Governor, only on the aid and advice of
the Council of Ministers with the Chief Minister as the head. In sum and
substance, the Governor is vested with extremely limited legislative
functions. The position which has been recorded above, has been examined
in some detail in paragraph xxx 139 xxx of this judgment.
166. It also needs to be kept in mind, that the appointment of the
Governor is made under Article 155, not by way of an electoral process, but
by a warrant issued under the hand and seal of the President. The
constitutional Governor, is to hold his office under Article 156, during
the pleasure of the President. Since the President exercises his functions
on the aid and advice of the Prime Minister and his Council of Ministers,
the tenure of the office of the Governor has also to coincide with the aid
and advice of the Prime Minister and his Council of Ministers.
167. It is in the above background, that the ambit and scope of the role
of the Governor requires to be examined, with reference to the issue of
removal of the Speaker (or the Deputy Speaker) under Article 179(c).
Insofar as the issue of the removal of the Speaker is concerned, the same
would depend on the result of the vote, on the notice of resolution for his
removal. If the majority votes in favour of the motion, the resolution is
liable to be adopted. Failing which, it is liable to be rejected. In the
above situation, it is apparent, that neither the Chief Minister, nor the
Council of Ministers, has any determinative role on the subject of removal
of the Speaker (or the Deputy Speaker). Their individual participation is
limited to their individual vote, either in favour or against the motion
for the removal of the Speaker (or the Deputy Speaker). Even the above
bit, is not available to the Governor. The Governor has no role whatsoever
in the removal of the Speaker (or the Deputy Speaker). Therefore, in our
considered view, no role direct or indirect can be assumed by the Governor,
under Article 179(c). The assumption of such a role, and the fulfillment
thereof by addressing a message to the Assembly under Article 175, can only
be ascribed as an ingenuity, without any constitutional sanction. In the
above view of the matter, we are of the opinion, that the impugned message
of the Governor dated 9.12.2015, cannot be endorsed as constitutionally
acceptable.
168. Despite the above, the facts and circumstances of the present case
reveal, that the Governor in his alleged bona fide determination issued the
impugned message dated 9.12.2015, statedly to advise and guide the State
Legislature, to carry out its functions in consonance with the provisions
of the Constitution, and the rules framed under Articles 166 and 208. The
question which arises for adjudication is not, that of the Governor’s bona
fides. The question is of the jurisdictional authority of the Governor, in
the above matter. The Governor has no direct or indirect constitutionally
assigned role, in the matter of removal of the Speaker (or the Deputy
Speaker). The Governor is not the conscience keeper of the Legislative
Assembly, in the matter of removal of the Speaker. He does not participate
in any executive or legislative responsibility, as a marshal. He has no
such role assigned to him, whereby he can 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. The Governor can only perform such functions,
in his own discretion, as are specifically assigned to him “by or under
this Constitution”, within the framework of Article 163(1), and nothing
more. In our final analysis, we are satisfied in concluding, that the
interjects at the hands of the Governor, in the functioning of the State
Legislature, not expressly assigned to him, however bona fide, would be
extraneous and without any constitutional sanction. 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.
169. For all the reasons recorded hereinabove, we are of the considered
view, that the impugned order and message of the Governor dated 9.12.2015
are liable to be set aside. We order accordingly.
V.
Tenth Schedule to the Constitution.
TENTH SCHEDULE
[Articles 102(2) and 191(2)]
“6. Decision on questions as to disqualification on ground of
defection.—(1) If any question arises as to whether a member of a House has
become subject to disqualification under this Schedule, the question shall
be referred for the decision of the Chairman or, as the case may be, the
Speaker of such House and his decision shall be final:
Provided that where the question which has arisen is as to whether the
Chairman or the Speaker of a House has become subject to such
disqualification, the question shall be referred for the decision of such
member of the House as the House may elect in this behalf and his decision
shall be final.
(2) All proceedings under sub-paragraph (1) of this paragraph in relation
to any question as to disqualification of a member of a House under this
Schedule shall be deemed to be proceedings in Parliament within the meaning
of article 122 or, as the case may be, proceedings in the Legislature of a
State within the meaning of article 212.”
170. Paragraph 6 of the Tenth Schedule has been extracted above. It inter
alia postulates, that if a question arises, whether a member of the
Legislative Assembly has become subject to disqualification, the
adjudicatory role for determining the above question, will fall within the
exclusive authority of the Speaker; and in case of a member of the
Legislative Council, solely on the shoulders of the Chairman. Sub-
paragraph (2) of Paragraph 6, by a constitutional fiction, adopts all
proceedings carried out by the Speaker or the Chairman under the Tenth
Schedule, as proceedings of the State Legislature.
171. It is apparent from a perusal of the provisions of the Tenth
Schedule, that no role whatsoever has been assigned to the Governor, in the
matter of removal of a member of the Assembly/Council. In the above view
of the matter, even where a petition is filed for disqualification of one
or more MLAs under the Tenth Schedule, the Governor’s direct or indirect
participation in the same, is impermissible. The role of the Governor in
such matters, would fall beyond the spectrum of constitutional sanction.
Besides the fact that the Governor has no role whatsoever in the
proceedings carried out under the Tenth Schedule, he cannot have any
interest in the outcome of the disqualification proceedings under the Tenth
Schedule. The Governor can, therefore, never be concerned with the
proceedings under the Tenth Schedule, one way or the other. The fictional
assumption, that the proceedings under the Tenth Schedule have a
legislative flavour, and are akin to the proceedings before the State
Legislature, further removes the Governor from any participatory role in
the same. Accordingly, in our considered view, any exercise of authority
by the Governor based on pending proceedings against members of the
Legislative Assembly, under the Tenth Schedule, are clearly beyond his
constitutional authority. An order or message of the Governor, based on an
underlying consideration relatable to pending action(s) of
disqualification, against a member or members of the State Legislature,
would be constitutionally unsustainable. It was acknowledged by both
sides, that the impugned order and message of the Governor dated
9.12.2015, were prompted by the petition filed on 7.12.2015, by the Chief
Whip of the Congress Legislature Party, seeking disqualification of 14 MLAs
belonging to the INC. The above position is also evident from a perusal of
the order and message dated 9.12.2015. In the above view of the matter, it
is obvious, that the order and message were actuated by a constitutionally
impermissible consideration. The same are accordingly liable to be set
aside. We order accordingly.
172. The issue canvassed and answered hereinabove with reference to the
Tenth Schedule, does not fully answer the controversy which has arisen for
consideration before us. The proposition canvassed, also relates to the
propriety of Speaker, in conducting proceedings under the Tenth Schedule,
when his own position as the Speaker of the Legislative Assembly, is under
challenge. After all, this was the real basis of the Governor having
passed the impugned order and message dated 9.12.2015. The challenge to
the Speaker’s position, in the instant case, was based on a notice of
resolution for his removal dated 19.11.2015. The resolution was moved by
13 MLAs (-11 belonging to the BJP, and 2 Independent MLAs). Despite the
above, unmindful of the challenge raised to his own position, the Speaker
went on with the disqualification proceedings initiated by the Chief Whip
of the Congress Legislature Party on 7.12.2015, by issuing a notice to them
on 7.12.2015 itself, seeking their response by 14.12.2015. All the 14 MLAs
aforementioned, were disqualified by an order passed by the Speaker on
15.12.2015, under the Tenth Schedule. Was this action of the Speaker,
justified? Learned counsel for the rival parties, pointedly addressed us
on this issue. We are also of the view, that this issue needs to be
determined in view of the directions which will eventually emerge on the
basis of the consideration recorded hereinabove. A repeat performance of
the earlier process, would bring the parties back to the threshold of this
Court, for the redressal of the same dispute, which is already before us.
173. When the position of a Speaker is under challenge, through a notice
of resolution for his removal, it would “seem” just and appropriate, that
the Speaker first demonstrates his right to continue as such, by winning
support of the majority in the State Legislature. The action of the
Speaker in continuing, with one or more disqualification petitions under
the Tenth Schedule, whilst a notice of resolution for his own removal, from
the office of Speaker is pending, would “appear” to be unfair. If a
Speaker truly and rightfully enjoys support of the majority of the MLAs,
there would be no difficulty whatsoever, to demonstrate the confidence
which the members of the State Legislature, repose in him. The office of
Speaker, with which the Constitution vests the authority to deal with
disqualification petitions against MLAs, must surely be a Speaker who
enjoys confidence of the Assembly. After all, disposal of the motion under
Article 179(c), would take no time at all. As soon as the motion is moved,
on the floor of the House, the decision thereon will emerge, forthwith.
Why would a Speaker who is confident of his majority, fear a floor test?
After his position as Speaker is affirmed, he would assuredly and with
conviction, deal with the disqualification petitions, under the Tenth
Schedule. And, why should a Speaker who is not confident of facing a
motion, for his removal, have the right to adjudicate upon disqualification
petitions, under the Tenth Schedule? The manner in which the matter has
been examined hereinabove, is on ethical considerations. A constitutional
issue, however, must have a constitutional answer. We shall endeavour to
deal with the constitutional connotation of the instant issue, in the
following paragraphs.
174. Just like the other provisions of the Constitution (interpreted by us
hereinabove), it would be apposite to ascertain the desired intent of the
framers of the Constitution, emerging from the Constituent Assembly
debates, with reference to Article 179(c). In the draft Constitution, the
present Article 179 was numbered as draft Article 158. One of the issues
debated, with reference to draft Article 158(c) was, with reference to the
words “all the then members of the Assembly”, used therein. The above
words were used to define, those who would participate in the motion, for
the removal of the Speaker. Needless to mention, that the said words were
retained in the final draft, in Article 179(c). One of the members of the
Constituent Assembly had suggested substitution of the above words, by the
words, “the members of the Assembly present and voting”, as under:
“Mr. Mohd. Tahir: Sir, I beg to move:
"That in clause (c) of article 158, for the words `all the then members of
the Assembly' the words `the members of the Assembly present and voting' be
substituted."
Clause (c) runs as follows:
"(c) may be removed from his office for incapacity or want of confidence by
a resolution of the Assembly passed by a majority of all the then members
of the Assembly."
Sir, so far as I can understand the meaning of the wording, "all the then
members of the Assembly", it includes all the members of the Assembly.
Supposing a House is composed of 300 members then, it will mean all the
members of the Assembly, that is 300. Supposing fifty members of the House
are not present in the House, then, those members will not have the right
to give their votes so far as this question is concerned. Therefore, I
think that it would be better that this matter should be considered by only
those members who are present in the Assembly and who can vote in the
matter. If this phrase "all the then members of the Assembly" means the
members who are present in the Assembly, then, I have no objection. If it
means all the members of which the House is composed, I think it is not
desirable to keep the clause as it stands.
With these few words, I move my amendment.”
The Constituent Assembly debates, do not appear to have recorded any
discussion on the above amendment. The decision on the proposed amendment
was however minuted as under:
“Mr. President: The question is:
"That in clause (c) of article 158, for words ‘all the then members of the
Assembly’ the words ‘the members of the Assembly present and voting' be
substituted."
The amendment was negatived.”
It is apparent, that the Constituent Assembly chose to retain the words,
“all the then members of the Assembly.”, and declined to substitute them
with the words, “the members of the Assembly present and voting”. We are
of the view, that the acceptance of one set of words, and the rejection of
the suggested substitution, would effectively render a constitutional
answer to the issue in hand.
175. Article 179(c) provides, that a Speaker (or Deputy Speaker), “may be
removed from his office by a resolution of the Assembly passed by a
majority of all the then members of the Assembly”. A notice of resolution
for the removal of the Speaker (or the Deputy Speaker) of the Assembly,
would therefore, have to be passed by a majority “of all the then members
of the Assembly”. The words “all the then members” included in Article
179(c), are a conscious adage. If the words “all the then members” are
excluded from clause (c) of Article 179, it would affirm the interpretation
which the appellants, wish us to adopt. The connotation placed by the
appellants, would legitimize the action of the Speaker, in going ahead with
the proceedings under the Tenth Schedule, even though a notice of
resolution for his removal from the office of Speaker was pending. The
words “all the then members” were consciously added to Article 179(c), and
their substitution was not accepted by the Constituent Assembly. We are
satisfied, that the words “passed by a majority of all the then members of
the Assembly”, would prohibit the Speaker from going ahead with the
disqualification proceedings under the Tenth Schedule, as the same would
negate the effect of the words “all the then members”, after the
disqualification of one or more MLAs from the House. The words “all the
then members”, demonstrate an expression of definiteness. 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) is pending, would conflict with the
express mandate of Article 179(c), requiring all “the then members” to
determine the right of the Speaker to continue.
176. It would also be relevant to notice, that the Tenth Schedule was
inserted in the Constitution, by the Constitution (Seventy-third Amendment)
Act, 1992, with effect from 24.4.1993. The purpose sought to be achieved
through the Tenth Schedule, is clear and unambiguous. The same is
unrelated to, and distinct from, the purpose sought to be achieved through
Article 179(c). Neither of the above provisions, can be seen as
conflicting with the other. Both, must therefore freely operate, within
their individual constitutional space. Each of them will have to be
interpreted, in a manner as would serve the object sought to be achieved,
without treading into the constitutional expanse of the other. The
interpretation would have to be such, as would maintain constitutional
purpose and harmony. We would now venture to examine the instant issue
from the above perspective, in the following paragraph.
177. If a Speaker survives the vote, on a motion for his removal from the
office of Speaker, he would still be able to adjudicate upon the
disqualification petitions filed under the Tenth Schedule. The process of
judicial review, cannot alter the above position. But, if a
disqualification petition is accepted by the Speaker, the disqualified MLAs
will have no right to participate in the motion moved against the Speaker
under Article 179(c). A disqualified MLA, as we all know, can assail the
order of his disqualification, by way of judicial review. If he succeeds,
and his disqualification from the House is set aside, such a disqualified
MLA, would be deprived of the opportunity to participate in the motion
against the Speaker, under Article 179(c). In this situation, the process
of judicial review, can also alter the position, if a disqualification
order passed by the Speaker, is set aside by a Court of competent
jurisdiction. In the event of an MLA having been disqualified by the
Speaker, the notice of resolution for the removal of the Speaker, would
surely be dealt with, and will be disposed of, during the period when the
concerned MLA stood disqualified. Alternatively, if an MLA has not been
disqualified when the motion for the removal of the Speaker is taken up, he
would have the right to vote on the motion pertaining to the removal of the
Speaker, whereafter, the petition for his own disqualification would
certainly be considered and decided, by the Speaker. It is apparent, that
the difficulty arises only, if the disqualification petition is taken up
first, and the motion for the removal of the Speaker is taken up
thereafter. The possibility of a disqualification petition being decided
on political considerations, rather than on merits, cannot be ignored. In
fact, that is a real possibility. Therefore, while it will not adversely
affect the Speaker, if he faces the motion of his own removal from the
office of Speaker, before dealing with the disqualification petitions, it
could seriously prejudice MLAs facing disqualification, if petitions for
their disqualification are taken up and dealt with first. The adoption of
the former course, would also result in meaningfully giving effect to the
words “all the then members” used in Article 179(c), as discussed in the
foregoing paragraph. This interpretation would also purposefully give
effect to the rejection of the amendment suggested during the Constituent
Assembly debates, that the motion for removal of the Speaker, should be the
majority of “the members of the Assembly present and voting”. This
interpretation would also result in disregarding the retention of the words
“all the then members of the Assembly”, in Article 179(c). If the Speaker
faces the motion of his own removal first, both the constitutional
provisions would have their independent operational space preserved. None
of the concerned constitutional provisions would interfere with the free
functionality of the other, nor would one usurp the scheme postulated for
the other. We are therefore of the view, that constitutional purpose and
constitutional harmony would be maintained and preserved, if a Speaker
refrains from adjudication of a petition for disqualification under the
Tenth Schedule, whilst his own position, as Speaker, is under challenge.
This would also, allow the two provisions (Article 179(c), and the Tenth
Schedule) to operate in their individual constitutional space, without
encroaching on the other.
178. For the reasons recorded hereinabove, we hereby hold, 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.
VI.
The political imbroglio.
179. The first sequence of facts projected by the appellants, discloses
the alleged discord and dissension amongst MLAs of the ruling INC. It was
suggested, that the Governor having taken charge on 1.6.2015, acted in
support of BJP causes. It would be necessary to record, that in the
60-member Arunachal Pradesh State Legislative Assembly, 47 MLAs had
allegiance to the INC, 11 MLAs to the BJP, and there were 2 Independent
MLAs. It was urged, that MLAs owing allegiance to the INC, had joined up
with non-INC MLAs, to exploit the situation. To harness the rebelling
MLAs, resignation letters were allegedly taken from at least 17 legislators
belonging to the INC. Eventually resignation letters of two MLAs – were
accepted on 6.10.2015, leading to their removal from the House. Efforts
made by the General Secretary AICC, in-charge for North-Eastern States – V.
Narayanasamy, President of the Arunachal Pradesh Congress Committee – Padi
Richo, the Chief Minister – Nabam Tuki and others, to reign in the
dissident MLAs, did not have any positive effect. The dissident MLAs even
addressed letters to the Governor, in furtherance of their objective,
namely, to change the Chief Minister – Nabam Tuki. On 12.10.2015, the
President of the Congress Legislature Party, issued a show cause notice to
19 MLAs of the INC, for indulging in anti-party activities. The same was
repulsed by a press note issued by 21 MLAs of the INC, denouncing the
leadership of the Chief Minister.
180. On 16.11.2015, a notice of resolution for the removal of the Deputy
Speaker – Tenzing Norbu Thongdok, was statedly moved by 16 MLAs belonging
to the INC. The Deputy Speaker, had been elected to the House on an INC
ticket. On 19.11.2015, 13 MLAs (-11 belonging to the BJP, and 2
Independent MLAs), moved a similar notice of resolution for the removal of
the Speaker – Nabam Rebia. On 7.12.2015, the Chief Whip of the Congress
Legislature Party – Rajesh Tacho, filed a petition under the Tenth
Schedule, seeking disqualification of 14 dissident MLAs of the INC,
including the Deputy Speaker – Tenzing Norbu Thongdok, on account of their
anti-party activities.
181. On 9.12.2015, to ensure that the notice for the removal of the
Speaker was taken up for consideration without any delay, the Governor
ordered the preponement of the 6th session of the Assembly earlier
scheduled for 14.1.2016, to 16.12.2015. The above order dated 9.12.2015,
was passed by the Governor, without consulting the Chief Minister and his
Council of Ministers or the Speaker. The Governor additionally required,
that the party composition of the House should not be altered, till the
motion on the above notice, was disposed of. This was done by the Governor
through a message dated 9.12.2015. Through the above message, the Governor
attempted to forestall the proceedings initiated for disqualification of 14
MLAs of the INC, under the Tenth Schedule. The above message dated
9.12.2015, was issued by the Governor, without the aid and advice of the
Chief Minister and his Council of Ministers.
182. On 14.12.2015, the Chief Minister in a Cabinet meeting, resolved that
the order of the Governor dated 9.12.2015 was unconstitutional. And so
also, the message dated 9.12.2015. The Speaker through his letter dated
14.12.2015, brought the above position to the notice of the Governor.
Disregarding the edict of the Governor, the Speaker – Nabam Rebia proceeded
against the 14 MLAs of the INC under the Tenth Schedule on 14.12.2015, and
ordered their disqualification and consequent removal, from the Assembly on
15.12.2015. On the same day – 15.12.2015, the Deputy Speaker – Tenzing
Norbu Thongdok, quashed the order of disqualification of the 14 MLAs of the
INC, including his own disqualification. In the preponed 6th session of
the Assembly held on 16.12.2015, the resolution for the removal of the
Speaker – Nabam Rebia was adopted. All the 14 disqualified MLAs,
participated in the resolution moved against the Speaker. The motion was
passed. Nabam Rebia, ceased to be the Speaker of the State Legislature,
with effect from 16.12.2015.
183. The third sequence of facts projected by the respondents, highlights
a factual dispute between the parties, namely, whether or not a notice of
resolution for the removal of the Deputy Speaker – Tenzing Norbu Thongdok
dated 16.11.2015, had actually been moved by 16 MLAs belonging to the INC.
The instant determination is in addition to the consideration and
conclusion (in paragraph 69, above) recorded by us on the same aspect of
the matter hereinbefore. During the course of hearing of the present
controversy, we examined the material produced before us by the rival
parties, to substantiate the respective assertions. Based on the above
examination, we may record the following:
Firstly, a copy of the above notice dated 16.11.2015 had been called for,
by the Governor through a communication dated 7.12.2015. Associated
information about the date of receipt of the notice, and the action taken
thereon, was also asked for. Even though the associated information was
furnished, yet a copy of the above notice dated 16.11.2015 was not
furnished to the Governor.
Secondly, in the response of the Secretary of the Legislative Assembly
dated 8.12.2015 (addressed to the office of the Governor), it was asserted,
that the notice dated 16.11.2015 was under consideration of the Speaker.
All the same, a copy of the notice for the removal of the Deputy Speaker –
Tenzing Norbu Thongdok, was not forwarded to the Governor.
Thirdly, the Superintendent of Police-cum-ADC to the Governor, visited the
Secretary of the Legislative Assembly, and other officers of the
Secretariat of the Legislative Assembly, on 8.12.2015. He recorded the
entire position in a note dated 8.12.2015. He was informed by the staff,
that the notice of resolution for the removal of the Deputy Speaker dated
16.11.2015, was in a file lying at the official residence of the Speaker –
Nabam Rebia, at Itanagar. The removal of the Deputy Speaker, is to be
dealt with by the Assembly, and not by the Speaker. Accordingly, it was
pointed out on behalf of the respondents, that there was no reason/occasion
for the above file to be at the official residence or custody of the
Speaker.
Fourthly, the Speaker – Nabam Rebia is the appellant before us. He has not
disputed the factual position indicated in the letter of the Secretary of
the Legislative Assembly dated 8.12.2015, or in the note of the
Superintendent of Police-cum-ADC to Governor.
Fifthly, the Speaker – Nabam Rebia did not produce the original of the
notice dated 16.11.2015, when called for by this Court. The stance adopted
by him was, that the same is in the custody of the respondents.
Sixthly, the original notice dated 16.11.2015, was not produced before this
Court, despite the same having been called for.
The appellant – Nabam Rebia, has not produced sufficient material before
this Court to demonstrate, that such a notice was actually issued (or was
ever received by him). We will therefore have to proceed on the
assumption, that no such notice of resolution for the removal of the Deputy
Speaker, was ever issued on 16.11.2015, as alleged. The instant inference
has been drawn by us, for the disposal of the present controversy. The
above factual disputation, is however left open. If such a question arises
again, the rival or concerned parties, will have the liberty to lead
evidence, to enable a Court of competent jurisdiction, to determine the
true factual position, with respect to the issuance of the aforestated
notice of resolution for the removal of the Deputy Speaker – Tenzing Norbu
Thongdok, dated 16.11.2015.
184. The fourth sequence of facts projected by the respondents reveals,
that a notice of resolution for the removal of the Speaker – Nabam Rebia,
was moved on 19.11.2015 by 13 MLAs (– 11 belonging to the BJP, and 2
Independent MLAs). The above event took place, after the 5th session of
the Legislative Assembly was prorogued on 21.10.2015. The Governor had
originally, by his order dated 3.11.2015, summoned the House to meet on
14.1.2016 for the 6th session of the Assembly. After issuing the above
notice of resolution for the removal of the Speaker – Nabam Rebia on
19.11.2015, the concerned 13 MLAs addressed a letter on the same day –
19.11.2015, to the Governor. They sought consideration on the notice,
immediately on the completion of the notice period, provided for in the
first proviso under Article 179(c). In their letter to the Governor, it
was alleged, that the ruling political party did not enjoy confidence and
majority of the House, as its strength had been reduced to 25 out of the 60-
member Legislative Assembly.
185. Immediately on receipt of the above letter dated 19.11.2015, the
Governor sought details about the notice (-dated 19.11.2015) from the
Secretary of the Legislative Assembly, requiring him to confirm the factual
position, through a series of communications dated 27.11.2015, 3.12.2015
and 7.12.2015. While the situation stood thus, the Chief Whip of the INC –
Rajesh Tacho sought disqualification of 14 MLAs (respondent nos. 2 to 15),
belonging to his own political party – the INC, under the Tenth Schedule,
on 7.12.2015. A day thereafter, i.e., on 8.12.2015, the Secretary of the
Legislative Assembly informed the Governor, that a notice of resolution for
the removal of the Speaker – Nabam Rebia, had been received in the
Legislative Assembly on 19.11.2015. On confirmation of the above fact,
that 13 MLAs had actually sought the removal of the Speaker, the Governor
sought legal opinion about the validity and legitimacy of the Speaker
sitting in judgment over the removal of 14 MLAs, even though a notice of
resolution for the removal of the Speaker himself, was pending in the
Assembly. Believing that there was an attempt to subvert the provisions of
the Constitution, the Governor rescheduled the 6th session of the Assembly
by preponing the same to 16.12.2015, by his order dated 9.12.2015.
