Nabam Rebia & Bamang Felix Vs Dy. Speaker, Arunachal Pradesh Legislative Assembly (2016) 8 SCC 1

CASE BRIEF

 

Decided On: 13.07.2016

Appellants: Nabam Rebia and Ors.

Respondent: Deputy Speaker and Ors.

Judges : J.S. Khehar, Pinaki Chandra Ghose, N.V. Ramana, Dipak Misra and Madan B. Lokur,

Statues referred :

• The Constitution of India : Article 174, Article 163, Article 168, Article 200, Article 165, Article 361, Article 175, Article 156.

Facts :

• The 5th session of the State Legislative Assembly was concluded on 21.10.2015. On 3.11.2015, the Governor issued an order summoning the 6th session of the Assembly, to meet on 14.1.2016 in the Legislative Assembly Chamber.
• The instant order was passed by the Governor, on the aid and advice of the Chief Minister, and in consultation with the Speaker of the House.
• The 6th session of the House was preponed by the Governor from 14.1.2016 to 16.12.2015, by an order dated 9.12.2015 indicating interalia the manner in which the proceedings of the House should be conducted.
• In its support, the Governor issued a message on 9.12.2015.These actions of the Governor, according to the appellants, demonstrate an extraneous and inappropriate exercise of constitutional authority.
• That order and message of the Governor, without the aid and advice of the Council of Ministers and the Chief Minister, constitute the foundation of the challenge raised by the Appellants. Hence, the present appeal.

Issues :

• Whether message addressed by Governor, could extend to subjects on which message was addressed
• Whether Governor could address message to Assembly in his own discretion, without seeking aid and advice of Chief Minister and his Council of Ministers
• Whether, after having notified dates of sitting of Legislative Assembly in consultation with Chief Minister and Speaker of House, Governor could cancel those dates in exercise of power and discretion under Articles 174(1) and Article 163 of Constitution respectively
• Whether Governor could unilaterally alter and reschedule those notified dates in exercise of power under Article 174(1) of Constitution read with Article 163of Constitution by issuing fresh notification
• Whether generally, in exercise of discretion under Article 163(1) of Constitution read with Article 174(1) of Constitution and notwithstanding relevant Rules framed by Legislative Assembly, Governor could summon Legislative Assembly without consulting Chief Minister and Speaker
• Whether message sent by Governor was constitutionally valid message that ought to have been acted upon by Legislative Assembly

Contentions by parties :

