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Legally Explained: Has SCOI averted a crisis in Arunachal Pradesh or was it mostly academic?

Is the Arunachal Pradesh case mostly academic?
Is the Arunachal Pradesh case mostly academic?

The Supreme Court’s five-judge Constitution bench judgment of 13 July, quashing president’s rule in Arunachal Pradesh, was a massive judgment in every way, and not just because it set off a series of dramatic events loaded with suspense.

Only yesterday, the state’s chief minister Nabam Tuki resigned, a few hours before a confidence vote, paving the way for the election of Pema Khandu as the new leader of the Congress Legislature Party there (and the new chief minister).

We piece together the seven month-old political and legal battle in Nabam Rebia and Bamang Felix v Union of India and others, which has now resulted in a happy ending for at least one political party.

(Please read our previous detailed real-time coverage of the case https://www.legallyindia.com/tag/nabam-rebia-case here).

How did the case even get to the Supreme Court?

The case first came to the Supreme Court as a Special Leave Petition (SLP) by the former Arunachal Pradesh house speaker, Nabam Rebia, and the Congress Chief Whip in Arunachal Pradesh, Bamang Felix.

They questioned the Governor’s decision to hold the assembly one month early in December 2015, which led to political instability.

The chief minister, Nabam Tuki, could not prove his majority in the House, as a result. The Deputy Speaker then removed the Speaker, by holding a session called by the Governor, and annulled the disqualification of 14 rebel MLAs by the Speaker on 14 December 2015.

The Supreme Court’s five-judge constitution bench heard the matter for one full month, and reserved its judgment on 22 February.

Who were the members of the Constitution bench?

Justices JS Khehar, Dipak Misra, Madan B Lokur, Pinaki Chandra Ghose and NV Ramana,

And who were the parties in the case?

Nabam Rebia, the ousted Speaker of the state legislative assembly and Bamang Felix, the chief whip of the state Congress party, were the lead petitioners.

The Deputy Speaker, Tenzing Norbu Thongdok, was the lead respondent, having unseated the Speaker through a resolution passed in the assembly, following the Governor’s message (now quashed by the Supreme Court).

What did the Supreme Court decide last week on 13 July?

The Supreme Court restored the situation to the status quo as it was on 15 December 2015, before any of this happened.

Like a time machine?

Sort of. It effectively means that, according to the law, subsequent events were unconstitutional and never happened, such as the Governor’s decision to advance the assembly session from 14 January 2016 to 16 December 2015.

Therefore, the President’s rule imposed on 26 January in the state and its revocation on 19 February to swear-in a puppet regime led by a rebel Congress leader, did not even come up for scrutiny in the judgment (again, because the judges declared that the Governor’s discretion in advancing the assembly session was unconstitutional (violating Article 163 when read with Article 174 of the Constitution), examining subsequent events was not required).

The judgment therefore quashed the Governor’s order.

Sounds logical.

The other decisions of the bench too flowed from this quashing, by also quashing the subsequent actions of the Governor (such as his message to the assembly on the manner of conducting its proceedings during the advanced session).

That means that in the eyes of the court several things basically never happened, such as the imposition of President’s rule after 15 December, and the installation of the puppet regime of Kalikho Pul afterwards.

Therefore, the court did not have to examine the merits of those subsequent acts.

There were earlier demands from Congress, during the hearing of the case in the Supreme Court, that the bench, through interim orders, restrain the Centre from imposing or revoking President’s rule or installing the puppet regime.

However, Justice Khehar had told the lawyers that everyone knew what would happen if the decision went against the BJP-allied respondents, and that the respondents would be prepared for the consequences.

So how did the bench justify its decision to turn back time?

In a nutshell, the bench turned to ‘originalism’ to decide the issue before it.

Originalism is a legal technique to determine how the framers of the Constitution would have decided the issue before them, by examining the Constituent Assembly debates, etc.

Therefore the bench said that the framers specifically deprived the Governor of the power to advance the assembly session without the aid and advice of the Council of Ministers.

Also kind of like time travel?

More like history, actually: they reproduced the debates on the draft Article 153 (corresponding to the current Article 174) dealing with sessions of the State legislature, prorogation and dissolution.

What was the bench’s main conclusion in the case, on which there was no clarity so far?

Article 163(2) says that a Governor’s constitutional use of discretion should not be called into question if there is uncertainty about whether he’s allowed to exercise that discretion (the original is terribly drafted, so don’t worry if it’s confusing):

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.

The bench, however, held that this provision does not mean what it possibly seems to say. “Accepting the above position will convert the Governor into an all-pervading super-constitutional authority,” the bench held.