186. The fifth sequence of facts projected by the respondents highlights,
that a challenge was raised by the appellants, to the order and message of
the Governor dated 9.12.2015, and in respect of other connected issues, by
filing Writ Petition (C) Nos. 7745 of 2015 and 7998 of 2015 (on 17.12.2015
and 22.12.2015, respectively) before the Gauhati High Court. It was
asserted on behalf of the respondents, that appreciation of the actual
facts would establish, that the challenge raised before the High Court
through the above petitions, was not only unfair and unreasonable, but also
illegitimate and constituted a misuse of the jurisdiction of the High
Court. Relying on the communication addressed by and on behalf of the
Speaker – Nabam Rebia and the Chief Minister – Nabam Tuki, it was pointed
out, that their projection through the above letters was, that the order
and message of the Governor dated 9.12.2015 were unconstitutional. MLAs
belonging to the INC who were continuing to extend support to the Chief
Minister had taken a decision, not to allow the House to meet in terms of
the order and message dated 9.12.2015. In fact, the Speaker of the House,
it was pointed out, had addressed a letter to the Home Minister to ensure,
that no individual be allowed to enter the Legislative Assembly building
from 15.12.2015 to 18.12.2015 (- during the entire duration, of the 6th
session of the Legislative Assembly). Not even MLAs duly elected to the
House, were to be allowed entry in the premises of the Legislative
Assembly. A request was also made by the Speaker – Nabam Rebia, for the
deployment of IRBn (Indian Reserve Battalion) and CPMF (Central Para
Military Force) personnel, along with monitoring systems. The respondents
desire us to infer from the above sequence of events, that if those
opposing the validity – legal and constitutional, of the order and message
of the Governor, were certain about their standpoint, they ought to have
sought judicial redress immediately. If they were right, the High Court
would have immediately ordered, course correction. It was submitted, that
all efforts were made to subvert the proceedings of the State Legislature.
Only when they had failed in their illegitimate action, they approached the
High Court on 17.12.2015 and 22.12.2015, by which time, due process had
resulted in the decisions referred to above.
187. The sixth sequence of facts projected by the respondents, was founded
on the prevailing political situation in the State since March/April 2015,
which got worst in September 2015 when 21 MLAs of the INC started to oppose
their own party leadership, by calling for the removal of the Chief
Minister – Nabam Tuki, and for the installation of Kalikho Pul (a former
Finance Minister of the State), in his place. In order to quell the above
dissensions, resignation letters of two MLAs - Wanglam Sawin and Gabriel D.
Wangsu were accepted, as it was felt that this would rein in the others.
The above two MLAs approached the High Court, which stayed the order
accepting their resignations, on 7.10.2015. It was at this juncture, that
the above two MLAs amongst 21 MLAs approached the Governor, on 11.10.2015.
They made complaints against the Chief Minister – Nabam Tuki and the
Speaker – Nabam Rebia, to the Governor. Shortly thereafter on 19.11.2015,
13 MLAs (- 11 from the BJP and 2 Independent MLAs) sought the removal of
the Speaker – Nabam Rebia under Article 179(c). On the same day –
19.11.2015, the above 13 MLAs met the Governor, and sought preponement of
the 6th session of the House.
188. The above sequence of facts, according to learned counsel for the
respondents, and the impressions of the Governor, expressed in his letters
addressed to the President dated 17.10.2015, 19.11.2015 and 1.12.2015
should be visualized together. It was pointed out, that only then, it will
be possible to appreciate the Governor’s thought process, when he issued
the order and message dated 9.12.2015. In the letter dated 17.10.2015, the
Governor informed the President about the growing dissidence amongst the
MLAs of the INC, who seemed to be divided into two groups, one headed by
Nabam Tuki – the Chief Minister, and the other by Kalikho Pul – a former
Finance Minister of the State. The Governor also narrated details of the
acceptance of the resignation letters of two MLAs of the INC, and their
intimation to the Governor, that they had been coerced to resign. The
Governor also disclosed the alleged threats issued by unknown miscreants,
to the two MLAs who had resigned, and to Kalikho Pul. His letter pointed
out, that similar threats were also allegedly extended to members of their
families. In the letter dated 19.11.2015, the Governor informed the
President about the prevailing political complexity, and growing dissidence
amongst MLAs belonging to the INC, including some Ministers. In his
letter, the Governor also narrated the contents of the memorandum issued by
MLAs on 12.11.2015 calling for the removal of the ruling INC Government,
for paving the way for a new regime to take over. And also, the press
statement issued by the Peoples Party of Arunachal, calling upon the
Governor to require the Chief Minister to prove his majority on the floor
of the House, failing which – to step down. In the letter dated 1.12.2015,
the Governor informed the President about the receipt of a memorandum dated
19.11.2015, requiring him to prepone the 6th session of the Assembly. This
request, according to the Governor’s letter, was supported by the Peoples
Party of Arunachal, on the ground that the Government headed by Nabam Tuki,
had completely lost the confidence of the people, and had been reduced to a
minority. A notice of resolution for the removal of the Speaker – Nabam
Rebia dated 19.11.2015 signed by 13 MLAs, as well as, the dissidents within
the MLAs of the INC, was again highlighted.
189. During the course of hearing, learned counsel for the respondents,
had placed reliance on the first, third, fourth, fifth and sixth sequence
of facts, to contend that the political turmoil which prevailed in the
State Legislature was of a nature, which would render seeking advice from
the Council of Ministers and the Chief Minister, purposeless and futile.
It was submitted, that personal interests of constitutional authorities –
the Chief Minister and the Speaker, had brought political volatility, which
was having an adverse effect on the democratic functioning of the State
Legislature. Some of the salient features highlighted to substantiate the
above assertions, may be summarized below:
Firstly, the Chief Minister – Nabam Tuki was not being accepted as the
Leader of the House by at least 21 dissident MLAs, belonging to his own
political party – the INC. In the 60-member State Legislative Assembly,
having 47 MLAs from the INC, with the 21 dissident MLAs from the INC, the
Chief Minister, according to the dissidents, could not have mustered a vote
of confidence.
Secondly, efforts made by the party leadership, including the General
Secretary AICC in-charge for North Eastern States, the President of
Arunachal Pradesh Congress Committee, and other party leaders, could not
rein in the 21 dissident MLAs.
Thirdly, resignation letters were taken from 17 MLAs on 6.10.2015.
Resignation letters of 2 MLAs were accepted. The said 2 MLAs from the INC
- Wanglam Sawin and Gabriel D. Wangsu, alleged that they had been coerced
into resigning from their membership of the Legislative Assembly. The
above two MLAs approached the High Court, which stayed the order of
acceptance of their resignation on 7.10.2015, clearly giving the Governor
the impression, that their assertion of being coerced into resigning from
the membership of the Legislative Assembly, was prima facie correct.
Fourthly, the political turmoil in the Legislative Assembly, was on account
of the complicity between the Chief Minister – Nabam Tuki and the Speaker –
Nabam Rebia. Both were related, and had joined hands to frustrate the
democratic process, to subvert the action of the rival MLAs, aimed at their
removal. The Chief Minister and the Speaker being cousins, were adopting
all sorts of means, in support of one another.
Fifthly, on 12.10.2015, the President of the Congress Legislature Party
issued a show cause notice to 19 MLAs of the INC, for indulging in anti-
party activities. The action was denounced by 21 MLAs of the INC, through
a press note.
Sixthly, a strong impression was created, that a notice of resolution for
the removal of the Deputy Speaker – Tenzing Norbu Thongdok dated 16.11.2015
had been moved by 16 MLAs belonging to the INC. We have already concluded
hereinabove, that the appellants have not been able to produce sufficient
material to establish, that such a notice was ever issued.
Seventhly, on 19.11.2015, 13 MLAs (-11 belonging to the BJP, and 2
Independent MLAs) issued a notice for the removal of the Speaker – Nabam
Rebia. A copy, as also, confirmation of the aforesaid notice sought by the
Governor, was furnished to him by the Secretary of the Legislative
Assembly.
Eighthly, the 13 MLAs who had signed the notice for the removal of the
Speaker, by their letter dated 19.11.2015, sought preponement of the 6th
session of the House, so as to be convened immediately on the completion of
the notice period, provided for, in the first proviso under Article 179(c).
Ninthly, the Governor addressed three communications to the Secretary of
the Legislative Assembly dated 27.11.2015, 3.12.2015, and 7.12.2015,
seeking a copy of the notice of resolution dated 16.11.2015, but the same
was never furnished to him.
Tenthly, the Governor’s letters dated 17.10.2015, 19.11.2015 and 1.12.2015
to the President, depicting the prevailing political turmoil in the State
of Arunachal Pradesh, and highlighting the intra-party dispute between the
MLAs belonging to the INC.
Eleventhly, a meeting of the Congress Legislature Party was held on
3.12.2015. During the said meeting the activities of 21 MLAs of the INC
were discussed, and their anti-party activities were highlighted.
Twelfthly, on 7.12.2015, the Chief Whip of the Congress Legislature Party –
Rajesh Tacho, sought disqualification of 14 MLAs belonging to the INC,
under the Tenth Schedule.
It was further pointed out, that the sequence of facts which transpired
after 9.12.2015 (after the Governor’s order and message, dated 9.12.2015)
reveals, that the inferences drawn by the Governor, about the prevailing
political imbroglio in the Legislative Assembly, had been correctly
appreciated and understood by him. The subsequent events are narrated
hereunder:
Thirteenthly, on 12.12.2015, the Advocate General of the State of Arunachal
Pradesh, on being asked, tendered his opinion with reference to the order
and message of the Governor dated 9.12.2015. As per his opinion, the above
order and message were unconstitutional, and in violation of the ‘Conduct
of Business Rules’.
Fourteenthly, a Cabinet meeting was held on 14.12.2015, wherein, based on
the opinion of the Advocate General, the Cabinet resolved, that the order
of the Governor dated 9.12.2015 was contrary to Article 174 read with
Article 163 and Rule 3 of the ‘Conduct of Business Rules’. And also, that
the message of the Governor dated 9.12.2015 was contrary to Article 175 and
Rule 245 of the ‘Conduct of Business Rules’.
Fifteenthly, the Secretary of the Legislative Assembly wrote a letter to
the Governor dated 14.12.2015, indicating that Article 174 did not
contemplate preponement or postponement of an Assembly session, without
consultation with the Government and the Speaker. A reference was also
made to Article 175, so as to point out, that a message can be addressed by
the Governor, only when the House is in session.
Sixteenthly, the Officer-on-Special Duty to the Chief Minister addressed a
letter dated 14.12.2015 on behalf of the Chief Minister and his Council of
Ministers and some other MLAs, requesting for a meeting with the Governor.
Nine Ministers including the Chief Minister met the Governor on
15.12.2015, and allegedly committed acts of serious misbehaviour, at the
office/residence of the Governor, details whereof were disclosed by the
Governor to the High Court, through I.A. No.29 of 2016.
Seventeenthly, on 14.12.2015, a Cabinet meeting was held, wherein a
resolution was passed by the Council of Ministers and the Chief Minister,
requesting the Governor to recall and cancel, the order and message dated
9.12.2015, and allow the session to be convened on 14.1.2016, as earlier
scheduled.
Eighteenthly, the Speaker – Nabam Rebia, through a communication dated
14.12.2015, requested the Minister (Home) – Tanga Byaling, to provide
foolproof security, in and around the Legislative Assembly building, from
15.12.2015 to 18.12.2015, and to ensure that no individual including MLAs,
enter the Assembly building, during the above period.
Nineteenthly, on 15.12.2016, the Speaker – Nabam Rebia, disqualified 14
members of the Assembly belonging to the INC, including the Deputy Speaker
– Tenzing Norbu Thongdok.
Twentiethly, the Deputy Speaker on 15.12.2015 itself, set aside the
disqualification order (-dated 15.12.2016), including his own
disqualification order.
Twenty-firstly, the notice of resolution for the removal of the Speaker –
Nabam Rebia, was taken up for consideration as the first item, in the
agenda of the Assembly on 16.12.2015. The resolution was adopted resulting
in the removal of Nabam Rebia, from the office of Speaker.
Twenty-secondly, during the course of the proceedings of the House held on
17.12.2015, the Government headed by the Chief Minister – Nabam Tuki, was
declared as having lost confidence of the Legislative Assembly. Kalikho
Pul, another INC MLA, was chosen to replace the Chief Minister.
190. Premised on the aforesaid factual position, it was asserted on behalf
of the respondents, that it was wholly unjustified for the Governor to
remain silent. It was submitted that the prevailing situation called for
immediate redressal, so as to preserve the democratic process in the State
Legislature, and more particularly, to prevent high constitutional
functionaries including the Chief Minister, the Speaker, and Cabinet
Ministers, from acting with constitutional impropriety.
191. We have given our thoughtful consideration to the submissions
advanced at the hands of the learned counsel for the respondents. We shall
now endeavour to deal with the position highlighted through the factual
narration summarized above. It is apparent from the discussion and
reflection recorded by us, that a Governor of a State, has clearly defined
duties, functions and responsibilities. The parameters of the Governor’s
powers with reference to Articles 163, 174, 175, 179 and the Tenth
Schedule, have been dealt with by us hereinabove, and need not be repeated.
We are of the view, 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 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 provisions of the
Constitution do not enjoin upon the Governor, the authority to resolve
disputes within a political party, or between rival political parties. The
action of the Governor, in bringing the aforesaid factual position to the
notice of the President, in his monthly communications, may well have been
justified for drawing the President’s attention to the political scenario
of the State. But, it is clearly beyond the scope of the Governor’s
authority, to engage through his constitutional position, and exercise his
constitutional authority, to resolve the same.
192. It is open to the Governor to take into consideration, views of a
breakaway group. Under Paragraph 4 of the Tenth Schedule, legitimacy is
bestowed on a breakaway group which comprises of not less than two thirds
of the members of the concerned legislature party. In the present case,
the breakaway group belonging to the ruling INC comprised of 21 members,
whereas the INC had 47 MLAs in the prevailing 60-member Legislative
Assembly. 21 MLAs belonging to the INC did not constitute a legitimate and
recognizable breakaway group. The Governor could not in support of the
protests and assertions of an invalid breakaway group, adopt a
constitutional course, recourse whereof could be taken only in case of a
constitutional crisis. As for instance, when the Government is seen to
have lost the confidence of the House. It has never been the position of
the Governor, that the Chief Minister – Nabam Tuki, had lost the confidence
of the House. Nor, that the INC could not sustain its majority in the
Assembly. Had that been the position, the Governor would have called for a
floor test. Admittedly, the Governor never called for a floor test, nor
did he ever require the Chief Minister to establish his majority in the
House. The Governor’s actions, based on feuds and wrangles of a breakaway
group, which is not recognized under the Tenth Schedule, cannot be
constitutionally condescended.
193. The Governor has no role whatsoever, in the removal of the Speaker
(or the Deputy Speaker) under Article 179. The question of adoption or
rejection of a notice of resolution, for the removal of the Speaker, is to
be determined by the legislators. If the resolution for the Speaker’s
removal is supported by a simple majority of the members of the House, the
motion has to be adopted, and the Speaker has to be removed. Failing which,
the motion has to be rejected. Any action taken by the Governor, based on
disputations, with reference to activities in which he has no role to play,
is liable to be considered as extraneous. It is not for the Governor to
schedule the functioning of the Assembly. It is also not in the Governor’s
domain, to schedule the agenda of the House. The Governor has no role with
reference to the ongoings in the Assembly. The Governor must keep away,
from all that goes on, within the House.
194. As long as the democratic process in the Assembly functions through a
Government, which has the support of the majority, there can be no
interference at the behest of the Governor. A constitutional failure as
contemplated under Article 356, is quite another matter. So also, a
constitutional failure under Article 360. Herein, the Governor has not
treaded the procedure postulated for a constitutional breakdown.
195. There is no justification for a Governor to be disturbed about
proceedings in connection with the disqualification of MLAs under the Tenth
Schedule. Because, the Governor has no role therein. Even the Chief
Minister and his Council of Ministers, have no concern with the
disqualification proceedings contemplated under the Tenth Schedule.
Therefore, the legitimacy or illegitimacy thereof, is beyond consideration
of the Governor. That being the constitutional position, there can be no
justification in the Governor initiating action, based on proceedings
commenced against MLAs, under the Tenth Schedule. Any action taken by the
Governor, based on the proceedings being carried on under the Tenth
Schedule, would be a constitutional impropriety. It is open to individual
MLAs, against whom disqualification proceedings are taken (or who have been
disqualified, and consequently have lost their membership of the House), to
seek judicial review thereof. The fact that 14 MLAs who were disqualified
by the Speaker – Nabam Rebia, on 15.12.2015, had approached the Gauhati
High Court, which had stayed the order of their disqualification,
demonstrates that there are appropriate remedies in place. The Governor
need not worry about, or involve himself in, issues which are within the
realm of other constitutional authorities. The Indian Constitution
provides for checks and balances, and a regime of redressal, for all
situations.
The decision:
196. Based on the consideration and the conclusions recorded hereinabove,
it is inevitable to conclude as under:
(i) The order of the Governor dated 9.12.2015 preponing the 6th session
of the Arunachal Pradesh Legislative Assembly, from 14.1.2016, to
16.12.2015 is violative of Article 163 read with Article 174 of the
Constitution of India, and as such, is liable to be quashed. The same is
accordingly hereby quashed.
(ii) The message of the Governor dated 9.12.2015, directing the manner of
conducting proceedings during the 6th session of the Arunachal Pradesh
Legislative Assembly, from 16.12.2015 to 18.12.2015, is violative of
Article 163 read with Article 175 of the Constitution of India, and as
such, is liable to be quashed. The same is accordingly hereby quashed.
(iii) All steps and decisions taken by the Arunachal Pradesh Legislative
Assembly, pursuant to the Governor’s order and message dated 9.12.2015, are
unsustainable in view of the decisions at (i) and (ii) above. The same are
accordingly set aside.
(iv) In view of the decisions at (i) to (iii) above, the status quo ante
as it prevailed on 15.12.2015, is ordered to be restored.
…………………………………………………J.
(Jagdish Singh Khehar)
…………………………………………………J.
(Pinaki Chandra Ghose)
…………………………………………………J.
(N.V. Ramana)
Note: Emphases supplied in all the quotations extracted above, are ours.
New Delhi;
July 13, 2016.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 6203-6204 OF 2016
(@ SPECIAL LEAVE PETITION (CIVIL) NOS. 1259-1260 OF 2016)
NABAM REBIA AND BAMANG FELIX …Appellant(s)
Versus
DEPUTY SPEAKER AND ORS. …Respondent(s)
J U D G M E N T
Dipak Misra, J.
I respectfully concur with the views expressed on each of the aspects
by my respected learned brother Khehar, J. However, I intend to add
something pertaining to the interpretation of Article 179(c) of the
Constitution of India especially in the context of the Tenth Schedule to
the Constitution.
2. Article 179(a) postulates that a Speaker or a Deputy Speaker of the
Assembly shall vacate his office if he ceases to be a member of the
Assembly. Article 179(b) deals with resignation from the office. In the
case at hand, neither clause (a) nor clause (b) of Article 179 is
attracted. In the obtaining fact situation, the controversy pertains
singularly to the understanding of clause (c).
3. Article 179 reads as follows:-
“179. A member holding office as Speaker or Deputy Speaker of an Assembly?
shall vacate his office if he ceases to be a member of the Assembly;
(b) may at any time by writing under his hand addressed, if such member is
the Speaker, to the Deputy Speaker, and if such member is the Deputy
Speaker, to the Speaker, resign his office; and
(c) may be removed from his office by a resolution of the Assembly passed
by a majority of all the then members of the Assembly:
Provided that no resolution for the purpose of clause (c) shall be
moved unless at least fourteen days’ notice has been given of the intention
to move the resolution.
Provided further that, whenever the Assembly is dissolved, the
Speaker shall not vacate his office until immediately before the first
meeting of the Assembly after the dissolution.”
[underlining by me]
Be it immediately clarified, we are not concerned with the second
proviso.
4. The thrust of the matter is what interpretation is to be placed on
Article 179(c) and the first proviso, being diligently and respectfully
adherent to the norms of the constitutional interpretation. I may state
with quite promptitude the purpose of adherence should not convey that I am
confined to any kind of static principle but the principles that flow from
our organic, vibrant, flexible, inclusive and compassionate Constitution.
There are precedential guides and, if I allow myself to say, constitutional
precepts those serve as light posts without causing any violence even
remotely, to the language employed in the Constitution.
5. In State of Karnataka v. Union of India and another[21] Beg, C.J.
posed the question with regard to understanding of special rules relating
to the construction of Constitution in general or of our Constitution in
particular. In that context, the learned Chief Justice spoke thus:-
“83. A written Constitution, like any other enactment, is embodied in a
document. There are certain general rules of interpretation and
construction of all documents which, no doubt, apply to the Constitution as
well. Nevertheless, the nature of a Constitution of a sovereign Republic,
which is meant to endure and stand the test of time, the strains and
stresses of changing circumstances, to govern the exercise of all
governmental powers, continuously, and to determine the destiny of a
nation, could be said to require a special approach so that judicial
intervention does not unduly thwart the march of the nation towards the
goals it has set before itself.
x x x x x
85. Although, a written Constitution, which is always embodied in a
document, must necessarily be subject to the basic canons of construction
of documents, yet, its very nature as the embodiment of the fundamental law
of the land, which has to be adapted to the changing needs of a nation,
makes it imperative for Courts to determine the meanings of its parts in
keeping with its broad and basic purposes and objectives. This approach
seems to flow from what may be called a basic principle of construction of
documents of this type; that the paramount or predominant objects and
purposes, evident from the contents, must prevail over lesser ones
obscurely embedded here and there. The Constitutional document, in other
words, must be read as a whole and construed in keeping with its declared
objects and its functions. The dynamic needs of the nation, which a
Constitution must fulfil, leave no room for merely pedantic hairsplitting
play with words or semantic quibblings. This, however, does not mean that
the Courts, acting under the guise of a judicial power, which certainly
extends to even making the Constitution, in the sense that they may
supplement it in those parts of it where the letter of the Constitution is
silent or may leave room for its development by either ordinary legislation
or judicial interpretation, can actually nullify, defeat, or distort the
reasonably clear meaning of any part of the Constitution in order to give
expression to some theories of their own about the broad or basic scheme of
the Constitution.
86. The theory behind the Constitution which can be taken into account for
purposes of interpretation, by going even so far as to fill what have been
called the “interstices” or spaces left unfilled, due perhaps to some
deliberate vagueness or indefiniteness in the letter of the Constitution,
must itself be gathered from express provisions of the Constitution. The
dubiousness of expressions used may be cured by Courts by making their
meanings clear and definite if necessary in the light of the broad and
basic purposes set before themselves by the Constitution-makers. And, these
meanings may, in keeping with the objectives or ends which the Constitution
of every nation must serve, change with changing requirements of the times.
The power of judicial interpretation, even if it includes what, may be
termed as “intersticial” law making, cannot extend to direct conflict with
express provisions of the Constitution or to ruling them out of existence.”
[emphasis added]
The aforesaid paragraphs clearly convey that judicial interpretation
cannot nullify, defeat or distort a constitutional provision or the
interpretative process cannot be in direct conflict with the express
provision of the Constitution. However, the learned Chief Justice has
observed that constitutional document has to be read a whole and construed
keeping in view the declared objects and functions. In the said judgment,
a distinction has been drawn between “the constitutional law” or “the
fundamental law” and other laws which may be important to constitutional
matters. I think it appropriate to reproduce the said passage:-
“… The “fundamental distinction” between “the constitutional law” or “the
fundamental law” and the ordinary laws, referred to there, was meant to
bring out only this difference in the uses made of laws which, being
“fundamental”, can test the validity of all other laws on a lower normative
level and these other laws which are so tested. In that very special or
restricted sense, the law not found in “the Constitution” could not be
“constitutional,” or “fundamental” law… .”
6. In S.R. Chaudhuri v. State of Punjab and others[22], a three-Judge
Bench while dwelling upon the manner in which the constitutional provisions
are to be interpreted had observed thus:-
“Constitutional provisions are required to be understood and interpreted
with an object-oriented approach. A Constitution must not be construed in a
narrow and pedantic sense. The words used may be general in terms but,
their full import and true meaning, has to be appreciated considering the
true context in which the same are used and the purpose which they seek to
achieve.”