• Appellant’s arguments
  • It was contended on behalf of the Appellants, that the factual position noticed above, triggered the stage for a political upmanship. Not between the legislators of the INC and the BJP, but between two factions of the INC. With one faction of the INC legislators, garnering support from BJP legislators.
  • It was alleged, that the BJP legislators, in order to topple the Government in power, were extending support to the faction opposing the continuation of the Chief Minister-Nabam Tuki.
  • It was the pointed contention of the Appellants, that on the same day,-15.12.2015, when the aforesaid 14 MLAs belonging to the INC, were declared disqualified, in a purely unprecedented and unconstitutional manner, the Deputy Speaker-Tenzing Norbu Tongdok quashed the order of disqualification, even though he himself had been unseated through the disqualification order.
  • It was also the case of the Appellants, that on 16.12.2015, the Deputy Speaker conducted the proceedings of the 6th session of the Assembly, outside the official premises of the State Assembly.
  • It was contended, that at the aforesaid unconstitutional session of the Assembly (presided over by the Deputy Speaker), the Deputy Speaker-Tenzing Norbu Thongdok, passed an order declaring, that the erstwhile Speaker-Nabam Rebia’s announcement that the 6th session of the Assembly would not commence on 16.12.2015, was illegal.
  • It was contended on behalf of the Appellants, that the determination of Special Leave Petitions (C) Nos. 1259-1260 of 2016 would completely and effectively, result in the adjudication of all the issues canvassed at the hands of the Appellants, in the connected matters.
  • It was submitted on behalf of the Appellants, that for an effective adjudication of the present controversy, it is necessary to understand the duties and responsibilities of the Governor, as envisaged in the scheme of the Constitution. It was highlighted, that the position of the Governor, should not be confused with the impression created by Article 168-that the State Legislature includes the Governor. It was submitted, that the Governor cannot be considered even as an officer of the House.
  • It is relevant to mention, that learned Counsel representing the Appellants, also made a reference to Article 361, which postulates inter alia, that the Governor of a State is not “… answerable to any court for the exercise and performance of powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties…”.Based on the conclusions recorded in the Samsher Singh (1974) 2 SCC 831, it was contended, that the disqualification process contemplated under the Tenth Schedule, is of no concern, of the Governor.
  • The counsel for the Appellants contended that in the case of nomination of four members, the Governor accepted the advice of his Council of Ministers and he did not exercise the discretionary powers vested in him under para 20-BB of the Sixth Schedule
  • Referring to the words “in his discretion” used in Sub-section (2) of Section 63, it was submitted, that Article 175 vests no such discretion, with the Governor. It was therefore contended, that the framers of the Constitution, did not intend to confer any discretion with the Governor, in the matter of sending messages (envisaged Under Article 175). Accordingly, it was submitted, that no authority is vested with the Governor under Article 175(2), to send messages in respect of the functioning of the House, at his own.
  • It was pointed out, that there was no question of any right being vested with the Governor, to interfere with the legislative autonomy of the House, by addressing a message to the House under Article 175. It was submitted, that the message of the Governor dated 9.12.2015, was beyond the purview of Article 175(2),and therefore, was liable to be declared unconstitutional
  • It was also contended, that the Governor is neither a member of the State Legislative Assembly, nor an officer of the State Legislature, and therefore, a Governor can have no jurisdiction in the functioning, and affairs of the House.
  • It was asserted, that the intent expressed in Article 168, should not be determined from a cursory reading thereof, but should be visualised from the scheme of the surrounding provisions.
• Respondent’s arguments
  • It was urged, that it was in the aforesaid background, and based on the aforesaid understanding, and also to ensure that the functioning of the House was carried out in consonance with established democratic norms, that the Governor (in exercise of the powers vested with him Under Article 174), had ordered the summoning of the House for 16.12.2015 (by preponing the 6th session of the Assembly, earlier scheduled for 14.1.2016). It was therefore contended, that the submissions advanced at the behest of learned Counsel for the Appellants, deserved to be rejected
  • It was contended, that the Court should not entertain a challenge raised by the Appellants, to the order of the Governor dated 9.12.2015, and his message dated 9.12.2015, since both were decisions of the Governor taken Under Article 163(2), in his own discretion, without any aid and advice.
  • It was contended on behalf of the Respondents, by inviting the Court’s attention to sub-article (2) of Article 174, that even the question of proroguing and dissolving the House, had been left to the free will and discretion of the Governor.
  • It was contended on behalf of the Respondents, that the alleged directions contained in the message addressed by the Governor to the Assembly, dated 9.12.2015, were not matters emerging out of any independent will or fancy of the Governor, but were in consonance with the prescribed and postulated Rules of procedure, which were in any case bound to be followed, while considering a notice of resolution for the removal of the Speaker
  • It was contended, that no extraneous motive, could be attributed to the Governor, with reference to the message dated 9.12.2015. It was also urged, that any action taken by the Assembly, in breach of the message dated 9.12.2015, would have constituted a serious constitutional impropriety.
  • It was contended, that there was sufficient material before the Governor to arrive at the conclusion, that the Speaker was likely to discharge his duties in a manner as would result in extending political favours to the INC.
  • It was pointed out, that when a Governor summons the House, he does not do so at his own will. It was accordingly contended, that the framing of the above Rules of procedure, should not be confused with, the Rules for carrying on the business of the House itself
  • It was pointed out, that Article 200 contemplates a situation, where the Governor can return the Bill with a message, requiring the House to reconsider the same, by examining the suggestions made by the Governor. This limited responsibility cast on the Governor, it was contended, fell within the legislative process.
  • It was pointed out, that the action proposed by the Governor, through paragraph 5 of the message dated 9.12.2015, was merely aimed at maintaining the constitutional integrity of the House, and preserving the constitutional morality expected of the Speaker of the House.

