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Insights into Issues: Political Developments in Arunachal Pradesh and their Constitutional Implications


Insights into Issues

Political Developments in Arunachal Pradesh and its Constitutional Implications

 

Events leading up to SC Judgement

  • Grumblings of discontent in Congress camp against the leadership of Arunachal Pradesh CM Nabam Tuki
  • 20 Congress MLAs along with 11 MLAs from BJP and 2 independents had supported a motion to impeach Speaker.
  • Speaker initiated Anti Defection Law Proceedings against them
  • Governor advanced the session of state assembly by nearly a month. This decision was taken without consulting the CoMarunachal
  • He asked the house to take up a motion to remove the Speaker as the first item on the agenda
  • This led to a shutdown of the legislature at the behest of the Chief Minister and the Speaker, and the dissidents held a parallel session at a makeshift venue, where the Speaker was ‘removed’ and a ‘no-confidence’ motion against the government adopted.
  • The speaker under the provisions of Anti Defection Law disqualified the dissenting MPs of Congress. This decision was challenged in Gauhati HC which, later on, provided relief to the disqualified MPs
  • The Governor submitted a report to President highlighting the breakdown of law and order machinery in the state. Centre, acting on the report of the Governor imposed President Rule in the state. Since the No confidence motion at the makeshift venue was adopted, it led to the dismissal of Nabam Tuki Regime and the installation of BJP led Kalikho Pul regime
  • Recently, Constitutional Bench of SC reversed President rule, ordered dismissal of BJP led govt and asked Nabam Tuki to prove his majority in a floor test.

 

Significance of the judgement

The judgement of SC is historic as it is the first instance when SC announced reinstatement of govt dismissed under President’s Rule. In previous cases such as SR Bommai v/s UoI, Rameshvar Prasad v/s UoI, declaration of President Rule was held unconstitutional, but reinstatement was not done.

Several constitutional angles were analysed in the judgement such as:

  • What is the ambit of discretionary powers of the governor
  • The authority of governor over the speaker
  • Constitutional propriety of governor discharging the speaker’s role such as setting the agenda of the house etc
  • Speaker’s authority with respect to Anti Defection law cases and whether such cases can be decided by the speaker at a time when removal proceedings have been initiated against the speaker

 

Understanding President Rule:

U/A 356, the President on a report of the governor or otherwise can impose President Rule in the state under condition of breakdown of Constitutional machinery

  • Breakdown of Constitutional Machinery occurs U/A 365 when the state fails to comply or give effect to the directions given by the Centre in exerciser of its executive power
  • Also, U/A 355, it is the responsibility of the state to protect the state from external aggression or internal disturbance

President Rule has been misused several times in the past in the game of political one man upmanship. The imposition of President Rule was challenged in SR Bommai v/s UoI, 1994 case. In this case the SC gave several important guidelines wrt imposition of President Rule. These are:

  • Held that Federalism and Secularism are part of Basic Structure
  • Majority of CoM shall always be tested on the floor of the house
  • Centre should give a warning and 1 week for the state to reply (Audi Altrem Partem = one of the principles of natural justice which is everyone has the right to be heard)
  • Court cannot question the advice of CoM to President (Art 74(2)) but can scrutinize material that led to imposition of President rule
  • Judicial review is applicable. In case of review by court, three aspects will be analysed
    • Whether any material exists which justified imposition of President Rule
    • Whether the material is relevant
    • Whether there has been any malafide use of power
  • If improper application of Art 356, court will provide relief including reversal of all actions of Centre
  • Art 356(3) limits power of President within first two months, when approval by Parliament is pending. Till the time Parliament approves, no permanent action can be taken i.e. state government can be suspended but not dismissed
  • Art 356 is justified only in case of breakdown of Constitutional Machinery and not under cases of breakdown of Administrative Machinery

 

Understanding Anti Defection Law

  • Anti Defection Law bought by 52nd CAA, 1985. It is contained in 10th Schedule
    Source: The Hindu
    Source: The Hindu
  • 4 grounds of disqualification under Anti Defection Law
    • Independent member joins any political party
    • Nominated member joins a political party after 6 months of becoming a member
    • Legislative party member voluntarily gives up membership of party/ joins another party/ indulges in anti-party activities
    • Legislative Party member goes against direction of whip (action has to be reported by party within 15 days)
  • 2 exceptions to above cases
    • If not less than 2/3rd party members break away and merge with another party (91st CAA, 2003) i.e. group mergers are allowed
    • Presiding officer can resign from their party on assuming office and re-join same party post demitting office (to maintain neutrality of Speaker’s chair)
  • Speaker is the final adjudicating body wrt Anti defection law proceedings
  • Earlier speaker’s decision was final. But in Kihoto Hollohan v/s Zachilthu, SC held Judicial Review applicable in such cases as it is a part of Basic Structure (Maneka Gandhi v/s UoI, 1980)
  • SC also limited disqualification to proceedings affecting the stability of govt. Otherwise, the court held, that it leads to curbing Freedom of Speech U/A 19(1)(a)
  • ADL applicable in following cases
    • Money bill
    • Confidence Motion
    • No Confidence Motion
    • Vote of Thanks to President’s Address

