WITH EYES WIDE OPEN
D. N. Bezboruah
On Wednesday, a five–judge Constitution bench of the Supreme Court
gave its verdict in the Aruchal Pradesh case. The apex court held that
a governor was not empowered to “embroil himself in any political
thicket”, and said that Raj Bhavans must remain “aloof from any
disagreement, discord, disharmony or dissension, within individual
political parties.” The five–judge bench went on to say: “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.”
Not so long ago, on 8 November, 2015, 21 Congress MLAs of Aruchal
Pradesh, led by Kalikho Pul, former Health and Family Welfare Minister,
had issued a statement against the “autocratic” rule of Chief Minister
bam Tuki, and questioned his “legitimacy as the leader of the Congress
Legislature Party”. Earlier, on 24 December 2014, Chief Minister Tuki
had dropped Kalikho Pul during a cabinet reshuffle. Thereafter, Pul had
alleged fincial mismagement within the government. The Congress had
promptly expelled him alleging anti–party activity. On 1 June, 2015,
J.P.Rajkhowa, former Chief Secretary of Assam, was appointed Governor of
Aruchal Pradesh. As a well educated former bureaucrat, one would have
expected Rajkhowa to be just what a governor should be—someone above
the heat and dust of the political world. Unfortutely, the BJP was
able to use him to achieve its goal of substituting Congress rule in
Aruchal Pradesh with BJP–controlled rule. Just 11 days later, on 19
November 2015, Governor Rajkhowa ordered that the sixth session of the
Aruchal Pradesh Assembly be convened on 14 January 2016. Meanwhile,
the 11 BJP MLAs adopted a resolution to remove Speaker bam Rebia. Then
on 9 December 2015, in contradiction of his earlier order, the Governor
ordered that the Assembly session be advanced from 14 January 2016 to
16 December 2015—to take up an impeachment motion against the Speaker.
This order was issued after a group of rebel Congress MLAs approached
him. And that is when the fun and games began. On 15 December 2015,
Speaker bam Rebia issued a notice disqualifying 14 of the 21 rebel
Congress MLAs. The Deputy Speaker of the Assembly quashed the
disqualification of the 14 MLAs. The next day (16 December 2015) the
Deputy Speaker claimed that the Speaker’s decision that the sixth
session of the Assembly would not commence on 16 December was illegal.
Meanwhile, the Tuki government has locked the Assembly premises. As
such, the Assembly session advanced to 16 December 2015 by the Governor
and attended by 33 MLAs had to be held in a community hall. However,
this did not stop the MLAs from adopting a resolution for the removal of
the Speaker, and a new Speaker was appointed.
On Wednesday, the five–judge Constitution bench of the Supreme Court
stated categorically what the governor of a State could do and what he
could not. The dissatisfaction of the apex court at the Governor of
Aruchal Pradesh far exceeding his constitutiol powers comes out
clearly in the judgement. The learned judges said: “The governor had 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.” The Bench made it clear that the governor, who holds
office during the pleasure of the President, did not have overriding
authority over the representatives of the people. “Allowing the governor
to overrule the resolve and the determition 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 court said. The Supreme Court bench
also stated very categorically that the governor can exercise his or her
power without the aid and advice of the council of ministers only when
the government in power loses majority in a floor test. “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 Supreme
Court added.
What is unfortute about the developments in Aruchal Pradesh is
not merely the haste with which the Governor sought to accomplish what
was obviously seen by him as a mission undertaken at the behest of the
NDA government at the Centre. What he obviously failed to do was to read
the powers and duties of a governor spelled out quite clearly in the
Constitution of India in Articles 154, 155, 156, 157, 158 and 160. In
the case of Aruchal Pradesh, we saw what could happen when a governor
overrode his statutory powers as stated in the Constitution. As every
governor ought to appreciate, the guiding principle is that the
Constitution sets elected authorities over appointed or selected ones.
Unlike the United States, a governor in India is an appointed authority
and not an elected one. Unlike India, the United States has elected
governors of States who are the equivalent of our chief ministers. Thus
there is no duality of power or authority between the governor and chief
minister. In India, the governor is the head of State but not the head
of government. In the same way, the chief minister is the head of
government, but not the head of the State. When a governor is aware of
his Lakshman rekha according to the provisions of the Constitution,
there is generally no conflict between the head of State and the head of
government. But when a governor prefers to let political leaders or the
ambitions of a political party guide his actions as head of State, we
have the kind of problems that a governor ends up creating merely by
overriding his constitutiol powers. In the case of Aruchal Pradesh,
the State has had to weather a toppled government, disqualification of
MLAs, a gratuitous spell of President’s rule, appeals before the Gauhati
High Court and the Supreme Court, the lifting of President’s rule less
than a month after its imposition and the swearing in of a different
chief minister a day after the lifting of President’s rule.
Meanwhile, the Supreme Court has been able to take decisions on the
justification of President’s rule, the Governor’s action in taking away
the Speaker’s powers and to take up a batch of petitions challenging the
discretiory powers of the governor to summon or advance the Assembly
sessions. There was also the fresh appeal filed by bam Tuki against
President’s rule in Aruchal Pradesh. On 22 February this year, the
Supreme Court reserved its verdict on a batch of petitions dealing with
discretiory powers of the governor to summon or advance the Assembly
sessions and said it had the powers to undo the damage. The court also
said it was empowered to “set the clock back” if there were
constitutiol violations in the manner in which the governor had issued
orders that had led to the formation of a new government. There was
enough in the Supreme Court’s statements for people to be able to
anticipate the kind of fil verdict that was likely to be delivered.
Perhaps it was this anticipation that led to 30 rebel Congress MLAs
deciding to merge with the People’s Party of Aruchal on 3 March 2016.
Be that as it may, what was anticipated did happen. On 13 July, the
Supreme Court held the Aruchal Pradesh Governor’s decision
unconstitutiol and ordered the restoration of Congress government in
Aruchal Pradesh. This means bam Tuki comes back as Chief Minister of
Aruchal Pradesh provided he still commands a majority in the House.
With Governor J.P.Rajkhowa on leave, acting Governor Tathagata Roy
has informed Tuki that he stands “reinstated” as chief minister of the
State, and has asked him to call an Assembly session immediately to
prove his majority in the House no later than on 16 July 2016. This is a
tall order for Tuki, who has asked for ten days’ time to prove his
majority. But Governor Roy is adamant that the trial of strength should
take place immediately. It is ironical that despite the Supreme Court
having reinstated Tuki as chief minister and despite acting Governor
Tathagata Roy accepting him as such, on Saturday, the MLAs should have
made Pema Khandu the Chief Minister of Aruchal Pradesh with a majority
of 43 votes without a trial of strength. That is how politics keeps
springing surprises on people!