And, again:-
“It is a settled position that debates in the Constituent Assembly may be
relied upon as an aid to interpret a constitutional provision because it is
the function of the court to find out the intention of the framers of the
Constitution. We must remember that a Constitution is not just a document
in solemn form, but a living framework for the Government of the people
exhibiting a sufficient degree of cohesion and its successful working
depends upon the democratic spirit underlying it being respected in letter
and in spirit…”
7. In this regard, I think it apt to reproduce a passage from the
Constitution Bench decision in M. Nagaraj and others v. Union of India and
others[23] :-
“The Constitution is not an ephemeral legal document embodying a set of
legal rules for the passing hour. It sets out principles for an expanding
future and is intended to endure for ages to come and consequently to be
adapted to the various crises of human affairs. Therefore, a purposive
rather than a strict literal approach to the interpretation should be
adopted. A constitutional provision must be construed not in a narrow and
constricted sense but in a wide and liberal manner so as to anticipate and
take account of changing conditions and purposes so that a constitutional
provision does not get fossilised but remains flexible enough to meet the
newly emerging problems and challenges.”
[emphasis supplied]
8. I have referred to the aforesaid pronouncements as they have laid
down the guidelines for understanding the text, context, the words and the
purpose of a constitutional provision. Emphasis is on flexibility,
adaptability and durability, and also not to import or implant an
interpretation which would be in conflict with the express language of the
Constitution.
9. Having perceived the guidance from the precedents and keeping in view
the cohesive constitutional precepts, I shall proceed to analyse the
language employed in Article 179(c). Prior to that, I think it condign to
dwell upon the importance of the office of the Speaker. There is no shadow
of doubt in my mind that to appreciate the significance of the provision,
namely, Article 179(c), in the context of constitutional supremacy and
constitutional consciousness, it is necessary to understand the position of
the Speaker in the Constitution. Office of the Speaker in our history had
its origin in 1921 when the Central Legislative Assembly was constituted
under the Montague-Chelmsford reforms. At that time, office of the Speaker
did not enjoy much importance. But, a significant one, after the
Constitution came into force, as is evident from the constitutional scheme
of ours, the Speaker enjoys high constitutional status and the Constitution
reposes immense faith in him. For this reason alone, the Speaker is
expected to have a sense of elevated independence, impeccable objectivity
and irreproachable fairness, and above all absolute impartiality. This
expectation is the constitutional warrant; not a fond hope and expectation
of any individual or group.
10. The Speaker has the duty to see that business of the House is carried
out in a decorous and disciplined manner. This functioning requires him to
have unimpeachable faith in the intrinsic marrows of the Constitution,
constitutionalism and, “Rule of Law”. The faith, needless to emphasise,
should be a visible and apparent one. That is why, possibly, former
Speaker of the House of Commons of the United Kingdom, Baroness
Boothroyd[24], stated:-
“When you have been committed all your adult life to the ideals and
policies of one party, impartiality is a quality that you have to work at.
But if you cannot put aside partisanship you have no right to even think of
becoming Speaker.”
I have referred to the aforesaid only to stress upon the impartial
functioning and the constitutional neutrality of the Speaker.
11. The expression can be different if one wishes to choose the metaphor
of the ancients. The ancient wisdom would require the Speaker to abandon
his “purbashrama” and get wedded to “parashrama”. To elucidate, a Speaker
has to constantly remain in company with the cherished values of
incarnation of his office and not deviate even slightly from the
constitutional conscience and philosophy. His detachment has to have
perceptibility.
12. For apposite appreciation, I may refer to the Constitutional Assembly
debates. The position of the Speaker being different, the procedure for
removal is different and, the debate in the Constituent Assembly is
indicative of the same:-
To quote:-
“Mr. Mohd. Tahir: Sir, I beg to move:
“That in clause (c) of article 158, for the words ‘all the then members of
the Assembly’ the words ‘the members of the Assembly present and voting’ be
substituted.”
Clause (c) runs as follows:
“(c) may be removed from his office for incapacity or want of confidence by
a resolution of the Assembly passed by a majority of all the then members
of the Assembly”.
Sir, so far as I can understand the meaning of the wording, “all the then
members of the Assembly”, it includes all the members of the Assembly.
Supposing a House is composed of 300 members then, it will mean all the
members of the Assembly, that is 300. Supposing fifty members of the House
are not present in the House, then, those members will not have the right
to give their votes so far as this question is concerned. Therefore, I
think that it would be better that this matter should be considered by only
those members who are present in the Assembly and who can vote in the
matter. If this phrase “all the then members of the Assembly” means the
members who are present in the Assembly, then, I have no objection. If it
means all the members of which the House is composed, I think it is not
desirable to keep the clause as it stands.
With these few words, I move my amendment”.
“Mr. President: The question is :
“That in clause (c) of article 158, for words ‘all the then members of the
Assembly’ the words ‘the members of the Assembly present and voting’ be
substituted.”
The amendment was negatived.”
The factum of negativing the proposed amendment has to be appreciated
keeping in mind the wisdom of the founding fathers.
13. Presently to the anatomy of Article 179(c). The said provision lays
focus on two aspects, namely, (i) resolution of the Assembly, and (ii) the
resolution to be passed by a majority of all the then members of the
Assembly. The first proviso commands that no resolution for the purpose of
clause (c) shall be moved unless fourteen days' notice has been given of
the intention to move the resolution. The fourteen days' time as mandated
by the constitutional provision gives protection to the Speaker. It has a
salutary purpose. The Founding Fathers of the Constitution had thought it
appropriate that a resolution to be moved for removal of the Speaker is a
matter of grave constitutional consequence and, therefore, the “intention
to move the resolution”, has to precede the act of moving of the
resolution. Be it stated that the Rules are framed under Article 208 of
the Constitution for regulating the procedure of a House of the Legislature
of a State and the conduct of its business and said procedures prescribe
the manner of expressing the intention to move the resolution.
14. While prescribing a resolution to be passed by the majority, the
framers of the Constitution have also provided for “all the then members of
the Assembly”. It indicates the intention of the Founding Fathers that
“all the then members of the Assembly” have to be regarded as to be the
actual or real figure. A hypothetical argument may be advanced that if a
member dies within the prescribed period of 14 days, it may lead to an
absurd situation. Similarly, the issue of resignation may arise or some
may stand convicted and thereby become disqualified. Death or resignation
has to be kept in a different realm.
15. The fulcrum of the controversy is “disqualification”. Different
disqualifications find mention under Article 191(1) of the Constitution.
These contingencies are quite different than the situation enshrined under
Article 191(2) which has been inserted by the Constitution (Fifty-second
Amendment) Act, 1985. The said sub-Article specifically refers to
disqualification under the Tenth Schedule. Article 191, after the
amendment, reads as follows:-
“191. Disqualifications for membership
(1) A person shall be disqualified for being chosen as, and for being, a
member of the Legislative Assembly or Legislative Council of a State –
(a) if he holds any office of profit under the Government of India or the
Government of any State specified in the First Schedule, other than an
office declared by the Legislature of the State by law not to disqualify
its holder;
(b) if he is of unsound mind and stands so declared by a competent court;
(c) if he is an undischarged insolvent;
(d) if he is not a citizen of India, or has voluntarily acquired the
citizenship of a foreign State, or is under any acknowledgement of
allegiance or adherence to a foreign State;
(e) if he is so disqualified by or under any law made by Parliament.
Explanation – For the purposes of this clause, a person shall not be deemed
to hold an office of profit under the Government of India or the Government
of any State specified in the First Schedule by reason only that he is a
Minister either for the Union or for such State.
(2) A person shall be disqualified for being a member of the Legislative
Assembly or Legislative Council of a State if he is so disqualified under
the Tenth Schedule”.
Article 191(2) stipulates that a person shall be disqualified for being a
member of the Legislative Assembly or Legislative Council of a State, if he
is so disqualified under the Tenth Schedule. It is absolutely different
than what has been envisaged under Article 191(1). Tenth Schedule pertains
to disqualification on ground of defection. Paragraph 2 of the Tenth
Schedule deals with decision on questions as to disqualification on ground
of defection. The said paragraph is as follows:-
“6. Decision on questions as to disqualification on ground of defection.-
(1) If any question arises as to whether a member of a House has become
subject to disqualification under this Schedule, the question shall be
referred for the decision of the Chairman or, as the case may be, the
Speaker of such House and his decision shall be final:
Provided that where the question which has arisen is as to whether
the Chairman or the Speaker of a House has become subject to such
disqualification, the question shall be referred for the decision of such
member of the House as the House may elect in this behalf and his decision
shall be final.
(2) All proceedings under sub-paragraph (1) of this paragraph in relation
to any question as to disqualification of a member of a House under this
Schedule shall be deemed to be proceedings in Parliament within the meaning
of Article 122 or, as the case may be, proceedings in the Legislature of a
State within the meaning of Article 212.”
16. Paragraph 8 enables the Chairman or the Speaker of a House to make
rules for giving effect to the provisions of the Tenth Schedule. The power
conferred on the Speaker under the Tenth Schedule is enormous. It is not
to be forgotten that the Constitution of India is a controlled
constitution. It provides for checks and balances. Some are fundamentally
inherent. Founding Fathers had desired, as the debate would reflect, the
Speaker can be removed by the resolution passed by majority of all the then
members and not by the majority of the members present and voting. It is to
borne in mind that at the time of framing of the Constitution the Tenth
Schedule was not in existence in the Constitution. Certain grounds were
mentioned in the Constitution itself and it has also been provided that if
a person is disqualified by or under any law made by the Parliament.
Therefore, it is necessary to sustain the elevated position the Speaker
constitutionally enjoys and also have room for constitutional propriety.
There can be myriad situations in a democracy. The Constitution, as an
organic instrument, has to be interpreted to meet all exigencies. It has
to have flexibility. Assuming the requisite members express their intention
to move the resolution for removal of the Speaker from the office and
immediately the Speaker on a complaint initiates action under the Tenth
Schedule, and as the resolution against the Speaker cannot be moved unless
14 days’ notice period expires, the members can be disqualified within the
said period and the Speaker would gain an advantage. Thus, it can result in
a situation of constitutional conflict, that is, the conflict between the
status of the Speaker conferred by the Constitution and the position he has
been given after the constitutional amendment. The final arbiters have
trusted him regard being had to his constitutional status. It is the
“constitutional trust”. Therefore, there should be perceptibility of
absence of conflict. That apart, it will not be in harmony with Article
179(c) or the constitutional norm. It would also cause discord with the
language employed in the said Article. The founding fathers had
deliberately retained the words “all the then members”, by negativing the
proposed amendment. The purpose of not accepting the amendment is to
preserve the constitutional control over the situation.
17. In this regard, I may usefully refer to Article 189 of the
Constitution. It provides for voting in Houses, power of Houses to act
notwithstanding vacancies and quorum. Sub-Article (1) of Article 189
stipulates that save as otherwise provided in the Constitution, all
questions at any sitting of a House of the legislature of a State shall be
determined by a majority of votes of the members present and voting, other
than the Speaker or Chairman, or person acting as such. The said sub-
Article also provides that Speaker or Chairman or person acting as such
shall not vote in the first instance, but shall have and exercise a casting
vote in the case of an equality of votes. The said sub-Article, thus,
clearly states about the majority of votes of the members present and
voting and secondly, it empowers the Speaker to exercise his power of
voting in case of equality of votes. In contradistinction to the same,
Article 181 provides that Speaker or the Deputy Speaker not to preside
while resolution for his removal from office is under consideration and he
is entitled to vote in the first instance on such resolution but not in the
case of an equality of votes. Article 181(2) which is relevant for the
present purpose reads as follows:-
“(2) The Speaker shall have the right to speak in, and otherwise to take
part in the proceedings of, the Legislative Assembly while any resolution
for his removal from office is under consideration in the Assembly and
shall, notwithstanding anything in Article 189, be entitled to vote only in
the first instance on such resolution or on any other matter during such
proceedings but not in the case of an equality of votes.”
18. The purpose of referring to the said Article is to highlight the
nature of participation of the Speaker when the question of his removal
arises. It is clearly different. Under the Constitution he is entitled to
take part in the proceedings and speak. Therefore, he is in a position to
contest. Appreciating the scheme of the Constitution and especially
keeping in view the language employed in the first proviso to Article
179(c) it is quite clear that it is the constitutional design that the
Speaker should not do any act in furtherance of his interest till the
resolution is moved.
19. In this regard, it is essential to understand the character of the
Tenth Schedule. The Tenth Schedule to the Constitution has conferred
adjudicatory powers on the speaker. While deliberating on the
constitutionality of the said Schedule, the majority in Kihota Hollohon v.
Zachilhu and others[25], has stated that:-
“[G] The Speakers/Chairmen while exercising powers and discharging
functions under the Tenth Schedule act as Tribunal adjudicating rights and
obligations under the Tenth Schedule and their decisions in that capacity
are amenable to judicial review.
However, having regard to the Constitutional Scheme in the Tenth Schedule,
judicial review should not cover any stage prior to the making of a
decision by the Speakers/Chairmen. Having regard to the constitutional
intendment and the status of the repository of the adjudicatory power, no
quia timet actions are permissible, the only exception for any
interlocutory interference being cases of interlocutory disqualifications
or suspensions which may have grave, immediate and irreversible
repercussions and consequence.
[H] That paragraph 6(1) of the Tenth Schedule, to the extent it seeks to
impart finality to the decision of the Speakers/Chairmen is valid. But the
concept of statutory finality embodied in paragraph 6(1) does not detract
from or abrogate judicial review under Articles 136, 226 and 227 of the
Constitution insofar as infirmities based on violations of constitutional
mandates, mala fides, non-compliance with rules of Natural Justice and
perversity, are concerned.
[I] That the deeming provision in paragraph 6(2) of the Tenth Schedule
attracts an immunity analogous to that in Articles 122(1) and 212(1) of the
Constitution as understood and explained in Keshav Singh case[26] to
protect the validity of proceedings from mere irregularities of procedure.
The deeming provision, having regard to the words “be deemed to be
proceedings in Parliament” or “proceedings in the legislature of a State”
confines the scope of the fiction accordingly.
[J] That contention that the investiture of adjudicatory functions in the
Speakers/Chairmen would by itself vitiate the provision on the ground of
likelihood of political bias is unsound and is rejected. The
Speakers/Chairmen hold a pivotal position in the scheme of parliamentary
democracy and are guardians of the rights and privileges of the House. They
are expected to and do take far reaching decisions in the functioning of
parliamentary democracy. Vestiture of power to adjudicate questions under
the Tenth Schedule in such constitutional functionaries should not be
considered exceptionable”.
(Emphasis added)
20. The aforesaid reasoning eloquently speaks of the power, position and
the status the office of the Speaker enjoys under the Constitution. It
also states about the scope of the fiction. The Court has constricted the
power of judicial review and restricted it to the stage carving out certain
extreme exceptions. It is because the speaker, while exercising the
authority/jurisdiction, exercises the power of “constitutional
adjudication”. The concept of constitutional adjudication has
constitutional value in a parliamentary democracy; and constitutional
values sustain the democracy in a sovereign Republic. The Speaker is
expected to maintain propriety as an adjudicator. The Speaker when
functions as a tribunal has the jurisdiction/authority to pass adverse
orders. It is therefore, required that his conduct should not only be
impartial but such impartiality should be perceptible. It should be beyond
any reproach. It must reflect the trust reposed in him under the
Constitution. Therefore, the power which flows from the introduction of
Tenth Schedule by constitutional amendment is required to be harmoniously
construed with Article 179(c). Both the provisions of the Constitution are
meant to subserve the purpose of sustenance of democracy which is a basic
feature of the Constitution. The majority in Manoj Narula v. Union of
India[27] where speaking about democracy has opined that democracy in
India is a product of the rule of law and it is not only a political
philosophy but also an embodiment of constitutional philosophy.
21. Thus, regard being had to the language employed in the Article 179
(c) of the Constitution and the role ascribed to the Speaker under the
Tenth Schedule, it is necessary that the Speaker as a tribunal has to have
complete detachment and perceivable impartiality. When there is an
expression of intention to move the resolution to remove him, it is
requisite that he should stand the test and then proceed. That is the
intendment of Article 179(c) and the said interpretation serves the litmus
test of sustained democracy founded on Rule of Law; and the founding
fathers had so intended and the constitutional value, trust and morality
unequivocally so suggest. It would be an anathema to the concept of
constitutional adjudication, if the Speaker is allowed to initiate
proceeding under the Tenth Schedule of the Constitution after intention to
remove him from his office is moved. The fourteen days period being
mandatory, the words “all the then members” gain more significance. The
Constitution has confidence in the Speaker. I would like to call it “repose
of constitutional confidence”. Simultaneously, the command is to have the
confidence of the majority of the “actual or real figure”. This
understanding is gatherable from the express provisions of the Constitution
and it clearly brings in harmony between “constitutional confidence” or
trust and the “constitutional control”. Be it stated, the position has to
remain the same even after introduction of the Tenth Schedule to sustain
the robust vitality of our growing Constitution. And it embraces the
seminal spirit of the “Rule of Law” that controls all powers, even the
prerogative powers.
22. Before parting, I may state that constitutional restraint and
discipline are revealed from the words of the Constitution and the high
constitutional functionary should remain embedded to the same with
humility, because it is humility that forms the “foundation of regard”[28].
It is the ultimate constitutional virtue.
.............................J.
(Dipak Misra)
New Delhi;
July 13, 2016
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.6203-6204 OF 2016
(Arising out of S.L.P. (C) Nos.1259-60 of 2016)
Nabam Rebia And Etc. .… Appellants
versus
The Deputy Speaker & .… Respondents
J U D G M E N T
Madan B. Lokur, J.
1. Leave granted.
2. The draft judgment prepared by my learned Brother Justice Khehar
details all the facts of the case and considers all the submissions made by
learned counsel for the parties. I have had the benefit of going through
the detailed draft judgment. I am in general agreement with the conclusions
arrived at on the interpretation of Article 163 and Article 174 of the
Constitution. However, my reasons for arriving at the same conclusions are
somewhat different and partly additional or supplementary, necessitating an
expression of my views. I have also gone through the draft judgment of my
learned Brother Justice Dipak Misra and in the view that I have taken, it
is not necessary for me to expression any opinion on his conclusions.
3. As far as the interpretation of Article 175 of the Constitution is
concerned, I am of opinion that in view of the conclusions arrived at with
regard to the interpretation of Article 163 and Article 174 of the
Constitution, the interpretation of Article 175 of the Constitution and the
actions of the Governor of Arunachal Pradesh in this regard are rendered
academic. It is therefore not necessary or advisable to comment, one way
or the other, on the interpretation of Article 175 of the Constitution and
the actions of the Governor of Arunachal Pradesh in this regard.
4. The interpretation of Article 179 of the Constitution also does not
arise in view of the conclusions arrived at on the interpretation of
Article 163 and Article 174 of the Constitution and the consequence
thereof.
5. With regard to the interpretation of the Tenth Schedule of the
Constitution and the decision of the Speaker of the Legislative Assembly of
Arunachal Pradesh, that too is unnecessary in view of the decision rendered
by the Gauhati High Court in Pema Khandu v. The Speaker, Arunachal Pradesh
Legislative Assembly[29] - the decision having been delivered after
judgment was reserved in these appeals.
6. The questions that arise for consideration, in my opinion, are the
following:
Whether, after having notified the dates of sitting of the Legislative
Assembly in consultation with the Chief Minister and the Speaker of the
House, the Governor of Arunachal Pradesh could cancel those dates in the
exercise of ‘power’ under Article 174(1) of the Constitution and in the
exercise of discretion under Article 163 of the Constitution?
Whether, after having notified the dates of sitting of the Legislative
Assembly in consultation with the Chief Minister and the Speaker of the
House, the Governor of Arunachal Pradesh could unilaterally alter and
reschedule those notified dates in the exercise of ‘power’ under Article
174(1) of the Constitution read with Article 163 of the Constitution by
issuing a fresh notification?
Whether generally, in the exercise of discretion under Article 163(1) of
the Constitution read with Article 174(1) of the Constitution and
notwithstanding the relevant rules framed by the Legislative Assembly under
Article 208 of the Constitution, the Governor of Arunachal Pradesh could
summon the Legislative Assembly without consulting the Chief Minister and
the Speaker of the House?
Whether the message sent by the Governor of Arunachal Pradesh on 9th
December, 2015 under Article 175(2) of the Constitution was a
constitutionally valid message that ought to have been (and was) acted upon
by the Legislative Assembly?
Historical background of Article 163 of the Constitution
7. Article 163 of the Constitution traces its origins first to Section
50 of the Government of India Act, 1935 and then to Article 143 in the
draft Constitution. Section 50 of the Government of India Act, 1935 reads
as follows:
“50. (1) There shall be a council of ministers to aid and advise the
Governor in the exercise of his functions, except in so far as he is by or
under this Act required to exercise his functions or any of them in his
discretion :
Provided that nothing in this sub-section shall be construed as preventing
the Governor from exercising his individual judgment in any case where by
or under this Act he is required so to do.
(2) The Governor in his discretion may preside at meetings of the council
of ministers.
(3) If any question arises whether any matter is or is not a matter as
respects which the Governor is by or under this Act required to act in his
discretion or to exercise his individual judgment, the decision of the
Governor in his discretion shall be final, and the validity of anything
done by the Governor shall not be called in question on the ground that he
ought or ought not to have acted in his discretion, or ought or ought not
to have exercised his individual judgment.”
8. Two important expressions find mention in Section 50 of the
Government of India Act, 1935 namely, “in his discretion” and “his
individual judgment”. These expressions are noticed in several Sections of
the Government of India Act, 1935 and came up for discussion when Section 9
of the Government of India Act, 1935 (relating to the Council of
Ministers)[30] was discussed in the House of Commons on 28th February,
1935.[31] In the debate, the view expressed by one of the Members of
Parliament was that the Governor-General acts “in his discretion” when he
is not obliged to consult the Council of Ministers. On the other hand, he
acts in “his individual judgment” when he consults the Council of Ministers
but does not necessarily accept its advice. This was the view expressed by
Mr. Herbert Williams:
“I beg to move, in page 7, line 3, to leave out Sub-section (3).
I take it, Sir Dennis, that you have selected this particular Amendment
because it enables us to discuss all the major problems which arise under
this Clause—the problems of the relationship of the Governor-General to his
ministers. There are in the Sub-section the words “in his discretion,” and
also the words “his individual judgment.” I want to be clear that I have
interpreted the significance of these words accurately, and perhaps the
Secretary of State will be good enough to contradict me if I am inaccurate.
I gather that when the Governor-General acts in his discretion it is a case
where he acts without being under the obligation of consulting his
ministers at all, and that he acts perfectly freely. On the other hand,
when he exercises his individual judgment, that is a case where he consults
his ministers but is not obliged to take their advice, and, therefore, his
final decision may or may not disagree with the advice tendered to him by
his ministers. I hope that I have got the correct interpretation, because
it is necessary in discussing this most important constitutional issue that
we should be all quite clear as to the meaning of the words we are using.
As my interpretation has not been challenged, I assume that I have
correctly interpreted the significance of these words.”[32]
9. This view was sought to be made more explicit by Mr. Bailey by adding
sub-section (4) to Section 9 of the Government of India Act, 1935 in the
following words:
“I beg to move, in page 7, line 12, at the end, to add: “(4) (i) In this
Act the expression 'in his discretion' when applied to any act of the
Governor-General or any exercise of his functions or powers means that such
act may be done and such functions and powers may be exercised by the
Governor-General without consultation with his Ministers.” “(ii) In this
Act the expression 'his individual judgment,' when applied to any act of
the Governor-General or any exercise of his functions or powers, means that
such act may be done and such functions and powers may be exercised by the
Governor-General only after consultation with his Ministers but
notwithstanding any advice given to him by his Ministers.” I do not want to
occupy any length of time in moving this Amendment, the point of which
shortly is this: It seeks to clarify the possible distinction between
“discretion” and “individual judgment.” I should be very grateful if the
learned Attorney-General would say what is the view of the Government's
legal advisers as to the distinction, if any, between discretion and
individual judgment, and whether or not—this is most important of all—the
Governor-General may use his individual judgment without consulting his
Ministers.”[33]
10. The discussion was responded to by the Solicitor-General (Sir Donald
Somervell) confirming the distinction between “in his discretion” and “his
individual judgment” as mentioned above. The opinion expressed by the
Solicitor-General was accepted by Mr. Churchill as the following discussion
will demonstrate:
“The SOLICITOR- GENERAL (Sir Donald Somervell)
In moving this Amendment, my hon. Friend has confined himself to asking two
specific questions. He asks what is the distinction between individual
judgment and discretion. The Bill has been drafted in this way: The words
“individual judgment” are used in relation to actions by the Governor-
General on his individual judgment in the ordinary sense of the word within
the ambit in which normally he would be acting on the advice of his
Ministers. If within that ambit it is sought to give the Governor-General
special powers or responsibilities, then the words "individual judgment"
are used. They are found, for example, in Clause 12. The words "in his
discretion" are used where the Governor-General will be acting on his own
judgment but in an area outside that field. For example, in Clause 11 the
functions of the Governor-General in respect of defence are to be exercised
by him in his discretion. It is a matter of drafting which, once
apprehended, I think it will be agreed, is convenient and useful.