The reason, according to the bench, is that the Governor has not been assigned any significant role either in the executive or the legislative functioning of the State.

Taking the overall harmonious construction of the provisions of the Constitution, the bench again relied on originalism for an answer. The Constituent Assembly debates on the draft Article 143, which was renumbered as Article 163 later, came to the rescue.

The bench also relied on the Sarkaria and Punchhi commission reports on centre-state relations, to conclude that unlimited discretion of the Governor cannot be inferred from Article 163(2).

Who appeared for the petitioners and respondents in court?

For the petitioners, Kapil Sibal, Fali Nariman and Vivek Tankha argued.

For the respondents, Ashok Desai, Subramonium Prasad, and TR Andhyarujina, made submissions.

What was Justice Dipak Misra’s concurring judgment?

The main judgment was written by Justice Khehar himself and on behalf of justices Ghose and Ramana.

However, Justice Dipak Misra wanted to add to the discussion on Article 179, dealing with vacation and resignation of, and removal from, the offices of Speaker and Deputy Speaker.

Why is Article 179 important?

Article 179(c) says that a member, holding office as Speaker or Deputy Speaker of an assembly, 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 has a proviso which says that no resolution for the purpose of clause (c) shall be moved unless at least 14 days’ notice has been given of the intention to move the resolution.

Justice Dipak Misra’s interpretation was that the founding fathers wanted all the then members of the assembly to participate in the voting on the resolution to remove the Speaker or the Deputy Speaker. This means that the Speaker cannot disqualify any member on the ground of defection, once the notice for resolution for the Speaker’s removal is submitted to the assembly secretariat and is pending.

Is the judgment not an indictment of the Speaker too?

Yes, to some extent. After all, Speaker, Nabam Rebia, disqualified 14 MLAs when the resolution for his own removal, was pending.

However, the bench did not specifically indict him. Instead, it referred to the Gauhati high court’s 30 March decision which held the disqualification of 14 MLAs invalid, because it did not follow the principles of natural justice.

On the contrary, the bench disapproved of the Governor’s claim that he advanced the session, in order to stop the Speaker’s disqualification of 14 MLAs, when the resolution for his removal was pending.

The bench’s answer is that if the Speaker’s disqualification was wrong, the remedy lies in challenging it in the high court, and even the Governor can do nothing about it.

‘A thrashing given to the Constitution and a spanking to governance’. Why did the bench made this widely quoted observation?

The observation occurred in Justice Lokur’s separate judgment on page 315, paragraph 143.

Justice Lokur held that the Governor, by ignoring the resolution of the council of ministers, placed before him, on 14 December 2015, humiliated the elected government of the day, because there was a complete breakdown of communications between him and the Government.

Justice Lokur then referred to how the framers adopted the principle of responsible government to avert this scenario.

Justice Lokur held that it was the Governor’s duty to break the impasse, caused by a collapse of communications between him and the CM

There is a clear indictment of the Governor, Jyoti Prasad Rajkhowa in Justice Lokur’s judgment. Whether it leads to his resignation remains to be seen.

A similar indictment of the then Governor of Bihar, Buta Singh, in the Rameshwar Prasad v Union of India judgment, declaring the imposition of President’s rule in Bihar unconstitutional led to Buta Singh’s resignation in 2006.

Did the 30 rebels in the Arunachal Congress suffer disqualification on the ground of defection?

No. Because they constituted two-thirds of the party strength of 45, they could have claimed exemption under paragraph 4 of the 10th schedule to the Constitution.

They merged with a regional Peoples’ Party of Arunachal in March. The 10th Schedule allows mergers by two-thirds of a legislature party, but bars splits by one-third, because of the amendment carried out in 2003.

Why did the Congress opt for change of CLP leader?

Because there was no way they could have avoided the fall of the Naban Tuki Government on the floor of the House, with the 30 rebels remaining defiant.

Even a party whip could not have forced them to vote in favour of the confidence motion as they had legally merged with another party.

Now, with the change of leadership, two-thirds of the PPA would have to merge with the Congress again to avoid disqualification on the ground of defection.

The PPA initially had five members in the assembly. They later merged with the Congress, exited with the rebels and returned to PPA Now, they have to merge again with the Congress, which they left, along with the rebels.

Is the Supreme Court’s judgment now just academic?

To some extent, yes: while it restored the ousted Government, it could not ensure its continuance in office.

So, with the Congress avoiding a trust vote because it now has a clear majority in the assembly, the SC’s 13 July judgment may appear just academic.

But it has led to much-needed clarity on the Governor’s discretionary powers, which will bind the Governors in similar situations in future.

They cannot play politics in Raj Bhavans.

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