Judgement of the Supreme Court in Plain English

In November 2016, a constitutional crisis arose in Arunachal Pradesh when 20 Congress MLAs rebelled against Chief Minister Nabam Tuki. In November, 33 members of the Assembly – including 20 rebel Congress, 11 BJP and 2 Independent MLAs – met the Governor to communicate their displeasure with the Speaker and the Government. The Governor, independently without the advice of the Chief Minister, advanced the Assembly session from 14th January 2016 to 15th December 2015 and listed the removal of the Speaker on the legislative agenda. The Speaker, Nabam Rebia, preemptively disqualified the rebel MLAs on the grounds of defection before the Assembly could meet.

 

The Gauhati High Court on 5th January, 2016 stayed the disqualification of Congress MLAs and the Speaker’s plea was turned down. The Speaker appealed to the Supreme Court and the matter was listed before a 5 judge bench. This Constitutional Bench reached a unanimous decision delivered on 13th July 2016. The Court identified two broad issues: first, whether the Governor’s decision to advance the Assembly session was constitutional? and secondly, whether the Speaker’s disqualification of MLA’s when a motion for his removal was pending before the house was constitutional?

 

Article 163 of the Constitution requires the Governor of a State to act on the aid and advice of the Council of Ministers headed by the Chief Minister ‘in the exercise of his functions,’ unless the Constitution requires him to act ‘in his discretion.’ Speaker Rebia argued that even if the Governor has discretion, it should be understood as ‘constitutional’ discretion while the Deputy Speaker submitted that the Governor’s discretion was absolute and beyond judicial review. The Court confirmed that the Governor does not enjoy wide discretionary powers and is always subject to constitutional standards.

 

Article 174 confers the Governor with the power to summon, prorogue or dissolve the legislature of the State. The Court considered whether the Governor must exercise this power ‘in his discretion’ or on the ‘aid and advice’ of the Council of Ministers. The Court concluded that the Governor’s discretion did not extend to the powers conferred under Article 174 and hence he could not summon the House, determine its legislative agenda or address the legislative assembly without consulting the Chief minister or the Speaker.

 

Next the Court considered whether the Speaker may disqualify rebel MLAs while a motion to remove him was pending in the House. Art 179(c) of the Constitution provides that a Speaker may be removed from office by a resolution of the Assembly passed ‘by a majority of all the then members.’ Significantly the Constituent Assembly debates reveal that the phrase ‘all the then members’ was preferred to ‘members present and voting’ as it was precise. Hence, the Court concluded the Speaker Rebia’s decision to disqualify rebel MLAs was an attempt to overcome voting by ‘all the then members’ and unconstitutional.

 

While this case was litigated the Union government dismissed the State government and imposed President’s rule on 26th January 2016. The Court, for the first time in its history, effectively nullified President’s rule and restored the previous State government with Nabam Tuki as Chief Minister. However, Chief Minister Tuki was soon voted out of power in a floor test and the Court’s decision was reversed through political means.