My hon. Friend asked one further point, whether when the words "individual
judgment" are used the Governor-General can act without consulting his
Ministers. The answer is that as quite obviously that action is in the
field where normally he would be acting on the advice of his Ministers, no
cleavage between them as to right actions can possibly have arisen, except
of course as a result of something that has happened and has been
discussed; but, of course, once he had decided that within that field
action must be taken, he would take it. Take quite an impossible case.
Suppose that Ministers simply do not turn up. Then, of course, he must take
the action in order to carry out the obligations conferred upon him. I do
not think that the sort of test of consultation or non-consultation is
really the clue to the meaning. The clue is that the words "individual
judgment" are used in respect of powers within the area in which normally
in ordinary times he would be acting on the advice of his Ministers. The
words "in his discretion" are used in respect of powers and functions
outside that area.
Mr. CHURCHILL
It is, of course, a very convenient distinction between the two functions,
and, if my memory serves me right, it is fully explained in the report of
the Joint Select Committee. Undoubtedly there is great difficulty in
describing this action and the rights of a Governor-General under the two
specific and separate methods. I am bound to say that I agree with the
Solicitor-General that if there is a difference between the Governor-
General and his Ministers and he exercises his individual judgment because
previous consultation with them has broken down, he will not be under
the need of consulting them any more. All parleys having come to an end he
will take the matter into his own hands and act freely. I gather that that
is so?
The SOLICITOR-GENERAL
Yes. Of course he can, if he thinks proper and if all friendly relations
have broken down, proceed to act on his own responsibility. I do not mean
to imply that in those circumstances he is precluded from consulting his
Ministers. At any point he may think it right to consult them.”[34]
11. The view expressed was reiterated a week later when Section 12 of the
Government of India Act, 1935 (relating to the special responsibilities of
the Governor-General) was discussed. During the debate on 5th March, 1935
Mr. Somerville adverted to the opinion of the Solicitor-General and said:
“We are dealing here with a very weighty and special responsibility of the
Governor-General. Sub-section (2) of the Clause provides that the Governor-
General shall in the exercise of his powers "use his individual judgment,"
and according to the definition given to us by the Solicitor-General last
week, exercising his individual judgment means that before he comes to a
decision he must consult his Indian advisers.”[35]
12. This makes it abundantly clear that the expression “his individual
judgment” obliges the Governor to take the aid and advice of his Council of
Ministers but he is not bound by that advice and may act in his judgment.
Mr. Churchill sought a clarification to the effect that if there is a break-
down of communications between the Governor-General and his Ministers, then
the Governor-General could “act freely” that is to say that he would be
discharged of the obligation to seek the aid and advise of the Ministers.
The Solicitor-General affirmed that this is so and that he could “proceed
to act on his own responsibility.”[36]
Independence and the Constituent Assembly
13. After Independence, there was no intention to permit the Governor to
exercise any discretion or to take any decision in his individual judgment.
This is clear from the India (Provisional Constitution) Order, 1947 issued
in exercise of powers conferred by Section 9(1)(c) of the Indian
Independence Act, 1947. Paragraph 3(2) of the India (Provisional
Constitution) Order, 1947 explicitly deletes the expressions “in his
discretion”, “acting in his discretion” and “exercising his individual
judgment” wherever they occur in the Government of India Act, 1935.
Paragraph 3(1) and paragraph 3(2) of the India (Provisional Constitution)
Order, 1947 read as follows:
“3(1) As from the appointed day, the Government of India Act, 1935,
including the provisions of that Act which have not come into force before
the appointed day and the India (Central Government and Legislature) Act,
1946, shall, until other provision is made by or in accordance with a law
made by the Constituent Assembly of India, apply to India with the
omissions, additions, adaptations and modifications directed in the
following provisions of this paragraph and in the Schedule to this Order.
(2) The following expressions shall be omitted wherever they occur, namely,
“in his discretion”, “acting in his discretion” and “exercising his
individual judgment”.”
14. Apart from this explicit expression of intent, the overall
distinction between the two expressions “in his discretion” and “his
individual judgment” was understood and accepted by Sir B.N. Rau[37] who,
in his address to I.A.S. probationers in New Delhi in June, 1948 said in
the context of the Government of India Act, 1935:
“There were, however, certain matters in respect of which the Governor was
required to act in his discretion without having to consult his ministers
at all and certain other matters in respect of which he was required to
exercise his individual judgment, though bound to consult his ministers.
In regard to both these classes of matters, the Governor was under the
general control of the Governor-General, who, in his turn, was under the
general control of the Secretary of State and, therefore, of the Parliament
in England. The area of responsible government in the provinces was thus
restricted to some extent, though not to the same extent as under the
Government of India Act of 1919.”
Later, in his address, he added:
“The framers of the Government of India Act of 1935 presumably foresaw that
the distinction, which they had attempted to draw between the matters in
respect of which the Governor was required to act on the advice of his
Council of Ministers and those in respect of which he was not so required,
would disappear in practice, unless special provision was made to resolve
any consequential deadlocks. Accordingly, the Act gave power to the
Governor, acting with the concurrence of the Governor-General and subject
to certain other safeguards, to proclaim – what amounted to a suspension of
responsible government in the province – that government could not be
carried on in accordance with the provisions of the Act.”[38]
15. As mentioned above, Article 143 in the draft Constitution corresponds
to Section 50 of the Government of India Act, 1935 and this reads as
follows:
“Article 143 (1) There shall be a Council of Ministers with the Chief
Minister at the head to aid and advise the Governor in the exercise of his
functions, except in so far as he is by or under this Constitution required
to exercise his functions or any of them in his discretion.
(2) If any question arises whether any matter is or is not a matter as
respects which the Governor is by or under this Constitution required to
act in his discretion, the decision of the Governor in his discretion shall
be final, and the validity of anything done by the Governor shall not be
called in question on the ground that he ought or ought not have acted in
his discretion.
(3) The question whether any, and if so what, advice was tendered by
Ministers to the Governor shall not be inquired into in any court.”
16. It is significant and necessary to note that (as expected) the
expression “his individual judgment” did not find mention in Article 143 in
the draft Constitution. This is as clear an indication as any that the
framers of our Constitution did not intend that the Governor could
disregard the aid and advice of the Council of Ministers. The absence of
the expression “his individual judgment” makes it apparent that the
Constitution framers were clear that the Governor would always be bound by
the aid and advice of the Council of Ministers. Limited elbow room was,
however, given to the Governor to act “in his discretion” in matters
permitted by or under the Constitution.
17. Article 143 of the draft Constitution was the subject matter of
discussion in the Constituent Assembly on 1st June, 1949. In response to
the ongoing debate, Mr. Krishnamachari expressed the view that the
retention of discretionary powers with the Governor was necessary, subject
to discussion at the appropriate stage, when other Articles of the draft
Constitution would be discussed. The only issue was whether the mention of
discretionary powers should be in Article 143 of the draft Constitution or
in the specific Article(s). He was of opinion that it should be mentioned
in Article 143 of the draft Constitution. The view expressed by Mr.
Krishnamachari is as follows:
“Sir, it is no doubt true that certain words from this article may be
removed, namely, those which refer to the exercise by the Governor of his
functions where he has to use his discretion irrespective of the advice
tendered by his Ministers. Actually, I think this is more by way of a
safeguard, because there are specific provisions in this Draft Constitution
which occur subsequently where the Governor is empowered to act in his
discretion irrespective of the advice tendered by his Council of Ministers.
There are two ways of formulating the idea underlying it. One is to make a
mention of this exception in this article 143 and enumerating the specific
power of the Governor where he can exercise his discretion in the articles
that occur subsequently, or to leave out any mention of this power here and
only state it in the appropriate article. The former method has been
followed. Here the general proposition is stated that the Governor has
normally to act on the advice of his Ministers except in so far as the
exercise of his discretions covered by those articles in the Constitution
in which he is specifically empowered to act in his discretion. So long as
there are articles occurring subsequently in the Constitution where he is
asked to act in his discretion, which completely cover all cases of
departure from the normal practice to which I see my honourable Friend Mr.
Kamath has no objection, I may refer to article 188, I see no harm in the
provision in this article being as it is. If it happens that this House
decides that in all the subsequent articles, the discretionary power should
not be there, as it may conceivably do, this particular provision will be
of no use and will fall into desuetude……... If it is necessary for the
House either to limit the discretionary power of the Governor or completely
do away with it, it could be done in the articles that occur subsequently
where specific mention is made without which this power that is mentioned
here cannot at all be exercised. That is the point that I would like to
draw the attention of the House to and I think the article had better be
passed as it is.”[39]
18. Dr. Ambedkar supported the view of Mr. Krishnamachari and in response
to the debate, he stated as follows:
“The Honourable Dr. B. R. Ambedkar: Mr. President, Sir, I did not think
that it would have been necessary for me to speak and take part in this
debate after what my Friend, Mr. T. T. Krishnamachari, had said on this
amendment of Mr. Kamath, but as my Friend, Pandit Kunzru, pointedly asked
me the question and demanded a reply, I thought that out of courtesy I
should say a few words. Sir, the main and the crucial question is, should
the Governor have discretionary powers? It is that question which is the
main and the principal question. After we come to some decision on this
question, the other question whether the words used in the last part of
clause (1) of article 143 should be retained in that article or should be
transferred somewhere else could be usefully considered. The first thing,
therefore, that I propose to do is to devote myself to this question which,
as I said, is the crucial question. It has been said in the course of the
debate that the retention of discretionary power in the Governor is
contrary to responsible government in the provinces. It has also been said
that the retention of discretionary power in the Governor smells of the
Government of India Act, 1935, which in the main was undemocratic. Now,
speaking for myself, I have no doubt in my mind that the retention in on
the vesting the Governor with certain discretionary powers is in no sense
contrary to or in no sense a negation of responsible government. I do not
wish to rake up the point because on this point I can very well satisfy the
House by reference to the provisions in the Constitution of Canada and the
Constitution of Australia. I do not think anybody in this House would
dispute that the Canadian system of government is not a fully responsible
system of government, nor will anybody in this House challenge that the
Australian Government is not a responsible form of government. ……….
Pandit Hirday Nath Kunzru: Well, Dr. Ambedkar has missed the point of the
criticism altogether. The criticism is not that in article 175 some powers
might not be given to the Governor, the criticism is against vesting the
Governor with certain discretionary powers of a general nature in the
article under discussion.
The Honourable Dr. B. R. Ambedkar: I think he has misread the article. I am
sorry I do not have the Draft Constitution with me. "Except in so far as he
is by or under this Constitution," those are the words. If the words were
"except whenever he thinks that he should exercise this power of discretion
against the wishes or against the advice of the ministers", then I think
the criticism made by my honourable Friend Pandit Kunzru would have been
valid. The clause is a very limited clause; it says: "except in so far as
he is by or under this Constitution". Therefore, article 143 will have to
be read in conjunction with such other articles which specifically reserve
the power to the Governor. It is not a general clause giving the Governor
power to disregard the advice of his ministers in any matter in which he
finds he ought to disregard. There, I think, lies the fallacy of the
argument of my honourable Friend, Pandit Kunzru. (Emphasis is given by me).
Therefore, as I said, having stated that there is nothing incompatible with
the retention of the discretionary power in the Governor in specified cases
with the system of responsible Government, the only question that arises
is, how should we provide for the mention of this discretionary power? It
seems to me that there are three ways by which this could be done. One way
is to omit the words from article 143 as my honourable Friend, Pandit
Kunzru, and others desire and to add to such articles as 175, or 188 or
such other provisions which the House may hereafter introduce, vesting the
Governor with the discretionary power, saying notwithstanding article 143,
the Governor shall have this or that power. The other way would be to say
in article 143, "that except as provided in articles so and so specifically
mentioned-articles 175, 188, 200 or whatever they are". But the point I am
trying to submit to the House is that the House cannot escape from
mentioning in some manner that the Governor shall have discretion.
Now the matter which seems to find some kind of favour with my honourable
Friend, Pandit Kunzru and those who have spoken in the same way is that the
words should be omitted from here and should be transferred somewhere else
or that the specific articles should be mentioned in article 143. It seems
to me that this is a mere method of drafting. There is no question of
substance and no question of principle. I personally myself would be quite
willing to amend the last portion of clause (1) of article 143 if I knew at
this stage what are the provisions that this Constituent Assembly proposes
to make with regard to the vesting of the Governor with discretionary
power. My difficulty is that we have not as yet come either to article 175
or 188 nor have we exhausted all the possibilities of other provisions
being made, vesting the Governor with discretionary power. If I knew that,
I would very readily agree to amend article 143 and to mention the specific
article, but that cannot be done now. Therefore, my submission is that no
wrong could be done if the words as they stand in article 143 remain as
they are. They are certainly not inconsistent.
Shri H. V. Kamath: Is there no material difference between article 61(1)
relating to the President vis-à-vis his ministers and this article?
The Honourable Dr. B. R. Ambedkar: Of course there is, because we do not
want to vest the President with any discretionary power. Because the
provincial Governments are required to work in subordination to the Central
Government, and therefore, in order to see that they do act in
subordination to the Central Government the Governor will reserve certain
things in order to give the President the opportunity to see that the rules
under which the provincial Governments are supposed to act according to the
Constitution or in subordination to the Central Government are
observed.”[40]
19. On the basis of the above discussion, Article 143 of the draft
Constitution was approved as it is and is now Article 163 in the
Constitution.
Conclusions on Article 163 of the Constitution
20. The sum and substance of the historical background leading to Article
163 of the Constitution, as enacted, is this: (i) The Council of Ministers
will aid and advise the Governor in the exercise of his functions. This is
the first part of Article 163 (1) of the Constitution. The Governor then
has two options – (a) To reject the aid and advice of the Council of
Ministers and act in “his individual judgment”. This is an illusory and non-
existent option since the Constitution does not permit it. (b) To act on
the aid and advice of the Council of Ministers. By default this is the only
real option available to him. (ii) If the exercise of function is beyond
the purview of the aid and advice of the Council of Ministers but is by or
under the Constitution, the Governor can act “in his discretion”. Article
163(2) of the Constitution will have reference only to the last part of
Article 163(1) of the Constitution and is not all-pervasive.
21. If there is a break-down in communications between the Council of
Ministers and the Governor (as imagined by Mr. Churchill), then the
Governor will not have the benefit of the aid and advice of the Council of
Ministers. In that event, the Governor may “take the matter into his own
hands and act freely.” The break-down of communications was a possibility
under the Government of India Act, 1935 since it was “in the main
undemocratic” and there could be a break-down of communications between the
representative of His Majesty and the Council of Ministers. However, if
such a situation were to arise today in independent India, namely, a break-
down of communications between the Governor of a State and the Council of
Ministers, it would be most unfortunate and detrimental to our democracy.
In the unlikely event of a complete break-down of communications, the
President can and must intervene to bring in constitutional order.
Historical background of Article 174 of the Constitution
22. Article 174(1) of the Constitution has its historical origin in
Section 62 of the Government of India Act, 1935. This section reads as
follows:
62. (l) The Chamber or Chambers of each Provincial Legislature shall be
summoned to meet once at least in every year, and twelve months shall not
intervene between their last sitting in one session and the date appointed
for their first sitting in the next session
(2) Subject to the provisions of this section, the Governor may in his
discretion from time to time-
(a) summon the Chambers or either Chamber to meet at such time and place as
he thinks fit ;
(b) prorogue the Chamber or Chambers;
(c) dissolve the Legislative Assembly.
(3) The Chamber or Chambers shall be summoned to meet for the first session
of the Legislature on a day not later than six months after the
commencement of this Part of this Act.
23. In the Government of India Act, 1935 the Governor of a Province had
vast powers, including for example, the power to preside over a meeting of
the Council of Ministers.[41] However, for the present purposes it is not
necessary to research into that issue since it is quite clear that with
Independence, the executive and other powers, functions and
responsibilities of the Governor earlier appointed by His Majesty needed an
overhaul. This is what Article 153 of the draft Constitution sought to
achieve.
24. In the Constituent Assembly, Article 153 of the draft Constitution as
on 21st February, 1948 substituted Section 62 of the Government of India
Act, 1935 with the following:
153. (1) The House or Houses of the Legislature of the State shall be
summoned to meet twice at least in every year, and six months shall not
intervene between their last sitting in one session and the date appointed
for their first sitting in the next session.
(2) Subject to provisions of this article, the Governor may from time to
time –
(a) summon the House or either House to meet at such time and place as he
thinks fit;
(b) prorogue the House or Houses;
(c) dissolve the Legislative Assembly.
(3) The functions of the Governor under sub-clauses (a) and (c) of clause
(2) of this article shall be exercised by him in his discretion.
25. The expression “in his discretion” finds mention in clause (3) of
Article 153 of the draft Constitution. It could be said, on a consideration
of the debate on this expression in the House of Commons and in the
Constituent Assembly, that the Governor’s powers under Article 153 of the
draft Constitution were sought to be kept outside the purview of the
Council of Ministers and exercisable “in his discretion”. In other words,
it could be said that while exercising his powers under Article 153 of the
draft Constitution, the Governor was not obliged to consult or take the aid
and advice of his Council of Ministers.
26. This Article was very briefly debated in the Constituent Assembly on
2nd June, 1949 and Dr. Ambedkar moved for the omission of clause (3) in
this Article. The amendment proposed by Dr. Ambedkar was adopted without
much discussion. Thereby, the Governor was disentitled from summoning the
House or either House “in his discretion”. Article 153 as amended was then
adopted and formed a part of the Constitution. What was the reason for this
omission? The answer is to be found in the debate on Article 69 of the
draft Constitution on 18th May, 1949 (to which a reference was made in the
debates).
27. Article 69 of the draft Constitution is more or less similar to
Article 153 of the draft Constitution [except as regards the omitted clause
(3)] and it provides as follows:
69. (1) The Houses of Parliament shall be summoned to meet twice at least
in every year, and six months shall not intervene between their last
sitting in one session and the date appointed for their first sitting in
the next session.
(2) Subject to provisions of this article, the President may from time to
time –
(a) summon the Houses or either House of Parliament to meet at such time
and place as he thinks fit;
(b) prorogue the Houses;
(c) dissolve the House of the People.
28. During the course of the debate on Article 69 of the draft
Constitution, Prof. K.T. Shah suggested two amendments. Dr. Ambedkar
responded to the amendments proposed by stating, inter alia, that the
business of the House has to be provided by the Executive and if the
President does not summon the House, the necessary implication is that the
Executive has no business to place before the House for transaction.
Therefore, if anybody other than the Prime Minister required the President
to summon the House, there would be no business to transact and summoning
the House without any business to transact would be a futile operation. I
would imagine that for the same reason, the President cannot suo moto
summon the House, for there would be no business to transact and suo moto
summoning the House without any business to transact would also be a futile
operation. On the other hand, if the Prime Minister proposed to the
President to summon the Legislature and he did not do so, the President
would be violating the Constitution and would need to be displaced. This is
what Dr. Ambedkar said:
“Then I take the two other amendments of Prof. Shah (Nos. 1473 and 1478).
The amendments as they are worded are rather complicated. The gist of the
amendments is this. Prof. Shah seems to think that the President may fail
to summon the Parliament either in ordinary times in accordance with the
article or that he may not even summon the legislature when there is an
emergency. Therefore he says that the power to summon the legislature where
the President has failed to perform his duty must be vested either in the
Speaker of the lower House or in the Chairman or the Deputy Chairman of the
Upper House. That is, if I have understood it correctly, the proposition of
Prof. K.T. Shah. It seems to me that here again Prof. Shah has entirely
misunderstood the whole position. First of all, I do not understand why the
President should fail to perform an obligation which has been imposed upon
him by law. If the Prime Minister proposes to the President that the
Legislature be summoned and the President, for no reason, purely out of
wantonness or cussedness, refuses to summon it, I think we have already got
very good remedy in our own Constitution to displace such a President. We
have the right to impeach him, because such a refusal on the part of the
President to perform obligations which have been imposed upon him would be
undoubtedly violation of the Constitution. There is therefore ample remedy
contained in that particular clause.
But, another difficulty arises if we are to accept the suggestion of
Professor K.T. Shah. Suppose for instance the President for good reasons
does not summon the Legislature and the Speaker and the Chairman do summon
the Legislature. What is going to happen? If the President does not summon
the Legislature it means that the Executive Government has no business
which it can place before the House for transaction. Because, that is the
only ground on which the President, on the advice of the Prime Minister,
may not call the Assembly in session. Now, the Speaker cannot provide
business for the Assembly, nor can the Chairman provide it. The business
has to be provided by the Executive, that is to say, by the Prime Minister
who is going to advise the President to summon the Legislature. Therefore,
merely to give the power to the Speaker or the Chairman to summon the
Legislature without making proper provisions for the placing of business to
be transacted by such an Assembly called for in a session by the Speaker or
the Chairman would to my mind be a futile operation and therefore no
purpose will be served by accepting that amendment.”[42]
29. Keeping the debate on Article 69 of the draft Constitution in mind
(particularly since the business of the House is to be provided by the
Executive) Article 153 of the draft Constitution did not provide for any
discretion to the Governor, as proposed by Dr. Ambedkar, to summon the
House for a “futile operation”.
30. Article 69 of the draft Constitution was adopted as Article 85 of the
Constitution and this reads as follows:
“85. Sessions of Parliament, Prorogation and dissolution - (1) The Houses
of Parliament shall be summoned to meet twice at least in every year, and
six months shall not intervene between their last sitting in one session
and the date appointed for their first sitting in the next session.
(2) Subject to the provisions of clause (1), the President may from time to
time -
(a) summon the Houses or either House to meet at such time and place as he
thinks fit;
(b) prorogue the Houses;
(c) dissolve the House of the People.”
31. Similarly, Article 153 of the draft Constitution was adopted as
Article 174 of the Constitution in the following form:
“174. Sessions of the State Legislature, Prorogation and dissolution - (1)
The House or Houses of the Legislature of the State shall be summoned to
meet twice at least in every year, and six months shall not intervene
between their last sitting in one session and the date appointed for their
first sitting in the next session.
(2) Subject to the provisions of clause (1), the Governor may from time to
time –
(a) summon the House or either House to meet at such time and place as he
thinks fit ;
(b) prorogue the House or Houses;
(c) dissolve the Legislative Assembly.”
32. The absence of any discretion in the President to summon or prorogue
the House or dissolve the House of the People and the deletion of clause
(3) in Article 153 of the draft Constitution makes it quite clear that the
President and the Governor can act under Article 85 of the Constitution and
Article 174 of the Constitution respectively only on the aid and advise of
the Council of Ministers. No independent authority is given either to the
President or the Governor in this regard.
Need to amend Article 85 and Article 174 of the Constitution
33. As luck would have it, the then Members of Parliament took their
parliamentary duties and obligations with utmost sincerity and seriousness
and so the actual working of Article 85 of the Constitution posed some
problems. This led to the First Amendment to the Constitution.
34. The parliamentary debate of 16th May, 1951 shows that when the
Constitution (First Amendment) Bill was moved by Prime Minister Jawaharlal
Nehru, he pointed out that Parliament had been in continuous session since
November (1950) and the session was likely to carry on. Under these
circumstances, some “acute interpreters” might hold the view that
Parliament had not met in 1951 strictly in terms of the Constitution since
Parliament had not been prorogued and the President had not addressed it.
This would lead to a curious situation that if Parliament met continuously,
then it could be interpreted that Parliament had not met at all! This is
what he said:
“[O]ne of the articles - for the moment - I forget the number - lays down
that this House should meet twice a year and the President should address
it. Now a possible interpretation of that is that this House has not met
at all this year. It is an extraordinary position considering that time
this House has labored more than probably at any time in the previous
history of this or the preceding Parliament in this country. We have been
practically sitting with an interval round about Xmas since November and we
are likely to carry on and yet it may be held by some acute interpreters
that we have not met at all this year strictly in terms of the Constitution
because we started meeting in November and we have not met again - it has
not been prorogued - the President has not addressed Parliament this year.
Put it in the extreme way, suppose this House met for the full year without
break except short breaks, it worked for 12 months, then it may be said
under the strict letter of the law that is has not met at all this year.
