The verdict on Aruchal

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!