Judgment :

The Supreme Court held the following, while allowing the appeal:

1. The measure of discretionary power of the Governor, is limited to the scope postulated therefore, under Article 163(1). Secondly, under Article163 (1) the discretionary power of the Governor extends to situations, wherein a constitutional provision expressly requires the Governor to act in his own discretion. Thirdly, the Governor can additionally discharge functions in his own discretion, where such intent emerges from a legitimate interpretation of the concerned provision, and the same cannot be construed otherwise. Fourthly, in situations where this Court has declared, that the Governor should exercise the particular function at his own and without any aid or advice, because of the impermissibility of the other alternative, by reason of conflict of interest.
2. A Governor under the Constitution, is not an elected representative. A Governor is appointed by a warrant issued under the hand and seal of the President under Article 155, and his term of office ensures under Article 156, during the pleasure of the President. A Governor is an executive nominee, and his appointment flows from the aid and advice tendered by the Council of Ministers with the Prime Minister as the head, to the President. The President, on receipt of the above advice, appoints the Governor. Likewise, the tenure of the Governor rightfully subsists, till it is acceptable to the Council of Ministers with the Prime Minister as its head, as the Governor under Article 156 holds office, during the pleasure of the President. Such a nominee, cannot have an overriding authority, over the representatives of the people, who constitute the House or Houses of the State Legislature (on being duly elected from their respective constituencies) and/or even the executive Government functioning under the Council of Ministers with the Chief Minister as the head. Allowing the Governor to overrule the resolve and determination of the State legislature or the State executive, would not harmoniously augur with the strong democratic principles enshrined in the provisions of the Constitution. Especially so, because the Constitution is founded on the principle of ministerial responsibility.
3. 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 above position would stand altered, if the Government in power has lost the confidence of the House. As and when the Chief Minister does not enjoy the support from the majority of the House, it is open to the Governor to act at his own, without any aid and advice. Aid and advice sustains and subsists, till the Government enjoys the confidence of the Legislature. No justification in taking a different view, than the one expressed by the Justice Sarkaria Commission report, conclusions whereof were reiterated by the Justice M.M.Punchhi Commission report. Present Court endorsed and adopted the same, as a correct expression of the constitutional interpretation, insofar as the present issue was concerned.
4. In a situation where the Governor has reasons to believe, that the Chief Minister and his Council of Ministers have lost the confidence of the House, it is open to the Governor, to require the Chief Minister and his Council of Ministers to prove their majority in the House, by a floor test. Only in a situation, where the Government in power on the holding of such floor test is seen to have lost the confidence of the majority, it would be open to the Governor to exercise the powers vested with him Under Article 174 at his own, and without any aid and advice.
5. Section 63 of the Government of India Act, 1935 was a precursor to Article 175. A perusal of Section 63 of the Government of India Act, 1935, reveals that Sub-section (2) thereof had the words “in his discretion”, incorporated therein, with reference to the scope and ambit of the Governor’s messages, to the Legislature. It is therefore apparent, that under the Government of India Act, 1935, the discretion to send messages to the Legislature, was clearly and precisely bestowed on the Governor, as he may consider appropriate, in his own wisdom. Article 175 has no such or similar expression. It is apparent therefore, that the framers of the Constitution did not intend to follow the regimen, which was prevalent Under Section 63 of the Government of India Act, 1935. Thus viewed, messages addressed by the Governor to the House(s) have to be in consonance with the aid and advice tendered to him.
6. The messages addressed by the Governor to the Assembly, must abide by the mandate contained in Article 163(1), namely, that the same can only be addressed to the State Legislature, on the aid and advice of the Council of Ministers with the Chief Minister as the head. The message of the Governor dated 9.12.2015, was therefore beyond the constitutional authority vested with the Governor. The impugned message of the Governor was liable to be set aside.
7. The Governor had a limited scope of authority, relating to the exercise of executive functions, in his own discretion, i.e., without any aid and advice. The limited power of the Governor is exercisable in situations, expressly provided for “by or under” the provisions of the Constitution.