Of course that article was mean not to come in the way of our work but to
come in the way of our leisure. It was indeed meant and it must meet at
least twice a year and there should not be more than six months’ interval
between the meetings. It did not want any Government of the day simply to
sit tight without the House meeting. Therefore it wanted to compel it by
the force of the Constitution and meet at least twice a year but without a
big gap. That again by interpretation leaves the curious situation that if
you continue meeting, you do not meet at all!”[43]
35. When Prime Minister Jawaharlal Nehru replied to the debate on this
aspect on 2nd June, 1951 he reiterated that according to the strict meaning
of Article 85 of the Constitution, Parliament had not “met” at all in 1951
since it had been summoned in 1950. It was to overcome this difficulty that
an amendment was proposed to Article 85 of the Constitution. In another
context, it was pointed out that Article 85 of the Constitution raises the
questions – who should summon Parliament; who can summon Parliament and who
only can summon Parliament. Giving a reply, he said that under the
Constitution, only the President can summon Parliament and if he does not
do his duty, then other consequences may well arise. Similarly, if
Parliament is not summoned within six months, it is a deliberate breach of
the Constitution by the President and the Government of the day. It must be
presumed that some final authority will function according to the
Constitution and if it does not “then you pick the axe and cut off the
head, whether he is a President or anybody.” This is what was said by Prime
Minister Jawaharlal Nehru:
“It was because of this actual difficulty, that it was thought that this
article might be changed so that this question of being summoned twice a
year need not be there, because if we are meeting all the time, then are we
to break up simply to be summoned again? Of course, we may be summoned
twice a year or more…………
That is to say, this article 85 actually deals, in the passive and the
active, in both the voices, with who should summon, who can summon and who
only can summon - there is no other authority which can summon, unless of
course there is a breach of the Constitution and other things come into
play. Therefore, as the Constitution is, it is only the President who can
summon it, and if the President does not do his duty then other
consequences may well arise. ………
………… [O]ur saying, “the President shall summon” is much more mandatory on
the President than saying, as it is said here, “The Houses of Parliament
shall be summoned” and the President shall do so. The meaning is the same
but if the President does not summon within six months it is a deliberate
breach of the Constitution by the President and the Government of the day.
It does not require any argument - you catch him immediately he has not
done a duty laid down, which is here an indirect duty. May be some minor
excuse the President may advance, or not. Therefore, in a sense you bind
down the President - and when I say the President I mean the Government of
the day which is also bound down by the Constitution to do a certain thing.
If they do not do it then other consequences follow. They have
deliberately flouted the Constitution. What happens then? Well, many
things may happen. Parliament then presumably comes into conflict with the
usurping Government, or the Government that carries on without the goodwill
of Parliament and the people. Well, a conflict occurs. That kind of a
thing would, if it occurs, presumably be decided by the normal
constitutional means - other means may come into play, one does not know.
……..
………… After all you have ultimately to have some final authority which you
presume will function according to the Constitution. If it does not then
you pick the axe and cut off the head, whether he is a President or
anybody. That is the normal practice in Constitutions: that is the normal
practice in revolutions. I do not understand the middle practice of
confusing a Constitution with a revolution and a revolution with a
Constitution. I therefore, submit that the wording suggested is the right
wording. It does not endanger the Constitution; it does not give any
special or additional powers to the President to come in the way. Such
powers as he gets, such mischief as the future President might do, is
always inherent in the nature of things and inherent also in the power of
the people to put an end to the President who does that mischief.”
(Emphasis is given by me).[44]
36. The amendment proposed by Prime Minister Jawaharlal Nehru was then
accepted and Article 85 of the Constitution was amended to read as follows:
“85. Sessions of Parliament, prorogation and dissolution - (1) The
President shall from time to time summon each House of Parliament to meet
at such time and place as he thinks fit, but six months shall not intervene
between its last sitting in one session and the date appointed for its
first sitting in the next session.
(2) The President may from time to time -
(a) prorogue the Houses or either House;
(b) dissolve the House of the People.”
37. The corresponding provision for the Legislative Assembly for the
States (Article 174 of the Constitution) was amended to read as follows:
“174. Sessions of the State Legislature, prorogation and dissolution - (1)
The Governor shall from time to time summon the House or each House of the
Legislature of the State to meet at such time and place as he thinks fit,
but six months shall not intervene between its last sitting in one session
and the date appointed for its first sitting in the next session.
(2) The Governor may from time to time -
(a) prorogue the House or either House;
(b) dissolve the Legislative Assembly.”
38. Although no authority other than the President or the Governor could
summon the House, no discretion was conferred on either of them to do so,
on his own or suo moto. Clearly, therefore, the President or the Governor
can summon the House only on the aid and advice of the Council of
Ministers.
Conclusions on Article 174 of the Constitution
39. The historical background and the debates pertaining to Article 174
(and Article 85) of the Constitution lead to the conclusion that it is only
the Governor who may summon the Legislative Assembly, but only on the
advice of the Council of Ministers and not suo moto. In other words, the
Governor cannot summon the Legislative Assembly “in his discretion”. If the
Governor does so, there would be no business to transact and summoning the
House in such a situation would be a futile operation. The Governor cannot
manufacture any business for the House to transact, through a so-called
message or otherwise. If the Governor disregards the advice of the Council
of Ministers for summoning the House, necessary consequences would follow.
In this regard, it may be mentioned that if the President disregards the
advice of the Council of Ministers he can impeached. As far as the Governor
is concerned, if he disregards the advice of the Council of Ministers the
pleasure of the President can be withdrawn since the Governor holds office
during his pleasure. On a different note, if the Legislative Assembly does
not meet once in six months, there would be a breach of the Constitution
requiring severe sanction.
40. How do the decisions of this Court interpret these provisions of the
Constitution and is the interpretation in harmony with the intention of the
Constitution framers?
Decisions of this Court
41. The first decision that needs to be referred to is Rai Sahib Ram
Jawaya Kapur v. The State of Punjab.[45] The Constitution Bench of this
Court acknowledged the difficulty in framing an exhaustive definition of
‘executive function’ or ‘executive power’. While acknowledging that the
separation of powers in our Constitution is not rigid, this Court observed
that one organ of the State cannot assume the functions or powers of
another organ. It was held:
“It may not be possible to frame an exhaustive definition of what executive
function means and implies. Ordinarily the executive power connotes the
residue of governmental functions that remain after legislative and
judicial functions are taken away. The Indian Constitution has not indeed
recognised the doctrine of separation of powers in its absolute rigidity
but the functions of the different parts or branches of the Government have
been sufficiently differentiated and consequently it can very well be said
that our Constitution does not contemplate assumption, by one organ or part
of the State, of functions that essentially belong to another.”
42. Proceeding further in this regard, the functions and responsibilities
of the Executive were briefly mentioned in the following words:
“Our Constitution, though federal in its structure, is modelled on the
British Parliamentary system where the executive is deemed to have the
primary responsibility for the formulation of governmental policy and its
transmission into law though the condition precedent to the exercise of
this responsibility is its retaining the confidence of the legislative
branch of the State. The executive function comprises both the
determination of the policy as well as carrying it into execution.”
43. With reference to the interplay between the Legislature and the
Executive, this Court acknowledged the supremacy of the Legislature over
the Executive and held that, under the Constitution, the Governor who
exercises executive power is nevertheless a formal or constitutional head
of the Executive, with the real executive power vested in the Council of
Ministers. This is what was said:
“In India, as in England, the executive has to act subject to the control
of the legislature; but in what way is this control exercised by the
legislature? Under article 53(1) of our Constitution, the executive power
of the Union is vested in the President but under article 75 there is to be
a Council of Minister with the Prime Minister at the head to aid and advise
the President in the exercise of his functions. The President has thus been
made a formal or constitutional head of the executive and the real
executive powers are vested in the Ministers or the Cabinet. The same
provisions obtain in regard to the Government of States; the Governor or
the Rajpramukh, as the case may be, occupies the position of the head of
the executive in the State but it is virtually the Council of Ministers in
each State that carries on the executive Government. In the Indian
Constitution, therefore, we have the same system of parliamentary executive
as in England and the Council of Ministers consisting, as it does, of the
members of the legislature is, like the British Cabinet, “a hyphen which
joins, a buckle which fastens the legislative part of the State to the
executive part.” The Cabinet enjoying, as it does, a majority in the
legislature concentrates in itself the virtual control of both legislative
and executive functions; and as the Ministers constituting the Cabinet are
presumably agreed on fundamentals and act on the principle of collective
responsibility, the most important questions of policy are all formulated
by them.”
44. The significance of this view is that it recognized that the Governor
is only a formal or constitutional head. His executive functions are,
therefore, dependent on the aid and advice given by the Council of
Ministers. Since there is no provision enabling the Governor to act in “his
individual judgment” the Governor is bound by the advice of the Council of
Ministers with whose aid he acts. This is completely in harmony and
consonance with the views of the Constituent Assembly. Moreover, there is a
recognition and acceptance that since the Council of Ministers enjoys a
majority in the Legislature, it is in virtual control of both the executive
and legislative functions of the Governor. Therefore, the Governor has
little or no authority over the Executive or the Legislature, except to the
extent specifically provided for in the Constitution.
45. Soon after the decision rendered in Rai Sahib Ram Jawaya Kapur, a
rather peculiar situation arose in the Calcutta High Court. In Mahabir
Prasad Sharma v. Prafulla Chandra Ghose[46] the facts were rather
complicated. However, to briefly summarize them it may be stated that in
the perception of the Governor of the State, Chief Minister Ajoy Kumar
Mukherjee had apparently lost the confidence of the Legislative Assembly.
Accordingly, the Governor requested the Chief Minister to call the
Legislative Assembly and prove his majority in the House. The Chief
Minister was more than once requested to call the Legislative Assembly in
the month of November, 1967 but he declined to do so, on the ground that it
had been decided to call the Legislative Assembly on 18th December, 1967.
46. In view of the Chief Minister’s recalcitrance, the Governor dismissed
him and his Council of Ministers on 21st November, 1967 and appointed P.C.
Ghose as the Chief Minister. The dismissal of the Chief Minister and the
appointment of P.C. Ghose by the Governor were in apparent exercise of
powers conferred by Article 164(1) of the Constitution.
47. A petition was filed in the Calcutta High Court for a writ of quo
warranto to explain the legal basis for the appointment of P.C. Ghose as
the Chief Minister. In this context, it was observed that the dismissal of
Ajoy Kumar Mukherjee as the Chief Minister was beyond the scope of the writ
application and that the validity of the dismissal arose only incidentally.
However, it was later held in the judgment that a Minister holds office
during the pleasure of the Governor and under Article 164(1) of the
Constitution the withdrawal of pleasure is entirely the discretion of the
Governor and in view of Article 163(2) of the Constitution that exercise of
discretion cannot be questioned. As far as the appointment of P.C. Ghose is
concerned, it was held that there was no restriction on the Governor in
Article 164(1) of the Constitution in the matter of the appointment of the
Chief Minister.
48. The High Court also took the view that if the Chief Minister and the
Council of Ministers refuse to vacate office after the Legislative Assembly
had expressed no confidence in them, the Governor is entitled to withdraw
his pleasure under Article 164(1) of the Constitution. It was held that the
power of the Governor in this regard is exclusive, absolute and
unrestricted and cannot be called in question in view of Article 163(2) of
the Constitution. The High Court also held that if the Council of
Ministers lost its majority in the Legislative Assembly, the Governor was
not bound to accept its advice. In this regard, the High Court observed:
“Can it be said that the Governor is bound to act, in appointing a Chief
Minister, on the advice of the outgoing Chief Minister who has lost his
majority in the Legislative Assembly as a result of the General Election? I
think not.” In view of its findings, the High Court held that the
appointment of P.C. Ghose as the Chief Minister was in accordance with law
and the Constitution and could not be called in question.
49. It may be mentioned that a submission was made in the High Court that
in the event of a deadlock between the Governor and the Chief Minister, a
proclamation in terms of Article 356 of the Constitution could be issued by
the President but that line of thought was not carried forward by the High
Court.
50. In some respects the decision of the Calcutta High Court goes well
beyond the law laid down by this Court in Rai Sahib Ram Jawaya Kapur. Some
of the conclusions are in the nature of sweeping generalizations and in my
opinion Mahabir Prasad Sharma does not lay down the correct law. I am in
agreement with Justice Khehar in this regard. Mahabir Prasad Sharma
confers excessive powers on the Governor, well beyond his status as a
formal or constitutional head of the Executive. The decision also enables
the Governor to unilaterally decide whether a Chief Minister has lost the
majority of the Legislative Assembly or not, a function exclusively of the
Legislative Assembly. The decision enables the Governor to take an
unchecked decision “in his discretion” that a Chief Minister has lost the
majority of the Legislative Assembly and then dismiss him.
51. Reference may now be made to State of Punjab v. Satya Pal Dang[47] in
which the facts were rather extraordinary. Briefly, the annual budget of
the State was to be considered by the Legislative Assembly and the
Financial Statement was discussed in the Assembly on 4th, 5th and 6th
March, 1968. On the last day, following some disturbance in the House and
consequent disciplinary action, a Resolution was moved expressing no
confidence in the Speaker. The House granted leave for the discussion and
adjourned for the next day.
52. On 7th March, 1968 the Speaker declared the motion of no confidence
to be unconstitutional and deemed not to have been moved. Following some
rowdy scenes, the Speaker then adjourned the Assembly for two months that
is till 6th May, 1968. Since the annual budget was not adopted no
expenditure could be made in the State from 1st April, 1968. This led to a
political and financial crisis of sorts.
53. Under these peculiar and extraordinary circumstances, the Governor
prorogued the Assembly on 11th March, 1968 in exercise of his
“constitutional powers” under Article 174(2)(a) of the Constitution. On
13th March, 1968 the Governor promulgated The Punjab Legislature
(Regulation of Procedure in relation to Financial Business) Ordinance,
1968. Thereafter, on 14th March, 1968 the Governor summoned the Assembly
for 18th March, 1968 in exercise of his ‘constitutional powers’ under
Article 174(1) of the Constitution and directed the Assembly, in exercise
of his ‘constitutional powers’ under Article 175(2) of the Constitution, to
consider certain items.
54. When the Assembly met, the Speaker ruled that the House was not
prorogued on 11th March, 1968 but on 18th March, 1968 and ruled that the
proclamation of the Governor dated 14th March, 1968 summoning the House was
illegal and void and that he had no power to re-summon the House once
adjourned. Therefore, in accordance with the earlier ruling dated 7th
March, 1968 the House stood adjourned for two months from that date.
55. Thereafter, following some disturbance, uproar and furore in the
House, the Deputy Speaker occupied the Speaker’s chair and declared the
adjournment by the Speaker null and void. The financial business was then
transacted and completed and two Appropriation Bills and other financial
demands were passed. The Governor gave his assent to the Appropriation
Bills.
56. Two writ petitions were filed in the Punjab & Haryana High Court
challenging, inter alia, the prorogation and re-summoning of the Assembly,
the Ordinance issued by the Governor on 13th March, 1968 as well as the
Appropriation Acts to which the Governor had given his assent. A Full
Bench of the High Court unanimously held the prorogation and re-summoning
of the Assembly to be regular and legal and that the two Appropriation Acts
were unconstitutional and held by majority that the Ordinance was also
unconstitutional.
57. The decision of the High Court was the subject matter of appeals
before this Court. It was observed that the Governor had two options before
him: (a) To require the Ministers to ask the Speaker to recall the
Assembly. This Court felt that this was attempting the impossible [break-
down theory in play] and (b) To prorogue the Assembly and then re-summon
it.
58. Referring to Article 174(2) of the Constitution it was held that it
does not indicate any restrictions on the power of the Governor to prorogue
the House. However, whether a Governor is justified in proroguing the
Legislature when it is in session is a question that did not fall for
consideration. What was more in question than the conduct of the Governor
was the bona fides of the Speaker’s ruling adjourning the Assembly for two
months when the Financial Statement and the Budget were on the agenda and
time was running out. No mala fides were attributed to the Governor and his
power being untrammeled by the Constitution, an emergency having arisen,
the actions taken by the Governor were perfectly understandable. It was
also held that the Governor had not only acted properly but in the only
constitutional way open to him and there was no abuse of power nor could
his motives be described as mala fide.
59. This Court also held that the prorogation of the Assembly became
effective on 11th March, 1968 when the Governor issued a public
notification. It was also held that the re-summoning of the Legislature
immediately afterwards was also a step in the right direction and it set up
once again the democratic machinery in the State which had been rudely
disturbed by the Speaker. In fact, the Governor restored parliamentary
Government by adopting the course that he did.
60. However, while concluding its decision, this Court observed that “The
situation created in the State of Punjab was unique and was reminiscent of
the happenings in the age of the Stuarts.” Undoubtedly so. The action of
the Governor was drastic but constitutional and resulted from a desire to
set right a “desperate situation”. This Court allowed the appeals and set
aside the judgment of the High Court and ordered the dismissal of the two
writ petitions filed in the Punjab & Haryana High Court.
61. The facts in Satya Pal Dang were unique and extraordinary, but it is
important to note that this Court did not consider or even refer to Article
163 of the Constitution. Therefore, this decision really does not take this
discussion much further and reference to it is really quite futile.
62. The powers of the Governor, including his discretionary powers, came
up for consideration in Samsher Singh v. State of Punjab[48] which decision
is of considerable importance. The question before a Bench of seven judges
was whether the Governor exercises his power of appointment and removal of
members of the Subordinate Judicial Service under Article 234 of the
Constitution[49] personally or on the aid and advice of the Council of
Ministers. The appellant Samsher Singh contended that the Governor could
exercise his power only personally and relied on Sardari Lal v. Union of
India[50] as well as Article 163(3) of the Constitution.
63. Chief Justice A.N. Ray (speaking for himself and four other learned
Judges) held that the expression “in his discretion” is used in those
Articles of the Constitution that confer special responsibilities on the
Governor. Reference was made to the deletion of the expression “in his
discretion” from the draft Constitution in Articles 144(6) [totally
omitted], 153(3) [now Article 174], 175 (proviso) [now Article 200], 188
[totally omitted], 285(1) and (2) [now Article 316] and paragraph 15(3) of
the Sixth Schedule [totally omitted]. This was noted to be in stark
contrast to Articles 371-A(1)(b), 371-A(1)(d), 371-A(2)(b) and 371-A(2)(f)
as well as paragraphs 9(2) and 18(3) [since deleted on 21st January, 1971]
in the Sixth Schedule to the Constitution which confer special
responsibilities on the Governor and use the expression “in his
discretion”. In this context, it was concluded in paragraph 28 of the
Report:
“Under the Cabinet system of Government as embodied in our Constitution the
Governor is the constitutional or formal head of the State and he exercises
all his powers and functions conferred on him by or under the Constitution
on the aid and advice of his Council of Ministers save in spheres where the
Governor is required by or under the Constitution to exercise his functions
in his discretion.”
64. Explaining this, and referring to English constitutional law, which
is incorporated in our Constitution, it was held in paragraph 32 of the
Report:
“It is a fundamental principle of English Constitutional law that Ministers
must accept responsibility for every executive act. In England the
Sovereign never acts on his own responsibility. The power of the Sovereign
is conditioned by the practical rule that the Crown must find advisers to
bear responsibility for his action. Those advisers must have the confidence
of the House of Commons. This rule of English Constitutional law is
incorporated in our Constitution. The Indian Constitution envisages a
Parliamentary and responsible form of Government at the Centre and in the
States and not a Presidential form of Government. The powers of the
Governor as the constitutional head are not different.”
A minor point of departure was noticed in paragraph 44 of the Report
wherein it was held that there is no distinction between functions of the
Union (or State) and the functions of the President (or Governor) except in
respect of those functions that the Governor has to exercise in his
discretion. This reads as follows:
“The distinction made by this Court between the executive functions of the
Union and the executive functions of the President does not lead to any
conclusion that the President is not the constitutional head of Government.
Article 74(1) provides for the Council of Ministers to aid and advise the
President in the exercise of his functions. Article 163(1) makes similar
provision for a Council of Ministers to aid and advise the Governor.
Therefore, whether the functions exercised by the President are functions
of the Union or the functions of the President they have equally to be
exercised with the aid and advice of the Council of Ministers, and the same
is true of the functions of the Governor except those which he has to
exercise in his discretion.”
65. In this background and context, it was noted that when the Governor
exercises his functions and powers with the aid and advice of the Council
of Ministers, he does so by making rules for the more convenient
transaction and allocation of business in accordance with Article 166(3) of
the Constitution. Consequently, the decision rendered in Sardari Lal was
required to be overruled (and it was overruled) and it was held in
paragraph 48 of the Report after referring to Rai Sahib Ram Jawaya Kapur:
“The President as well as the Governor is the constitutional or formal
head. The President as well as the Governor exercises his powers and
functions conferred on him by or under the Constitution on the aid and
advice of his Council of Ministers, save in spheres where the Governor is
required by or under the Constitution to exercise his functions in his
discretion. Wherever the Constitution requires the satisfaction of the
President or the Governor for the exercise by the President or the Governor
of any power or function, the satisfaction required by the Constitution is
not the personal satisfaction of the President or Governor but the
satisfaction of the President or Governor in the constitutional sense in
the Cabinet system of Government, that is, satisfaction of his Council of
Ministers on whose aid and advice the President or the Governor generally
exercises all his powers and functions. The decision of any Minister or
officer under Rules of Business made under any of these two Articles 77(3)
and 166(3) is the decision of the President or the Governor respectively.
These articles did not provide for any delegation. Therefore, the decision
of a Minister or officer under the Rules of Business is the decision of the
President or the Governor.”
66. On the issue of discretionary powers of the Governor, paragraph 54 of
the Report is important and the shift in bearing responsibility is referred
to in paragraph 55 of the Report in the context of Article 356 of the
Constitution with the final decision on the report of the Governor being
with the President acting on the aid and advice of his Council of
Ministers. In this overall context, it was, in a sense, reiterated that:
“The Constitution does not aim at providing a parallel administration
within the State by allowing the Governor to go against the advice of the
Council of Ministers.”
67. Since a reference was earlier made to Article 371-A of the
Constitution in the context of the discretionary powers of the Governor, it
is necessary to mention that that Article was inserted in the Constitution
by the Constitution (Thirteenth Amendment) Act, 1962. What is important to
notice in the said Article is that the draftsman and Parliament maintained
the distinction between “in his discretion” and “his individual judgment”.
This is clear from the use of the expression “in his discretion” in some
paragraphs of the Sixth Schedule as mentioned above and the use of the
expression “his individual judgment” occurring in Article 371-A(1)(b) of
the Constitution. Therefore, a distinction between “in his discretion” and
“his individual judgment” was recognized and appreciated. Sadly, as the
submissions made before us indicate, this differentiation is slowly losing
ground as the framers of the Government of India Act, 1935 presumably
foresaw and which was adverted to by Sir B.N. Rau.
68. In their concurring judgment, Justice P. N. Bhagwati and Justice
Krishna Iyer endorsed the view (in paragraph 139 of the Report) that the
discretionary powers of the Governor have been expressly spelt out in the
Constitution (as noticed above) and also endorsed the extension of
‘discretion’ to Article 356 of the Constitution. The learned judges
observed that “limited free-wheeling” is available to the Governor in the
choice of the Chief Minister and the dismissal of the Ministry (and later
in paragraph 154 of the Report to the dissolution of the House).
69. It appears that the “limited free-wheeling” concept is based on the
discretion given to the Governor under Article 163(2) of the Constitution,
although it is not specifically discussed in the concurring judgment.
70. Be that as it may, the learned judges observed that if the Governor
was held entitled to exercise his powers personally, then that
interpretation would extend to several Articles of the Constitution,
including the power to grant pardon or to remit or commute a sentence
(Article 161), the power to make appointments including of the Chief
Minister (Article 164), the Advocate-General (Article 165), District Judges
(Article 233), Members of the Public Service Commission (Article 316), the
power to prorogue either House of Legislature or to dissolve the
Legislative Assembly (Article 174), the right to address or send messages
to the Houses of the Legislature (Article 175 and Article 176), the power
to assent to Bills or withhold such assent (Article 200), the power to make
recommendations for demands of grants [Article 203(3)], and the duty to
cause to be laid every year the annual budget (Article 202), the power to
promulgate ordinances during recesses of the Legislature (Article 213), the
obligation to make available to the Election Commission the requisite staff
for discharging the functions conferred by Article 324(1) on the Commission
[Article 324(6)], the power to nominate a member of the Anglo-Indian
Community to the Assembly in certain situations (Article 333) and the power
to authorize the use of Hindi in the proceedings in the High Court [Article
348(2)]. (One could add Article 239(2) of the Constitution to this list).
It was held that if the ratio of Sardari Lal and Jayantilal Amritlal
Shodhan v. F.N. Rana[51] was made applicable :
“…….. to every function which the various articles of the Constitution
confer on the President or the Governor, Parliamentary democracy will
become a dope and national elections a numerical exercise in expensive
futility. We will be compelled to hold that there are two parallel
authorities exercising powers of governance of the country, as in the
dyarchy days, except that Whitehall is substituted by Rashtrapati Bhavan
and Raj Bhavan. The Cabinet will shrink at Union and State levels in
political and administrative authority and, having solemn regard to the
gamut of his powers and responsibilities, the Head of State will be
reincarnation of Her Majesty’s Secretary of State for India, untroubled by
even the British Parliament — a little taller in power than the American
President. Such a distortion, by interpretation, it appears to us, would
virtually amount to a subversion of the structure, substance and vitality
of our Republic, particularly when we remember that Governors are but
appointed functionaries and the President himself is elected on a limited
indirect basis. As we have already indicated, the overwhelming catena of
authorities of this Court have established over the decades that the
cabinet form of Government and the Parliamentary system have been adopted
in India and the contrary concept must be rejected as incredibly allergic
to our political genius, constitutional creed and culture.”
