How did the Arunachal Pradesh governor Jyoti Prasad Rajkhowa set off a chain of events by advancing an assembly session a month ahead of schedule without the advice of the council of ministers?
By Venkatasubramanian
When President Pranab Mukherjee gave his assent for President’s Rule in Arunachal Pradesh on January 26, he was perhaps unaware that his decision might displease at least five Supreme Court judges. These judges were together hearing a bunch of petitions challenging the decision of Arunachal Pradesh governor Jyoti Prasad Rajkhowa in advancing the assembly session a month ahead of its scheduled date, without the aid and advice of the council of ministers.
The president decided to accept the recommendation of the Union cabinet to impose President’s Rule and keep the assembly in suspended animation. However, he did not use his power to return the recommendation for reconsideration after getting clarifications from home minister Rajnath Singh that the state government could not be carried on in accordance with the constitution.
POLITICAL CRISIS
The president attributed his satisfaction about the failure of constitutional machinery in the state to the governor’s report to the center. However, the Supreme Court was being told by the petitioners that the report was sent in the midst of a political crisis, precipitated by the governor’s own summoning of the state assembly, in his discretion, which was mala fide.
The governor summoned the assembly session on December 16-17 last year outside the assembly premises, purportedly because the house was sealed by Speaker Nabam Rebia. This set off a chain of events which were unprecedented in India’s parliamentary history.
Of the 60 members of the Arunachal Pradesh assembly, 42 belonged to the Congress, 11 to the BJP, five to the People’s Party of Arunachal (PPA) and two were independents. Subsequently, all five members of the PPA merged with the Congress, raising its strength to 47.
Dissidence within the ruling party, according to media reports, led to the rebellion of 21 Congress MLAs who demanded a change in leadership. Apparently, this number is not sufficient to cause a legal split within the legislature party. The Tenth Schedule to the constitution requires a resolution by two-thirds of the legislature party to bring about a legal merger with another party. Anything less than two-thirds would invite the anti-defection act.
Thus, when Rajkhowa advanced the assembly session from January 14 to December 16 to take up the motion to remove the speaker, 14 dissident MLAs were disqualified by Rebia under the Tenth Schedule. This was on the ground that the rebels were deemed to have voluntarily quit the party, and thereby lost their membership of the house. The speaker’s action can only be challenged in a court of law.
WHY THE HURRY?
On December 16, the deputy speaker, Tenzing Norbu Thongdok, ordered the removal of the speaker following a resolution adopted by the assembly. Thongdok also rescinded the disqualification of the 14 MLAs by the speaker. The governor’s action in advancing the assembly session on the ground that 13 opposition MLAs had given notice for the removal of the speaker was indefensible because prior to this, he had received another notice from 16 Congress MLAs for the removal of the deputy speaker. It is inexplicable that he ignored the first notice but not the second one. It is also not clear why he thought an urgent assembly session had to be summoned to decide the second notice when those who had given the notice could have waited till January 14 when the assembly was originally scheduled to meet.
Nabam Rebia first challenged the governor’s advancing of the assembly session before the Gauhati High Court. It was first heard by Justice Hrishikesh Roy, who held in his December 17 judgment that the governor, while summoning the house is required to perform his duty with the council of ministers and the CM, in consultation with the speaker.
Justice Roy observed that the governor acts as a constitutional head and, therefore, his decision to advance the assembly session without the advice of the CM and primarily on requisition made by opposition MLAs taints the governor’s order and renders it unworthy of the state’s constitutional head.
NON-BONAFIDE INTERVENTION
Specifically, Justice Roy said that the power of the governor to send a message to the house is with respect to a pending bill. This power under Article 175(2) can’t be utilized to send a message on a pending resolution for removal of the speaker and hence, this appears to be an act exceeding the jurisdiction. Justice Roy described the governor’s conduct as a non-bonafide intervention.
Justice Roy observed that the governor acts on his own discretion, for the furtherance of the constitutional goals and that the de facto authority of the state vests on the elected government, not the constitutional head. He further added that the governor’s non-neutral role was undermining the democratic process.
Justice Roy had granted a stay on the removal of the speaker, which was vacated by another judge, Justice Biplab Kumar Sharma, who was assigned the case by the acting Chief Justice of the High Court, Justice Tinlianthang Vaiphei, in his administrative capacity. Justice Vaiphei rejected Rebia’s plea for recusal of Justice Sharma without hearing him.
On January 14, Justice Sharma dismissed the writ petition challenging the removal of the speaker, and refused to consider a petition challenging the governor’s decision advancing the date of the assembly session. Rebia then challenged this dismissal in the Supreme Court, which is hearing it prior to hearing the fresh petition filed against the proclamation of President’s Rule.