8. The Governor in his alleged bona fide determination issued the impugned message dated 9.12.2015, stated to advise and guide the State Legislature, to carry out its functions in consonance with the provisions of the Constitution, and the Rules framed under Articles 166 and 208. The Governor has no direct or indirect constitutionally assigned role, in the matter of removal of the Speaker (or the Deputy Speaker). The Governor is not the conscience keeper of the Legislative Assembly, in the matter of removal of the Speaker. He does not participate in any executive or legislative responsibility, as a marshal. He has no such role assigned to him, whereby he can assume the position of advising and guiding the Legislative Assembly, on the question of removal of the Speaker (or Deputy Speaker).Or to require the Legislative Assembly to follow a particular course. The Governor can only perform such functions, in his own discretion, as are specifically assigned to him “by or under this Constitution”, within the framework of Article 163(1), and nothing more. The interjects at the hands of the Governor, in the functioning of the State Legislature, not expressly assigned to him, however bona fide, would be extraneous and without any constitutional sanction. A challenge to an action beyond the authority of the Governor, would fall within the scope of the judicial review, and would be liable to be set aside.
9. When the position of a Speaker is under challenge, through a notice of resolution for his removal, it would “seem” just and appropriate, that the Speaker first demonstrates his right to continue as such, by winning support of the majority in the State Legislature. The action of the Speaker in continuing, with one or more disqualification petitions under the Tenth Schedule, whilst a notice of resolution for his own removal, from the office of Speaker is pending, would “appear” to be unfair. If a Speaker truly and rightfully enjoys support of the majority of the MLAs, there would be no difficulty whatsoever, to demonstrate the confidence which the members of the State Legislature, repose in him. The office of Speaker, with which the Constitution vests the authority to deal with disqualification petitions against MLAs, must surely be a Speaker who enjoys confidence of the Assembly. As soon as the motion is moved, on the floor of the House, the decision thereon will emerge, forthwith. The manner in which the matter had been examined, was on ethical considerations. A constitutional issue, however, must have a constitutional answer.
10. It would be constitutionally impermissible for a Speaker to adjudicate upon disqualification petitions under the Tenth Schedule, while a notice of resolution for his own removal from the office of Speaker, is pending.
11. A Governor of a State, has clearly defined duties, functions and responsibilities. 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. Who should or should not be a leader of a political party, is apolitical question, to be dealt with and resolved privately by the political party itself. The Governor cannot, make such issues, a matter of his concern. The provisions of the Constitution do not enjoin upon the Governor, the authority to resolve disputes within a political party, or between rival political parties. The action of the Governor, in bringing the aforesaid factual position to the notice of the President, in his monthly communications, may well have been justified for drawing the President’s attention to the political scenario of the State. But, it is clearly beyond the scope of the Governor’s authority, to engage through his constitutional position, and exercise his constitutional authority, to resolve the same.
12. The order of the Governor preponing the 6th session of the Arunachal Pradesh Legislative Assembly, was violative of Article 163 read with Article174 of the Constitution of India, and as such, was liable to be quashed. The same is accordingly hereby quashed. All steps and decisions taken by the Arunachal Pradesh Legislative Assembly, pursuant to the Governor’s order and message dated 9.12.2015, were unsustainable. The status quo ante as it prevailed on 15.12.2015, was ordered to be restored.
13. Article 179(a) postulates that a Speaker or a Deputy Speaker of the Assembly shall vacate his office if he ceases to be a member of the Assembly. Article 179(b) deals with resignation from the office. In the case at hand, neither Clause (a) nor Clause (b) of Article 179 is attracted. In the obtaining fact situation, the controversy pertains singularly to the understanding of Clause (c).
14. Appreciating the scheme of the Constitution and especially keeping in view the language employed in the first proviso to Article 179(c) it was quite clear that it is the constitutional design that the Speaker should not do any act in furtherance of his interest till the resolution is moved.
15. In view of the conclusions arrived at with regard to the interpretation of Article 163 and Article 174 of the Constitution, the interpretation of Article 175 of the Constitution and the actions of the Governor of Arunachal Pradesh in this regard are rendered academic. It was therefore not necessary or advisable to comment, one way or the other, on the interpretation of Article 175 of the Constitution and the actions of the Governor of Arunachal Pradesh in this regard. The interpretation of Article179 of the Constitution also does not arise in view of the conclusions arrived at on the interpretation of Article 163 and Article 174 of the Constitution and the consequence thereof.
16. Two important expressions find mention in Section 50 of the Government of India Act, 1935 namely, “in his discretion” and “his individual judgment”. These expressions are noticed in several Sections of the Government of India Act, 1935 and came up for discussion when Section 9 of the Government of India Act, 1935 (relating to the Council of Ministers) was discussed in the House of Commons. In the debate, the view expressed by one of the Members of Parliament was that the Governor-General acts “in his discretion” when he is not obliged to consult the Council of Ministers. On the other hand, he acts in “his individual judgment” when he consults the Council of Ministers but does not necessarily accept its advice.