71. All the seven learned judges constituting the Bench were explicit and
unequivocal in their view that the principle of Cabinet responsibility is
firmly entrenched in our constitutional democracy and that our Constitution
does not accept any “parallel administration” or “dyarchy”. A fortiorari
the discretion available to the Governor under Article 163 of the
Constitution is not all-pervasive but is circumscribed by the provisions of
the Constitution, with a small ventilator available, in some given
exceptional situations by or under the Constitution. In this context, it
is interesting to note that this Court did not even advert to the
comparatively recent decision rendered in Satya Pal Dang which virtually
sanctified the vast exercise of power by the Governor. Therefore, it must
be assumed that Satya Pal Dang should be confined to its unique and
extraordinary facts reminiscent of the happenings in the age of the Stuarts
or did not necessarily lay down the correct law given the more than blanket
powers of the Governor that that decision approved or had nothing to do
with Article 163 of the Constitution.
72. Pratapsingh Raojirao Rane v. Governor of Goa[52] was yet another
peculiar case in which the Governor dismissed the Chief Minister and
appointed another person (Dr. Wilfred Anthony D’Souza) as the Chief
Minister of Goa in exercise of powers conferred by Article 164(1) of the
Constitution. Both decisions were challenged by way of a writ petition in
the Bombay High Court.
73. In that case the Governor was of opinion that the Chief Minister had
lost the confidence of the Legislative Assembly. Accordingly, he sent a
communication to the Chief Minister on 28th July, 1998 at about 2.00 p.m.
requiring him to seek a vote of confidence from the Legislative Assembly
before 3.30 p.m. on the same day. In response, the Chief Minister did seek
a vote of confidence from the Legislative Assembly and was successful in
doing so. (There was some controversy about this).
74. Notwithstanding the confidence expressed by the Legislative Assembly
in the Chief Minister, the Governor prorogued the Assembly at about 8.35
p.m. on 29th July, 1998 and appointed Dr. D’Souza as the Chief Minister at
about 10.00 p.m.
75. The questions before the High Court were whether the Governor had the
power to prorogue the Legislative Assembly and to dismiss the Chief
Minister. As regards the dismissal of the Chief Minister, it was held in
paragraph 37 of the Report that the Governor was entitled to exercise his
individual discretion in appointing the Chief Minister and that this was
not subject to judicial review. In coming to this conclusion, the High
Court proceeded on the basis that the Governor could withdraw his pleasure
and thereby require the Chief Minister to vacate his office. The High Court
referred to Mahabir Prasad Sharma and concluded that if the Council of
Ministers refused to vacate its office then the Governor could withdraw his
pleasure and that withdrawal of pleasure by the Governor was not open to
judicial review. Carrying this a little further, the Court held in
paragraph 46 of the Report:
“Thus, the position in law is clear that the Governor, while taking
decisions in his sole discretion, enjoys immunity under Article 361 and the
discretion exercised by him in the performance of such functions is final
in terms of Article 163(2). The position insofar as the dismissal of the
Chief Minister is concerned would be the same, since when the Governor acts
in such a matter he acts in his sole discretion. In both the situations,
namely the appointment of the Chief Minister and the dismissal of the Chief
Minister, the Governor is the best judge of the situation and he alone is
in possession of the relevant information and material on the basis of
which he acts. The result, therefore, would be that such actions cannot be
subjected to judicial scrutiny at all.”
76. The High Court did not address itself to the issue of prorogation of
the Legislative Assembly since in view of the above it was held that the
writ petition was not maintainable.
77. This decision too proceeds on the incorrect basis and assumption that
the Governor is the best person to know whether the Chief Minister of a
State has lost the confidence of the Legislative Assembly and is,
therefore, entitled to exercise vast powers regarding withdrawal of his
pleasure in dismissing the Chief Minister of a State. To this extent,
Pratapsingh Raojirao Rane does not lay down the correct law and I agree
with Justice Khehar in this regard.
78. The interpretation of Article 163(2) of the Constitution again came
up for consideration in M.P. Special Police Establishment v. State of
M.P.[53] In that case the Lokayukta had given a report that there was
sufficient ground for prosecuting two Ministers for offences under the
Prevention of Corruption Act, 1988 and/or under the Indian Penal Code,
1860. The Council of Ministers of the State of Madhya Pradesh declined to
grant sanction to prosecute, but the Governor disregarded the advice of the
Council of Ministers and granted sanction to prosecute. The question that
arose for consideration was whether a Governor could act in his discretion
under Article 163(2) of the Constitution and against the aid and advice of
the Council of Ministers in the matter of grant of sanction for the
prosecution of two Ministers for offences under the Prevention of
Corruption Act, 1988 and/or under the Indian Penal Code, 1860.
79. Adding to the exceptions already noted by this Court where the
Governor could act despite the advice of the Council of Ministers, yet
another exclusionary situation was carved out by the Constitution Bench -
in this case, on the ground of propriety. It was held:
“Undoubtedly, in a matter of grant of sanction to prosecute, the Governor
is normally required to act on aid and advice of the Council of Ministers
and not in his discretion. However, an exception may arise whilst
considering grant of sanction to prosecute a Chief Minister or a Minister
where as a matter of propriety the Governor may have to act in his own
discretion.”
80. It was observed that in such a case, if the Governor cannot act in
his discretion then there could be a complete breakdown of the rule of law.
It was observed (with respect, in an exaggerated manner) that democracy
itself would be at stake. It was said:
“If, on these facts and circumstances, the Governor cannot act in his own
discretion there would be a complete breakdown of the rule of law inasmuch
as it would then be open for Governments to refuse sanction in spite of
overwhelming material showing that a prima facie case is made out. If, in
cases where a prima facie case is clearly made out, sanction to prosecute
high functionaries is refused or withheld, democracy itself will be at
stake. It would then lead to a situation where people in power may break
the law with impunity safe in the knowledge that they will not be
prosecuted as the requisite sanction will not be granted.”
81. The decision in the case of Pu Myllai Hlychho v. State of Mizoram[54]
is equally instructive on the subject of the Governor’s discretion under
Article 163(2) of the Constitution. The issue related to the Governor’s
discretion in the nomination of four members of the Mara Autonomous
District Council (MADC) in terms of paragraph 2(1) read with paragraph 20-
BB of the Sixth Schedule to the Constitution.[55] It was held that the
Governor is entitled to act in his discretion in the matter of nomination
of four members to the MADC even though he is obliged to consult the
Council of Ministers. In this case, the Governor did consult the Council of
Ministers, but that advice was not binding on him. Merely because the
Governor consulted the Council of Ministers and acted on the advice given
does not fault the decision taken by the Governor in the exercise of his
discretion. It was held:
“The counsel for the appellants contended that in the case of nomination of
four members, the Governor accepted the advice of his Council of Ministers
and he did not exercise the discretionary powers vested in him under para
20-BB of the Sixth Schedule. This contention was raised on the basis that
the initiation for issuing the notification dated 6-12-2001 was from the
Council of Ministers and the Governor acted upon the advice of the Council
of Ministers. We do not find any force in this contention. Under the
provisions of para 20-BB, the Governor shall consult the Council of
Ministers. Merely because of the fact that the Governor made consultation
with the Council of Ministers for nominating four members, it cannot be
assumed that the Governor failed to exercise the discretionary powers. The
Governor could have even consulted the District Council or the Regional
Council in this regard. There is nothing to show that the Governor did not
exercise his discretionary powers independently. Moreover, as noted above,
Article 163(2) of the Constitution expressly prohibits challenging the
validity of the exercise of such discretionary power.”
82. State of Gujarat v. R.A. Mehta[56] follows the view expressed in
Samsher Singh and M.P. Special Police Establishment on the discretionary
powers of the Governor and adds a few more illustrative exceptions to those
mentioned in the above decisions. Primarily, the view taken is that the
Governor can act in his discretion if the advice from the Council of
Ministers is not available to him due to some extraordinary situation. It
was held:
“Article 163(2) of the Constitution provides that it would be permissible
for the Governor to act without ministerial advice in certain other
situations, depending upon the circumstances therein, even though they may
not specifically be mentioned in the Constitution as discretionary
functions e.g. the exercise of power under Article 356(1), as no such
advice will be available from the Council of Ministers, who are responsible
for the breakdown of constitutional machinery, or where one Ministry has
resigned, and the other alternative Ministry cannot be formed. Moreover,
clause (2) of Article 163 provides that the Governor himself is the final
authority to decide upon the issue of whether he is required by or under
the Constitution, to act in his discretion. The Council of Ministers,
therefore, would be rendered incompetent in the event of there being a
difference of opinion with respect to such a question, and such a decision
taken by the Governor would not be justiciable in any court. There may also
be circumstances where there are matters with respect to which the
Constitution does not specifically require the Governor to act in his
discretion but the Governor, despite this, may be fully justified to act so
e.g. the Council of Ministers may advise the Governor to dissolve a House,
which may be detrimental to the interests of the nation. In such
circumstances, the Governor would be justified in refusing to accept the
advice rendered to him and act in his discretion. There may even be
circumstances where ministerial advice is not available at all i.e. the
decision regarding the choice of Chief Minister under Article 164(1) which
involves choosing a Chief Minister after a fresh election, or in the event
of the death or resignation of the Chief Minister, or dismissal of the
Chief Minister who loses majority in the House and yet refuses to resign or
agree to dissolution.”
83. However, it seems to me that the Bench might be incorrect in
expanding the discretionary power to include the advice of the Council of
Ministers “which may be detrimental to the interests of the nation.” For
one, it is difficult to imagine a democratically elected Council of
Ministers giving advice that “may be detrimental to the interests of the
nation”. Secondly, who is to judge if the advice is “detrimental to the
interests of the nation” and what are the standards for coming to this
conclusion. Thirdly, our Constitution has not given the Governor arbitrary
or imperial powers to decide what is or is not detrimental to the interests
of the nation. The elected representatives are capable of taking that call.
Fourthly, should such a remarkable situation arise, the Governor would be
obliged to report to the President, leaving it to him to decide on the next
course of action. However, I leave this ‘expansion’ as it is and am
mentioning it only by the way.
84. As the years have gone by, more and more unusual if not extraordinary
situations have arisen. These situations have led, in theory, to greater
discretionary powers being conferred on the Governor through decisions
rendered by this Court and the High Courts. In my view, this is really a
step backward and contrary to the idea of responsible government advocated
in the Constituent Assembly.
Justice Sarkaria Commission
85. Be that as it may, August 1988 saw the release of what is commonly
known as the Justice Sarkaria Commission Report on Union-State Relations.
In Chapter IV thereof, it is noted that the role of the Governor had
emerged as one of the key issues in Union-State relations. While dealing
with the historical background, two extremely significant observations were
made in paragraphs 4.2.03 and 4.2.04 of the Report. It was suggested quite
clearly that: (i) The Congress Party which commanded a majority in six
Provincial Legislatures after the Government of India Act, 1935 came into
force assumed office only after it was assured by the Viceroy that the
Governors “would not provoke a conflict with the elected Government.” The
intention was pretty clear – that the discretion or the individual judgment
available to the Governor under the Government of India Act, 1935 would be
sparingly used, if at all. (ii) This intention was carried into effect when
the India (Provisional Constitution) Order, 1947 was promulgated, the
expressions ‘in his discretion’, ‘acting in his discretion’ and ‘exercising
his individual judgement’ occurring in the Government of India Act, 1935
were deleted making it incumbent on the Governor to exercise his functions
only on the aid and advice of his Council of Ministers. This is what the
Justice Sarkaria Commission observed:
“4.2.03 In 1937, when the Government of India Act, 1935 came into force,
the Congress Party commanded a majority in six provincial legislatures.
They foresaw certain difficulties in functioning under the new system which
expected Ministers to accept, without demur, the censure implied, if the
Governor exercised his individual judgement for the discharge of his
special responsibilities. The Congress Party agreed to assume office in
these Provinces only after it received an assurance from the Viceroy that
the Governors would not provoke a conflict with the elected Government.
4.2.04 Independence inevitably brought about a change in the role of the
Governor. Until the Constitution came into force, the provisions of the
Government of India Act, 1935 as adapted by the India (Provisional
Constitution) Order, 1947 were applicable. This Order omitted the
expressions ‘in his discretion’, ‘acting in his discretion’ and ‘exercising
his individual judgement’, wherever they occurred in the Act. Whereas,
earlier, certain functions were to be exercised by the Governor either in
his discretion or in his individual judgement, the Adaptation Order made it
incumbent on the Governor to exercise these as well as all other functions
only on the advice of his Council of Ministers.”
86. The Justice Sarkaria Commission looked at Article 163(1) of the
Constitution in two parts, namely, the Governor exercising his discretion
when required by the Constitution and when required under the Constitution.
The exercise of discretion conferred by the Constitution would relate to an
express provision of the Constitution (such as those relating to the Tribal
Areas of Assam) or by necessary implication; while the latter expression
would include the exercise of discretion from rules and orders made under
the Constitution. Given this interpretation, according to the Justice
Sarkaria Commission, “The scope of discretionary powers has to be strictly
construed, effectively dispelling the apprehension, if any, that the area
for the exercise of discretion covers all or any of the functions to be
exercised by the Governor under the Constitution. In other words, Article
163 does not give the Governor a general discretionary power to act against
or without the advice of his Council of Ministers.”[57] (Emphasis given by
me).
87. The Justice Sarkaria Commission studied the Constitution and placed
the functions of the Governor in four categories:
(i) The Governor acting in his discretion;
(ii) The Governor acting in his individual judgment;
(iii) The Governor acting in his discretion independently of the Council
of Ministers.
(iv) The Governor acting in his discretion under the Constitution.
88. The first category of functions consists of the Governor acting in
his discretion only in respect of the Tribal Areas of Assam as per the
Sixth Schedule of the Constitution. Subsequently, as the Constitution was
amended, this category expanded to include Article 371-A (1) (d) and (2)(f)
[relating to Nagaland], Article 371-F (g) [relating to Sikkim], Article 371-
H (a) [relating to Arunachal Pradesh]. To this may also be added paragraph
20-BB of the Sixth Schedule, as discussed in Pu Myllai.
89. The second category of functions consists of the Governor acting in
his individual judgment. This was not provided for in the Constitution as
originally enacted but was introduced by way of an amendment in Article 371-
A (1)(b) [pertaining to Nagaland] and Article 371-H (a) [pertaining to
Arunachal Pradesh].
90. With regard to the third category of functions, the Justice Sarkaria
Commission gave five examples of areas where the Governor exercises his
discretion independently of the Council of Ministers - all of them by
necessary implication:
“(a) Governor has necessarily to act in his discretion where the advice of
his Council of Ministers is not available, e.g. in the appointment of a
Chief Minister soon after an election, or where the Council of Ministers
has resigned or where it has been dismissed [Article 164(1)].
(b) A Governor may have to act against the advice of the Council of
Ministers, e.g. dismissal of a Ministry following its refusal to resign on
being defeated in the Legislative Assembly on a vote of no-confidence
[Article 164(1) &(2)].
(c) A Governor may require that any matter decided by a Minister may be
considered by the Council of Ministers (Article 167).
(d) A Governor may have to make a report to the President under Article 356
that a situation has arisen in which the government of the State cannot be
carried on in accordance with the provisions of the Constitution.
Obviously, in such a situation he may have to act against the aid and
advice of the Council of Ministers as the situation may be due to the
various acts of omission or commission on the part of the Council of
Ministers (Article 356).
(e) A Governor may have to exercise his discretion in reserving a Bill for
the consideration of the President (Article 200).”
To the above example may be added the view of this Court expressed in M.P.
Special Police Establishment.
91. While explaining the examples given, the Justice Sarkaria Commission
also added that the Governor may exercise his discretion independently of
the Council of Ministers in dissolving the Legislative Assembly, but there
has been no consistent practice in this regard. It was stated as follows:
“Various Governors have adopted different approaches in similar situations
in regard to dissolution of the Legislative Assembly. The advice of a Chief
Minister, enjoying majority support in the Assembly, is normally binding on
the Governor. However, where the Chief Minister had lost such support, some
Governors refused to dissolve the Legislative Assembly on his advice, while
others in similar situations, accepted his advice, and dissolved the
Assembly. The Assembly was dissolved in Kerala (1970) and in Punjab (1971)
on the advice of the Chief Minister whose claim to majority support was
doubtful. However, in more or less similar circumstances in Punjab (1967),
Uttar Pradesh (1968), Madhya Pradesh (1969) and Orissa (1971) the
Legislative Assembly was not dissolved. Attempts were made to instal
alternative Ministries.”[58]
92. In specific regard to summoning the Legislative Assembly (an issue
directly concerning us in the present case), the Justice Sarkaria
Commission noted that differing views were expressed by the States for
different reasons. These have been mentioned in paragraphs 4.11.16 to
4.11.20 of the Report.[59] The sum and substance of the discussion is that
the unilateral power to summon the Legislative Assembly may be exercised by
the Governor only in three situations:
(i) When the Chief Minister designedly fails to advise the summoning of
the Assembly within six months of its last sitting, or advises its
summoning for a date falling beyond this period.
(ii) When the Chief Minister, unless he is the leader of a party that
has an absolute majority in the Legislative Assembly, does not seek a vote
of confidence within 30 days of taking over.
(iii) When it appears to the Governor that the incumbent Ministry no
longer enjoys the confidence of the Assembly, he may ask the Chief Minister
to test his majority support on the floor of the House within a reasonable
time. The reasonable time could be within 30 days (unless there is some
urgency such as passing the annual budget) but should not exceed 60 days.
It may be mentioned en passant that none of these situations arise in the
present case.
93. With regard to the fourth category of functions, the Justice Sarkaria
Commission gave the examples of Orders passed by the President under
Article 371 of the Constitution. One such Order issued under Article
371(1) of the Constitution is the Punjab Regional Committees Order,
1957.[60] Paragraph 10 of this Order provided that “The Governor shall
have special responsibility for securing the proper functioning of regional
committees in accordance with the provisions of this Order.”
94. Similarly, paragraph 10 of the Andhra Pradesh Regional Committee
Order, 1958[61] issued under Article 371(1) of the Constitution provided
that “The Governor shall have special responsibility for securing the
proper functioning of the regional committee in accordance with the
provisions of this Order”.
95. With regard to the State of Gujarat, the President issued the State
of Gujarat (Special Responsibility of Governor for Kutch) Order, 1977 dated
28th February, 1977. This was in exercise of powers conferred by Article
371(2) of the Constitution. Paragraph 2 if the said Order provided as
follows:
“2. Special Responsibility of Governor- (1) The Governor of Gujarat shall
have special responsibility for the establishment of a development board
for Kutch and for the other matters referred to in clause (2) of article
371 of the Constitution in respect of that area.
(2) The Governor shall, in the discharge of his special responsibility
under this Order, act in his discretion.”
96. For the State of Manipur, the Manipur Legislative Assembly Hill
(Areas Committee) Order, 1972 was issued on 28th June, 1972 by the
President in exercise of powers conferred by Article 371-C of the
Constitution. Paragraph 9 of this Order provided for the special
responsibility of the Governor: “The Governor shall have special
responsibility for securing the proper functioning of the Hill Areas
Committee in accordance with the provisions of this Order and shall, in the
discharge of his special responsibility, act in his discretion.”
97. Finally, in exercise of powers conferred by Clause (2) of Article 371
of the Constitution, the President issued the State of Maharashtra (Special
Responsibility of Governor for Vidarbha, Marathwada and the rest of
Maharashtra) Order, 1994 which came into effect on 1st May, 1994. This
Order confers large discretionary powers on the Governor in relation to the
functioning of the Development Boards, including allocation of funds.
98. At all times, the Governor may exercise this discretion only to
ensure that the system of responsible government in the State functions in
accordance with the norms envisaged in the Constitution, and as postulated
by the Constituent Assembly and Dr. Ambedkar.
99. There is absolutely no reason to take a view different from that
expressed by the Justice Sarkaria Commission though coupled with the view
expressed by this Court in the few decisions mentioned above.
Justice Punchhi Commission
100. In March 2000, Justice Punchhi submitted a Report on Centre-State
Relations. The broad mandate of the Commission was “to review the existing
arrangements between the Union and States as per the Constitution of India
in regard to powers, functions and responsibilities in all spheres
including legislative relations, administrative relations, role of
Governors, emergency provisions, financial relations, economic and social
planning, Panchayati Raj institutions, sharing of resources, including
inter-state river water and recommend such changes as may be appropriate
keeping in view the practical difficulties”.
101. With reference to the discretionary role of the Governor, broadly
speaking, the following situations may be culled out from the Justice
Punchhi Commission Report (paragraph 4.5 thereof):
To give assent or withhold or refer a Bill [except a Money Bill] for
Presidential assent under Article 200;
The appointment of the Chief Minister under Article 164;
Dismissal of a Government that has lost the confidence of the Legislative
Assembly but refuses to quit since the Chief Minister holds office during
the pleasure of the Governor;
If the Chief Minister neglects or refuses to summon the Assembly for
holding a "Floor Test", the Governor should summon the Assembly for the
purpose.
Dissolution and prorogation of the House under Article 174;
Governor's report under Article 356;
Governor's responsibility for certain regions of the country under Articles
371-A, 371-C and 371-H of the Constitution.
(viii) Where the bias is inherent and/or manifest in the advice of the
Council of Ministers [as in the case of Madhya Pradesh Special Police
Establishment].
102. The Justice Punchhi Commission did not disagree with the Justice
Sarkaria Commission on any issue relating to the functions and duties of
the Governor. It must therefore be taken that the functions, duties and
powers of the Governor by or under the Constitution are “cabined, cribbed,
confined”. However, if “discretion” is given a broad meaning as desired by
the respondents and is given greater weightage than “his individual
judgment” then there would be “saucy doubts and fears” [62] of the
arbitrary exercise of discretion by the Governor as has happened in the
present case, and other cases.
103. From the submissions made by learned counsel for the responsents, it
would seem that the functions of the Governor in his relations with the
Executive are completely hedged in but in his relations with the
Legislature and the elected representatives, his discretion is virtually
unlimited and not subject to judicial review as well. Surely, this is not
what the Constitution framers had in mind nor do the decisions of this
Court lead to such an intention or interpretation.
104. Rather than provide so-called untrammeled power and authority to the
Governor, the Constitution makers gave him an escape route in the event the
Legislature is recalcitrant. This is by way of resort to Article 356 of the
Constitution through which the Governor can make a report to the President
in the event there is a failure of constitutional machinery in the State.
This escape route is available in a case where the Governor dismisses a
Government but the Government refuses to recognize the dismissal order.
105. Additionally, to ensure that the Governor is not unaccountable in his
relations with the Legislature, the Constitution provides for the
Legislature to frame its rules of procedure under Article 208 of the
Constitution. The Legislature in Arunachal Pradesh has framed such rules
and these are considered below.
Rules of Business of the Legislative Assembly
106. First and foremost, it is important to note that the rules of
procedure framed by the Legislative Assembly for regulating its procedure
and the conduct of its business under Article 208 of the Constitution do
not need anybody’s approval, including that of the Governor of the
State.[63]
107. The Rules of Procedure and Conduct of Business in Arunachal Pradesh
Legislative Assembly (for short “the Rules”) framed by the Legislative
Assembly of Arunachal Pradesh in exercise of powers conferred by Article
208 of the Constitution carry forward the intention of the Constituent
Assembly as well as the decisions of this Court to the effect that the
Governor is a constitutional or formal head not only of the Executive but,
in some respects, also of the Legislature. The Rules give the Governor of
Arunachal Pradesh limited discretionary powers, but more particularly so in
the matter of summoning the Legislative Assembly.
108. Rule 3 of the Rules provides that for summoning the Assembly under
Article 174 of the Constitution, the Chief Minister shall, in consultation
with the Speaker, fix the date of commencement and duration of the session
of the Assembly and advise the Governor accordingly. Rule 3A of the Rules
provides that on receipt of such advice, the Assembly is summoned by the
Governor and the Secretary of the Assembly then issues summons to each
member of the Assembly specifying the date and place for the session at
least 30 days before the commencement of the session. The Assembly may
also be summoned on a short notice in terms of the proviso to Rule 3A of
the Rules, but we are not concerned with that. Rule 3 and Rule 3A of the
Rules read as follows:-
“3. The Chief Minister shall, in consultation with the Speaker, fix the
date of commencement and the duration of the session, advise the Governor
for summoning the Assembly under Article 174 of the Constitution.
3A. On issue of such summons by the Governor, the Secretary shall issue a
summon to each member specifying the date and place for the session of the
House at least thirty days before the date of commencement of the Session:
Provided that when a Session is called at short notice or emergently, the
summons may not be issued to each member separately but an announcement of
the date and place of the Session shall be published in the Gazette and
made on the All-India Radio and the members shall also be informed by
wireless messages or telegrams.”
