Apex court restores Cong govt in Arunachal

A Constitution Bench of the Supreme Court on Wednesday unanimously quashed Arunachal Pradesh Governor JP Rajkhowa’s December 2015 order to advance the State’s Assembly session from January 14, 2016 to December 16, 2015, a move that triggered a political crisis in the border State and culminated in the declaration of President’s rule on January 26.

A five-judge Bench led by Justice JS Khehar directed status quo ante as on December 15, 2015, implying that the apex court had shown the door door to the BJP-backed government of Khaliko Pul.

The Bench, in three judgments separately authored by Justices Khehar, Dipak Misra and Madan B Lokur, paved the way for the return of Congress-led Nabam Tuki government to power.

The Centre is likely to move the Supreme Court on Thursday for a clarification on whether a floor test would be the order of the day at the Arunachal Pradesh State Assembly before formally inviting Tuki back into the Chief Minister’s chair. 

Unprecedented ruling This judgment is unprecedented in that the apex court used its powers of judicial review to restore a government when its successor government is still in place.

Though there are several judicial precedents in the historic SR Bommai judgment, which condemned the arbitrary use of Article 356 invoking President’s rule, none have gone so far as to restore a government ousted by Emergency.

The Constitution Bench was exclusively looking into the question of constitutionality of the Governor’s discretionary powers to override the authority of Assembly Speaker Nabam Rebia and advance the Assembly session without the aid and advice of the Tuki Cabinet.

Governor’s discretion The Governor had claimed discretionary powers under Article 163 of the Constitution to issue his order dated December 9, 2015 to advance the session. He had even set the agenda for the session with a no-confidence motion against Rebia topping the list, in a bid to discredit the Speaker’s earlier disqualification of 14 rebel Congress MLAs on December 15, 2015.

The advanced Assembly session had seen the adoption of a resolution to remove Rebia as Speaker and Tuki declared having lost the confidence of the House.

Tuki’s tricky test A floor test may prove slippery for Tuki now as the Gauhati High Court had recently stayed the ex-parte disqualification of the 14 MLAs. It was a complaint from these disqualified legislators against Rebia which had prompted Governor Rajkhowa to issue his December 9 order.

In the Supreme Court, the Tuki government’s lawyers had warned that the Arunachal Pradesh “experiment” by the NDA government at the Centre to topple State governments may prove “deadly” to the rule of law in the country and federal structure of governance.

The 331-page judgment describes the happenings in Arunachal Pradesh leading to State Emergency as a “thrashing given to the Constitution and a spanking to governance”.

Rubbishes Rajkhowa The court pooh-poohed the Governor’s defence that his summoning the Assembly without the Cabinet’s nod can never be considered “anti-democratic”. In fact, he was only trying to bring the “democratic and legislative process” of the State into active animation, the Governor, a party in the petition, explained. He had claimed complete immunity from judicial review.

The Bench, through the majority judgment of Justices Khehar, PC Ghose and NV Ramana, reacted sharply, saying the Governor is not an “all-pervading super constitutional authority”.

The court said that a Governor is not an elected representative, but only an executive nominee whose powers flow from the aid and advice of the Cabinet.

The court held that what happens within the four walls of a political party is not the Governor’s concern.

“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,” Justice Khehar wrote.

The court held that it was not for the Governor to use his discretion to schedule the functioning of the Assembly or decide its agenda. “The Governor must keep away, from all that goes on, within the House. 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,” Justice Khehar held. 

All Governor Rajkhowa did here, the court said, was to use his constitutional authority to ostensibly favour an “invalid breakaway group” of MLAs who were disqualified under the Tenth Schedule.

“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. The legitimacy or illegitimacy thereof (of the disqualification) is beyond consideration of the Governor. Any action taken by the Governor, based on the proceedings being carried on under the Tenth Schedule, would be a constitutional impropriety,” the court held.