 

Understanding SC Ruling in Arunachal Pradesh

  • What is the ambit of discretionary powers of the governor (Note that, U/A 163(2), what falls within the ambit of discretionary power of governor is also a discretion of the governor)
    1. Discretionary powers to be interpreted very narrowly and in a limited manner. A governor can act in his own discretions if his actions are justified by or under the Constitution, but the governor’s exercise of this discretion would be open to challenge where it can be shown to be perverse, capricious, fallacious, extraneous or for a motivated consideration
    2. A governor can’t use his discretionary powers to run a parallel administration or ‘diarchy’ challenging the existence of an elected state government.
    3. Governor is not an elected representative but only an executive nominee whose powers flow from the advice of the cabinet. The governor is not “an all pervading super constitutional authority“.
  • The authority of governor over the speaker
    1. The Governor is not an ombudsman for the Legislature nor the speaker’s mentor. The Governor can’t require the speaker to discharge his functions in the manner he considers constitutionally appropriate
  • Constitutional propriety of governor discharging the speaker’s role such as setting the agenda of the house, interfering in ADL proceedings
    1. Using discretionary powers to summon or dissolve assembly sessions, setting the agenda of the house without the aid and advice of the CM and his Cabinet is unconstitutional
    2. Any action taken by the governor based on the proceedings being carried on under the 10th Schedule would be a constitutional impropriety.
  • Speaker’s authority with respect to Anti Defection law cases and whether such cases can be decided by the speaker at a time when removal proceedings have been initiated against the speaker
    1. The speaker cannot proceed with Anti Defection Law proceedings at a time when a motion for his removal is under consideration of the house. Speaker has to prove constitutional confidence before using the power of adjudication under Xth Schedule. Not doing so would be an “anathema to the concept of constitutional adjudication

 

Counterpoints to SC Ruling

  • Primarily wrt judgement on curbing discretionary power of governor
    • Constituent Assembly Debates – Governor could exercise discretionary power in matters of emergency or where they were widely accepted. And Summoning and Dissolving Assembly was one such power.
    • Literal Interpretation of Article 163(2) makes Governor the sole authority on what falls within its discretion. Court can’t exercise JR to judge Governor’s Discretionary power.
    • The SC Judgment reduced Governor to a figurehead
  • However, line of argument should be in favour of SC ruling.
    • The way the office of governor has been utilized – it has affected Centre State Relations
    • Constitution envisages a Parliamentary form also at state level. In a Parliamentary form discretionary power to nominal head militates against the doctrine of limited government
    • Healthy conventions should ideally be developed, which unfortunately has not been the case
    • Punchhi Commission : ambit of discretionary power very narrow. Not to be used in an arbitrary or fanciful manner. Must be a choice dictated by reason, activated by good faith and tempered with caution

 

Punchhi Commission Recommendations on President Rule:

  • If situation envisaged u/a 355 occurs, all alternatives to be tried first. President rule should be the last recourse
  • Application of Article 356 only to rectify a case of failure of constitutional machinery
  • Incorporate guidelines given in SR Bommai case wrt exercise of power u/a 356 through suitable Constitutional amendments
  • State emergency u/a 356, national emergency u/a 352 only a measure of last resort
  • Inter State Council u/a 263 should be the appropriate forum to resolve all inter state and centre state disputes

 

Other SC judgements on Office of Governor

  • BP Singhal v/s UoI, 2010 (On question of removal of governor)
    • Can’t be removed arbitrarily
    • Can’t be removed on the basis of difference in ideology
    • No reason to be provided at the time of removal, however, if PIL filed in SC, then the centre will have to provide a reason for removal. If reason is arbitrary, governor will be reinstated
  • Hargobind Kaur v/s Raghukul, 1979
    • Office of governor is not an employment under Central government
    • It is an independent constitutional office

 

Reforms suggested for Office of Governor

  • Sarkaria Commission (1988) & Punchhi Commission (2010) regarding appointment of governor
    • Appoint governor by consulting CoM
    • Politically active persons especially in last 5 years not to be appointed
    • Appoint eminent persons in some walk of life as governor
    • Not to be appointed in home state
    • Not to be from opposite party in a state
    • While recommending President rule, governor to highlight grounds of constitutional machinery failure
    • To be allowed to complete 5 years
    • Should always ask government to prove majority on floor of house
  • Punchhi Commission on removal of governor
    • To be on the same lines as that of President mutatis mutandis (change whatever that needs to be changed)
    • Should be allowed to complete 5 year term