109. It is clear from the above that the Governor can summon the Assembly
only if the Chief Minister (in consultation with the Speaker) so advises
him. There is no exception to this. However, Article 174 of the
Constitution would be violated if the Chief Minister does not so advise the
Governor to summon the Assembly for a period of six months, or if the
Governor does not summon the Assembly despite the advice of the Chief
Minister. As mentioned by Pandit Jawaharlal Nehru when the First Amendment
to the Constitution was discussed in Parliament, either the Chief Minister
or the Governor (as the case may be) would have to bear the consequences of
violating the Constitution.
110. In matters pertaining to the Assembly, the Governor of Arunachal
Pradesh has been given an additional ‘discretionary power’. This is with
regard to the election of the Speaker of the Assembly. Rule 7(1) of the
Rules provides that when a new Assembly is constituted or there is a
vacancy in the office of the Speaker and the election of the Speaker is
necessary, the Governor shall fix a date for holding the election. To this
extent the Governor has a role to play in the Assembly in his capacity as a
constituent of the Legislature, as postulated by Article 168 of the
Constitution. Rule 7(1) of the Rules is relevant for this purpose and it
reads as follows:
“7(1) When at the beginning of the new Assembly or owing to a vacancy in
the office of the Speaker, the election of a Speaker is necessary, the
Governor shall fix a date for the holding of the election, and the
Secretary shall send to every member notice of the date so fixed.”
111. The Governor has yet another discretionary duty to perform which is
when the office of the Speaker as well as the Deputy Speaker is vacant,
even when the Assembly is not a new Assembly. In that event the Governor
has the discretionary duty to appoint a member of the Assembly as a
Speaker. This is provided for in Article 180(1) of the Constitution as
well as Rule 8B of the Rules which reads as follows:
“8B. While the Offices of both the Speaker and the Deputy Speaker are
vacant, the duties of the Office of the Speaker shall be performed by such
member of the Assembly as the Governor may appoint for the purpose.”
Over the years a convention has developed in most Legislatures in respect
of filling up such vacancies and the ‘discretion’ of the Governor has been
limited thereby.
112. This may be contrasted with Article 180(2) of the Constitution which
provides that when the Speaker and the Deputy Speaker are both absent (not
because of any vacancy) then the Legislative Assembly and not the Governor
shall determine, by rules or otherwise, the person who shall act as the
Speaker.
113. Article 200 of the Constitution postulates that the Governor may (in
exercise of his discretion) withhold assent to a Bill passed by the
Legislature. This too is the subject matter of the Rules and Rule 82
thereof makes a provision in this regard which reads as follows:
“82. The orders of the President or the Governor granting or withholding
the sanction or recommendation to an amendment to a Bill shall be
communicated to the Secretary by the Minister concerned in writing.”
114. Of course, the Governor cannot withhold assent to a Bill indefinitely
but must return it to the Assembly with a message and this could include
his recommendation for amendments to the Bill. This is the subject matter
of Rule 102 and Rule 103 of the Rules which read as follows:
“102 (1) When a Bill passed by the Assembly is returned to the Assembly by
the Governor with a message requesting that the Assembly do reconsider the
Bill or any specified provisions thereof or any such amendments as are
recommended in his message, the Speaker shall read the message of the
Governor in the Assembly if in session, or if the Assembly is not in
session, direct that it may be circulated for the information of the
members.
(2) The Bill as passed by the Assembly and returned by the Governor for
reconsideration shall thereafter be laid on the Table.
103. At any time after the Bill has been so laid on the Table, any Minister
in the case of a Government Bill, or, in any other case, any member may
give notice of his intention to move that the amendments recommended by the
Governor be taken into consideration.”
115. It will be seen from the above that the discretion given to the
Governor in respect of his relations with the Legislative Assembly is not
only limited and circumscribed by the Constitution but also by the Rules
framed by the Legislative Assembly under Article 208 of the Constitution.
So much so that even the procedure for exchange of communications between
the Governor and the Assembly is regulated. The Governor shall transmit his
messages to the Assembly through the Speaker in writing signed by him or if
he is absent from the place of meeting of the Assembly, it shall be
conveyed to the Speaker through the leader of the House or through such
person as the leader may delegate. This is provided in Rule 203 which
reads as follows:
“203 (1) Communications from the Governor to the Assembly shall be made to
the Speaker by written message signed by the Governor or if the Governor is
absent from the place of meeting of the Assembly, his message shall be
conveyed to the Speaker through the Leader of the House or through such
person as the Leader may delegate.
(2) Communication from the Assembly to the Governor shall be made:-
(i) by formal address after motion made and carried in the Assembly;
(ii) through the Speaker.”
There can be no doubt that the Governor would need to respect the Rules at
least in his relations with the Legislature and cannot override their
terms.
Arunachal Pradesh Rules of Executive Business
116. In exercise of powers conferred by Clause (2) and Clause (3) of
Article 166 of the Constitution, the Governor of Arunachal Pradesh has
framed the Arunachal Pradesh Rules of Executive Business, 1987.
117. In terms of Rule 8, all cases referred to in the Schedule are
mandated to be brought before the Cabinet in accordance with the provisions
contained in Part II thereof. Rule 8 reads as follows:
“8. Subject to the orders of the Chief Minister under Rule 14, all cases
referred to in the Schedule to these rules shall be brought before the
Cabinet in accordance with the provisions of the rules contained in Part-
II.”
118. As will be noticed from the above, Rule 8 is subject to the orders of
the Chief Minister under Rule 14 which is in Part II. In this regard, as
per Rule 14, the Chief Minister is entitled to refer any case mentioned in
the Schedule for consideration at a meeting of the Cabinet. Rule 14 reads
as follows:
“14. All cases referred to as in the schedule shall, after consideration by
the Minister be sent to the Secretary with a view to obtaining orders of
the Chief Minister for circulation of the case under Rule 16 or for
bringing it for consideration at a meeting of the Cabinet.”
119. Rule 33 gives a list of classes of cases required to be placed before
the Governor before the issuance of orders, with the approval of the
concerned Minister and the Chief Minister. This includes, in Rule 33(i) the
Governor’s address and message to the Legislative Assembly and in Rule
33(p) the summoning, prorogation or dissolution of the State Assembly. In
other words, before summoning the Legislative Assembly, the case has to be
considered by the Chief Minister and then placed before the Governor of
Arunachal Pradesh for issuance of appropriate orders. This is fully in
consonance with the Rules of Procedure and Conduct of Business in Arunachal
Pradesh Legislative Assembly framed under Article 208 of the Constitution.
120. The Schedule to the Arunachal Pradesh Rules of Executive Business
provides in item no. 4 (with reference to Rule 8 and Rule 14) for proposals
to summon, prorogue or dissolve the Legislature of the State.
Conclusions on the Rules of Business
121. It is clear from the above, that though summoning the Legislative
Assembly might be an executive function of the Governor, that function can
be exercised by him only after such a proposal is seen by the Chief
Minister and sent to him. Reading this with the Rules of Procedure and
Conduct of Business in Arunachal Pradesh Legislative Assembly, the Chief
Minister can make a proposal to the Governor for summoning the Legislative
Assembly only in consultation with the Speaker of the Legislative Assembly
who is, in a sense, the Master of the House. In other words, the Governor
has no independent discretion or authority to summon the Legislative
Assembly, in terms of the Rules of Procedure and Conduct of Business in
Arunachal Pradesh Legislative Assembly framed under Article 208 of the
Constitution or the Arunachal Pradesh Rules of Executive Business, 1987
framed under Article 166 of the Constitution to summon the Legislative
Assembly in his discretion.
122. As already mentioned above, in case the Chief Minister fails in his
duty to put forward a proposal before the Governor for summoning the
Legislative Assembly or if the Governor does not accept the proposal of the
Chief Minister of Arunachal Pradesh for summoning the Legislative Assembly,
necessary consequences will follow as mentioned in the debates in
Parliament when the first amendment to the Constitution was considered.
Article 371-H of the Constitution
123. Apart from the views of the Constituent Assembly, the provisions of
the Constitution, decisions of this Court and the views of eminent jurists
on the functions, duties and powers of the Governor, the Constitution has a
special provision with respect to Arunachal Pradesh. Article 371-H of the
Constitution provides for the Governor exercising “his individual judgment”
in the discharge of his functions relating to law and order in Arunachal
Pradesh. Specifically, therefore, the exercise of individual judgment by
the Governor of Arunachal Pradesh is permitted by the Constitution, but is
limited to issues of law and order only. Article 371-H of the Constitution
reads as follows:
“371-H. Special provision with respect to the State of Arunachal
Pradesh.—Notwithstanding anything in this Constitution,—
(a) the Governor of Arunachal Pradesh shall have special responsibility
with respect to law and order in the State of Arunachal Pradesh and in the
discharge of his functions in relation thereto, the Governor shall, after
consulting the Council of Ministers, exercise his individual judgment as to
the action to be taken:
Provided that if any question arises whether any matter is or is not a
matter as respects which the Governor is under this clause required to act
in the exercise of his individual judgment, the decision of the Governor in
his discretion shall be final, and the validity of anything done by the
Governor shall not be called in question on the ground that he ought or
ought not to have acted in the exercise of his individual judgment:
Provided further that if the President on receipt of a report from the
Governor or otherwise is satisfied that it is no longer necessary for the
Governor to have special responsibility with respect to law and order in
the State of Arunachal Pradesh, he may by order direct that the Governor
shall cease to have such responsibility with effect from such date as may
be specified in the order;
(b) the Legislative Assembly of the State of Arunachal Pradesh shall
consist of not less than thirty members.”
124. It is quite clear from the above discussion and particularly from the
provisions of the Constitution that the concept of “in his discretion” and
“his individual judgment” is very much alive and the distinction continues
to be real. Once this is appreciated the extent and scope of Article 163 of
the Constitution becomes obvious.
Conclusions
125. Under Article 163(1) of the Constitution, the Governor is bound by
the advice of his Council of Ministers. There are only three exceptions
[“except in so far as”] to this: (i) The Governor may, in the exercise of
his functions, act in his discretion as conferred by the Constitution; (ii)
The Governor may, in the exercise of his functions, act in his discretion
as conferred under the Constitution; and (iii) The Governor may, in the
exercise of his functions, act in his individual judgment in instances
specified by the Constitution.
126. The development of constitutional law in India and some rather
peculiar and extraordinary situations have led to the evolution of a
distinct category of functions, in addition to those postulated or imagined
by the Constitution and identified above. These are functions in which the
Governor acts by the Constitution and of constitutional necessity in view
of the peculiar and extraordinary situation such as that which arose in
M.P. Special Police Establishment and as arise in situations relating to
Article 356 of the Constitution or in choosing a person to be the leader of
the Legislative Assembly and the Chief Minister of the State by proving his
majority in the Legislative Assembly.
127. However, these limitations do not preclude the Legislative Assembly
from framing its Rules of Legislative Business under Article 208 of the
Constitution with reference to the functions of the Governor, nor do they
preclude the Governor from framing Rules of Executive Business under
Article 166 of the Constitution for the smooth functioning of the
government, as long as the Rules are framed in consonance with the
constitutional requirements and within constitutional boundaries.
Understanding the facts …..
128. The facts presented to us show that on 3rd November, 2015 the
Governor issued an Order whereby, in exercise of powers conferred on him by
Clause (1) of Article 174 of the Constitution, the Sixth Session of the
Legislative Assembly was summoned to meet at 10.00 a.m. on 14th January,
2016 to 18th January, 2016 in the Legislative Assembly Chamber at
Naharlagun. The Order was in accordance with the constitutional provision
(Article 174) for summoning the Assembly and in accordance with the Rules
of Procedure and Conduct of Business in Arunachal Pradesh Legislative
Assembly framed in exercise of powers granted by Article 208 of the
Constitution. In other words, the Order was in consultation with the
Speaker of the Assembly and the Chief Minister of Arunachal Pradesh.
129. Thereafter, on 19th November, 2015 notice of a resolution for the
removal of the Speaker was received in the Secretariat of the Legislative
Assembly. This resolution was in terms of Article 179 of the Constitution.
A copy of this resolution was also independently made available to the
Governor by the signatories to the resolution along with a request to
advance the date of the session of the Assembly to consider and vote on the
resolution for the removal of the Speaker.
130. By an Order issued on 9th December, 2015 the Order of 3rd November,
2015 summoning the Assembly was modified by the Governor on the ground,
inter alia, of his constitutional obligation “to ensure that the resolution
for removal of Speaker is expeditiously placed before the Legislative
Assembly.” The modification Order modified the date of 14th January, 2016
to read 16th December, 2015 and the date of 18th January, 2016 to 18th
December, 2015.
131. The modification Order also recorded that expeditious consideration
was necessary in view of (i) past precedents in the Lok Sabha (none of the
learned counsel could enlighten us on any such precedent); (ii) paragraph 2
of Rule 151 of the Rules of Procedure and Conduct of Business in Arunachal
Pradesh Legislative Assembly required expedition;[64] (iii) utmost
immediacy for clearing the cloud cast on the continuance of the incumbent
Speaker; (iv) the personal satisfaction of the Governor that the time gap
till the next session of the Assembly was long and unreasonable and “may
cause damage to the goals and ideals of provisions in the Constitution of
India and the Rules of Procedure of the House concerning speedy disposal of
such resolutions” and; (v) in advancing the date of the sixth session of
the Assembly, he “may not be bound by the advice of the Council of
Ministers, since the subject matter of the notice for removal of the
Speaker is not a matter falling under the executive jurisdiction of the
Chief Minister, Arunachal Pradesh nor such a subject matter finds a mention
in the Rules of Executive Business of the Government of Arunachal Pradesh
framed under Article 166 of the Constitution of India…” The relevant
extract of the modification Order reads as follows:
“WHEREAS any such notice of resolution in relation to an Officer of the
Legislative Assembly (Speaker or Deputy Speaker) needs to be expeditiously
considered by the Legislative Assembly in view of (i) past precedents in
the Lok Sabha and (ii) the seriousness and urgency accorded to such
resolutions in paragraph 2 of Rule 151 of the Rules of Procedure and
Conduct of Business in the Arunachal Pradesh Legislative Assembly and (iii)
the utmost immediacy with which the cloud cast by the notice of resolution
over the continuance of the incumbent in the office of the Speaker has to
be cleared:
WHEREAS I am personally satisfied that the time gap between the date of
compliance of the notice with the notice period prescribed in the first
proviso to article 179 (c) of the Constitution of India and the date of the
intended first sitting of the ensuing session, as computed in the aforesaid
manner, is long and unreasonable and may cause damage to the goals and
ideals of provisions in the Constitution of India and the Rules of
Procedure of the House concerning speedy disposal of such resolutions:
WHEREAS I am further satisfied that, for any exercise of advancing the date
of the sixth session under clause (1) of article 174 of the Constitution of
India to a date earlier than the date mentioned in the summons dated 3rd
November, 2015 for facilitating the House to expeditiously consider
resolutions for removal of Speaker, I may not be bound by the advice of
the Council of Ministers, since the subject matter of the notice for
removal of the Speaker is not a matter falling under the executive
jurisdiction of the Chief Minister, Arunachal Pradesh nor such a subject
matter finds a mention in the Rules of Executive Business of the Government
of Arunachal Pradesh framed under article 166 of the Constitution of India
thereby restricting the role of the Chief Minister in advising me in
exercise of my powers under article 174(1) of the Constitution of India
only to matters for which the Chief Minister, under the Constitution of
India, is responsible:”
132. Effectively, the Governor not only modified the dates of the session
of the Assembly but also cancelled or revoked the dates of the session of
the Assembly earlier decided upon in consultation with the Speaker of the
Assembly and the Chief Minister of Arunachal Pradesh.
133. On 14th December, 2015 that is two days before the Assembly was to
meet, the Council of Ministers of Arunachal Pradesh met and considered
Agenda Item No. 1 being “Discussion on the message dated 9th December, 2015
of the Governor of Arunachal Pradesh for pre-ponement of the Assembly
session from 14th January, 2016 to 16th December, 2015”. The Minutes of the
Cabinet record as follows:
“The Cabinet has discussed the opinion rendered by the Learned Advocate
General dated 12.12.2015 on the constitutionality of the order and message
of HE, the Governor. After careful examination, the Cabinet has resolved as
under:
The State Cabinet at its meeting held on 14th December, 2015 at 1000 hrs in
CMs conference hall again discussed in detail the Order and the Message
dated 09.12.2015 of His Excellency the Governor of Arunachal Pradesh.
Cabinet has received the opinion of the Ld. Advocate General dated
12.12.2015 and other legal experts on the said Order and Message. The
Cabinet has perused the said opinion and is in complete agreement with
views of the Ld. Advocate General.
The said Order dated 09.12.2015 issued by His Excellency the Governor of
Arunachal Pradesh is in contradiction to Article 174 read with Article 163
of the Constitution of India and Rule 3 and 3A of the Rules of Procedure
and Conduct of Business of the Arunachal Pradesh Legislative Assembly.
Similarly, the Message is contrary to Article 175 of the Constitution read
with Rule 245 of the Rules. Moreover, the Hon’ble High Court of Gauhati has
fixed the hearing of the case of resignation of 2 MLAs from the Assembly on
16th December, 2015.
Therefore, the Cabinet resolves and advises, His Excellency, the Governor
of Arunachal Pradesh to recall and cancel the Order and Message dated 9th
December, 2015 and allow the Session to be convened on 14th January, 2016
as already ordered and scheduled.
The Cabinet also resolves to endorse a copy of this resolution and legal
advice of the Ld. Advocate General to the Hon’ble Speaker.”
134. As per the list of dates and events supplied to us, the Speaker urged
the Governor by a communication of 14th December, 2015 “to uphold and
preserve the sanctity of the constitutional framework and let the House
function as per its original schedule without any undue interference.” This
communication was not acknowledged nor replied to. It has also not been
placed before us.
….. and the applicable law
135. It does appear to me, on facts, that the Governor acted unilaterally
in issuing the modification Order and did not consult either the Chief
Minister or the Speaker. In any event, no such consultation was shown to
us. Under these circumstances, the legitimate question that arises is
whether the Governor could modify the notified dates of the session of the
Assembly and simultaneously cancel and revoke the dates earlier fixed by an
appropriate Order in exercise of his powers under Article 174 of the
Constitution and (as suggested by learned counsel appearing on his behalf
and the movers of the resolution) in the exercise of his discretion under
Article 163 of the Constitution? What further complicates the matter is
that the Governor ignored the resolution of the Cabinet of 14th December,
2015 even assuming the communication of the Speaker did not reach him.
136. Our Constitution expects all constitutional authorities to act in
harmony and there must be comity between them to further the constitutional
vision of democracy in the larger interests of the nation. In other words,
conflicts between them should be completely avoided but if there are any
differences of opinion or perception, they should be narrowed to the
maximum extent possible and ironed out through dialogue and discussion. It
must be appreciated that no one is above the law and equally, no one is not
answerable to the law and the debate on the First Amendment to the
Constitution clearly indicates so.
137. As is evident from our constitutional history, there are three areas
in which a Governor might function:
Areas in which he can act only on the aid and advice of the Council of
Ministers. This is in all areas of the executive functions of the State
Government [Article 166].
Areas in which he can act in his discretion by or under the Constitution
and in which he does not need to take the advice of the Council of
Ministers [Article 163 - “except in so far as he is by or under this
Constitution required to exercise his functions or any of them in his
discretion.”] or, areas in which he might take the advice of the Council of
Ministers but is not bound by it enabling him to act in his individual
judgment by or under the Constitution.
Areas that have no concern with the Constitution. For example, where he is
acting eo nomine. We are not concerned with this area at all.
For our purposes, a distinction needs to be drawn between the relationship
of the Governor vis-à-vis the Executive and the relationship of the
Governor vis-à-vis the Legislature. Article 163 deals with the relationship
of the first category and Article 174 (among others) deals with the
relationship of the second category. We are concerned with the second
category, although the submissions of learned counsel have roped in Article
163 of the Constitution by contending that summoning the Legislative
Assembly is an executive act or function.
138. It is not at all necessary to enter into a debate on whether the act
or function of summoning the Assembly is an executive act or function.
Assuming it to be an executive function, summoning the Assembly cannot be
read as a ‘power’ conferred by the Constitution on the Governor - it
remains a function that the Governor performs in accordance with the
mandate of the Rules of Procedure and Conduct of Business in Arunachal
Pradesh Legislative Assembly on the advice of the Chief Minister and in
consultation with the Speaker of the Assembly. The unarticulated premise is
that the Governor cannot ‘act’ in an unregulated manner de hors any rules
of procedure in matters concerning the Legislative Assembly. The Governor
is expected to function in accordance with the provisions of the
Constitution (and the history behind the enactment of its provisions), the
law and the rules regulating his functions. It is easy to forget that the
Governor is a constitutional or formal head - nevertheless like everybody
else, he has to play the game in accordance with the rules of the game –
whether it is in relation to the Executive (aid and advise of the Council
of Ministers) or the Legislature (Rules of Procedure and Conduct of
Business of the Arunachal Pradesh Legislative Assembly). This is not to
say that the Governor has no powers – he does, but these too are delineated
by the Constitution either specifically or by necessary implication.
Failure to adhere to these basic principles is an invitation to enter the
highway to the danger zone.
139. Assuming however, that the Governor has the ‘constitutional power’
to summon the Assembly (and that it is not merely an executive function)
the considerations at law become quite different. Undoubtedly, no power,
constitutional or otherwise, can be exercised in an arbitrary manner though
the exercise of power, in some situations is undoubtedly beyond judicial
consideration or judicial review and at best an academic discussion, for
example the legality of using the armed forces of the Union
internationally. If the functions of the Governor were to be read as his
power, and an untrammeled one at that (in view of Article 163 of the
Constitution, as contended), then the Governor has the power to literally
summon the Assembly to meet “at such time and place as he thinks fit” that
is in any city and at any place other than the Legislative Assembly
building and at any odd time. This is nothing but arbitrary and surely, an
arbitrary exercise of power is not what our Constitution makers either
contemplated in the hands of the Governor or imagined its wielding by any
constitutional authority.
140. In the Case concerning Electtronica Sicula S.P.A. (ELSI)[65] the
International Court of Justice described arbitrariness in the following
words:
“128. Arbitrariness is not so much something opposed to a rule of law, as
something opposed to the rule of law. This idea was expressed by the Court
in the Asylum case, when it spoke of "arbitrary action" being "substituted
for the rule of law" (Asylum, Judgment, I.C.J. Reports 1950, p. 284). It is
a wilful disregard of due process of law, an act which shocks, or at least
surprises, a sense of juridical propriety.”
141. Does the rule of law in our country permit the Governor to throw
constitutional principles and the Rules of Procedure and Conduct of
Business of the Arunachal Pradesh Legislative Assembly to the winds and
summon the Assembly to meet wherever and whenever he deems appropriate?
Surely the answer to this must be in the negative and since that is so, it
must follow that the ‘power’ apparently conferred on the Governor is
arbitrary and must be read down to at least a ‘reasonable power’ to be
exercised in accord and consonance with constitutional principles, law and
the rules.
142. On merits, it is not possible or even advisable to look into the pros
and cons of the decision taken by the Governor. All that need be said is
that the events as they occurred with great rapidity over the days and
weeks preceding the modified Order appear to be nothing more or less than a
political circus. However, what is disquieting in constitutional terms (and
that has nothing to do with the reasons given by the Governor or the merits
or otherwise of the decision unilaterally taken by him) is the short shrift
that the Governor gave to a possible resolution of the Cabinet of Arunachal
Pradesh. While issuing the modified Order, the Governor concluded that that
he “may not be bound by the advice the Council of Ministers” for whatever
reason. From where did the Governor derive this principle and how did he
dream that he could invoke the concept of “individual judgment” should a
resolution of the Council of Ministers be placed before him – the very
concept that our constitution framers were not in favour of?
143. To make matters worse and, in a sense, humiliate the elected
government of the day, the Governor did ignore the resolution of the
Council of Ministers taken on 14th December, 2015 when it was placed before
him. By this time there was a complete break-down of communications between
the Governor and the elected Government and that, among other things, led
to an unsavory confrontation between the Governor and some Cabinet
Ministers. That interpersonal relationships of constitutional functionaries
are carried out with such a complete lack of cordiality and gay abandon is
indeed unfortunate. The result is a thrashing given to the Constitution and
a spanking to governance. It is precisely to avoid this that the
Constituent Assembly invoked the “principle of responsible government”. Sir
Alladi Krishnaswamy Aiyar, while supporting Dr. Ambedkar’s motion for
adopting the Constitution spoke of responsible government and the
“breakdown provisions” of the Constitution (not necessarily Article 356) on
23rd November, 1949 (virtually echoing Churchill) as follows:
“After weighing the pros and cons of the Presidential System as obtaining
in America and the Cabinet system of Government obtaining in England and
the Dominions, taking into account also the working of responsible
Government in the Indian Provinces for some years and the difficulty of
providing for a purely presidential type of Government in the States in
Part II, (now part IB) this Assembly has deliberately adopted the principle
of responsible Government both in the States and in the Centre. At the same
time the Assembly was quite alive to the fact that a good number of States
in Part IB were unaccustomed to any democratic or responsible Government
and with a view of ensure its success and efficient working the early
states of the Union Government is entrusted with the power of intervention
while there is a failure or deadlock in the working of democratic
machinery.