17. The framers of Constitution did not intend that the Governor could disregard the aid and advice of the Council of Ministers. The absence of the expression “his individual judgment” makes it apparent that the Constitution framers were clear that the Governor would always be bound by the aid and advice of the Council of Ministers. Limited elbow room was, however, given to the Governor to act “in his discretion” in matters permitted by or under the Constitution.
18. The Council of Ministers will aid and advise the Governor in the exercise of his functions. This is the first part of Article 163(1) of the Constitution. The Governor then has two options-(a) To reject the aid and advice of the Council of Ministers and act in “his individual judgment”. This is an illusory and non-existent option since the Constitution does not permit it. (b) To act on the aid and advice of the Council of Ministers. By default this is the only real option available to him. In the unlikely event of a complete break-down of communications, the President can and must intervene to bring in constitutional order.
19. In the Government of India Act, 1935 the Governor of a Province had vast powers, including for example, the power to preside over a meeting of the Council of Ministers.13 However, for the present purposes it is not necessary to research into that issue since it is quite clear that with Independence, the executive and other powers, functions and responsibilities of the Governor earlier appointed by His Majesty needed an overhaul. This is what Article 153 of the draft Constitution sought to achieve.
20. The President and the Governor can act under Article 85 of the Constitution and Article 174 of the Constitution respectively only on the aid and advise of the Council of Ministers. No independent authority is given either to the President or the Governor in this regard.
21. It is only the Governor who may summon the Legislative Assembly, but only on the advice of the Council of Ministers and not suo moto. In other words, the Governor cannot summon the Legislative Assembly “in his discretion”. If the Governor does so, there would be no business to transact and summoning the House in such a situation would be a futile operation. The Governor cannot manufacture any business for the House to transact, through a so-called message or otherwise. If the Governor disregards the advice of the Council of Ministers for summoning the House, necessary consequences would follow. In this regard, it may be mentioned that if the President disregards the advice of the Council of Ministers he can impeached. As far as the Governor is concerned, if he disregards the advice of the Council of Ministers the pleasure of the President can be withdrawn since the Governor holds office during his pleasure.
22. As per Rules, the Governor can summon the Assembly only if the Chief Minister (in consultation with the Speaker) so advises him. There is no exception to this. However, Article 174 of the Constitution would be violated if the Chief Minister does not so advise the Governor to summon the Assembly for a period of six months, or if the Governor does not summon the Assembly despite the advice of the Chief Minister.
23. In case the Chief Minister fails in his duty to put forward a proposal before the Governor for summoning the Legislative Assembly or if the Governor does not accept the proposal of the Chief Minister of Arunachal Pradesh for summoning the Legislative Assembly, necessary consequences will follow as mentioned in the debates in Parliament when the first amendment to the Constitution was considered.
24. Under Article 163(1) of the Constitution, the Governor is bound by the advice of his Council of Ministers. There are only three exceptions, “except in so far as”, to this: (i) The Governor may, in the exercise of his functions, act in his discretion as conferred by the Constitution; (ii) The Governor may, in the exercise of his functions, act in his discretion as conferred under the Constitution; and (iii) The Governor may, in the exercise of his functions, act in his individual judgment in instances specified by the Constitution.
25. The Governor not only modified the dates of the session of the Assembly but also cancelled or revoked the dates of the session of the Assembly earlier decided upon in consultation with the Speaker of the Assembly and the Chief Minister of Arunachal Pradesh.
26. Constitution expects all constitutional authorities to act in harmony and there must be comity between them to further the constitutional vision of democracy in the larger interests of the nation. In other words, conflicts between them should be completely avoided but if there are any differences of opinion or perception, they should be narrowed to the maximum extent possible and ironed out through dialogue and discussion. It must be appreciated that no one is above the law and equally, no one is not answerable to the law and the debate on the First Amendment to the Constitution clearly indicates so.
27. Impugned judgment and order of 13th January, 2016 passed by the Gauhati High Court was set aside. The modification Order of 9th December, 2015 passed by the Governor of Arunachal Pradesh was unconstitutional and was set aside and the order of the Deputy Speaker dated 15^th December, 2015 setting aside the order of the Speaker of the same date is also set aside.

Conclusion :

The present appeal was filed against the order of High Court on discretionary powers of Governor to summon or advance sitting of State Assembly.

The Apex court quashed the order by the Governor of 9^th December 2015 which was violative of article 163 read with article 174 of the Indian Constitution.

It was stated that it was not within the realm of the Governor to embroil himself in political thicket. The Apex court held that all the decisions taken by the Arunachal Pradesh Legislative Assembly with regard to Governor’s order are unsustainable and are to be set aside.