SC provides clarity on guv's role through Arunachal case

The latest news from Arunachal Pradesh makes it clear that the victory which the Congress had in the Supreme Court battle is not just moral, but political. Pema Khandu, with a dynastic flavour, claims the support of all 45 Congress MLAs in the 60 member Assembly.  

Reports suggest that the imperial mayhem has been halted and even the perfidious politicians have turned ‘disciplined’.  The Congress had, no doubt, worked assiduously, both within and outside the Court. Even a floor test has lost its significance as the majority claimed by Khandu, for the time being, is so ostensible.

The Supreme Court by directing to ‘turn the clock back’ in the state wanted to set it right, by putting an end to the gubernatorial excesses. In the emblematic judgment, the court clearly held that the governor who got into the disqualification process acted without ‘jurisdictional authority’. 

The political turmoil in Arunachal Pradesh that preceded and followed the episode is neither strange nor new. Corruption, defection and opportunism were writ large in the whole process. Kalikho Pul, the expelled Congress leader, pioneered a resolution with 19 Congress MLAs who created a strange solidarity with 11 BJP legislators and the two independent members.

The then chief minister Nabam Tuki and Speaker Nabam Rebia were accused of corruption. The motion was clever enough, as it attempted to make use of the number deficit, which Tuki suffered.  The then governor Rajkhowa, who allegedly (and demonstrably) acted in tune with the Centre, became more brazen and advanced the date of the Assembly session and facilitated the Speaker’s removal. 

This, the governor did without the ‘aid or advice’ from the Council of Ministers as indicated in Article 163 of the Constitution. He wrote persuasive letters to the President, seeking the latter’s intervention in the state by invoking the ill-famous Article 356. The President’s rule was, ironically, imposed on January 26, the Republic Day. And the mastermind behind the design, Kalikho Pul was the direct beneficiary of the same. 

Pul assumed the office of the chief minister on February 20. This prompted the Supreme Court to ‘turn the clock back’ by ordering status quo ante, as on December 15, 2015. Kalikho Pul is shown the door, and by the developments on July 16, the Congress was put back in power with its new leader.   

Justice Kehar’s judgment has summarised the dos and don’ts for the governor, which could turn to be a heuristic for the future. There is no discretion unlimited nor is there any extra constitutional discretion. The governor’s action beyond the jurisdictional authority would be amenable to judicial review, said the court. In L’affaire Arunachal, obviously, the governor was impertinently impatient.

The approach of the apex court is drastically different from its reconciliatory judgment in the Uttarakhand episode.  In Uttarakhand, the High Court judgment had its foundation in the Constitution Bench decision in Bommai (1994).

That had to be upheld fulsomely by the Supreme Court, by dismissing the Centre’s appeal. But the Court asked for the indulgence of the Centre to have the floor test
in Uttarakhand (For further reading: http://www.livelaw.in/uttarakhand-case-towards-new-jurisdiction/). But in Arunachal, the Bench has been categorical in striking down the impugned action.

B R Ambedkar had said: “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”. Article 163 stipulates discretion for the governor only in certain constitutionally permitted areas. Barring this, the governor has to be aided and assisted by the Council of Ministers. The non-elected governor cannot prevail over an elected Cabinet. The governor who is not an Officer of the House, could have acted only as a bridge between the executive and the legislature. 

True, that unlike Article 74 dealing with the powers of the President, the governor by virtue of Article 163, possesses an added discretion. But, after analysis of the seminal judgments in Samsher Singh (1974), Pratap Singh (1998), Madhya Pradesh Special Police Establishment (2004) and R A Mehta (2013), the Supreme Court indicated that this discretion could be used only when special responsibilities are attached to the governor. The executive head of the state however, “is not the conscience keeper of the Legislative Assembly”. 

Disqualification issue

The Tenth Schedule of the Constitution is a complete code that is equipped to deal with the issues relating to defection and disqualification. But, “there is no justification for a governor to be disturbed about the proceedings in connection with the disqualification of the MLAs under the Tenth Schedule,” said the apex court.  

By summoning the Assembly and by advancing it, the governor short circuited the whole process in a ‘unilateral’ manner and ‘intruded’ in to the Assembly. Justice Madan Lokur sarcastically said that in a Parliamentary democracy, when the governor cannot dominate the executive, it is unthinkable that he could dominate the legislature.

The politics in Arunachal Pradesh was tried in the Supreme Court. But the court is now tried in Arunachal Pradesh. If Khandu could not claim majority, more tricky questions would have arisen on the meaning of status quo ante indicated by the court. The validity of the floor test under a Speaker who himself was facing the motion for removal would be a moot question which might revive and haunt the country for years to come.

It seems that our polity and even the court, for that matter, are providentially rescued. An exploration of the entire drama would tempt one to recall Ambedkar who said: “Democracy is a top dressing on the soil of India which is essentially undemocratic” (Constituent Assembly Debates, Nov 4, 1948).

(The writer is a lawyer practising in Supreme Court and Kerala High Court)