My honourable Friend Prof. K.T. Shah in expatiating upon the merits of the
Constitutional system based upon the principle of separation, did not fully
realize the inevitable conflict and deadlock which such a system might
result in a country circumstanced as India is. The breakdown provisions in
the Constitution are not intended in any way to hamper the free working of
democratic institutions or responsible Government in the different units,
but only to ensure the smooth working of the Government when actual
difficulties arise in the working of the Constitution. There is no analogy
between the authority exercised by the Governor or the Governor-General
under the authority of the British Parliament in the Constitution of 1935
and the power vested in the Central Government under the new Constitution.
The Central Government in India in future will be responsible to the Indian
Parliament in which are represented the people of the different units
elected on adult franchise and are responsible to Parliament for any act of
theirs. In one sense the breakdown provision is merely the assumption of
responsibility by the Parliament at Delhi when there is an impasse or
breakdown in the administration in the Units.”[66]
144. A further word may be said on “responsible government” in addition to
the views of the Constituent Assembly. The idea of a responsible government
was mentioned in U.N.R. Rao v. Indira Gandhi.[67] However, there was no
discussion on what constitutes or is expected of a responsible government
other than an expression of a view that the Council of Ministers must enjoy
the confidence of the House of the People.
145. In S.R. Chaudhuri v. State of Punjab[68] it was observed that
parliamentary democracy generally envisages (i) Representation of the
People, (ii) Responsible government, and (iii) Accountability of the
Council of Ministers to the Legislature. With regard to the
characteristics of a responsible government, this Court referred to the
Constitutional Law of Canada[69] and the limited discretion available to
the Governor-General in the following words:
“The narrative must start with an exercise by the Governor-General of one
of his exceptional reserve powers or personal prerogatives. In the
formation of a Government it is the Governor-General’s duty to select the
Prime Minister. He must select a person who can form a Government which
will enjoy the confidence of the House of Commons. For reasons which will
be explained later, the Governor-General rarely has any real choice as to
whom to appoint: he must appoint the parliamentary leader of the political
party which has a majority of seats in the House of Commons. But it is
still accurate to describe the Governor-General’s discretion as his own,
because unlike nearly all of his other decisions it is not made upon
ministerial advice.
When the Prime Minister has been appointed, he selects the other Ministers,
and advises the Governor-General to appoint them. With respect to these
appointments, the Governor-General reverts to his normal non-discretionary
role and is obliged by convention to make the appointments advised by the
Prime Minister. If the Prime Minister later wishes to make changes in the
Ministry, as by moving a Minister from one portfolio to another, or by
appointing a new Minister, or by removing a Minister, then the Governor-
General will take whatever action is advised by the Prime Minister,
including if necessary the dismissal of a Minister who has refused his
Prime Minister’s request to resign.”
146. In dealing with the situation in Arunachal Pradesh, the Governor was
obliged to adhere to and follow the constitutional principle, that is, to
be bound by the advice of the Council of Ministers. In the event that
advice was not available and responsible government was not possible, the
Governor could have resorted to the “breakdown provisions” and left it to
the President to break the impasse. The Governor had the advice of the
Council of Ministers but chose to ignore it; he assumed (well before the
advice was tendered) that the advice would be such that he might not be
bound by it; the Governor, despite being the ‘first citizen’ of the State,
chose to take no steps to break the impasse caused by a collapse of
communications between him and the Chief Minister; finally, the Governor
took no steps to resort to the breakdown provisions and obtain impartial
advice from the President. Instead, the Governor acted in a manner not only
opposed to a rule of law but also opposed to the rule of law and,
therefore, arbitrarily and in a manner that certainly surprises “a sense of
juridical propriety”.
147. The Governor had yet another option available to him – to invoke what
is referred in Canada as the “confidence convention” in which “the Prime
Minister and the Cabinet are responsible to, or must answer to, the House
of Commons for their actions and must enjoy the support and the confidence
of a majority of the Members of that Chamber to remain in office.”[70] If
the Governor had any doubt about the continuance of a responsible
government as a result of the shenanigans that were going on in Arunachal
Pradesh at the relevant time, he could very well have required the Chief
Minister to prove that he had the confidence of the Assembly, but he chose
not to exercise this option also. In other words, all possible
constitutional options were unilaterally discarded and disregarded by the
Governor in summoning the Assembly to meet on 16th December, 2015 and
cancelling the session fixed for 14th January, 2016. The actions of the
Governor were certainly not in the language of the law or the spirit of
parliamentary democracy and responsible government. In these
circumstances, it must be held that the Governor’s unilateral act of
summoning the Assembly is unconstitutional.
Relations between the Governor, the Executive and the Legislature
148. The issue may also be looked at from an entirely different
perspective based on the provisions of the Constitution. Part VI of the
Constitution concerns the States and it consists of six chapters. Chapter I
is general and consists of one definition. Chapter II relates to the
Executive, that is, the Governor, the Council of Ministers, the Advocate
General for the State and conduct of government business. Amongst other
things, the ‘eligibility’ of a person to be appointed a Governor is
provided for in this chapter. Article 158 of the Constitution provides that
the Governor shall not be a Member of Parliament or of a State Legislature
and if such a Member is appointed as a Governor, he shall be deemed to have
vacated his seat in the House when he enters upon his office as Governor.
This is significant since it insulates the Legislature from the Governor.
149. Article 163 of the Constitution and the discretionary exercise of
functions of the Governor comes under the heading of Council of Ministers
and is suggestive of executive governance or executive issues concerning
the Council of Ministers. In this context, reference may also be made to
Article 164 of the Constitution which provides for the appointment of the
Chief Minister of the State by the Governor and the appointment of other
Ministers on the advice of the Chief Minister. The appointment of the Chief
Minister is based on the postulate that he commands or is expected to
command the support of a majority of Members of the Legislative Assembly.
Therefore, it is not as if the Governor has untrammeled discretion to
nominate anyone to be the Chief Minister of a State. Similarly, if the
Governor chooses to ‘withdraw his pleasure’ in respect of a Minister he
must exercise his discretion with the knowledge of the Chief Minister and
not by keeping him in the dark or unilaterally. In this context, reference
may be also be made to Article 165 of the Constitution which deals with the
appointment of the Advocate General for the State. He is appointed by the
Governor and holds office during the pleasure of the Governor and receives
such remuneration as the Governor may determine. It cannot be anybody’s
case that the Governor, in exercise of his discretion, may appoint any
eligible person as the Advocate General without any reference to the
Council of Ministers and also ‘withdraw his pleasure’ at any time in
respect of the Advocate General thereby removing him from his office. The
purpose of all these provisions is to indicate that the discretion given to
the Governor is not all-pervasive or all-encompassing as is suggested by
learned counsel for the respondents.
150. That the functions of the Governor are limited to matters of
executive governance or executive issues and the Council of Ministers is
made explicit through Article 166 of the Constitution which provides that
all executive action of the Government shall be expressed to be taken in
the name of the Governor,[71] orders and instruments shall be executed in
the name of the Governor[72] and the Governor shall make rules for the more
convenient transaction of business of the Government and allocation of
business among the Ministers “in so far as it is not business with respect
to which the Governor is by or under this Constitution required to act in
his discretion.” This clearly has reference to Article 163 of the
Constitution and must be understood as meaning that framing the rules under
Article 166(3) of the Constitution is not the discretion of the Governor
but an executive exercise undertaken by the Council of Ministers. Article
167 of the Constitution relates to the duty of the Chief Minister of a
State to communicate the decisions of the Council of Ministers to the
Governor and furnish information to the Governor. Chapter II of Part VI of
the Constitution is, therefore, quite compact and delineates the relations
between the Executive and governance of the State.
151. Chapter III concerns itself with the State Legislature and several
aspects concerning the State Legislature. As far as the Governor is
concerned, Article 168 in this chapter of the Constitution provides that
the State Legislature shall consist of the Governor and its House(s).
[However, in view of Article 158 of the Constitution the Governor is not a
member of the State Legislature.] His status, therefore, for lack of a
better word, is that of a constituent of the Legislature. What are his
functions in this capacity? In Rai Sahib Ram Jawaya Kapur the Constitution
Bench observed that: “It may not be possible to frame an exhaustive
definition of what executive function means and implies. Ordinarily the
executive power connotes the residue of governmental functions that remain
after legislative and judicial functions are taken away.” In so far as this
chapter is concerned, his functions are certainly not legislative (those
are dealt with in Chapter IV of Part VI of the Constitution); his powers in
this chapter are also certainly not judicial, and therefore clearly
executive in character. What are these executive functions?
152. Amongst others, Article 174 of the Constitution provides that the
Governor shall summon the Legislative Assembly from time to time and may
prorogue and dissolve the Legislative Assembly. Summoning the House was
described by Pandit Jawaharlal Nehru in the debate on 16th May, 1951 on the
First Amendment to the Constitution as “an indirect duty” of the President.
He went on to say that by the President, he meant the government of the
day. Applying this to Article 174 of the Constitution, the Governor is
obliged to perform this indirect duty. Since this indirect duty is
executive in character, it cannot be performed except on the aid and advice
of the Council of Ministers so as to avoid a “futile operation” and subject
to the procedure mentioned in the Rules referred to above. Proroguing and
dissolving the House must also follow a similar procedure as summoning the
House. It would be doing violence to all canons of interpretation if the
discretion of the Governor in Chapter III is incorporated in Chapter IV and
given a wider and greater interpretation than intended in Chapter III.
153. Addressing the House under Article 175(1) of the Constitution or
making a special address under Article 176 of the Constitution would also
be executive functions performed by the Governor on the aid and advice of
the Council of Ministers. There can hardly be any dispute on this. Sending
a message to the House under Article 175(2) of the Constitution might not
strictly be an executive function but would fall in a separate category
altogether which might be described as having a quasi-executive or quasi-
legislative flavour. This entitlement specifically provided for in the
Constitution is exercised by the Governor as a constituent of the
Legislature and therefore not traceable to the aid and advise of the
Council of Ministers.
154. There are other executive functions that a Governor is required to
perform with respect to the Legislature. Some of these are provided for in
Article 180 of the Constitution (referred to above), Article 184 of the
Constitution (which pertains to the Legislative Council and is in pari
materia with Article 180 of the Constitution) and recruitment and
conditions of service of secretarial staff of the Legislative Assembly or
the Legislative Council as the case may be (Article 187 of the
Constitution). If the provisions of Article 163 of the Constitution are
read into all these executive functions relatable to the Legislature and
the exercise of discretion of the Governor cannot be questioned (as
contended by learned counsel for the respondents) then the Legislature
could and would be dominated by the Governor – something completely
unthinkable in a parliamentary democracy, where the Governor cannot
dominate the Executive but could dominate the Legislature!
155. It is not necessary for the present purposes to delve into the
Governor’s role in legislative or quasi-legislative issues, such as assent
to Bills (Article 200 and 201 of the Constitution), procedure in financial
matters and legislative powers of the Governor (Chapter IV). Nor is it
necessary to deal with the relations between the Governor and the Judiciary
(Chapter V and Chapter VI of Part VI of the Constitution). All that need
be said is that except in specified matters, executive functions of the
Governor whether relating to governance issues or issues pertaining to the
Legislature are required to be performed by him on the aid and advise of
the Council of Ministers and the Rules framed by the House. No discretion
is available to him in these matters since he is bound by the advice given
to him by the Council of Ministers and Article 163 of the Constitution
cannot be imported into these matters. The only discretion available to the
Governor under Article 163 of the Constitution is in respect of matters
provided for by or under the Constitution not relatable to the Council of
Ministers and the Judiciary.
156. In the view that I have taken, the question relating to the
interpretation of Article 175 of the Constitution and the validity of the
message of the Governor becomes academic or does not arise and it is not
necessary or even advisable to answer it. This Court has held on several
occasions that it is inexpedient to delve into problems that do not arise
and express an opinion thereon.[73]
157. Therefore, I answer the first three questions in the negative and
hold that the fourth question does not arise in the circumstances of the
case.
158. The fifth and final question in these appeals is: Whether the Deputy
Speaker of the Legislative Assembly of Arunachal Pradesh was entitled at
law to set aside the order of the Speaker of the Legislative Assembly of
Arunachal Pradesh by which the Speaker had disqualified fourteen Members of
the Legislative Assembly of Arunachal Pradesh (including the Deputy
Speaker) under the Tenth Schedule of the Constitution?
159. The question here is not whether the disqualification of fourteen
members of the Legislative Assembly is valid or not. That was a matter
pending consideration in the Gauhati High Court when judgment in these
appeals was reserved, but has since been decided. We are not concerned
with the decision of the Gauhati High Court or the power or propriety of
the decision of the Speaker. The narrow question is whether the Deputy
Speaker could, by his order dated 15th December, 2015 set aside the order
of the Speaker also dated 15th December, 2015 disqualifying fourteen
members of the Legislative Assembly including the Deputy Speaker himself.
160. The Speaker gave a notice to fourteen members of the Legislative
Assembly on 7th December, 2015 requiring them to show cause why they should
not be disqualified under the Tenth Schedule of the Constitution.
Thereafter, by an order dated 15th December, 2015 the Speaker disqualified
them from their membership in the Legislative Assembly. As mentioned
above, the correctness of this order and the procedure followed has now
been decided by the Gauhati High Court and the correctness of that decision
is not before us.
161. The Deputy Speaker passed an order on 15th December, 2015 inter alia,
on the ground that the Speaker lacked the competence to pass the
disqualification order and that he had not followed the constitutional and
legal procedures. He had had lost his competence to pass the
disqualification order since a notice of his removal dated 19th November,
2015 was pending and was to come up before the Legislative Assembly on
16th December, 2015. In passing his order of 15th December, 2015 the
Deputy Speaker purported to derive his power from the message given by the
Governor to the Legislative Assembly on 9th December, 2015 requiring the
Deputy Speaker to conduct the proceedings of the House on the resolution
for removal of the Speaker. What is important to note is that the Deputy
Speaker was to preside over the House on 16th December, 2015. He certainly
had no derivative power from the message of the Governor dated 9th
December, 2015 to take over the functions of the Speaker or to sit in
judgment over the decision of the Speaker of 15th December, 2015.
162. That apart, it is now well settled by the decision of this Court in
Kihoto Hollohan v. Zachillhu[74] that the Speaker while acting under the
Tenth Schedule of the Constitution acts as a Tribunal and his decision can
be challenged only in a court exercising constitutional jurisdiction.
It was held in Kashinath Jalmi v. Speaker[75] that even the Speaker does
not have the power to review the decision taken by him under the Tenth
Schedule of the Constitution. Under these circumstances, there is
absolutely no question of the Deputy Speaker setting aside the order of the
Speaker passed under the Tenth Schedule of the Constitution.
163. It is also important to note that the Deputy Speaker was himself
disqualified from the membership of the Legislative Assembly by the Speaker
and he could certainly not have set aside the order passed against him and
in respect of which he would be the beneficiary. There is no doubt that
the Deputy Speaker had no authority at all to set aside the decision of the
Speaker passed under the Tenth Schedule of the Constitution. The fifth
question is answered in the negative.
164. In the view that I have taken, I am of opinion that the view
expressed by my learned Brothers relating to the power or propriety of the
Speaker taking a decision under the Tenth Schedule of the Constitution with
regard to the fourteen members of the Legislative Assembly does not at all
arise in these appeals.
Final order
165. The appeals are allowed. The impugned judgment and order of 13th
January, 2016 passed by the Gauhati High Court is set aside. The
modification Order of 9th December, 2015 passed by the Governor of
Arunachal Pradesh is unconstitutional and is set aside and the order of the
Deputy Speaker dated 15th December, 2015 setting aside the order of the
Speaker of the same date is also set aside.
………………………..J
New Delhi; (Madan B. Lokur)
July 13, 2016
-----------------------
[1]
(1974) 2 SCC 831
[2] (1971) 1 SCC 411
[3] (2005) 2 SCC 92
[4] (1972) 1 SCC 148
[5] (1997) 2 SCC 745
[6] (1997) 8 SCC 191
[7] (1993) 2 SCC 703
[8] (2010) 6 SCC 331
[9] (1994) 3 SCC 1
[10] (1979) 3 SCC 324
[11] AIR 1973 (Madras) 371
[12] AIR 1999 (Bom.) 53
[13] AIR 1969 SC 903
[14] AIR 2002 (Gauhati) 7
[15] (2004) 8 SCC 788
[16] (2013) 3 SCC 1
[17] (1973) 4 SCC 25
[18] (1982) 2 SCC 463
[19] (2011) 10 SCC 1
[20] (1968) 72 C.W.N. 328
[21]
(1977) 4 SCC 608
[22] (2001) 7 SCC 126
[23] (2006) 8 SCC 212
[24] THE RT HON. BARONESS BOOTHROYD, The Role of the Speaker in the 20th
Century, The Parliamentary History Yearbook Trust, Vol. 29, Issue 1, Feb
2010, page 136
[25] (1992) 1 SCC 309
[26] (1965) 1 SCR 413 : AIR 1965 SC 745
[27] (2014) 9 SCC 1
[28] Laozi, 570-490 BCE
[29] MANU/GH/0118/2016 [decided on 30th March, 2016]
[30] 9.(1) There shall be a council of ministers, not exceeding ten in
number, to aid and advise the Governor-General in the exercise of his
functions, except in so far as he is by or under this Act required to
exercise his functions or any of them in his discretion :
Provided that nothing in this sub-Section shall be construed as
preventing the Governor-General from exercising his individual judgment in
any case where by or under this Act he is required so to do.
(2) The Governor-General in his discretion may preside at meetings of
the council of ministers.
(3) If any question arises whether any matter is or is not a matter
as respects which the Governor-General is by or under this Act required to
act in his discretion or to exercise his individual judgment, the decision
of the Governor-General in his discretion shall be final, and the validity
of anything done by the Governor-General shall not be called in question on
the ground that he ought or ought not to have acted in his discretion, or
ought or ought not to have exercised his individual judgment.
[31] http://hansard.millbanksystems.com/commons/1935/feb/28/clause-9-
council-of-ministers
[32] HC Deb 28 February 1935 vol 298 cc1327-63
[33] http://hansard.millbanksystems.com/commons/1935/feb/28/clause-9-
council-of-ministers
[34] http://hansard.millbanksystems.com/commons/1935/feb/28/clause-9-
council-of-ministers
[35] HC Deb 05 March 1935 vol 298 cc1787-887 to be found at
http://hansard.millbanksystems.com/commons/1935/mar/05/clause-12-
special-responsibilities-of
[36] Sir Alladi Krishnaswamy Aiyar also refers to the “breakdown
provisions” as brought out subsequently in this judgment.
[37] Constitutional Adviser to the Constituent Assembly
[38] [39] These quotations have been taken from “India’s Constitution in
the Making” by Sir Benegal Rau (Edited by B. Shiva Rao), Allied Publishers
Private Limited, pages 351 and 352
[40] Constituent Assembly Debates, Vol.8, 1949, pp.490-491
[41] Constituent Assembly Debates, Vol.8, 1949, pp.500-502
[42] [43] Section 50(2) of the Government of India Act, 1935 which reads:
The Governor in his discretion may preside at meetings of the council of
ministers.
[44] Constituent Assembly Debates, Vol.8, 1949, p.106
[45] Parliamentary Debates Part II – Proceedings other than Questions and
Answers. Official Report Volume XII, 1951 (15 May 1951 – 6 June 1951).
Third Session (Second Part) of Parliament of India, 1951 = (First
Amendment) Bill 16 May 1951 p.8819
[46] Parliamentary Debates Part II – Proceedings other than Questions and
Answers. Official Report Volume XII, 1951 (15 May 1951 – 6 June 1951).
Third Session (Second Part) of Parliament of India, 1951 = (First
Amendment) Bill 2 June 1951 p.9957 and 9959
[47] [1955] 2 SCR 225 (5 Judges)
[48] (1968) 72 CWN 328
[49] [1969] 1 SCR 478 (5 Judges)
[50] (1974) 2 SCC 831 (7 Judges)
[51] 234. Recruitment of persons other than district judges to the
judicial service.—Appointments of persons other than district judges to the
judicial service of a State shall be made by the Governor of the State in
accordance with rules made by him in that behalf after consultation with
the State Public Service Commission and with the High Court exercising
jurisdiction in relation to such State.
[52] (1971) 1 SCC 411 (5 Judges)
[53] (1964) 5 SCR 29 (5 Judges)
[54] AIR 1999 Bombay 53
[55] (2004) 8 SCC 788 (5 Judges)
[56] (2005) 2 SCC 92 (5 Judges)
[57] 2. Constitution of District Councils and Regional Councils.- (1)
There shall be a District Council for each autonomous district consisting
of not more than thirty members, of whom not more than four persons shall
be nominated by the Governor and the rest shall be elected on the basis of
adult suffrage:
xxx xxx xxx
20-BB. Exercise of discretionary powers by the Governor in the
discharge of his functions.—The Governor, in the discharge of his functions
under sub-paragraphs (2) and (3) of paragraph 1, sub-paragraphs (1) and (7)
of paragraph 2, sub-paragraph (3) of paragraph 3, sub-paragraph (4) of
paragraph 4, paragraph 5, sub-paragraph (1) of paragraph 6, sub-paragraph
(2) of paragraph 7, sub-paragraph (3) of paragraph 9, sub-paragraph (1) of
paragraph 14, sub-paragraph (1) of paragraph 15 and sub-paragraphs (1) and
(2) of paragraph 16 of this Schedule, shall, after consulting the Council
of Ministers, and if he thinks it necessary, the District Council or the
Regional Council concerned, take such action as he considers necessary in
his discretion.
Paragraph 20-BB was inserted by The Sixth Schedule to the
Constitution (Amendment) Act, 1988.
[58] (2013) 3 SCC 1
[59] Paragraph 4.3.08
[60] Paragraph 4.4.03
[61] The view expressed regarding proroguing and dissolving the Assembly
is not referred to since that issue does not arise in the present case.
[62] SRO 3524 dated 4th November, 1957
[63] SRO 446-A dated 1st February, 1958
[64] Macbeth, Act III Scene IV
[65] 208. Rules of procedure - (1) A House of the Legislature of a State
may make rules for regulating, subject to the provisions of this
Constitution, its procedure and the conduct of its business.
(2) Until rules are made under clause (1), the rules of procedure and
standing orders in force immediately before the commencement of this
Constitution with respect to the Legislature for the corresponding Province
shall have effect in relation to the Legislature of the State subject to
such modifications and adaptations as may be made therein by the Speaker of
the Legislative Assembly, or the Chairman of the Legislative Council, as
the case may be.
(3) In a State having a Legislative Council the Governor, after
consultation with the Speaker of the Legislative Assembly and the Chairman
of the Legislative Council, may make rules as to the procedure with respect
to communications between the two Houses.
[66] 151. Any resolution to remove the Speaker or the Deputy Speaker from
office, of which at least fourteen days notice as required under Article
179 of the Constitution has been given shall be read to the Assembly by the
person presiding who shall then request the members who are in favour of
leave being granted to move the Resolution to rise in their places, and if
not less than one fifth of the total numbers of member of the House rise
accordingly, the person presiding shall allow the Resolution to be moved.
If less than one-fifth of the total numbers of member of the House rise,
the person presiding shall inform the member who may have given the notice,
that he has not the leave of the Assembly to move it.
If notice of a Resolution against the Speaker or the Deputy Speaker
is tabled, the House shall not be adjourned till the provisions of these
Rules are complied with and the motion on no confidence is disposed of
finally.
The charges in the Resolution moved by a mover against Speaker or
Deputy Speaker should be substantially and precisely expressed.
The nature of the charges should be within the conduct of Speaker or
Deputy Speaker in the House for the inability to conduct the business in
the House or misappropriation of Assembly property or finance.
The Resolution duly signed by the mover should be handed over to
Secretary, Legislative Assembly for scrutiny.
[67] United States of America v. Italy, I.C.J. Reports 1989, p.15
[68] http://parliamentofindia.nic.in/ls/debates/v11p9m.htm
[69] (1971) 2 SCC 63 (5 Judges)
[70] (2001) 7 SCC 126
[71] (4th Edn., p. 243), Peter W. Hogg, Professor of Law, Osgoode Hall
Law School, York University
[72] The House of Commons Procedure and Practice, Second Edition, 2009
http://www.parl.gc.ca/procedure-book-
livre/document.aspx?sbdid=a24e8688-cc45-4245-8f5c-dd32f4aa9b01&sbpidx=3
[73] Article 166(1) of the Constitution
[74] Article 166(2) of the Constitution
[75] Sanjeev Coke Manufacturing Co. v. Bharat Coking Coal Ltd., (1983) 1
SCC 147
[76] 1992 Supp.(2) SCC 651
[77] (1993) 2 SCC 703
-----------------------
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250