ARBITRARY DECISION?
The Supreme Court is concerned whether the governor violated constitutional norms by advancing the session of the state assembly from January to December without the aid and advice of the council of ministers. In particular, the Court will decide whether he exercised his discretion arbitrarily without any material.
As the constitution stipulates that the assembly should meet within six months of its last sitting, that is, before January 21, 2016, the governor first convened the assembly on the advice of chief minister Nabam Tuki for January 14, 2016.
The crisis began on December 9 as the governor unilaterally advanced this date to December 16, and sent a message to the house that its composition will be unchanged (notwithstanding the disqualification of the 14 by the speaker) and that the speaker’s removal would be the first item on the agenda.
On December 14, Rebia disqualified the deputy speaker, T Norbu Thongdok and 13 rebel Congress legislators under the anti-defection law. This order was quashed by Thongdok at the disputed session held on December 16.
ILLEGAL OCCUPATION
The speaker asked the home minister to cordon off the assembly building from an illegal occupation. The dissident Congress group, the BJP and independent MLAs met subsequently from December 16-17 in a community hall under the deputy speaker who had already been disqualified.
The governor’s report recommending imposition of President’s Rule was sent on December 17, the same day when the High Court ordered stay on the decisions taken at the disputed assembly session held outside the premises on December 16. The December 16 session had quashed the disqualification of the rebel MLAs by the speaker and removed him from his post.
The governor has voluntarily submitted to the jurisdiction of the high court and the Supreme Court in the ongoing hearing of the challenges to his power to advance the assembly session. When it was pointed out that he enjoyed constitutional immunity, the Court withdrew its notice to him in the other case of challenges to the President’s Rule. His counsel, Satya Pal Jain, still appeared before the Court and answered queries from the constitution bench. Clearly, the governor was concerned about the verdict of the bench going against him even while seeking to avoid embarrassing questions from it.
On February 5, the bench observed that it might have to examine whether it was a sinister or a genuine motive that prompted the governor to advance the assembly session.
The rebel Congress MLAs, through senior advocate Rakesh Dwivedi, maintained that the governor had absolute discretion in the matter of advancing the house. The bench, however, disagreed saying it could intervene if it perceived a sinister motive.
CONCRETE MATERIAL
The question before the bench was whether Article 163 gave the governor absolute immunity from judicial review of his action.
The rebel MLAs contended that he had information that there would be horse-trading and other such activities, which had prompted him to advance the session. The bench, however, wanted concrete material in support of the argument.
Two senior advocates, Vikas Singh and Shekhar Naphade, representing a group of BJP legislators in the state, contended that governors enjoyed absolute immunity under Articles 163 and 361 of the constitution. When Vikas Singh told the court that JP Rajkhowa was a former civil servant and not a political appointee, the bench retorted that every governor was a political appointee.
The immunity to the governor from the courts cannot apply if there are allegations of mala fide. The Court has held that it can examine whether it is personal mala fide or legal mala fide.
According to Vikas Singh, Article 179 did provide discretionary powers to the governor to convene, prorogue or dissolve the assembly.
Justice Madan B Lokur asked whether the governor can reverse the order of the list of business of the House. Those defending the governor in the Supreme Court had no convincing answer. The bench will finally answer the question whether Article 361 puts the power of a governor at a higher pedestal when it comes to judicial scrutiny of his actions.
Satyapal Jain, counsel for the governor, said that one mithun (a hybrid animal which resembles a buffalo) was killed outside the Raj Bhavan on December 17, tyres were being burnt and the governor and his family were prevented from leaving Raj Bhavan.
PERIOD OF DISQUALIFICATION
The hearing of the case exposed a grey area in Article 191(1)(2), as it did not refer to the period of disqualification. The bench wondered whether the disqualification is forever or whether the disqualified legislator could re-contest.
When the bench suggested a floor test on January 19, both the counsel for the Congress, Fali Nariman and for the speaker, Kapil Sibal opposed it. Sibal’s said nothing would happen if the house did not meet within six months from its last sitting as the constitution did not provide for any such consequence as this would allow the disqualified members to vote in any trust motion.
The constitution bench has averred that it cannot be a silent spectator, when democracy is sought to be slaughtered in the state. The outcome of the hearing will show whether the Supreme Court succeeds in ending such aberrations and prevent abuse of the constitutional provisions, endangering federalism and other republican values under the pretext of breakdown of the constitutional machinery in the state.
Image By Vikramjit Kakati – Own work, CC BY-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=18985447